Research › Search › Judgment

Punjab High Court · body

2006 DIGILAW 2257 (PNJ)

Ramesh Kumar v. Kamal Deep Bhutani

2006-05-19

VINOD K.SHARMA

body2006
Judgment Vinod K.Sharma, J. 1. The brief facts leading to the filing of the present appeal are that Kamal Deep Bhutani son of Shri Om Parkash, respondent in the present appeal, had filed a petition for issuance of Letter of Administration in respect of Will dated 13.2.1999 executed by the deceased Shri Bhagwan Dass son of Shri Kushal Chand, father-in-law of Shri Kamal Deep Bhutani. In the petition, the respondent impleaded General Public and relatives without disclosing particulars of any relatives. Learned Additional District Judge, Hisar, without taking steps to serve any person ordered the publication of notice in newspaper Dainik Chetna. 2. As no one appeared in pursuance thereto to contest the petition, the respondents were proceeded ex parte vide order dated 9.2.2001. On the basis of the ex parte evidence led, the learned Additional District Judge came to the conclusion that the Will executed by Shri Bhagwan Dass was duly proved. The respondent also proved the Will executed by his wife Vandana in his favour. The petition was accepted and a Letter of Probate was given in favour of the respondent in respect of the properties mentioned in the Will Exhibit P-1. It was also ordered that the letter of probate on furnishing of requisite stamp duty be issued. 3. The appellant Shri Ramesh Kumar claiming himself to be son of Shri Hans Raj, real brother of Bhagwan Dass, filed a petition under Order 9 Rule 13 of the Code of Civil Procedure for setting aside order dated 9.2.2001 and exparte decision dated 27.2.2001 vide which the Letter of Administration was ordered in favour of the respondent. In the application moved under Order 9 Rule 13, the case set up by the appellant was that no registered letter or summons were issued and directly publication was ordered in the newspaper which had no circulation in Rajasthan where the appellant was residing. 4. It was also alleged that it was on 16.2002 that the appellant came to know about the said* order and accordingly moved an application on 1.2.2002 i.e. within 30 days of knowledge. The said application was contested by the respondent herein by claiming it to be false and frivolous. It was also alleged that the application was time barred and the right of the appellant to contest the claim was also disputed. 5. The said application was contested by the respondent herein by claiming it to be false and frivolous. It was also alleged that the application was time barred and the right of the appellant to contest the claim was also disputed. 5. The admitted facts in the present case were that Shri Bhagwan Dass, father-in-law, alongwith his daughter Vandana wife of the respondent and daughter of respondent i.e. Ujwala died in an accident on 26.12.1999. Though Shri Bhagwan Dass and Ujwala died on 26.12.1999 itself, Jyotsana mother-in-law of respondent died on 3.1.2000. The relationship of Bhagwan Dass with Hans Raj, father of the appellant, was not disputed The learned Additional District Judge, Hisar, dismissed the application being time barred by holding that in case the appellant had come to know about the order on 16.1.2002, he should have moved an application for condonation of delay which was not done. The application was thus held to be time barred. Learned Additional District Judge while dismissing the application being time barred also considered the claim of the appellant on merits. The learned Court below in its order dated 4.5.2002 held as under: Now for the sake of arguments, question arises whether Will was executed or not or Will was a forged document. For the sake of argument, if one forgets that no Will was executed by Smt. Jyostana. In that eventuality as Bhagwan Dass and Jyostana were having only one daughter Vandana Wife of the petitioner who used to treat the petitioner as their son and petitioner along with his wife was serving them as his parents as it is a fact of common knowledge that inheritance does not remain in abeyance and when in the accident Bhagwan Dass, Vandana, Ujwala and Jyostana died the property of Bhagwan Dass immediately was inherited by Jyostana wife of Bhagwan Dass because she died on 3.1.2000 while Bhagwan Dass died on 26.12.1999. As per Section 8 of the Hindu Succession Act, 1956, the property of male Hindu died intestate shall devolve upon the heirs being the relatives specified in class I of the Schedule and as per Section 14 of the Act property of a female Hindu is to be her absolute property and as per Section 15 of the Hindu Succession Act, the rule of succession