Principles & Procedure of Revocation of Will
The
petition for probate to a will and or letter of administration to a Will is
governed by Indian Succession Act 1925 ( In short “ISA”) which is a
comprehensive legislation in this regard. The inter play of the provisions of Code
of Civil Procedure ( In short “CPC”) and that of ISA has always been intrinsic,
however, the ambit and applicability of the respective provisions in a civil
suit or petition for probate has always been a topic of deliberation. In this
context, as is reflected in the discussion hereinafter, the discussion shall
revolve around the fact once a probate to a Will is granted and a challenge is
made thereto, by the aggrieved party and revocation of Will is prayed for, by
such aggrieved party, what are the course available to a party seeking
revocation of Will? Whether the ISA in itself is self-contained and/or
principles of CPC shall have applicability or not? Still further, whether after
grant of probate proper course shall be to prefer an appeal or the court
granting probate itself shall be competent to deal with the application of
revocation shall be a moot point. Yet another dimension, in this context will
be, as to whether, if evidence is required to be lead, whether application for revocation
of Will shall still be maintainable before the same court that granted probate or
the other course should be adopted. Yet again, if the party in support of probate
to a will is granted and in case such successful party seeks to oppose the application
of revocation of Will, whether such application for revocation shall be akin to
a civil suit and if so, whether application under Order 7 Rule 11 of CPC shall
be maintainable or not? The effort herein is to find out the answers to the
situation depicted above through judicial precedents.
The
Bombay High Court in a matter reported as Shaikh Mohammad Azahar
Mohammad Gouse vs Ishwar Pralhad in Civil Revision Application
no. 728 of 2023 has dealt with the comprehensive principles and procedure of
revocation of probate. The revision petition was preferred assailing an
Order dated 19th October 2023 passed by the learned Civil Judge,
Senior Division, Pune in CMA No. 645 of 2022, whereby an Application preferred by the applicant-respondent no.2
under the provisions of Order VII Rule 11 of the Code of Civil Procedure 1908
("the Code"), came to be rejected.
In
order to appreciate the perspective of the case, the memo of party may be
perused as under:
Shaikh Mohammad Azahar …Applicant
Vs
1. Ishwar Pralhad Dham
2. Ranjit Janu Burte
3. Kishor Ramchandra
Khare
4.Bharat Damodar
5.Firoz Gulam Hussain
Shaikh
6. Adv B.S Bhele
7. Dr Ramnath Jadhav …Respondents
The
gravamen of the facts are that one Ashok Chokshi (the Testator) was unmarried
and had passed away on 13th November 2016 and during his life time, the
testator was endowed with movable and immovable properties. The Respondent Nos.
3 and 4 herein had preferred an Application for grant of Probate bearing CMA
No. 645 of 2022, in respect of the purported last Will and Testament of the
Testator dated 18th April 2013. As objection came to be filed in the
said Probate Application, hence, the said Application was converted into a Suit
being SCS No. 1790 of 2021. Thereupon, the Applicant-Defendant No.9 in the said
Suit filed a Counter-claim in the said Suit. The Applicant propounded a
purported Will dated 28th October 2016, under which the Testator had
appointed the Applicant as an Executor. The Applicant thus prayed for grant of
Probate in respect of the said Will dated 28th October 2016.
It
appears that the plaintiffs conceded that the Will propounded by the Applicant
dated 28th October 2016 was the last Will and Testament of the
Testator and the earlier Will dated 18th April 2013, propounded by
them, stood revoked. Thus, by a Judgment and Order dated 16th November
2021, the learned Civil Judge was persuaded to grant Probate of the Will dated
28th October 2016 to the Applicant.
PLEA OF REVOCATION OF PROBATE
The
Respondent No.1 herein filed Civil Misc Application seeking revocation of the
Probate under Section 263 of the Indian Succession Act 1925. The respondent
No.1 claimed to have worked with the Testator as a housekeeper and caretaker.
Under the Will dated 18th April 2013, respondent no.1 was a
beneficiary. Respondent no.3, who was appointed as the Executor under the said
Will, gave assurances to the respondent
no.1, that after the Court passes an order granting Probate the bequest in
favour of respondent no.1 would be implemented. It was thus averred that the
Applicant obtained the Probate on the basis of false and forged documents and
hence, the Respondent No.1 prayed for revocation or annulment of the Probate
granted in favour of the Applicant.
