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Dharam Devi and ors. Vs. Bishamber Nath - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtDelhi High Court
Decided On
Case NumberFirst Appeal No. 41 of 1971
Judge
Reported inILR1971Delhi661
ActsSuccession Act, 1925 - Sections 263
AppellantDharam Devi and ors.
RespondentBishamber Nath
Advocates: B.I. Singh and; B.R. Narang, Advs
Cases ReferredIn Arjan Dass v. Madan Lal
Excerpt:
.....if so, what is the effect ? 3. whether the probate ordered to be issued in favor of the respondent should be revoked ? 4. relief. 2, it was held that there was hardly any reliable evidence to justify a finding that bhagat singh was the son of tara singh who had executed the will and that, thereforee, the respondent was not guilty of any suppression of material facts by not showing bhagat singh as the son of the testator tara singh......the grant of probate of the will dated 26-2-1960 alleged to have been executed in his favor by one shri tilla ram alias tara singh s/o shri ganga ram. according to this application, the said testator was not married and had left no issue. the other relations of the testator were imp leaded as respondents in the said application. none of them contested the application and, thereforee, probate of the will was granted in favor of the respondent herein by the district judge by his order dated 7-10-1968. ther after, the present appellants filed an application on 28-1-1969 under section 263 of the act for revocation of the probate granted to the respondent. the main grounds on which the revocation of the probate was asked for were that the respondent had sup- pressed certain material facts in.....
Judgment:

M.R.A. Ansari, J.

(1) The respondent herein Shri Bishamber Nath filed an application under section 276 of the Indian Succession Act, 1925 (hereinafter referred to as the Act) for the grant of probate of the will dated 26-2-1960 alleged to have been executed in his favor by one Shri Tilla Ram alias Tara Singh S/o Shri Ganga Ram. According to this application, the said testator was not married and had left no issue. The other relations of the testator were imp leaded as respondents in the said application. None of them contested the application and, thereforee, probate of the will was granted in favor of the respondent herein by the District Judge by his order dated 7-10-1968. Ther after, the present appellants filed an application on 28-1-1969 under section 263 of the Act for revocation of the probate granted to the respondent. The main grounds on which the revocation of the probate was asked for were that the respondent had sup- pressed certain material facts in his application for grant of pro- bate and also that he had not imp leaded the necessary parties in the said application. According to the appellants, the properties covered by the will for which the probate was granted did not belong to Shri Tilla Ram alias Tara Singh S/o Shri Ganga Ram as alleged by the respondent but belonged to Shri Tilla Ram S/o Shri Ram Chand. It was further alleged that the said Tilla Ram S/o Shri Ram Chand had married during his life-time and had also left his widow and a daughter surviving him. The appellants themselves were tenants of the house belonging to the said Tilla Ram S/o Shri Ram Chand. The legal heirs of Shri Tilla Ram S/o Ram Chand had taken part in the proceedings before the Estate Officer of the Land Development Officer, Nirman Bhavan, New Delhi, under section 4 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1958. The respondent also took part in the said proceedings. As the respondent had misrepresented the name of the testator as Tilla Ram alias Tara Singh S/o Shri Ganga Ram and had also suppressed the material facts stated above, the probate granted in favor of the respondent was liable to be revoked.

(2) The respondent contested the petition filed by the appellants and asserted that he had not suppressed any material facts in his application for the grant of probate and that the property in question did not belong to Shri Tilla Ram S/o Shri Ram Chand but belonged to Shri Tilla Ram alias Tara Singh S/o Shri Ganga Ram and that, thereforee, it was not necessary for him to implead either the legal heirs of Shri Tilla Ram S/o Shri Ram Chand or the appellants who were not his legal heirs.

On these pleadings, the following issues were framed:- 1. Whether the petitioners were necessary or proper parties and the failure to implead them justifies the revocation of probate 2. Whether material information was suppressed from the court by the respondent if so, what is the effect 3. Whether the probate ordered to be issued in favor of the respondent should be revoked 4. Relief.

Evidence, both oral and documentary, was led by both the parties and although the appellants had not in their application filed under section 263 of the Act taken the plea that Tilla Ram alias Tara Singh S/o Ganga Ram had married during his life-time or had left any issue behind him, evidence was led by him to prove that he had a son by name Bhagat Singh living at Kanpur. The said Bhagat Singh was also examined on commission as C.P.W. 1. On a consideration of this evidence, the learned District Judge held on issue No. 1 that as the probate was granted of the will executed by Tilla Ram alias Tara Singh S/o Shri Ganga Ram and as the appellants were not his legal heirs and did not otherwise claim any rights in respect of the properties bequeathed under the will, it was not necessary for the respondent to have imp leaded them in his petition for the grant of probate and the omission on the part of the respondent to implead the appellants as parties in the said petition did not justify the revocation of the probate.

