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2008 DIGILAW 97 (UTT)

RAM KAUR PRASAD v. STATE

2008-03-07

PRAFULLA C.PANT

body2008
JUDGMENT This is revocation application, moved by applicant Smt. Geeta Prashad, under Section 263 of Indian Succession Act, 1925, in the Testamentary Case filed by the Executor for grant of probate in respect of the Will of Smt. Ram Kaur Prashad, which was granted on 29.04.1982. 2. Heard learned counsel for the parties. 3. Brief facts of the case are that as per the Testamentary Petition filed by the Executor I.L. Dass before Allahabad High Court in the year 1979, Smt. Ram Kaur Prashad W/o Late Dr. Baini Prashad executed a Will dated 13.11.1975 (Ext. A to the petition) bequesathing her property which included her movable and immovable properties in Dehradun to her Daughter Nirmal Verma, Son Romesh Prasad, grand sons Arjun Prashad and Vijay Prashad. The Will was said to have been attested by the witnesses- Sri D.P. Puri, Lt. Col. (Retired), R/o 34 Rajinder Nagar, Kaulagarh Road, Dehradun, and Sri Raj Kishore Badwar, R/o 52 A, New Connaught Place Chakrata Road, Dehradun. Smt. Ram Kaur Prashad died at Dehradun on 30.11.1978, copy of her death certificate is annexed as Ext. B to the petition filed by Executor. From the record received from the Allahabad High Court it is clear that notices were issued to the Administrator General and other affected persons. Compliance as required under the Rules was also made. The notices were also issued to Geeta Prashad W/o Romesh Prashad, who was represented by her counsel since September 1980 in the testamentary proceedings. Vide order dated 29.04.1982 probate was issued under Section 276 of Indian Succession Act, 1925, by the Allahabad High Court in this case. The record further reveals that certain directions as to apportionment of properties were issued by Allahabad High Court from time to time after issuance of the probate, one of which contained in order dated 03.12.1985. Dissatisfied by said order Smt. Geeta Prashad filed a Special Appeal No. 408 of 1998 before Allahabad High Court. Vide order dated 27.05.1998, passed in said Special Appeal proceedings of the testamentary case were stayed. Revocation Application No. 63974 filed in the year 1996 by Smt. Geeta Prashad W/o Romesh Prashad before Allahabad High court also stood stayed due to the stay order passed in the Special Appeal. After creation of State of Uttarakhand w.e.f. 09.11.2000, testamentary case was transferred to this Court under Section 35 of U.P. Reorganisation Act, 2000. Revocation Application No. 63974 filed in the year 1996 by Smt. Geeta Prashad W/o Romesh Prashad before Allahabad High court also stood stayed due to the stay order passed in the Special Appeal. After creation of State of Uttarakhand w.e.f. 09.11.2000, testamentary case was transferred to this Court under Section 35 of U.P. Reorganisation Act, 2000. However, the stay order passed in the Special Appeal stood vacated only on 20th November 2007, when the Allahabad High Court dismissed the Special Appeal No. 408 of 1998, as not maintainable before it. 4. In the revocation application, applicant Smt. Geeta Prashad has stated that Smt. Ram Kaur Prashad (Executant) was a house wife and had no income or property of her own. She inherited the property of her husband Dr. Baini Prahsad, who died intestate. As such Ram Kaur Prashad had no authority to execute the Will of the entire property left by her husband Dr. Baini Prashad. At the most she could have made Will of only 1/4th share. It is further alleged in the revocation application that the probate has been obtained by the Executor concealing the material facts from the Court. It is also pleaded that only in March 1996 applicant Geeta Prashad came to know that her father-in-law died intestate. 5. Before further discussions it is pertinent to mention here that proceedings under Section 276 of Indian Succession Act, 1925, are summary in nature and its object is the certification of the genuineness of the will executed by the Executant, Determination of disputed shares in the properties and partition are not within the scope of such proceedings, which can be sought by filing civil suit before the competent civil court. Cases of Chiranjilal Shrilal Goenka Vs. Jasjit singh and others, (1993) 2 Supreme Court Cases 507, and Hem Nolini Judah Vs. Isolyne Sarojbashini Bose and others, AIR 1962 Supreme Court 1471, relied by the applicant Geeta Prashad, itself corroborate said position of law. 6. From the record it is apparent that Romesh Prashad son of the Executant was served with the notices and after his death Smt. Geeta Prashad W/o Romesh Prashad contested the testamentary proceedings before the Allahabad High Court. The record further reveals that she was contesting the proceedings since September 1980. Thereafter, the probate was granted on 29.04.1982. 6. From the record it is apparent that Romesh Prashad son of the Executant was served with the notices and after his death Smt. Geeta Prashad W/o Romesh Prashad contested the testamentary proceedings before the Allahabad High Court. The record further reveals that she was contesting the proceedings since September 1980. Thereafter, the probate was granted on 29.04.1982. Now after almost 14 years of issuance of probate revocation application has been moved by applicant Geeta Prashad for revocation of the probate. 