APPLICATION
UNDER Order VII Rule 11 CPC
It
is also a matter of record that in the said Application for revocation of
Probate, the applicant filed an Application for rejection of the said
Application purportedly under Order VII Rule 11 of the Code, primarily, on the
ground that once the Application for Probate is converted into a Suit, the
decree passed by the Civil Court granting Probate is amenable to appeal under
the provisions of the Code and an Application for revocation of the Probate is
not tenable.
The
learned Civil Judge was of the view that in terms of Section 263 of the Indian
Succession Act, a party could ask for revocation or annulment of Probate where
it was obtained fraudulently either by making a false assertion or by
concealing material facts. Since respondent no.1 claimed that the purported
Will dated 28th October 2016 is forged and fabricated document, on
the strength of which the Probate was obtained, an Application for revocation
of Probate was tenable.
In
the aforesaid factual matrix, the applicant has invoked the revisional
jurisdiction of Bombay High Court. The Bombay High Court was pleased to frame
the following issues for determination.
"1)
Whether, provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908 are
applicable to the proceedings for revocation of probate under Section 263 of
the Indian Succession Act, 1925?
2)
What
are the parameters for applying Section 141 of the Code of Civil Procedure, 1908
to proceedings under Section 263 of the Indian Succession Act, 1950 in view of judgment
in the case of Nalini Navin Bhagwati Vs Chadravadan M. Mehta reported in (1997)
9 SCC 689?"
The
following judicial precedents inclusive of the one referred to above has been discussed,
deliberated, analysed and findings have been recorded. The judicial precedents in
this regard has been specified below:
LAW
(i)
Nalini Navin Bhagwati Vs Chadravadan M. Mehta reported in (1997) 9 SCC 689;
(ii)
Vijay
Shivram Pathare Vs. City Corporation Limited and Anr (2023) SCC OnLine Bom 721;
(iii)
Subal Paul Vs. Malina Paul and Anr (2003)10 SCC 361;
(iv)
Deubai
Tukaram Pakhare & Ors Vs Muktabai Tukaram Pakhare & Ors 2000(1) MhLJ 511;
(v)
Jairam
Gurnani Vs Shanta Gurnani ILR (1979)1, Delhi 99;
(vi)
Azhar Hussain Vs Rajiv Gandhi, 1986 Supp SCC 315,
(vii)
Dahiben
Vs Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through Legal Representatives And
Ors, (2020) 7, SCC 366;
(viii)
Ramesh
Nivrutti Bhagwat Vs Dr Surendra Manohar Parakhe (2020) 17 SCC 284
(ix)
Hiraman Shankar Khanavkar & ors Vs Nitin Anant Khanavkar Civil
Revision Application No. 481/2023 ( Bombay High Court)
SUBMISSIONS OF RESPONDENT NO.1
As
in Shaikh Mohammad Azahar (Supra), the issue of maintainability
of an application for rejection of a proceeding for revocation of probate,
under Order VII Rule 11 of the Code was raised, hence, it was deemed apposite
to take note of the following submissions:
(1)
Heavy reliance was placed on the
judgment of Supreme Court in the case of Nalini Navin Bhagwati (supra).
It was argued that the controversy is no longer res integra and in the
above case, the Supreme Court has enunciated that the application for
revocation of probate or letters of administration need not be treated as a suit
as contemplated under Section 295 of the Indian Succession Act and that the
procedure required under Section 295 need not be adopted for disposal of the
application filed under Section 263 for revocation of the probate or letters of
administration. It would be treated as a Miscellaneous Application and disposed
of by the District Judge either summarily or by recording evidence, according
to the fact - situation of the given case.
(2) Once the proceeding under Section 263 of the
Indian Succession Act 1925 is construed as a miscellaneous application, and not
a substantive suit, recourse to the provisions contained in Order VII Rule 11
of the Code is not at all warranted. The said provisions are clearly
inapplicable to Miscellaneous Application.
(3)
The
provisions as contained in section 141 of CPC was referred, to canvas that the
provisions contained in Section 141 of the Code are enabling in nature and do
not mandate that the procedure provided in the Code be followed in all
proceedings before the Civil Court as Section 141 of the Code makes it
abundantly clear that the procedure prescribed in the Code be followed as far
as it can be made applicable. The provisions contained in Order VII Rule 11 of
the Code, cannot at all be made applicable to a proceeding under Section 263 of
the Indian Succession Act, 1925, as it confers a statutory right upon an
aggrieved person to seek revocation of probate or letters of administration.
