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Citation Codes
Equivalent Citations
citation codes
Case Number
Disposition

dismissed

Attorney(S)
  • Mr. Umang Mittal and Mrs. Priyanka Marwah, Advocates with Appellants in person. (M:9953333092)
  • Mr. R.N. Dubey, Advocate for R-1 to 3. (M:9811179209)
Judges
  • Prathiba M. Singh, J.
Acts
  • Order VII Rule 11 CPC
  • Order VII Rule 10/11 CPC
  • Section 41 of the Indian Evidence Act, 1872
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Disposition

dismissed

Attorney(S)
  • Mr. Umang Mittal and Mrs. Priyanka Marwah, Advocates with Appellants in person. (M:9953333092)
  • Mr. R.N. Dubey, Advocate for R-1 to 3. (M:9811179209)
Judges
  • Prathiba M. Singh, J.
Acts
  • Order VII Rule 11 CPC
  • Order VII Rule 10/11 CPC
  • Section 41 of the Indian Evidence Act, 1872
See more information ...
Smart Summary

Summary of Opinion — High Court of Delhi (Date of Decision: 2 May 2018)

Factual and Procedural Background

This appeal (RFA 932/2016) arises from a suit for partition filed by the Appellants in respect of property bearing no. 2/361, Subhash Nagar, New Delhi (the "suit property"). The Trial Court dismissed the suit by an order and judgment dated 29 September 2014 after allowing an application under Order VII Rule 10/11 CPC filed by Defendant Nos.1–3 (Respondents) on the ground that the property had devolved upon them by a Will dated 1 March 1995 executed by Smt. Harbans Kaur and that probate of that Will had been granted on 15 May 2009 in P.C. No.192/2006. The grant of probate was not challenged and the property was mutated following the grant of probate.

On 27 October 2014 the Appellants filed a review petition against the Trial Court's order, which was dismissed on 22 September 2016. The Appellants filed the present appeal on 27 October 2016. The Appellants also sought deletion of Respondent No.11 from the array of parties by a miscellaneous application, which was granted at the hearing.

Legal Issues Presented

  1. Whether a suit for partition is maintainable where the same property is the subject-matter of a Will that has been granted probate and the probate has attained finality.
  2. Whether the validity of a Will (and the genuineness of documents leading to mutation) can be examined in a suit for partition between competing heirs where a probate has been granted by a competent court and the probate order has attained finality.
  3. Whether delay of 671 days in filing the appeal after the Trial Court judgment may be condoned.

Arguments of the Parties

Appellants' Arguments

  • The principal contention of the Appellants was that the Will dated 1 March 1995 was forged and the mutation of the suit property had been effected on the basis of forged documents.
  • The Appellants submitted that they had filed a review petition against the Trial Court order and, acting on legal advice, waited for the decision on the review petition before filing the appeal.
  • The Appellants acknowledged that a separate suit (Suit No. 374/2011) is pending in the Trial Court seeking cancellation of the mutation in favour of the mother of the Respondents.