in case of property of female Hindu will be firstly upon the sons and daughters (including the children of any predeceased son or daughter) and the husband. So as per Section 15 when after the death of Bhagwan Dass on 26.12.1999, the property devolved upon Jyostana and when Jyostana died on 3.1.2001, the property should have devolved upon the sons and daughters including the children of any pre-deceased son. In this case Jyostana Ujwala who also died in the accident. So, the property will devolve upon Ujwala and then to her husband and even if for the sale of arguments it be admitted that the simultaneous death has occurred even then as per Section 21 of the Hindu Succession Act, presumption in cases of simultaneous deaths is that the younger in age will survive the elder. So, definitely after Bhagwan Dass even if considered that their death occurred simultaneously, even then Jyostana will be deemed to have survived Bhagwan Dass. So in these circumstances, on the basis of provisions of Hindu Succession Act also the property of Bhagwan Dass goes to Vandana wife of petitioner Kamaldeep. So, in these circumstances, also the relationship of petitioner is there to inherit the property of Bhagwan Dass and applicant has no right in the property of Bhagwan Dass. 6. The appellant filed the present appeal against the order granting probate to the respondent. In the prayer clause of this appeal, the appellant prayed as under: It is, therefore, respectfully prayed that in the interest of justice, equity and fair play, this Hon ble Court may: (i) Summon the record of the case, (ii) Allow the present appeal with costs, (iii) Set aside the impugned orders dated 9th Feb., 2001 and 27th of February, 2001 granting the probate in favour of Sh. Kamal Deep Bhutani. Kamal Deep Bhutani. Pass any other order or direction which this Hon ble Court may deem fit and proper or to which the appellant may be found entitled to in the facts and circumstances of the case in favour of the appellant. 7. Learned Counsel for the appellant vehemently argued that order passed by the learned Additional District Judge cannot be sustained as it was not open to him to decide the claim on merits especially when the application was held to be barred by time and it was dismissed on that ground. Learned Counsel for the appellant also challenged the findings of the learned Court below on the ground that it wrongly held that the application was time bared. According to him, the limitation was to start from the date of knowledge and the application having been filed within 30 days of knowledge was to be held within limitation. The appellant in support of this contention placed reliance on the judgment of Hon ble the Supreme court reported in (1997-3) 117 P.L.R. 55 (S.C.), C.K. Lokesh v. P.E. Panduranga Naidu, wherein Hon ble Supreme Court has been pleased to hold as under: It is contended by Shri Sampath, learned Counsel for the respondent, that the respondent has taken all the steps available under Order 5, CPC. Including of effecting service through substitute service under Rule 20A, Order 5 CPC. Therefore, the court was right insetting the appellant ex parte and passing the ex parte decree. The learned District Judge after going through the entire material on record, came to the above conclusion that the appellant had not been served with a notice and, therefore, he was entitled to file the application under Article 123 of the Schedule of Limitation Act, which is 30 days from the date of knowledge. Accordingly the application came to be filed, though belated by 2015 days. Under these circumstances, the learned District Judge was right in holding that the appellant had filed the application to set aside the ex parte appeal within 30 days from the date of knowledge. The High Court was clearly in error in interfering with the order passed by the District Judge. 8. Under these circumstances, the learned District Judge was right in holding that the appellant had filed the application to set aside the ex parte appeal within 30 days from the date of knowledge. The High Court was clearly in error in interfering with the order passed by the District Judge. 8. Shri Pawan Kumar, learned Counsel, appearing for the respondent submitted that the present appeal is not maintainable as the appellant has not challenged the order dated 4.5.2002 before this Court as would be clear from the prayer clause in the appeal reproduced above. 