Such statutory right cannot be interdicted by filing an application under Order
VII Rule 11 of the Code. Lest the provisions contained in Section 263 of the
Indian Succession Act would be rendered nugatory.
(4)
The reliance was placed on an order
passed by a learned Single Judge of Bombay High Court in Civil Revision
Application No. 481 of 2023 dated 10th November 2023, wherein, it
was held in clear terms that the provisions contained under Order VII Rule 11
of the Code do not apply to an application for revocation of heirship
certificate issued under the provisions of the Bombay Regulation Act, 1827.
SUBMISSIONS
OF THE APPLICANT
(1) A plain reading of the provisions contained
in Section 141 of the Code (CPC) in conjunction with the provisions contained
in Section 295 and 263 of the Indian Succession Act, does not rule out the
applicability of the provisions contained in Order VII Rule 11 of the Code to a
proceeding for revocation of the probate or letters of administration, under
Section 263 of the Indian Succession Act, 1925.
(2) The proceeding under Section 263 of the Act,
1925 falls within the ambit of the term 'Proceedings" under Section 141 of
the Code. Secondly, the said proceeding is undoubtedly before a Civil Court.
Thirdly, the qualifying expression in Section 141 namely "as far as it can
be made applicable" cannot be so construed as to make the provisions of
the Code inapplicable to such proceeding, in the absence of any indication to
the contrary.
(3)
The corer question that arose for
consideration in the case of Nalini Navin Bhagwati (supra) was, can an
application filed under Section 263 of the Act, 1925 be treated as a
contentious suit as envisaged by Section 295 of the Act, 1925. The decision in
the case of Nalini Navin Bhagwati (supra), therefore cannot be said to be an
authority for the proposition that an application under Order VII Rule 11 of
the Code for rejection of the proceeding under Section 263 of the Act, 1925, is
not at all maintainable.
(4)
That moreover, this very question has
been dealt with by another learned Single Judge of Bombay High Court in the
case of Vijay Shivram Pathare Vs. City Corporation Limited and Anr (2023)
SCC OnLine Bom 721, wherein, an objection to the tenability of an
application for rejection of a proceeding under Section 263 of the Act 1925,
based on the decision of the Supreme Court in the case of Nalini Navin Bhagwati
(supra) was repelled by the learned Single Judge.
(5)
Though the said decision in the case of
Vijay Shivram Pathare (supra) was rendered prior in point of time, the
same was not brought to the notice of the learned Single Judge in the case of
Hiraman Shankar Khanavkar (Supra) and, therefore, the subsequent decision in
the case of Hiraman Shankar Khanavkar (supra) without noticing an earlier
decision of the co- ordinate bench cannot command precedential value.
(6)
Emphasis was laid on
the object of the provisions contained in Order VII Rule 11 of the Code to urge
that , if a wholly sham and vexatious proceeding under Section 263 of the Act
1925 is filed, it cannot be said that the Court has no power to dismiss such
proceeding at the very threshold.
(7)
Reliance was also placed on a judgment of
Supreme Court in the case of Subal Paul Vs. Malina Paul and Anr (2003)10
SCC 361 wherein in the context of the tenability of an appeal against judgment
delivered by the Single Judge under Section 299 of the Act, 1925 before the
Division Bench, the Supreme Court had enunciated that the order passed by the
Court under Section 299 of the Act, 1925 though may not be stricto sensu a
decree within the meaning of Section 2(2) of the Code of Civil Procedure Code,
but, it is beyond any cavil that the same would be a judgment within the
meaning of Section 2(9) thereof.
(8)
To draw an analogy it was further
canvassed that when a proceeding under Section 263 of the Act, 1925 is filed to
revoke a probate or letters of administration based on such judgment, the non-existence
of the cause of action or any other bar to the tenability of such application,
must be dealt with at the threshold and such a proceeding can be rejected by
invoking the power under Order VII Rule 11 of the Code.
The nature of the
proceeding under Section 263 of the Act, 1925 may be noted. Section 263 reads
as under:
"263. Revocation
or annulment for just cause-
The
grant of probate or letters of administration may be revoked or annulled for
just cause.
