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Himachal Pradesh High Court · body

2009 DIGILAW 674 (HP)

BHUMLI DEVI v. ANAND RANI

2009-07-28

DEV DARSHAN SUD

body2009
JUDGMENT Dev Darshan Sud, J.-This appeal has been preferred by the appellant against the order of the learned District Judge, Nahan, granting probate of the Will Ex.P-2 in favour of the petitioner Narinder Kumar, who died during the pendency of this appeal and is represented by his legal representatives. 2. The facts pleaded are that Suresh Kumar, son of Shri Gurnam Singh, of village Nayagaon died on 18.8.1988 and executed a will Ex.P-2 in favour of late Shri Narinder Kumar. In the testamentary disposition, he excluded Vijay Kumar, respondent No. 2 before the trial Court, who also died during the pendency of this appeal, who was related to him and wife Bhumli Devi, respondent No. 3 appellant who contested the petition on the pleading that the Will is shrouded by suspicious circumstances and no probate can be granted to the petitioner. 3. In order to prove his case, the petitioner stated in his evidence that on 18.8.1998, when the executant died he went to call respondent No. 3 Bhumli Devi and informed her about death of her husband (testator), but she refused to join either in the funeral ceremony or in the after death ceremonies. This meeting was in the presence of ward members and senior /respectable residents of the village. This fact was corroborated from the statement of Bhumli Devi, when she appeared as RW-2 and admitted these facts in her cross examination. Ex.P-6 records this fact and is admitted by her in her deposition to have been thumb marked by her. 4. The main defence pleaded by her was that at the time when the testamentary disposition was made, her husband (testator) was not in a sound disposing state of mind. To prove these facts, she examined RW-1 Dr. Virender Mohan, who stated in his evidence that he had brought the record of his Nursing Home showing the name of the deceased at page No. 68 and that he had been admitted for treatment between 20.2.1997 to 10.3.1997. In cross examination, he has admitted that in the register, address of Suresh Kumar is written as village ‘Didal’ which has later on been altered. He stated that the disease for which Suresh Kumar was being treated was curable. 5. In cross examination, he has admitted that in the register, address of Suresh Kumar is written as village ‘Didal’ which has later on been altered. He stated that the disease for which Suresh Kumar was being treated was curable. 5. On a consideration of the evidence on record, the learned Court holds that it was not established that it is the same Suresh Kumar who has executed the testament as the name of the village is wrong and moreover even RW-3 Smt. Bhumli Devi has admitted that she is unable to state about the exact location of the clinic or the day when she visited this clinic/ nursing home. In these circumstances, the learned Court holds that the testimony of this witness is not reliable and it was established on the record that Ex.P-2 was a valid disposition made in favour of the petitioner before the trial Court. 6. Learned counsel appearing for the appellant urges that the Court did not have inherent jurisdiction to entertain the proceedings for probate and the entire proceedings were, therefore, void abi nitio. He has placed reliance on the judgment of the Supreme Court in Kiran Singh and others v. Chaman Paswan and others, AIR 1954 SC 340 and Amrit Bhikaji Kale and others v. Kashinath Janardhan Trade and another, AIR 1983 SC 643, at page 647. 7. In Karan Singh’s case, (supra) the Supreme Court held: “…It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction…….strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties…” 8. This principle needs no reiteration. It is bynow well established that lack of inherent jurisdiction can neither be cured by consent of the parties nor by participating in the proceedings. 9. Learned senior counsel submits that Sections 2 (c), 2 (f) and 222 of the Indian Succession Act, 1925 (hereafter referred to as the Act) confer jurisdiction on the Court to grant probate to the executor of the will. 9. Learned senior counsel submits that Sections 2 (c), 2 (f) and 222 of the Indian Succession Act, 1925 (hereafter referred to as the Act) confer jurisdiction on the Court to grant probate to the executor of the will. These provisions read: “2(c) "Executor" means a person to whom the execution of the last will of a deceased person is, by the testators appointment, confided; “(f) "Probate" means the copy of a Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator;” “222. Probate only to appointed executor (1) Probate shall be granted only to an executor appointed by the Will. (2) The appointment may be expressed or by necessary implication. According to the learned counsel, the petitioner before the probate Court was not the executor of the will and was the legatee. A reading of Ex. P-2 does not disclose the intention of the testator to appoint him as such. He has placed reliance on the judgment of the High Court of Delhi in Inder Chand Nayyar v. Sarvadeshik Arya Pratinidhi Sabha and another, AIR 1977 Delhi 34 holding: “8. In the instant case, there are no words contained in the will which either expressly or by necessary implication entrust the duty of execution of the will or the administration of the estate of the deceased to the respondent. The contesting respondent has been made the sole beneficiary and is, therefore, the legatee. Even in the application filed in the court below, by which the proceedings were initiated, it is stated in paragraph 3 that the contesting respondent was the sole beneficiary named under the will. The statement of fact is no doubt true, and it is clear that the respondent is neither in fact an executor nor had it ever claimed to be the executor of the will. As such I hold that the contesting respondent has not been appointed executor in the will in dispute either expressly or by necessary implication. Consequently, the order for grant of probate to the contesting respondent with the copy of the will attached is not sustainable and is set aside.” 