Respondents' Arguments

  • The Respondents (Defendant Nos.1–3) contended that the property devolved upon them by virtue of the Will dated 1 March 1995, which had been probated, and that letters of administration had been issued in their favour following probate.
  • They asserted that because probate had been granted and had attained finality, the partition suit was not maintainable and the probate proceedings conclusively established the genuineness and validity of the Will for all purposes until revoked.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Puran Chand Oberoi vs. Jitender Oberoi & Ors., 196 (2013) DLT 7 (CN) Listed as a judgment considered by the Trial Court on the subject. The opinion records that the Trial Court considered this decision; the present opinion does not detail the specific principle drawn from it.
Raj Kumar Devraj & Anr. vs. Jai Mahal Hotels Pvt. Ltd., 200 (2013) DLT 527 Listed as a judgment considered by the Trial Court on the subject. The opinion records that the Trial Court considered this decision; the present opinion does not detail the specific principle drawn from it.
Ram Dass, Chela of Late Mahant Net Ram v. Thakurdwara Radha Krishan (Regd. Soc.), 173 (2010) DLT 549 Affirmation that a decision of the Probate Court is a judgment in rem and conclusive of the validity of a Will until revoked. The High Court relied on this case to reiterate that probate is a judgment in rem and that probate's conclusiveness on genuineness/validity of a Will cannot be impeached except in revocation proceedings; used to support non-maintainability of partition suit challenging a probated Will.
Anita Kumari Gupta vs. Ved Bhushan & Ors., 202 (2013) DLT 23B (CN) Listed as a judgment considered by the Trial Court on the subject. The opinion records that the Trial Court considered this decision; the present opinion does not detail the specific principle drawn from it.
Iqbal Singh Arora & Anr. v. Amit Singh Arora & Ors., 204 (2013) Delhi Law Times 7B (CM) Listed as a judgment considered by the Trial Court on the subject. The opinion records that the Trial Court considered this decision; the present opinion does not detail the specific principle drawn from it.
Zahoor Ahmed v. Rakhi Gupta & Ors., 188 (2012) Delhi Law Times 9 Listed as a judgment considered by the Trial Court on the subject. The opinion records that the Trial Court considered this decision; the present opinion does not detail the specific principle drawn from it.
Ram Chander Aggarwal & B.P. Aggarwal v. Union of India & Ors., 187 (2012) Delhi Law Times 370 (DB) Listed as a judgment considered by the Trial Court on the subject. The opinion records that the Trial Court considered this decision; the present opinion does not detail the specific principle drawn from it.
Rukmani Devi & Ors. v. Narendra Lal Gupta, (1985) 1 SCC 144 Probate is a judgment in rem; a final probate is conclusive proof of the genuineness and validity of the Will until revoked; Section 41 Indian Evidence Act supports conclusiveness of a probate court's final order. The High Court quoted and applied this Supreme Court authority to hold that the order granting probate is conclusive as to the execution and validity of the Will and cannot be impeached in the partition suit; used as a primary authority to dismiss the appeal on merits.
Kanwaljit Singh Dhilon v. Hardayal Dhilon, JT 2007 (13) SC 50 (referenced) Referenced for the proposition that while probate is conclusive as to validity of a Will, the title to testator's properties may be determined by a civil court. The opinion cites the principle (via reference) to clarify that although probate binds as to genuineness of the Will, title disputes are for civil courts; the Court held, however, that title challenge was not before it in a manner that would sustain the partition suit.

Court's Reasoning and Analysis

The court's analysis proceeded as follows:

  1. The court noted that probate was granted on 15 May 2009 and that the probate order had attained finality because it had not been challenged. Following the grant of probate, the property was mutated in accordance with that probate.
  2. The Trial Court had allowed an application under Order VII Rule 11 CPC and dismissed the partition suit on the basis that the same property was the subject matter of the probate and that probate conclusively established the validity of the Will in favour of the Respondents.
  3. The High Court examined the Appellants' explanation for delay (they had filed a review petition and waited for its outcome on legal advice) but observed that, as a matter of settled law, filing a review does not excuse non-filing of an appeal within the limitation period. Despite this, the High Court condoned the delay and considered the matter on merits.
  4. On merits the Appellants' principal contention was that the Will was forged and the mutation was effected on forged documents. The Court noted that an independent suit (Suit No. 374/2011) for cancellation of mutation is pending and that the challenge to mutation/forgery could not be examined in these partition proceedings.
  5. The Court relied on authoritative precedent (notably Rukmani Devi (1985) 1 SCC 144 and Ram Dass (173 DLT 549)) to reaffirm that a decision of the Probate Court is a judgment in rem and that a probate granted by a competent court is conclusive of the validity of a Will until it is revoked; no evidence to impeach the probate can be admitted except in proceedings seeking revocation of the probate.
  6. Applying these principles, the High Court concluded that the validity of the probated Will could not be gone into in the partition suit and that the Trial Court was correct in holding the partition suit not maintainable and in dismissing it under Order VII Rule 11 CPC.
  7. Finally, the Court observed that the position is subject to the outcome of the pending suit seeking cancellation of the mutation; if that suit is decided in favour of the Appellants they could pursue remedies in accordance with law at that stage.

Holding and Implications

Holding: APPEAL DISMISSED.

Direct consequences and implications:

  • The Trial Court judgment dated 29 September 2014, which dismissed the partition suit on the ground that probate had been granted and had attained finality, stands affirmed by this Court.
  • The Court condoned the delay of 671 days in filing the appeal and disposed of the miscellaneous application (including deletion of Respondent No.11).
  • The Court held that the validity of the Will, having been established by a final probate, cannot be challenged in the partition proceedings; any challenge to mutation or allegations of forgery must be pursued in the separate proceedings where those issues are specifically raised.
  • No broader or new precedent was declared by this decision; the Court applied established principles (as cited) concerning the conclusiveness of probate orders and the distinction between probate proceedings and civil title disputes. The immediate effect is that the Appellants' partition claim is dismissed, subject to their remedies in law if the pending mutation cancellation suit succeeds in their favour.