Explanation.
--Just cause shall be deemed to exist where-
(a)
the proceedings to obtain the grant were defective in substance; or
(b)
the grant was obtained fraudulently by making a false suggestion, or by concealing
from the Court something material to the case; or
(c)
the grant was obtained by means of an untrue allegation of a fact essential in
point of law to justify the grant, though such allegation was made in ignorance
or inadvertently; or
(d)
the grant has become useless and inoperative through circumstances; or
(e)
the person to whom the grant was made has wilfully and without reasonable cause
omitted to exhibit an inventory or account in accordance with the provisions of
Chapter VII of this Part, or has exhibited under that Chapter an inventory or
account which is untrue in a material respect.
It
is evident from the bare recitals of the provisions as contained in Section 263
of Indian Succession Act 1925 that the grant of Probate or Letters of
Administration may be revoked, if the proceedings to obtain the grant were,
"defective in substance", or the grant was obtained fraudulently by
making a false suggestion or by suppressing from the Court something material
to the case or if the grant was obtained by means of untrue allegations or if
the grantee has willfully and without reasonable cause omitted to exhibit an
inventory or account in accordance with the provisions of Chapter VII of Part
IX.
It
is to be also noted that Section 263 of the Act vests a judicial discretion in
the Court to revoke or annul the grant for "just cause". The
Explanation to Section 263 enumerates the circumstances in which the Court may legitimately
draw an inference that a just cause to revoke the grant has been made out. It
is trite, the onus rests on the person who seeks the revocation of the grant to
show that a just cause for revocation exists.
In
a sequel to above, it is also worthwhile to note the provisions contained in
Section 141 of the Code It reads as under:
"141.
Miscellaneous proceedings -
The
procedure provided in this Code in regard to suits shall be followed, as far as
it can be made applicable, in all proceedings in any Court of civil
jurisdiction.
[Explanation
.-In this section, the expression "proceedings" includes proceedings
under Order IX, but does not include any proceeding under article 226 of the Constitution.]
A
plain reading of the aforesaid section would indicate that the procedure in the
Code in regard to suits shall be followed, as far as it can be made applicable,
in all proceedings in any Court of civil jurisdiction. By insertion of the
Explanation, it has been clarified that the expression "proceedings" includes
proceedings under Order IX of the Code, but does not include any proceeding
under Article 226 of the Constitution.
For
the applicability of the procedure provided in the Code two conditions are
primarily required to be satisfied. First, it ought to be a
"proceeding" within the meaning of Section 141 of the Code. Second,
such proceeding ought to be before any court of civil jurisdiction. If these
two conditions are satisfied then the provisions in the Code can be made applicable
to such proceeding before the civil court, as far as it can be made applicable.
A cumulative reading of Section 4 and Section 141 of the Code would thus imply
that unless there is a special form of procedure prescribed by or under any
other law for the time being in force for a proceeding before the civil court,
ordinarily, the procedure provided by the Code can be made applicable as far as
possible.
The
expression, "proceeding" is defined in Black's Law Dictionary as,
"The regular and orderly progression of a lawsuit, including all acts and
events between the time of commencement and the entry of judgment." The
expression "Proceedings" in Section 141 of the Code appears to be of
wide connotation. The Explanation, appended to Section 141 clearly indicates
that it is an inclusive definition. What is expressly included in the
Explanation is not exhaustive of the term, "proceedings", rather
illustrative and inclusive. Thus, a proceeding filed under Section 263 of the
Act 1925 for revocation of probate or letters of administration falls within
the ambit of the term "proceeding" under Section 141 of the Code.
The
import of the term "a court of civil jurisdiction" under Section 7 of
the Maharashtra Civil Courts Act 1869, the District Court shall be the
principal Court of original civil jurisdiction in the District, within the
meaning of the Code of Civil Procedure. Under Section 28A of the said Act of
1869, the High Court may by general or special order invest any Civil Judge
within such local limits and subject to such pecuniary limitation as may be
prescribed in such order, with all or any of the powers of a District Judge or
a District Court as the case may be under the Indian Succession Act 1925. In
exercise of the powers conferred by Section 28A(1) of the said Act of 1869, the
High Court has invested all Civil Judges (Senior Division), with all the powers
of a District Judge to take cognizance of any contested proceeding under Indian
Succession Act 1925, arising within the local limits of their respective
jurisdiction that may be transferred to them by their respective District
Judges.
