Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 761 (PAT)

Harihar Singh v. Rama Shankar Singh

2007-04-16

RAMESH KUMAR DATTA

body2007
Judgment 1. Heard learned counsel for the parties. 2. The petitioner has come up to this Court challenging in revision the order dated 11.5.2006 passed by the learned 1st Additional District Judge, Rohtas at Sasaram in analogous Title Suit No. 7 of 1992 and 8 of 1992 by which he has allowed the petition for substitution of the petitioners (opposite parties) in Title Suit No. 8/92. 3. The relevant facts of this case are that one Chandrika Prasad Singh executed a registered Will dated 16.6.1980 in favour of the present petitioners who are also plaintiffs of Title Suit No. 7 of 1992. The petitioners are sons of Harihar Singh who is son of predeceased daughter of late Chandrika Prasad Singh. Ram Dulari Devi, who was the second wife of said Chandrika Prasad Singh filed an objection in case no. 7/1992 alleging against the genuineness of the Will and taking various grounds and the said case was converted as Title Suit No. 7/1992. The petitioners are great grandson of Chandrika Prasad Singh from the first wife whereas Ramdulari Devi was his second wife. Ram Dulah Devi filed a probate case on the basis of a Will executed on 22.2.1986 in her name which was challenged by the petitioners of this civil revision and the said case has ultimately been made Title Suit No. 8/1992 in which the present petitioners are opposite parties. The two cases namely, Title Suit No. 7/92 and Title Suit No. 8/92 have been amalgamated and Title Suit No. 8/92 has been treated as the principal case. Ram Dulari Devi executed a registered deed of gift on 1.1.1999 in favour of the opposite parties. During the pendency of the said probate proceedings Ram Dulari Devi died on 15.2.2006. The opposite parties filed a substitution petition before the court below stating therein that they are sons of brother of Ram Dulari Devi and the said deed of gift having been executed in their favour by her during her lifetime, therefore, they have a right to be substituted as her legal representatives in order to carry on the said proceedings. The said application was allowed by the impugned order dated 11.5.2006. 4. The said application was allowed by the impugned order dated 11.5.2006. 4. Learned counsel for the petitioners submits that in terms of the provisions of the Indian Succession Act, 1925 , the said Ram Dulari Devi did not get title to the property under the Will dated 22.2.1986 since the same was never probated and therefore she could not have transferred to any extent, the title to the present opposite parties and thus what she gave is only a bag of air as gift. Learned counsel further submits that on the basis of the provisions of Sec. 221 of the Act she has not been appointed as an administrator and she cannot deal with the property to gift it away, because the same would amount to diminution of the interest in the estate of the testator of the Will which is not permissible under Section 221 of the Act. The further submission of the learned counsel is that the petitioners are strangers to the property and to the inheritance. In that situation, in view of the specific provisions contained in Sections 232 and 234 of the Indian Succession Act, they have no right to initiate a proceeding and in that situation, they cannot have right to be impleaded through the back door, being donee pf the universal legatee. 5. Learned counsel further submits that the reliance by the court below on Section 211 of the Indian Succession Act is clearly an error of record since the same has no application to the present situation. Learned counsel also referred to the provisions of the Hindu Succession Act in terms of which it was claimed that these petitioners would be the legal heirs on succession to the estate of Ram Dulari Devi from her husband, from whom the said property would have devolved upon her. 6. In support of the aforesaid proposition learned counsel for the petitioners relied upon various decisions of the Kolkata High Court, Madras High Court and this High Court. Learned counsel firstly relies upon a decision of this Court in the case of Sulochana Debi vs. Mostt. Puranjaya: AIR 1948 Patna 419. 6. In support of the aforesaid proposition learned counsel for the petitioners relied upon various decisions of the Kolkata High Court, Madras High Court and this High Court. Learned counsel firstly relies upon a decision of this Court in the case of Sulochana Debi vs. Mostt. Puranjaya: AIR 1948 Patna 419. In the said case it was held, after examination of various provisions of the Act, that none of the provisions of the Succession Act provide for the representative of universal legatee being admitted to prove the Will and apply for the grant of letters of administration with the Will annexed and therefore, the applicant not being the representative of the legatee had no right to make an application and the court below was not entitled to grant letters of administration with the Will annexed at her instance. Thus, in the said case it is evident that no such issue of being permitted to continue the case for grant of letters of administration was involved and what was under consideration was the right of a person to make an application for grant of letters of administration at the outset. 