7. Sri M.C. Pande, learned counsel for the applicant Geeta Prashad pleaded that earlier the applicant had no knowledge of the fact that her father-in-law Dr. Baini Prashad died intestate. However, perusal of the record of testamentary cases shows that Dr. Baini Prashad executed a Will dated 25.08.1952, bequeathing his property to his wife Ram Kaur Prashad, which is annexed as Annexure E-1 with the revocation application. The record further reveals that before the District Judge, Uttarakhand (West at Dehradun) succession proceedings were initiated under the Indian Succession Act, 1925, on 13th March 1969 after death of Dr. Baini Prashad on 18.01.1969. In said proceedings, which was registered as Misc. Case No. 11 of 1969, Pran Prashad and Romesh Prashad, sons of Dr. Baini Prashad, filed their written statement containing no objection for grant of succession certificate to Ram Kaur Prashad, the applicant of said case. The written statement containing no objection of Romesh Prashad is paper no. 20 of record of the revocation application. This document discloses that the written statement was filed on 17th April 1969 before the court. In the circumstances, the stand taken by Smt. Geeta Prashad that she had no knowledge that Dr. Baini Prashad died intestate appears wrong as she can only step into the shoes of Romesh Prashad, her husband, after his death on 13.03.1980. The proceedings of succession certificate moved by Ram Kaur Prashad were based on Will executed by her husband Dr. Baini Prashad. Therefore, it is not established on record that Dr. Baini Prashad died intestate. 8. Next contention advanced on behalf of Geeta Prashad is that her husband Romesh Prashad was only given movable property and deprived of his rights in the immovable properties left by his father. On the perusal of the record the stand taken by the applicant Geeta Prashad appears incorrect. Baini Prashad died intestate. 8. Next contention advanced on behalf of Geeta Prashad is that her husband Romesh Prashad was only given movable property and deprived of his rights in the immovable properties left by his father. On the perusal of the record the stand taken by the applicant Geeta Prashad appears incorrect. It is evident from the Will that apart from movable property House No. 10, Kali Das Road, Dehradun, Plot No. 56B Block, measuring 4184 Sq. Yards situated at Chanderbani Garden, Dehradun was also bequeathed to Romesh Prashad. Said fact gets corroborated from the copy of affidavit dated 21st April 1998, filed by Geeta Prashad herself before Allahabad high Court in which the fact has been admitted. As such the stand taken by the applicant Geeta Prasahd is found without substance. 9. Lastly, it is contended that the property left behind by Ram Kaur Prashad was inherited property, as such she could not have bequeathed the same. It is true that a person can execute Will in respect of his self-acquired property and not the inherited one. But the property in question has not been inherited by Ram Kaur Prashad from her husband through natural succession rather the self-acquired property of Dr. Baini Prashad was bequeathed to her by her husband. 10. Sri M.C. Pande, learned counsel for the applicant Geeta Prashad referring to the case of Sardar Singh Vs. Swami Chakrapani Acharya, A.I.R. (33) 1946 Allahabad 357, submitted that if a probate is obtained by misstatement, petition under Section 263 of Indian Succession Act, 1925 for revocation is maintainable. I have gone through the said case law. There was not nomination of Executor in the Will, executed by the testator in the referred case, and a plea was taken while seeking probate that the applicant was constructive Executor. The said case does not help the applicant Geeta Prashad as in the present case there is express nomination of I.L. Dass, who obtained probate from the Allahabad High Court. Attention of this Court is also drawn to the case of Thresia Vs. Lonan Mathew and others, 1956 TRA-CO 186 (S) AIR V 43 C 67 (FB), and it is argued that once a probate is granted, contents of the Will and the probate cannot be challenged by anyone except by filling the revocation application and getting probate revoked. Attention of this Court is also drawn to the case of Thresia Vs. Lonan Mathew and others, 1956 TRA-CO 186 (S) AIR V 43 C 67 (FB), and it is argued that once a probate is granted, contents of the Will and the probate cannot be challenged by anyone except by filling the revocation application and getting probate revoked. In this connection it is further argued that since the application came to know after the granting of probate that Dr. Baini Prashad died intestate and as such the property bequeathed by Will dated 13.11.1975, by testator Ram Kaur Prashad is not a valid Will. I have already discussed above that in the present case the contention of the applicant that Baini Prashad died and left the property intestate is not proved on record. As such the probate issued is not liable to be revoked. The original probate and Will have been taken by the Executor as provided under the Rules, after the probate is granted in the year 1982. It has also come on the record that now Executor I.L. Dass has died on 24.09.2004, during pendency of Special Appeal No. 408 of 1998. A Civil Misc. Application No. 648 of 2008 is moved on 23.02.2008 by Geeta Prashad before this Court seeking her appointment as Executor in view of said development. In the revocation proceedings where the stand of Geeta Prashad is totally against the stand taken by the original Executor I.L. Dass, and what is mentioned in the Will dated 13.11.1975, she cannot be appointed as Executor and as such the Application No. 648 of 2008 stands rejected. 11. In the circumstances, for the reasons as discussed above the Revocation moved by Smt. Geeta Prashad is liable to be rejected. The same is rejected. The testamentary case stands closed and disposed of with the observation that as to her undivided share, if any, and its apportionment, the applicant Geeta Prashad may seek remedy before competent civil court.