The
Bombay High Court held that the aforesaid provisions thus indicates that a
court dealing with the matters, under the Indian Succession Act, 1925 is the
court of civil jurisdiction. Thus, both the Tests of the "proceeding",
and "court of civil jurisdiction" stand satisfied in relation to a
proceeding under Section 263 of the Act of 1925.
Extent
of applicability of CPC
So
far as the extent of the applicability of provisions of CPC, especially, Order
VII Rule 11 to a proceeding under Section 263 of the Act of 1925 are concerned,
in the context of the qualifying expression , "as far as it can be made
applicable." Makes it abundantly clear. In Nalini Navin Bhagwati (supra) case
the probate was granted on 16th January 1967. The Appellants therein
filed an Application to revoke the Probate. A prayer to convert the said
Revocation Application into a Suit was rejected by the City Civil Court. The
High Court directed to treat the Application for Revocation as a Suit filed
under Section 295 of the Act of 1925. On Appeal, the Supreme Court was
confronted with a question; whether the Application for Revocation of the
Probate would be treated as a Suit under Section 295 of the Act of 1925 ? The
observations of the Supreme Court in paragraph 7 are material and, hence,
extracted below:
"7. But when the grant of
probate or letter of administration is sought to be revoked, it is not clear
what nomenclature would be ascribed to it and what procedure would be adopted
for its disposal. Take for instance a situation when the suit is decreed ex parte.
Order IX Rule 13 provides for making of an application to set aside the decree on
proof of certain grounds ex parte decree gets set aside. Similarly when the
suit was dismissed for default, under Order IX Rule 9 an application would be
filed and on proof of the circumstances for absence, the order would be set
aside and suit would get restored. Similarly, when probate or letter of
administration is granted and it is sought to be revoked, Section 263 provides
for the grounds on the basis of which it would be revoked. When the grounds are
sought to be proved, the question is whether such an application would be
treated to be a suit? We are of the considered view that an application to
revoke probate or letter of administration would be treated as miscellaneous
application and may be disposed of on the fact situation in an appropriate case
either summarily or after recording evidence. The application to revoke the
probate or letter of administration thus may be disposed of by the District
Judge either summarily or in a given situation where it requires proof of the
facts by adduction of evidence by the parties by recording such evidence as is
adduced by the parties. The burden will be on the applicant to prove the facts
to revoke the probate or letter of administration and the respondent who obtained
probate or letter of administration has to disprove the contentions of the applicant.
In that situation, based upon the given facts situation, it will be for the Court
to dispose it of either summarily or after giving opportunity to both the
parties to adduce evidence and consideration thereof. Under these
circumstances, it is not necessary that the application for revocation of the
probate or letter of administration would be treated as a suit as contemplated
under Section 295 of the Act. If the contention of Shri Puri merits acceptance,
then any proceedings under the application to revoke the probate or letter of
administration should be treated as a suit: the applicant cannot prove the will
and at the same time cannot contend that the will was not validly executed.
Therefore, it would be self contradictory to adopt such a procedure.
Accordingly, we are of the view that the procedure required under Section 295
need not be adopted for disposal of the application filed under Section 263 for
revocation of the probate or the letter of administration. It would be treated
as miscellaneous application and disposed of as indicated earlier according to
the given fact situation”.
In
an analogous condition, the ld single judge of Bombay High Court came in
Narbheram Jivaram Purohit vs Jevallabh Harijivan (1933) 35 Bom LR 998 has held
that the proper procedure for revocation of probate granted by the High Court
is by way of a petition filed in the testamentary and intestate jurisdiction of
the Court, and not by way of suit in its Ordinary Original Civil Jurisdiction.
In other words, the Court indicated that it need not be treated as a suit on
the original side of the Court, but it could be disposed of as an application
independent of the suit.
The
Supreme Court has in terms enunciated that the Application for Revocation of
Probate or Letters of Administration would be treated as Miscellaneous
Application and may be disposed either summarily or after recording the
evidence. It is not necessary that a proceeding to revoke the Probate or
Letters of Administration would be treated as a Suit as prescribed under
Section 295 of the Act of 1925.