7. Learned counsel again relied upon the case of Hari Bhusan Datta vs. Manmatha Nath Datta and Others: AIR 1919 Calcutta 197 in which it was held that a son cannot continue a proceeding for grant of letters of administration claiming substitution in place of his father. However, it was held in that case that he may apply for grant of letters of administration and in such circumstances, it is open for him to apply for such material proceedings as have been taken in the record of the fresh suit. 8. Learned counsel also relies upon a decision of the Calcutta High Court in the case of Mahatma Missir vs. Thakur Prasad Chaudhuri; ILR 1950(2) Calcutta 653, in which it was laid down that an executors application for probate is not a representative action on behalf of the beneficiaries and thus where the sole executor died before his application could be heard, his son, a beneficiary under the Will, had no right to be substituted in his place or to intervene in order that he might continue the proceeding as one for the grant of letters of administration; his remedy lay by way of an application under Section 233 of the Indian Succession Act. 9. 9. With respect to Sec. 221 of the Act, learned counsel relies upon a decision of the Madras High Court in the case of Raja Rama vs. Fakruddin Sahib and Others: AIR 1930 Madras 218 in which it has been held that the position of the administrator is very different from that of an executor since he derives his title only from the Court and he is not entitled to the property until the letters of administration are granted to him, and the property of the deceased vests in him only from the time of grant. On the basis of the same it was held in that case that acknowledgment of liability professed to be made on behalf of a deceaseds estate by a person whose power to make the acknowledgment solely depends upon his being the administrator of the deceased is not made effectual by his subsequently obtaining letters of administration. It was held that such an intermediate act as the admission that a debt was due from the deceaseds estate would certainly tend to the diminution of the estate which was not permissible under Sec. 221 of the Act. Relying upon the same learned counsel argues that if even an acknowledgment is not permissible under Sec. 221 of the Act before letters of administrations are granted then a deed of gift of the same property would stand at a much worse footing and thus the said deed of gift is not valid in the eye of law and no title either for the present or in future can arise for the same. 10. Lastly learned counsel for the petitioners relies upon the case of Bahuria Ram Sakhi Kuer vs. Bindeswari Saran and Others: AIR 1936 Patna 41 in which it has been held that a person to whom letters of administration of an estate are subsequently granted is an absolute stranger to the estate till the grant, and therefore he has absolutely no power to alienate the estate prior to such grant and the alienation if made cannot be binding on the estate. Learned counsel submits that the said case directly applies to the facts of the present case and the deed of gift for alienation of the estate was not permissible to be done by the said Ram Dulari Devi until she had received letters of administration of the Court. Learned counsel submits that the said case directly applies to the facts of the present case and the deed of gift for alienation of the estate was not permissible to be done by the said Ram Dulari Devi until she had received letters of administration of the Court. For the said reason, it is submitted that the deed of gift dated 1.1.1999 does not confer any right upon the opposite party and thus, they being much worse than even strangers to the estate, their claim arising on the basis of the action of the said Ram Dulari Devi, they cannot have any right to be impleaded for the purpose of continuing the letters of administration case. 11. Learned counsel for the opposite parties, on the other hand, sought to contend that the opposite parties have rightly been impleaded in place of said Ram Dulari Devi in order to continue the letters of administration case. It is submitted that by such substitution no rights to the property would be decided rather only the grant of a probate or letters of administrations shall be under consideration of the Court. It is further submitted that they are the persons directly interested in proving the genuineness of the Will since their rights depend upon its genuineness. Only if the Will is proved to be genuine then the right to the estate of Late Chandrika Prasad Singh would devolve upon Ram Dulari Devi from the date of death and accordingly the deed of gift made in their favour on 1.1.1999 would confer right upon them as the donee under the said deed of gift. It is further submitted that in the said case the deceased Ram Dulari Devi had already been examined as P.W. 6 on 20.3.1996 and further on 5.6.2005. It is further submitted that Ram Dulari Devi had also filed a petition on 10.1.2004 stating the entire facts with respect to the deed of gift and relationship with the opposite parties. Learned counsel also submits that even otherwise being the sons of the brother of said Ram Dulari Devi they are Class II heirs under Section 8 of the Hindu Succession Act and would be entitled to continue the present proceedings. 