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2017 DIGILAW 1476 (PAT)

Most. Prabhawati Kunwar v. Kumari Devi

2017-11-16

PRAKASH CHANDRA JAISWAL

body2017
PRAKASH CHANDRA JAISWAL, J.:–Heard learned counsel for the appellants and learned counsel for the respondent nos. 1, 3 and 6 on this miscellaneous appeal and perused the record. The respondent nos. 2, 4 and 5 did not turn up to advance the argument in the case despite service of notice. 2. This Misc. Appeal has been filed against the judgment and order dated 18.04.2013 passed by District Judge, Siwan in Revocation (Misc) Case no. 26 of 1999 whereby the learned lower court rejecting the prayer of the applicants for revocation of the probate order dated 28.02.1981 passed in Probate Case no. 6 of 1977 revoked the order dated 10.09.1997 passed in the said probate case regarding amendment in the probate petition in respect of khata and khesra number of one of the plots in question. 3. Factual matrix of the case is that Bachcha Shukla had filed Probate Case no. 6 of 1977 for granting probate in respect of the Will dated 17.11.1973 executed by Brij Bihari Upadhyay in favour of him. Details and description of the property bequeathed was not given in the Will rather in the probate petition by the said applicant. Aforesaid probate petition was allowed by the learned lower court vide order dated 28.02.1981. Thereafter, applicant filed an amendment petition for amending the khata and khesra number of one of the plots bearing khata no. 35 khesra no. 891 by replacing it by khata no. 115 and khesra no. 791 without changing area and boundaries of the said plot. The aforesaid amendment petition was allowed by the learned lower court vide order dated 10.09.1997. Tappu Choudhary, Dharmendra Yadav and Raju Kumar filed a petition for revocation of the aforesaid order allowing the probate case and amendment petition vide Revocation (Misc) Case no. 26 of 1999. The heirs of Bachcha Shukla who was the original applicant of the Probate Case No. 6 of 1977 were opposite party nos. 1 to 6 in the said revocation case. They filed rejoinder against the said revocation petition and after hearing the parties and perusing the record learned District Judge, Siwan passed the impugned judgment and order. 4. Being aggrieved and dissatisfied with the part of the aforesaid judgment and order regarding revocation of the amendment order dated 10.09.1997, the opposite party nos. 1 to 6 of the said case have preferred the present appeal. 5. 4. Being aggrieved and dissatisfied with the part of the aforesaid judgment and order regarding revocation of the amendment order dated 10.09.1997, the opposite party nos. 1 to 6 of the said case have preferred the present appeal. 5. It is submitted by the learned counsel for the appellants that the amendment order passed by the learned lower court in the probate case is incidental to it and once the learned lower court has rejected the prayer for revocation of the probate order finding no locus standi of the respondents, it ought have not passed the order for revocation of the amendment order finding having locus standi for the same. It is further submitted that by granting probate of the Will, no right, title, interest is created in the property in question and moreover Title Suit no. 390 of 1996 for declaration of title and recovery of possession is pending in the learned lower court regarding the said plot and the title of the respondents, if any, will be decided in the said title suit. Learned lower court has wrongly revoked the said order merely on not disclosing the factum of filing and pendency of said title suit and dispossession of Bachcha Shukla from it by the respondents in the amendment petition. Non-disclosure of the aforesaid facts at the time of disposal of the amendment petition is not going to affect the merit of the probate case. It is further submitted that respondents have got no interest in the state of Brij Bihari Upadhyay and claim of the respondents regarding the same is under consideration in the aforesaid title suit. 6. On the other hand, it is submitted by the learned counsel for the respondent nos. 1, 3 and 6 that the ancestor of the appellants namely, Bachcha Shukla had obtained the aforesaid amendment order by concealment of the pendency of the title suit regarding the aforesaid plot, filed at the instance of the ancestor of the appellants and his dispossession from it by the respondents and under Section 263 (b) of the Indian Succession Act, 1925 probate order obtained fraudulently by making a false suggestion or by concealing something material to the case from the Court, can be revoked. It is further submitted that the probate case was filed in the year 1977 while the amendment petition was filed in the year 1997, so the aforesaid amendment petition filed by the appellants is barred by limitation. It is further submitted that their ancestor had purchased the plot in question vide oral sale on 11.05.1941 from Brij Bihari Upadhyay, who happens to be testator of the aforesaid Will, much before execution of the said Will and they are in possession of it. After making said oral sale, Brij Bihari Upadhyay had no right to bequeath his property to the ancestor of the appellants and after considering all aspect of the case, learned lower court has rightly revoked the amendment order. 