However,
the moot point is, whether the aforesaid pronouncement can be construed to
render the provisions of Order VII Rule 11 of the Code inapplicable to a
proceeding filed under Section 263 of the Act of 1925, for the reason that the said
proceeding is not to be treated as a Suit?.
The
Bombay High Court in Shaikh Mohammad (Supra) has held as
under:
“39. On a fair reading of the
aforesaid observations of the Supreme Court, in my considered view, such an
inexorable inference is not deducible. The aforesaid decision is an authority
for the proposition that such a proceeding under Section 263 of the Act 1925
need not be treated as a Suit. It, however, does not necessarily justify a
further inference that the provisions contained in Order VII Rule 11 of the
Code need not be made applicable to such proceeding. The submission that if the
proceeding is not treated as a Suit, the provisions contained in Order VII Rule
11, which empowers the Court to reject the Plaint, are not attracted, appears
to be fallacious”.
In
the case of Vijay Shivram Pathare (supra), a learned Single Judge of Bombay
High Court after adverting to the aforesaid pronouncement, observed as under:
"18. In my reading of the
decision, before the Apex Court, the issue of applicability of the provisions
of Civil Procedure Code 1908 was not under consideration. The Apex Court was
dealing with a fact situation wherein an application was filed to revoke the probate
and prayer was made to convert the application into a regular suit. It will be worthwhile
to note that the Apex Court has observed in paragraph 7 that the application to
revoke the probate or letter of administration thus may be disposed of by the
District Judge either summarily or in a given situation where it requires proof
of the facts by adducing evidence by the parties by recording such evidence as
is adduced by the parties. In my opinion, the decision of Apex Court is not an
authority for the proposition that the provisions of Civil Procedure Code 1908
are not applicable to an application for revocation."
As
far as reliance on Hiraman Shankar Khanavkar (supra) is concerned that does not
seem to advance the cause of the submission of Respondent No.1, as the said
judgment was rendered in a slightly different fact-situation. In the said case
an Application for Revocation of Heirship Certificate was filed and the
Applicants therein had sought rejection of the said Application for Revocation,
under Order VII Rule 11 of the Code. It is trite, the grant of Heirship
Certificate does not determine the proprietary rights of the parties. Heirship
Certificate does not confer status of an heir. It merely recognize such status.
Secondly, in the said case, the decision of the Bombay High Court in the case
of Vijay Shivram Pathare (supra) was not considered.
Moreover,
as per the Bombay High Court in Shaikh Mohammad (Supra), since
the decision in the case of Vijay Shivram Pathare (supra) was rendered prior in
point of time, the co-ordinate Bench in Hiraman Shankar Khanavkar (supra) was
bound by the said decision and thus the decision in the case of Hiraman Shankar
Khanavkar (supra), does not command precedential value.
Various
provisions of the Code have been held applicable to the proceedings under the ISA
1925 and other special enactments. In the case of Deubai Tukaram Pakhare
& Ors Vs Muktabai Tukaram Pakhare & Ors 2000(1) MhLJ 511 the provisions contained
in order VI Rule 17 of the Code were held applicable to the proceeding under
Section 373 of the Act of 1925. In the case of Jairam Gurnani Vs Shanta
Gurnani ILR (1979)1, Delhi 99, the Delhi High Court has held that the
provisions contained in the Code were applicable to the proceedings under the
Guardians and Wards Act, in view of the provisions contained in Sections 4 and
141 of the Code.
The
matter can be looked at form a slightly different perspective. The object of
the provisions contained in Order VII rule 11 is to nip in the bud a vexatious
and abortive proceeding. Its object is to save the precious judicial time which
would otherwise be wasted in dealing with a proceeding which is ex-facie sans
cause of action or barred by any provision of law. It serves the cause of
public justice by throwing out sham and unwarranted proceeding.
In
the case of Azhar Hussain Vs Rajiv Gandhi, 1986 Supp SCC 315, the
purpose of conferment of power to reject the Plaint was expounded as under:
"12. ...The whole purpose of
conferment of such powers is to ensure that a litigation which is meaningless,
and bound to prove abortive should not be permitted to occupy the time of the
court, and exercise the mind of the respondent. That sword of Damocles need not
be kept hanging over his head unnecessarily without point or purpose. Even in
an ordinarily civil litigation, the court readily exercises the power to reject
a plaint, if it does not disclose any cause of action."