12. Learned counsel also submits that even otherwise being the sons of the brother of said Ram Dulari Devi they are Class II heirs under Section 8 of the Hindu Succession Act and would be entitled to continue the present proceedings. 12. In support of the proposition that they have light to be substituted and continue with the suit and prove the genuineness of the Will, learned counsel for the opposite parties relies upon a decision of this Court in the case of In the goods of Sri Sailendra Nath Mazumdar vs. Srimati Madhabilata Devi: 1975 BBCJ 244 . In the said case the said Madhabilata Devi had been made executrix and her two sons were the sole beneficiaries under the Will in question. She applied for grant of probate of the Will but died during the pendency of the proceedings, upon which the two sons applied to be substituted in her place and to continue the proceedings. An objection was taken that the executors proceedings cannot be converted into letters of administration proceedings and the application for substitution was not maintainable. This Court considered the contrary views on this point of the Calcutta High Court in the case of Sarat Chandra Banerjee vs. Mani Mohan Banerjee: ILR 36 Cal. 799 and that of the Madras High Court in the case of Govind M. Asrani vs. Jairam Asrani and Another: AIR 1963 Mad. 456 . While the Calcutta High Court had held on the same basis as the objections raised in the present matter, the Madras High Court, on the other hand, was of the view that if the sole executrix dies before proving the Will, it will be competent for a legatee or any other person interested, to intervene and continue the proceedings to prove the Will and obtain letters of administration in his own right. The Madras High Court also took the view that there can be no objection to an application for an issue of probate being converted into one for the grant of letters of administration since both the proceedings are in the interest of the legatees and the question involved in such proceedings will be the same, namely, about the truth and genuineness of the Will, and the person interested to intervene can do well in completing the proceeding as well. After considering the two view points this Court expressed agreement with the view of the Division Bench of the Madras High Court and allowed the application for substitution holding that a contrary view will unnecessarily give rise to multiplicity of proceedings which should be avoided. 13. Learned counsel for the opposite parties further relies upon the decision of this court in the case of Jogendra Prasad alias Bhola vs. Kamlesh Kumar & Ors.: 2002(1) PLJR 740 . In the said case also this Court had held that in a case where grant of letters of administration or probate Is involved the duty of the Court hinges on the sanctity or genuinity of the Will only and no right of any of the parties are being decided and in the said circumstances it was held that the court below has rightly allowed the substitution petition filed by the son of the executor. 14. Learned counsel for the opposite parties also submits that in terms of the general principles of the Code of Civil Procedure as contained in Order 22 of the Code, the substitution ought to have been allowed. It is further submitted that under Order 1 Rule 10, CPC, the opposite parties case for at least impleadment as party in order to continue the suit would be required to be considered since it is the opposite parties who have the interest in proving the genuineness of the Will and not the petitioners as stated by the learned counsel for the petitioner. It is submitted that if the deceased Ram Dulari Devi were to be substituted by the petitioners of this case then their only interest would be to see that the Will is proved to be forged and fabricated as stated in their objection filed in the court below, and it would cause serious injustice to the opposite party if the petitioners are substituted in her place. 15. In this regard learned counsel for the petitioners has strongly opposed the said plea on the ground that the provisions of the Code of Civil Procedure are not applicable to the proceedings under the Indian Succession Act. 15. In this regard learned counsel for the petitioners has strongly opposed the said plea on the ground that the provisions of the Code of Civil Procedure are not applicable to the proceedings under the Indian Succession Act. The said submission has been noticed only to be rejected in view of provisions contained in Section 268 of the Indian Succession Act in which it has been clearly laid down that the proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. Thus, there can hardly be any doubt that in the interest of justice the provisions of the Code of Civil Procedure may be invoked with respect to the proceedings for grant of probate or letters of administration also. 16. The present matter arises out of its own peculiar facts when the only persons who would be interested in continuing the letters of administration proceedings are the opposite parties whose right to the property depends upon proving the genuineness of the Will. In this regard this Court is not able