Judge: Prathiba M. Singh, J. — Date: 02 May 2018

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    Satvinder Singh & Ors. v. Sardar Joginder Singh & Ors. S

    $~11 * IN THE HIGH COURT OF DELHI AT NEW DELHI nd

    Date of Decision: 2 May, 2018 + RFA 932/2016

    SATVINDER SINGH & ORS. ..... Appellants Through: Mr. Umang Mittal and Mrs. Priyanka Marwah, Advocates with Appellants in person. (M:9953333092)

    versus

    SARDAR JOGINDER SINGH & ORS. ..... Respondents

    Through: Mr. R. N. Dubey, Advocate for R-1 to

    3. (M:9811179209)

    CORAM:

    JUSTICE PRATHIBA M. SINGH

    Prathiba M. Singh, J. (oral) CM APPL. 45849/2017

    1. Learned counsel for the Appellants submits that he wishes to get Respondent No.11 deleted from the array of parties. Ordered accordingly. CM is disposed of.

    CM APPL.44477/2016 (condonation of delay of 671 days), CM APPL. 44478/2016 (interim stay) & RFA 932/2016

    2. This is an appeal against the impugned order and judgment dated 29th September, 2014 by which the suit for partition filed by the Appellants in respect of the property bearing no.2/361, Subhash Nagar, New Delhi (hereinafter, „suit property") was dismissed by the Trial Court. The order came to be passed in an application under Order VII Rule 10/11 CPC filed by the Defendant Nos.1 to 3 namely Sardar Joginder Singh, Sardar Lakhbir Singh and Sardar Bhagat Singh. The plea taken by the said Defendants was that the property had devolved upon them by means of a Will dated 1st March, 1995 executed by Smt. Harbans Kaur, who passed away on 27th

    1

    November, 1997. It is their further submission that the said Will has even been probated. In the probate proceedings, father of the Appellants/Plaintiffs Shri Pritpal Singh was Respondent No.5 and after evidence was led, the probate was granted on 15thMay, 2009 in P.C. No.192/2006. The findings in the probate petition, on issues no.1 & 2, which were framed, are as under:

    "45. In view of the facts and circumstances of the case and considering the documentary as well as oral evidence adduced by the petitioners, in my view, the petitioners have successfully proved that the testatrix executed the Will Ex.PW-3/1 while in sound state of mind. Accordingly, issue no.1 is decided in favour of the petitioners and against the objectors.

    46….47……..

    48. The primary function of the Probate Court is to ascertain and deal with the factum of due execution of the Will. It, has no jurisdiction to go into the question of validity of the' provisions of the Will nor has the probate court the jurisdiction to decide the question whether the testator has or had not power to dispose of the property which he purports to dispose of by the Will. 49……53……....

    54. As a result of above discussion and my findings on issue no.l, the petition is allowed. The Letters of Administration with Will dated 01.03.1995 executed by Smt. Harbans Kaur, which is Ex. PW-3/1 be issued in favour of the petitioners on furnishing administration bond and surety bond and payment of requisite Court Fees. File be consigned to Record Room."

    3. The grant of probate vide order dated 15thMay, 2009 has attained

    2

    finality as the same has not been challenged. In fact the property was thereafter mutated after the grant of probate. The present suit, according to the Respondents, was, therefore, not maintainable. The Trial Court has considered the law on the subject including the following judgments:

    Puran Chand Oberoi vs. Jitender Oberoi & Ors.196 (2013) DLT 7 (CN);

    Raj Kumar Devraj & Anr. vs. Jai Mahal Hotels Pvt. Ltd. 200 (2013) DLT 527;

    Ram Dass, Chela of Late Mahant Net Ram vs. Thakurdwara Radha Krishan (Regd. Soc.);

    Ram Dass, Chela of Late Mahant Net Ram v. Thakurdwara Radha Krishnan (Regd, Soc.) 173 (2010) DLT 549;

    Anita Kumari Gupta vs. Ved Bhushan & Ors. 202 (2013) DLT 23B (CN);

    Iqbal Singh Arora & anr Vs. Amit Singh Arora & ors., 204 (2013) Delhi Law Times 7B (CM);

    Zahoor Ahmed Vs. Rakhi Gupta and others 188 (2012) Delhi Law Times 9

    Ram Chander Aggarwal and B.P. Aggarwal Vs. UOI and others 187 (2012) Delhi Law Times 370 (DB).

    4. It was also found by the Trial Court that the Appellants/Plaintiffs were not in possession of the suit property. The findings of the Trial Court are that the probate petition, having been allowed and letters of administration having been issued in favour of the Petitioners therein i.e. Respondents in the subject suit, the suit for partition cannot be maintained.