In
the case of Dahiben Vs Arvindbhai Kalyanji Bhanusali (Gajra) Dead Through
Legal Representatives And Ors, (2020) 7, SCC 366; the object of Order VII Rule
11 was enunciated as under:
"The underlying object of
Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or
the suit is barred by limitation under Rule 11(d), the court would not permit
the plaintiff to unnecessarily protract the proceedings in the suit. In such a case,
it would be necessary to put an end to the sham litigation, so that further judicial
time is not wasted."
If
a proceeding for Revocation under Section 263 of the Act of 1925 is shown to be
ex-facie without any locus or cause of action or otherwise barred by law, it
cannot be said that the Court is denuded of the power to stop such proceeding
at the threshold and must decide such proceeding after a long drawn hearing or
trial. Such an interpretation would defeat the very object of investing jurisdiction
in Testamentary Court to revoke the
Probate or Letters of Administration for a just cause.
It
is further held in Shaikh Mohammad (Supra):
“48. It is well recognized that
the period of limitation prescribed in Article 137 of the Schedule to the Limitation
Act 1963 applies to a proceeding for revocation of the Probate or Letters of Administration
under Section 263 of the Act of 1925. If a proceeding for revocation of the
Grant of Probate or Letters of Administration is shown to be clearly beyond the
period of limitation from the date of the accrual of the cause of action, such
a proceeding must be rejected at the threshold. The provisions contained in
Order VII Rule 11(d) would have clear application to such a situation. Merely
because the proceeding under Section 263 of the Act of 1925 partakes the
character of Miscellaneous proceeding and not a Suit, it cannot be insulated
from the operation of Order VII Rule 11”.
In
this context it may be of pertinence to refer to the judgment of the Supreme
Court in the case of Ramesh Nivrutti Bhagwat Vs Dr Surendra Manohar Parakhe
(2020) 17 SCC284, wherein it was enunciated that the residuary entry
Article 137 in the Schedule to the Limitation Act, 1963 covers proceedings for
Revocation of the Probate or Letters of Administration and the Petition for
Revocation of Letters of Administration filed beyond the said period of three
years was clearly time barred and, thus,
was rightly rejected by the Courts by allowing the Application for rejection of
the said Petition for Revocation.
It
was thus held in Shaikh Mohammad (Supra), as under:
“50. The conspectus of the
aforesaid consideration is that there is no justifiable reason not to apply the
provisions contained in Order VII Rule 11 of the Code to a proceeding under
Section 263 of the Act of 1925. I am, therefore, impelled to held that the
provisions contained in Order VII Rule 11 are applicable to a proceeding for
Revocation of Probate”.
51. As far as the parameters for
applying Section 141 of the Code to the proceeding under Section 263 of the Act
1925, in my view, the law enunciated by the Supreme Court in the case of Nalini
Navin Bhagwati (supra) illuminates the path. If the Court decides to determine
the proceeding under Section 263 of the Act 1925 in a summary manner, all the
provisions of the Code do not become applicable to such a proceeding. On the
other hand, if in the given fact-situation, the Court considers that the issues
are required to be determined by providing an opportunity to adduce evidence,
then, the provisions of the Code which govern the procedure of trial, wherein
evidence is recorded, can be made applicable. No straight jacket formula as to
the applicability of the particular provision of the Code can be laid down. The
applicability of the provisions of the Code to a proceeding under Section 263
of the Act of 1925 would hinge upon the fact-situation of the given case”.
In
the present case, the rejection of the Application for Revocation of Probate
was sought on the ground that the decree passed by the Civil Court granting Probate
is amenable to an Appeal under the provisions of the Code and, thus, the
Application for Revocation was not tenable. The submission was held to be
untenable. Section 263 of the Act of 1925, as noted above, empowers the
Testamentary Court to revoke the Grant of Probate or Letters of Administration
for a just cause. The said remedy is independent of the right of an aggrieved
party to prefer an Appeal against the order granting Probate. The existence of
the remedy of Appeal, does not take away the right of an aggrieved person to
seek revocation of Probate or Letters of Administration, provided he succeeds
in establishing a just cause for the same. Since, in the present case, the
civil Court has granted the Probate by a judgment and order dated 16th
November 2021. The Application for Revocation of the Probate came to be filed
on 15th March 2022. The
Application is, evidently, within the statutory period of limitation.