7. From perusal of record, it appears that the Probate Case no. 6 of 1977 was filed by Bachcha Shukla for granting probate of the Will dated 17.11.1973 executed by Brij Bihari Upadhyay in favour of him which was allowed by the learned lower court vide order dated 28.02.1981. Thereafter, Bachcha Shukla filed a petition for amendment in the year 1997 regarding change of khata and khesra number of one of the plots bearing khata no. 35 and khesra no. 891 by replacing it by khata no. 115 and khesra no. 791. Though, the areas and boundaries of the said plot were kept intact. The said petition was also allowed by the learned lower court vide order dated 10.09.1997. Thereafter, Tappu Choudhary and others filed Revocation (Misc) Case no. 26 of 1999 for revocation of the aforesaid probate as well as amendment order on the ground that the preceding to the execution of said Will, Brij Bihari Upadhyay had made oral sale in favour of his ancestor on 11.05.1941 and they are in possession of it and after making of the oral sale, Brij Bihari Upadhyay had no right to bequeath the said property in favour of Bachcha Shukla. Further case of the said respondents was that before making the amendment petition, the ancestor of appellants namely, Bachcha Shukla had filed Title Suit no. 390 of 1996 for declaration of title and recovery of possession regarding the plot in question as he had not been in possession of it. Further case of the said respondents was that before making the amendment petition, the ancestor of appellants namely, Bachcha Shukla had filed Title Suit no. 390 of 1996 for declaration of title and recovery of possession regarding the plot in question as he had not been in possession of it. But, in the said amendment petition, he had not disclosed the factum of pendency of the said title suit and his dispossession from it by the respondents and obtained the amendment order concealing the aforesaid material facts. 8. Learned lower court rejected the prayer of respondents regarding revocation of the probate order dated 28.02.1981 finding that they have no locus standi for the same while allowed the prayer of revocation of the amendment order dated 10.09.1997 on the ground that the ancestor of appellants has made concealment of fact regarding pendency of the aforesaid title suit regarding the aforesaid plot and his dispossession from it by the respondents and the respondents have got locus standi to get the aforesaid amendment order revoked and they have been able to show just cause for such revocation. 9. From perusal of record, it further appears that the ancestor of appellants namely, Bachcha Shukla has got the khata no. 35 and khesra no. 891 amended by replacing it by khata no. 115 and khesra no. 791. There is no change regarding the area and boundaries of the said plot. It is settled principle of law that property is well identified by its area and boundaries and mere change of the plot number is not going to affect the identity of the property. So merely by changing the khata and khesra number of the property in question keeping the area and boundaries intact, the identity of the property in my considered opinion, is not going to be disturbed and by the amendment order dated 10.09.1997, the learned lower court has only allowed the amendment regarding change of khata and khesra number of the plot in question. 10. The amendment order has been passed in Probate Case no. 6 of 1977 and the said amendment order has become part and parcel of the probate order. The learned lower court has rejected the prayer of respondents regarding revocation of the probate order finding no locus standi for the same. 10. The amendment order has been passed in Probate Case no. 6 of 1977 and the said amendment order has become part and parcel of the probate order. The learned lower court has rejected the prayer of respondents regarding revocation of the probate order finding no locus standi for the same. As the learned lower court has not found locus standi of the respondents for getting the probate order revoked, the respondents have also got no locus standi to get the amendment order revoked as the said amendment order has been passed in the said probate case and it is the part and parcel of the said probate case. Moreover, the said order of learned lower court rejecting the prayer of revocation of the probate order has not been assailed by the respondents and it has become final. 11. So far as the concealment of the factum of filing of the Title Suit no. 390 of 1996 regarding the declaration of title and recovery of possession in respect of the plot in question and dispossession from it by the respondents in the amendment petition by the ancestor of appellant Bachcha Shukla is concerned, the same may be ground for revocation of the probate case under Section 263(b) of the Indian Succession Act 1925, but it cannot be a ground for revocation of amendment order passed in the said probate case later to passing of probate order. 12. It is the settled principle of law that at the time of deciding the probate case right, title and interest in the property in question is neither considered nor decided in favour of the applicants of the said case rather only genuineness of the Will, testamentary capacity of the testator to execute the Will and due attestation of Will are to be considered. Right, title and interest regarding the plot in question is to be decided in Title Suit no. 390 of 1996 pending between the parties, considering the facts and circumstances of the case and evidence adduced by the parties in the said case. So by allowing said amendment making change in khata and khesra number of one of the plots in question, no right, title and interest is created in favour of the appellants and said amendment order is not liable to be revoked. 13. So by allowing said amendment making change in khata and khesra number of one of the plots in question, no right, title and interest is created in favour of the appellants and said amendment order is not liable to be revoked. 13. So far as limitation is concerned though there was delay of 20 years in filing the amendment petition, but the learned lower court considering the facts and circumstances of the case has allowed the said amendment petition. Each case and each petition has its own merit and is disposed of considering the merit of the same. Moreover, learned lower court has also not revoked the amendment order on this score and said amendment petition is not before the court to enable it to consider the merit of the same. 14. In the aforesaid facts and circumstances of the case, I find and hold that the impugned order to the extent of revocation of the amendment order dated 10.09.1997 passed by the learned lower court is wrong and illegal and is set aside. Accordingly, this appeal is allowed. 15. It is made clear that this order would have no prejudicial impact on the Title Suit no. 390 of 1996.