    3

    The same property being the subject matter of the probate and suit for partition, it is clear that since the probate petition order has already been attained finality, the same cannot be disturbed. The Trial Court had, accordingly, allowed the application under Order VII Rule 11 CPC and dismissed the suit.

    5. Learned counsel for the Appellants submits that subsequent to the impugned order dated 29thSeptember, 2014, the Appellants preferred a review petition dated 27thOctober, 2014 which came to be dismissed on 22nd September, 2016. He submits that the Appellants, upon legal advice, waited for the decision in the Review petition and immediately thereafter filed the present appeal on 27thOctober, 2016, within the limitation period from the dismissal of the review.

    6. It is the settled position in law that the filing of a review cannot be a ground for non-filing of an appeal within the period of limitation. The appeal ought to have been preferred by the Appellant within time, which has not been done leading to the delay of more than 671 days in filing the appeal. Learned counsel for the Appellants submits that the Appellants got legal advice and hence they waited for the review to be decided.

    7. Considering this submission on behalf of the Appellants, this Court has also examined the matter on merits. The main contention of the Appellants is that the Will dated 1stMarch, 1995 was forged and that the mutation which was carried out was done on the basis of forged documents. Learned counsel for Appellants concedes that another suit being Suit no.374/2011 is pending in the Trial Court where the Appellants have sought cancellation of the mutation in favour of the mother of the Respondents.

    8. Considering that the issue of mutation is also pending in a subsequent

    4

    suit, this Court cannot examine the said issue in these proceedings. The order granting probate has not been challenged and has attained finality and the letters of administration have already been issued. The validity of the Will by which the suit property has been bequeathed in favour of the Respondents, cannot be gone into in the suit for partition. The Supreme Court, in Rukmani Devi & Ors. v. Narendra Lal Gupta (1985) 1 SCC 144

    (hereinafter, „Rukmani Devi") has categorically held as under:

    "2…… It is well settled that the decision of the probate court is a judgment in rem. The High Court rightly held that till the order granting probate remains in force it is conclusive as to the execution and validity of the will till the grant of probate is revoked. Apart from the fact that a decision of the probate court would be a judgment in rem not only binding on the parties to the probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is cast on the probate court. Section 41 of the Indian Evidence Act, 1872 provides that a final judgment or order of a competent court in the exercise of probate jurisdiction is conclusive proof of what is decided there that is about the genuineness of the will. To be precise, a probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate…"

    9. This Court as well has reiterated the above position in Ram Dass, Chela of Late Mahant Net Ram v. Thakurdwara Radha Krishan (2010)

    173 DLT 549 and held that:

    "17………It is also an undisputed proposition of law that the decision of Probate Court is a judgment in rem. A probate granted by the competent Court is conclusive of the validity of such a Will until it is revoked; no evidence can be admitted to impeach it except the proceedings demanding revocation of the Will. This principle has

    5

    been reiterated by the Supreme Court in (1985) 1 SCC 144, Rukmani v. Narender Lal. It is also not in dispute that although a probate being a judgment in rem binds not only the parties to the case but all other persons in all proceedings arising out of the Will, yet it is not decisive about the title of the properties of the testator which are the subject matter of the Will; such title can only be decided by a civil Court. This has been held by the Supreme Court in JT 2007 (13) SC 50, Kanwaljit Singh Dhilon v. Hardayal Dhilon…………"

    10. As per the settled position, a decision in the Probate is final and operates in rem as to the validity of a Will, and the same cannot be brought into question in a suit for partition between competing heirs. What is open to challenge is the title of the testator only, which is not challenged in the present case.

    11. This is, however, subject to the decision in the pending suit, where cancellation of mutation has been sought. At this stage, the Trial Court is right in holding that the suit for partition is not maintainable as the Will has been probated and the letters of administration have already been granted.

    12. Delay of 671 days in filing the appeal is condoned. CM is disposed of. The Trial Court judgment does not warrant any interference.

    13. Appeal is dismissed, however, with the observation that in case the suit where the cancellation of mutation is sought, is decided in favour of the Appellants, the Appellants are allowed to avail of their remedies, if any, in accordance with law, at that stage. Miscellaneous application is also disposed of.

    PRATHIBA M. SINGH

    JUDGE

    MAY 02, 2018/dk

    6

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    Comments

    Satvinder Singh & Ors. v. Sardar Joginder Singh & Ors. S
    (May 2, 2018)