It
is trite, while considering the Application for rejection of the Plaint, the
Court can only examine the averments in the Plaint and the documents annexed
thereto. The defence of the Defendant is totally irrelevant. If on a meaningful
reading of the Plaint, the Court finds that there is no cause of action or the
relief claimed is otherwise barred by any law, then only a Plaint can be
rejected.
On
the aforesaid touchstone, if the averments in the Application for Revocation of
the Probate are considered, it becomes evident that the Applicant has made
assertion which prima facie fall within the ambit of Clauses (b) and (c) of the
Explanation to Section 263 of the Act of 1925.
The
peculiar circumstances in which the Probate came to be granted deserve to be
noted. Initially, Respondent Nos. 3 and 4 herein had preferred an Application
for grant of Probate propounding a registered Will of the Testator dated 18th
April 2013. The Applicant filed objection and a counter-claim. The Applicant
propounded the Will dated 28th October 2016. It seems, later on, Respondent
Nos. 3 and 4, the Plaintiffs in the Probate Proceeding, conceded that the Will propounded
by the Applicant dated 28th April 2016 was the last Will and
Testament of the Testator and the prior Will dated 18th April 2013 stood revoked. From the perusal of
the order passed by the learned Civil Judge dated 16th November 2021
it becomes evident that there was no contest as the contents of the
counter-claim and the evidence adduced by Applicant-Defendant No.9 and his witnesses
had gone unchallenged. It is in this context the Respondent No.1 alleges that
the said Probate was obtained in collusion by the Applicant, Respondent Nos. 3
and 4, the propounder of the prior Will, and Respondent No.2, Ranjit Burte, who
was shown as the attesting witness.
Again,
a perusal of the Will dated 28th October 2016, prima facie,
indicates that there is a reference to the nephews and nieces of the Testator
who were then residing in America. The Application preferred by Respondent Nos.
3 and 4 indicates that those heirs of the testator were impleaded as Defendant
Nos. 2 to 7 to the said Application. It becomes abundantly clear that neither
the Applicant herein, nor Respondent Nos. 3 and 4, nor for that matter,
Respondent No.2, Ranjit Burte, who had also propounded another Will dated 25th
January 2016, were related to the Testator. All claimed to have worked for the
Testator in one or the other capacity. This backdrop of none of these parties
being even remotely related to the Testator and, conversely, there were other
heirs of the Testator, who were stated to be residing in America also needs to
be kept in view.
In
para 60 & 61 of Shaikh Mohammad (Supra), it is observed as
under:
60. In the aforesaid backdrop the
averments in the application for Revocation were required to be appreciated
albeit prima facie, to ascertain whether a case for rejection of the
application, was made out. Apart from the allegations that the Will dated 28th
October 2016 propounded by the Applicant is false and fabricated, the
Respondent No.1 has specifically
asserted that in the very Will, the Testator purportedly made grave allegations
against Ranjit Burte, Respondent No.2 and, yet, the said Ranjit Burte has been
shown to have attested the said Will. Respondent No.1 has also alleged that to
the said Will a copy of the driving license of Ranjit Burte is annexed; which
shows that the said license was issued on 6th July 2017 well after the
purported execution of the said Will on 28th October 2016. The Testator passed
away on 13th November 2016; under two weeks of the execution of the
Will in question. The intrinsic evidence of the Will also indicates that the
Testator was suffering from Alzheimer and mental illness since the year 2002”.
61. The assertions in the
application for Revocation of the Probate are required to be appreciated in the
light of the all these factors. It is more so, for the reason that a
Testamentary Court is a Court of conscience. If viewed through this prism, it
would be rather difficult to draw an inference that the Application for
revocation is devoid of substance and deserves to be rejected at threshold. It
is an altogether different matter, whether the Applicant would succeed in
demonstrating that a just cause for Revocation of probate is made out. That
would be a matter for consideration by the Trial Court by adopting the
procedure which it considers appropriate in the fact-situation of the case”.
Resultantly,
it was held that the learned Civil Judge was justified in rejecting the application
for rejection of the proceeding under Section 263 of the Act, 1925 and for going
ahead with the case for seeking revocation of the probate.
------
Anil K Khaware
Founder & Senior Associate
Societylawandjustice.com