10. The Gujarat High Court in Lallubhai Chhotabhai by L.Rs and others v. Vithalbhai Parshottambhai, AIR 1982 Gujarat 222, while interpreting the provisions of the Act held: “8. Consequently, the order for grant of probate to the contesting respondent with the copy of the will attached is not sustainable and is set aside.” 10. The Gujarat High Court in Lallubhai Chhotabhai by L.Rs and others v. Vithalbhai Parshottambhai, AIR 1982 Gujarat 222, while interpreting the provisions of the Act held: “8. The question whether the respondent is an executor appointed by the will, either expressly or by necessary implication, falls to be resolved on true interpretation of the relevant provisions of the will extracted above. Para 4 of the will is the material provision which requires to be closely analysed in the context. The contents of the said para unmistakably indicate that there was an absolute bequest of all the properties of the testator in favour of the respondent, that the respondent was entitled to immediately possession, enjoyment and user of the properties bequeathed and that the possession was to be taken and enjoyment and user was to be made in the capacity of a full and absolute owner. In other words, upon the death of the testator, all his properties were to immediately vest solely in the respondent, both in interest as well as in possession, as an absolute owner and that he was to take possession of those properties in the capacity of a absolute owner and to use and enjoy them as such. The disposition in such clear terms constitutes the respondent an universal legatee to whom the testator gave the whole of his properties which he left at the time of his death. 9……The directions contained in para 4 of the will with regard to the payment of debts, if any, and the performance of obsequies ceremonies and incurrent of expenses in that behalf, have not the effect of constituting the respondent an executor or a residuary legatee because the testator’s intention clearly was to vest his properties in interest as well as in possession in the respondent immediately upon his death and not after the expenses with regard to obsequies ceremonies were met and debts, if any, were paid by him in the process of administration of the properties. 12.In view of the foregoing discussion, it is manifest that the respondent is not an executor appointed by the will, either expressly or by necessary implication although he might have honestly believed so. 12.In view of the foregoing discussion, it is manifest that the respondent is not an executor appointed by the will, either expressly or by necessary implication although he might have honestly believed so. Probate of the will could not therefore have been granted to him, having regard to the provisions contained in S. 222 of the Act. 16.In Dilip Kumar v. Subhadra, AIR 1974 Orissa 130 and Soundararaja Peter v. Florance Chellaih, AIR 1975 Mad 194, the grant of letters of administration with the will annexed was found to be the proper remedy when it was found that probate could not be granted as no executor was appointed by the will. Under the circumstances having regard to the fact that we have found that the respondent is a universal legatee and in view of the fact that the finding with regard to the proof of the will is not in question, we are inclined to remand the matter to the District Court with a direction that letters of administration with the will annexed should be granted to the respondent as alternatively prayed by him….” I have considered and extracted in detail the judgment of the Gujarat High Court for the reason that I find that throwing out the respondents at this juncture would be inequitable. 11. Although the Gujarat High Court on facts noticed that an alternate prayer for grant of letters of administration had been made, a direction was issued for issuance of letter of administration. But the Court also relied upon the decision of the Orissa and Madras High Courts wherein it was held that if probate could not be granted, this was no bar for grant of letters of administration. These two decisions may be noted. In Dilip Kumar Mohapatra v. Subhadra and others, AIR 1974 Orissa 130, on appreciation of facts, the Court held that the legatee was not entitled to probate. 12. It was directed: “10. Even on these findings the appellant would not be entitled to probate of the will. On examination of Ext. 1, we do not find that any executor had been appointed by the will. Section 222 of the Indian Succession Act provides:- (1) Probate shall be granted only to an executor appointed by the will. 12. It was directed: “10. Even on these findings the appellant would not be entitled to probate of the will. On examination of Ext. 1, we do not find that any executor had been appointed by the will. Section 222 of the Indian Succession Act provides:- (1) Probate shall be granted only to an executor appointed by the will. (2) The appointment may be expressed or by necessary Implication." We do not find any material in the will itself from which we can hold that an executor had been appointed by necessary implication. Mr. Pal relied upon Kamalamma v. Somasekharappa, AIR 1963 Mys 136; S. Venkatarama Iyer v. Sundarambal, AIR 1940 Bom 400; Arumilli Viramma v. Arumilli Seshamma, AIR 1931 Mad 343 in support of the contention that the appellant by necessary implication may be taken to have been appointed as the executor. We find nothing useful in the first two cases to support Mr. Pals contention and the Madras case had a different set of facts on the basis of which the principle of appointment by implication was found applicable. Consequently probate cannot be granted. On the other hand it would be appropriate, on our finding regarding the will to grant letters of administration with the will annexed to the legatee as provided under section 232 of the Succession Act. 11. We would, accordingly allow the appeal, set aside the judgment and decree of the learned Subordinate Judge and direct that letters of administration be granted to the appellant with a copy of the will annexed thereto as provided under Section 232 of the Indian Succession Act. We direct the parties to bear their own costs throughout.” 