to agree to the submissions made by the learned counsel for the petitioners on the basis of the provisions of Sections 220 and 221 of the Indian Succession Act. The said provisions only relate to the action of a person who has been granted letters of administration with respect to the administration of the estate and his right to diminishing the estate by any of his actions even prior to the grant of letters of administration. These sections have no application at all to the actions of the legatee under the Will. The right of the legatees under the Will arises from the date on which the testator dies. However, the said right is subject to the Will being found to be true and genuine by the court in a probate or letters of administration proceeding. Once the Will is proved to be genuine, then the rights of the legatee comes into force on the date of death and thus any transfer of the property be queathed to him by any legatee would have to be treated as valid in the eye of law. Once the Will is proved to be genuine, then the rights of the legatee comes into force on the date of death and thus any transfer of the property be queathed to him by any legatee would have to be treated as valid in the eye of law. Such a transfer by a legatee with respect to his rights as a legatee do not stand on the same footing as action of the administrator who has been granted the letters of administration with respect to a particular Will by the Court concerned. The rights of an administrator with respect to the property stand on a different footing than the rights of a legatee under the Will and the administrator is entitled to administer the estate in accordance with the directions contained in the Will and carry on the same until the beneficiaries under the Will, namely, the legatees are given their share of the estate under the said Will and after that the administrator has no function to perform. Thus the rights of the administrator to bind the estate by his action stand on a different footing than the title which vests in the legatee with respect to what has been conferred upon him under the Will. It is open to such legatee to transfer his such rights which would however, depend upon the genuineness of the Will being proved and such is the position in the present matter. The opposite parties being donees under the deed of gift dated 1.1.1999 executed by the said Ram Dulari Devi and if the Will, which is sought to be proved by filing an application for letters of administration by her and which has been numbered as Title Suit No. 8/92, is proved to be genuine then she being the universal legatee under the said Will shall become owner of the property left behind by deceased Chandrika Prasad Singh on the date of his death. Thereafter, the deed of gift executed by her in favour of opposite parties before her death would confer title upon them that vests in her as a legatee. Thereafter, the deed of gift executed by her in favour of opposite parties before her death would confer title upon them that vests in her as a legatee. In the said circumstances, the opposite parties would be the only persons who would have interest to see that the genuineness of the Will is proved whereas the petitioners who claim letters of administration should be granted to them would have interest in seeing that the said Will was proved as forged and fabricated, which is their stand in the Court, and it is also their interest to see to it that the other Will which they claim has been genuinely executed and which forms the subject matter of Title Suit No. 7/92, is proved as the last genuine Will and testament of the said Chandrika Prasad Singh. For the said reasons, due to such serious conflict of interest it cannot be countenanced that they should be substituted in place of deceased Ram Dulari Devi. 17. In the aforesaid facts and situation considering the law laid down by this Court in the case Sri Sailendra Nath Mazumdar (supra), that any person interested in proving the Will can be permitted to intervene and appear in the proceedings and prove the Will and obtain letters of administration in his own right, the petitioners are definitely interested persons in this regard. 18. Even under Order 1 Rule 10(2) of the Code of Civil Procedure, it is open to the Court at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, to order that the name of any party who ought to have joined whether as plaintiff or defendant or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle the questions involved in the case, be added. The present case is one of such case in which it is incumbent upon the Court to exercise its power in order to do justice between the parties and to see that the Will in question is properly defended. 19. The present case is one of such case in which it is incumbent upon the Court to exercise its power in order to do justice between the parties and to see that the Will in question is properly defended. 19. In the aforesaid facts and circumstances, this Court does not find that the court below has committed any illegality or jurisdictional error in its order dated 11.5.2006 by substituting the opposite parties in place of deceased Ram Dulari Devi. Thus, there is no need to interfere in the matter. The revision application is accordingly dismissed.