HC: The grant of probate or letter of administration or the revocation or annulment thereof for just cause can be ordered only by the probate Court

  

On 14^th July, a bench of Delhi High Court consisting of Justice Mukta Gupta, while hearing a suit for declaring a will null and void, held that a bare perusal of Section 263 of the Indian Succession Act reveals that the grant of probate or letter of administration or the revocation or annulment thereof for just cause can be ordered only by the probate Court.

The court further held that when it is seen that the probate of a will has been taken fraudulently by not disclosing about other legal heirs, the power to check the validity rests not with the Civil Court but with the Probate Court under Section 263 of the Succession Act.

Facts of the case:

The present suit has been filed by the brothers of Late Shanti Swaroop Gupta who was the owner of the suit property. Wife and the daughter of Late Shanti Swarup Gupta pre-deceased him. According to the defendants, the deceased left a Will in the name of his son-in-law who has also since passed away. Based on the Will whereby the properties of Late Shanti Swarup Gupta were bequeathed on his son-in-law who was the brother of the defendant. The plaintiffs are the four brothers of Late Shanti Swarup Gupta and claim rights in the suit property by virtue of being Class-II legal heirs. A probate petition was filed by the son-in-law of Late Shanti Swarup Gupta i.e. Anand Parkash Verma which was granted in his favour vide order dated 7th August, 2014. The plaintiffs by the present suit seek a declaration of the impugned registered Will dated 7th September, 2010 as null and void.

Contention of the plaintiff:

 

Learned counsel for the plaintiffs contented the following:

1. On the maintainability of the suit it was submitted that the present suit is a title suit and hence this Court is competent to decide the title in the suit property which the probate Court cannot decide.
2. It was argued that the order dated 7th August, 2014 is not an order granting probate of the Will as no Court fee, no indemnity bond nor the surety bond has been furnished and hence no letter of administration/probate has been granted due to the non-compliance of the order and hence the same cannot be a judgment in rem.
3. Learned counsel for the plaintiffs also claimed that the defendants cannot be allowed to take advantage of the conditional order when the conditions have not been complied with and thus the defendants could not have executed the sale deeds of the suit property.
4. It was thus, contended that since the order in probate case has been obtained by fraud, the same can be set aside only by the civil court in the present suit and not by the probate court.

Contention of the defendant:

Learned counsel for the defendants argued on the following grounds:

 

1. At the outset the counsel challenged the maintainability of the present suit and claimed that the present suit is inter alia barred by limitation, barred by Section 34 of the Specific Relief Act and probate having been granted in favour of Anand Prakash Verma in respect of the Will, hence, this Court cannot go into the validity of the probate granted and hence no consequential reliefs can be granted to the plaintiff.
2. It was submitted by the defendants, that the deceased left a Will in the name of his son-in-law who has also since passed away. Based on this, the defendants who are the brothers of the son-in-law claimed the suit property.

Observation and order of the court:

The learned bench of the Hon’ble Court made the following observation:

1. From the cause of action as pleaded by the plaintiffs claiming that Anand Prakash Verma obtained probate of the Will dated 7th September 2010 by playing fraud by not disclosing about the other legal heirs of the deceased and hence the Will dated 7th September 2010 be declared null and void abinitio and illegal and of no effect. This power vests not in the civil Court but the probate court in terms of Section 263 of the Indian Succession Act.
2. The plaintiffs have applied for revocation of the probate granted and thus the relief as sought in the prayer of the present suit is not maintainable before this Court but before the probate Court under Section 263 of the Indian Successions Act.

Finding the prayer not maintainable the court directed the plaintiffs who are represented through Ankur Gupta not to interfere in the rights of the defendants based on the Will dated 7th September 2010, till any relief is granted to them by the probate court.

 Read Order ;

 

 

SOURCE ; latestlaws.com/

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