9. It was next contended by the learned Counsel by placing reliance on the judgment of the High court of Orissa as reported in 2002 (4) R.C.R. (Civil) 292, Binod Sahu and Anr. v. Smt. Chanraman Sahu and Ors. that the proceedings for succession certificate are summary in nature and it is open to the Court to dispose of the petition without determining law or facts which seem to be too intricate for determination and it is open for an unsuccessful party to file a suit under Section 387 of the Indian Succession Act to establish its rights. He also placed reliance on the judgment of this Court in the case of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and Ors. (1993-3) 105 P.L.R. 414, to contend that the functions of a probate Court are only to see whether the Will has been actually executed by the testator in a sound disposing mind without coercion or undue influence and it has been duly attested and on the strength of this authority it was argued by the learned Counsel that no fault can be found with the judgment rendered by the Additional District Judge, Hisar, granting probate in favour of the respondent. 10. It was next contended by the learned Counsel for the respondent that in view of provision of Section 383 of the Indian Succession Act, it was open for the appellant to seek the revocation of certificate of Probate granted to the respondent in pursuance to the order passed by the learned Court below. The submission of the learned Counsel was that in pursuance to the order passed by the Court below, the letter of probate was issued to the respondent on 7.3.2001 which had not been challenged. 11. The submission of the learned Counsel was that in pursuance to the order passed by the Court below, the letter of probate was issued to the respondent on 7.3.2001 which had not been challenged. 11. I have considered the respective contentions of the parties and find that the learned trial Court was not right in holding the application filed by the appellant to be time barred as the same time was filed within 30 days of knowledge. I am also not convinced with the argument raised by the learned Counsel for the respondent that remedy under Order 9 Rule 13 Code of Civil Procedure was not available to the appellant in view of the provisions of Section 383 of the Indian Succession Act because remedy under this section is only discretionary and it is open to the Court not to exercise the powers even if the probate granted is proved to be defective. 12. As already referred to above, the provisions of Civil Procedure Code are applicable to the proceedings under the Indian Succession Act as held by Delhi High Court in the case of V. Prabha v. State (Delhi) 1995 (1) R.R.R. 395, wherein it was been categorically laid down that the proceedings for probate under the Indian Succession Act are governed by the provisions of C.P.C. like a Civil Court. Therefore, besides its inherent powers, the Court can invoke Order 9 Rule 7 of C.P.C. and recall its ex parte in the interest of justice. 13. The learned lower Court was not right in ordering the substituted service straight away without satisfying itself as to whether the party can be served by ordinary means. In the present case, no details of the respondents were given and, therefore, it was incumbent on the Court to have asked the respondent to give correct addresses of the relatives who may have interest in the property. 14. The findings regarding the application being time barred also cannot be sustained in view of the law laid down by Hon ble Supreme Court in the case of C.K. Lokesh (supra), as well as the law laid down by this Court in the case of Gian Kaur v. Amrit Singh (1996-2) 113 P.L.R. 447. 15. 14. The findings regarding the application being time barred also cannot be sustained in view of the law laid down by Hon ble Supreme Court in the case of C.K. Lokesh (supra), as well as the law laid down by this Court in the case of Gian Kaur v. Amrit Singh (1996-2) 113 P.L.R. 447. 15. However, in the present case, the learned Additional District Judge besides rejecting the application on the ground of limitation, has also decided the case on merit as is clear from the findings reproduced above. The appellant in the case in hand had challenged the orders granting probate to the respondent and, therefore, this appeal is basically against the order of the learned Additional District Judge, vide which the probate case was allowed. The findings recorded by the learned Additional District Judge are in accordance with law and a reading of the said judgment leaves no manner of doubt that the appellant had no locus to challenge the grant of Letter of Administration as the inheritance had first opened to Smt. Vandana, who died on 3.1.2000 and the appellant has no claim over a right to her property. Therefore, the appeal being without any merit is dismissed with no order as to costs.