(3) On issue No. 2, it was held that there was hardly any reliable evidence to justify a finding that Bhagat Singh was the son of Tara Singh who had executed the will and that, thereforee, the respondent was not guilty of any suppression of material facts by not showing Bhagat Singh as the son of the testator Tara Singh. On issue No. 3, it was held that the probate Court had no jurisdiction to decide the question of the title in respect of the property covered by the will and that if the appellants who are the legal heirs of Tilla Ram S/o Ram Chand, claimed any rights in respect of the said property, it was open to them to file a regular suit. thereforee, the petition filed by them under section 263 of the Act was dismissed. The appellants have filed the present appeal against the said judgment of the learned District Judge.

(4) The will for which probate has been granted is said to have been executed by Tilla Ram alias Tara Singh S/o Ganga Ram. Admittedly, the appellants are not the legal heirs of this Tilla Ram nor have they any rights in the property of the said Tilla Ram. If, according to the appellants, the property covered by the will executed by this Tilla Ram did not really belong to him but belonged to another person named Tilla Ram S/o Ram Chand and if the appellants claimed any rights in respect of the said property, then, it is open to the appellants to file a suit and the grant of the probate of the will executed by Tilla Ram alias Tara Singh S/o Ganga Ram will not stand in their way. The same would be the position with' regard to the legal heirs of Tilla Ram S/o Ram Chand. So far as the appellants are concerned, they have no locus standi to challenge the probate granted in favor of the respondent. A Division Bench of the Calcutta High Court has held in Sadananda Pyne v. Harinam Sha and another : AIR1950Cal179 that in order to have the locus standi to apply for revocation of probate, a person must have an interest in the estate of the deceased, supposing he had died intestate and that a person who has merely the possession of a trespasser, has no interest in the estate of the deceased and, thereforee, he has no locus standi to file such an application. In Arjan Dass v. Madan Lal 1970 R.C.R. 785 a Single Judge of this Court has held that a person who was not an heir of the testator had no locus standi to challenge the validity of the will.

(5) Realizing the weakness of their position, the appellants have, thereforee, filed an application in this appeal, C.M. No. 1069/71, seeking to implead Bhagat Singh who was examined in the probate Court as C.P.W. I as a party in the present proceedings. The purpose is obvious, namely, to bring him on record as a person who claims to be a son of Tilla Ram alias Tara Singh S/o Ganga Ram so that he may challenge the probate granted to the respondent on the ground that he was not imp leaded as a party in the probate proceedings. It is to be noted that in the application filed by them under section 263 of the Act, the appellants had not mentioned a word about the existence of this Bhagat Singh. Bhagat Singh himself was examined as a witness in the probate Court and, thereforee, must be presumed to have knowledge of the grant of the probate in favor of the respondent. But Bhagat Singh himself did not file any application for the revocation of the probate nor did he file an application for being imp leaded as a party in the application filed by the appellants. Even after the decision of the learned District Judge went against the appellants, Bhagat Singh did not choose to take any steps himself for the revocation of the probate nor did he choose to get himself imp leaded as a party even after the appellants have filed the present appeal. On appreciation of the relevant evidence, the learned District Judge has held that Bhagat Singh was in fact not a son of Tilla Ram alias Tara Singh S/o Ganga Ram. Under these circumstances, there is no justification to permit the appellants at this stage to implead Bhagat Singh as a respondent in this appeal. The application filed by them is.. thereforee, rejected.

(6) The appellants have also filed another application C.M. No. 852/71 for permission to adduce additional evidence in the appeal for the purpose of proving that the property bequeathed under the will executed by Tilla Ram alias Tara Singh S/o Ganga Ram did not really belong to him but belonged to Tilla Ram S/o Ram Chand. A probate Court is not the proper forum for proving title to the property. It is open to the appellants to prove their title to the property in a regular suit. thereforee, there is no justification for permitting the appellants to adduce any additional evidence on this point. This petition also is dismissed.

(7) Since the appellants are not the legal heirs of Tilla Ram alias Tara Singh S/o Ganga Ram and have no interest in the property belonging to that person, they have no locus standi to ask for the revocation of the probate granted to the respondent. The appeal is, thereforee, dismissed but there shall be no order as to costs.


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