13. Similarly, the Madras High Court in Soundararaja Peter and others v. Florance Chellaih and others, AIR 1975 Madras 194, held: “5…..The question is whether the plaintiff will be entitled to the Letters of Administration, if on merits, the Will is held to be true and genuine and the testatrix is found to be of sound and disposing state of mind at the time of the execution of the Will…. 6. Section 232 applies to be a case where the testator has not appointed an executor. 6. Section 232 applies to be a case where the testator has not appointed an executor. The section states that where an executor has not been appointed under a Will or the executor appointed is incapable of or has refused to act or has died before the testator or before proving the will, an universal or residuary legatee may be admitted to prove the will, and letters of administration with the will annexed may be granted to him of the estate. Section 235 provides that letters of administration with the will annexed shall not be granted to any legatee other than an universal or a residuary legatee, until a citation has been issued and published in the manner prescribed by the provisions of that Act… ….We do not understand the provisions in Section 232 as enabling only a residuary or an universal legatee to prove the Will and claim letters of administration. Section 234 specifically provides that any legatee having a beneficial interest may also prove the will and seek a letters of administration. The plaintiff being a legatee under the will and there being no universal or residuary legatee, the provisions of Section 234 will come into play. The plaintiff is therefore entitled to prove the will and get letters of administration in relation to that will. 7. The only further question is whether she can get letters of administration without the citation and the publication in the manner contemplated by Section 235. Section 235 specifically refers to the case of an universal or a residuary legatee applying for letters of administration and prohibits the grant of letters of administration unless citation has been issued and published in the manner prescribed. On the face of it, Section 235 does not apply to a case where a legatee applies for letters of administration. Apart from this, when all the legatees are before the Court and there being no other person having beneficial interest under the Will, no citation or publication appears to be necessary having regard to the object of such a citation and publication. Admittedly in this case all the legatees mentioned in the will in question are before Court and they are the plaintiff and defendants 4 to 6…..” 14. The fact that the legatee has died during the pendency of the appeal cannot be a bar for grant of letters of administration. (See Mt. Phekni v. Mt. Admittedly in this case all the legatees mentioned in the will in question are before Court and they are the plaintiff and defendants 4 to 6…..” 14. The fact that the legatee has died during the pendency of the appeal cannot be a bar for grant of letters of administration. (See Mt. Phekni v. Mt. Manki, AIR 1930 Patna 618). 15. On the evidence on record, I find that there is no evidence to establish that the testator was not possessed of sound mind enabling him to make a valid testamentary disposition. The evidence of RW-1 Dr. Virender Mohan cannot be relied upon as the address of the patient referred to as Suresh Kumar who is sought to be identified as testator is wrong. RW-3, Bhumli Devi, wife of the testator who had contested the petition is also unable to state the details of the medical treatment if any rendered to the testator. Exts. P-1, the writing executed by RW-3 and Ex. P-2, the will are very clear as to why the testator has excluded her from inheritance. The Will Ex.P-2 states in absolutely clear terms that RW-3 does not wish to reside with the deceased. The recital reads: “….Mere nizi sage sambandhi Shri Narinder Kumar, patni Bhumli Devi va chhota bhai Vijay Kumar hain. Meri patni Bhumli Devi ne mujhe bahut dukhi kiya va dar dar ki thokren khane par majboor kar diya tatha apratyaksh roop se mera rupiya paise va saman dukan mujhse loot paat kar liya hai va chhote bhai Vijay Kumar ne bhi mujhe beghar kar paise khaya va is se bhi main dukhi hoon tatha apni mankoola gair mankoola jaidad va rupaya zameen ityadi se in dono ko is vasiyat se banchit kar raha hoon. Shri Narinder Kumar, jo ki meri mata se uske pahle pati se janme hai ne bade bhai hone ki poori poori zimebari nibhai va bachpan se hame parvarish kiya, main unse atyant prasan hoon va unke haq main yeh vasiyat karta hoon, meri koi aulad nahin hai…” 16. The testator is clear in his mind. He is fed up with his wife who, he says, has deprived him of his money, belongings and shop and left him to suffer and live at the mercy and charity of others. The testator is clear in his mind. He is fed up with his wife who, he says, has deprived him of his money, belongings and shop and left him to suffer and live at the mercy and charity of others. To similar effect, he states that Vijay Kumar, who is his younger brother, has also been privy to these misdeeds and has also deceived the testator into parting money etc. Narinder Kumar (legatee), who is his step brother has treated him like a younger brother and looked after him. I do not think any more is required to dispel the so called suspicious circumstance as to why these two respondents have been excluded from the testamentary disposition. This recital when read with Ex.P-1 and testimony of PW-1 Shri Narinder Kumar clearly establishes that the wife was not at all interested in meeting, residing or living with the deceased. There is no doubt in my mind that Ex.P-2 is a valid instrument executed in accordance with law. 17. There is no merit in this appeal which is dismissed as having no merit and a direction is issued to the learned District Judge that he shall readmit the case and issue letters of administration to the respondents herein. Parties shall appear before the learned District Judge, Nahan on August 24, 2009. Records be sent back immediately. There shall be no order as to costs.