Grant Obtained Behind Backs Of Necessary Heirs | Delhi HC Upholds Revocation Of Probate Due To Non Impleadment And Concealment | Rightful Heirs Must Be Heard As Probate Is Judgment In Rem
Sanchayita Lahkar
The High Court of Delhi, Single Bench of Justice Dharmesh Sharma, dismissed two first appeals challenging the revocation of probate earlier granted in favour of the appellant. The Court upheld the order of the Probate Court which revoked the probate on the grounds of non-issuance of notice to necessary parties, deeming it a material procedural defect.
The appeals arose from the judgment dated 30 May 2023 passed by the learned Additional District Judge-03, Patiala House Courts, New Delhi, wherein the Probate Court had allowed applications under Section 263 of the Indian Succession Act, 1925, revoking the probate issued on 25 November 2014 in respect of the Will dated 23 October 2013.
The Court directed that the proceedings in PC No. 5/2014 stand revived and are to be adjudicated afresh after issuing notice to all necessary and proper parties as required under the Indian Succession Act and relevant rules.
The appellant, K.P.R. Nair, who is the nephew and the sole executor named in the registered Will of Mrs. Rajamma S. Madden (the testatrix), had been granted probate by the Probate Court on 25 November 2014. The Will dated 23 October 2013 was executed by Mrs. Rajamma S. Madden, widow of Mr. Santosh M. Madden, who had died intestate in 2006. The Will bequeathed rights to the testatrix's share in two properties—Property No. 11-A, Prithvi Raj Road, and 6.25% undivided share in Property Nos. 21 and 21-A, Tughlak Road, New Delhi.
The respondents—Mrs. Meenakshi Sardana and Mr. Sunder Chathli—filed applications under Section 263 of the Indian Succession Act for revocation of the probate, asserting that they were legal heirs of the testatrix's husband and had not been notified about the probate proceedings. They claimed this omission amounted to fraud and material concealment.
The Will had distributed assets and monetary consideration derived from prior agreements to sell the properties, and the appellant executed the Will in favour of multiple beneficiaries including himself. The Probate petition impleaded only the State and the sister of the testatrix, Mrs. Saraswathy Amma, who filed a no-objection.
Upon receiving no objections, probate was granted in 2014 and the executor discharged in 2015 after compliance with Section 317 of the Indian Succession Act.
However, in 2020, the applicants/respondents learned about the probate and Will through a partition suit filed by one Mr. Om Prakash Arora, who claimed rights over the properties. Consequently, revocation proceedings were initiated.
The appellants contested the applications citing limitation and lack of locus standi. They argued that the applicants had no legal right to claim the estate, as the testatrix had left a valid Will and had disposed of her assets during her lifetime. They further asserted that the notice published in 'The Statesman' constituted a valid publication in rem.
Justice Dharmesh Sharma, referring to Section 263 and its illustration (ii) of the Indian Succession Act, recorded that "the grant which was made without citing parties who ought to have been cited, would result in revocation of the grant for just cause." It was found that the testatrix had inherited property from her husband and as such, in accordance with Section 15(2)(b) of the Hindu Succession Act, "the estate would devolve upon the heirs of the husband."
The Court held that "wherever a Will is propounded that has been left behind by a female Hindu, the first step is to presume that the testatrix has died intestate and then ascertain the legal heirs who would have been entitled in such a scenario."
Justice Sharma further stated: "It is well settled that since probate proceedings are in the nature of a judgment in rem, all parties who may have some legal right or other as regards genuineness or authenticity of the Will, should be impleaded in the Probate proceedings."
The learned Judge referred to multiple precedents, including Swaminathan v. Alankamony, Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal, and Amaidas Patel v. Dayabhai Amaidas, supporting the proposition that omission of necessary parties vitiates probate proceedings.
Quoting from the impugned judgment, the Court recorded: "While the applicants have pleaded and shown that the probate was obtained behind their backs, the non-applicants have not been able to point to any fact by which they could claim that the applicants had knowledge of filing of the probate proceedings or of the grant of probate."
The Court rejected the plea of limitation, noting that the right to apply for revocation under Section 263 accrues from the date of knowledge. It was held that the applicants learned about the Will and probate in 2020 when a suit was served on them.
Regarding the publication in 'The Statesman', the Court found it insufficient. It stated: "Even the publication dated 15.02.2014 made in The Statesman newspaper has been issued only qua the property at Prithvi Raj Road and makes no mention of the property at Tughlak Road."
On the question of whether delay was fatal, the Court referred to Manju Puri v. Rajiv Singh Hanspal, where probate was revoked after 29 years.
The Court upheld the revocation of the probate and directed that the probate petition be revived. " The impugned order dated 30.05.2023 passed by the learned Probate Court does not suffer from any illegality, perversity or incorrect approach in law or facts.
Accordingly, both the present appeals are hereby dismissed. The pending applications also stand disposed of," concluded the Court.
Advocates Representing the Parties
For the Appellant: Mr. Sushil Salwan, Sr. Adv. with Mr. Bharat Deepak, Mr. Kaustubh Sinha, Mr. Tarun Kapoor & Mr. Ashutosh Kumar Singh, Advs.
For the Respondents: Mr. Sanjiv Kakra, Sr. Adv. with Mr. Akash Madan, Adv, Mr. Sanjeev Sindhwani, Sr. Adv. with Mr. Sanjay Dua & Mr. Akash Madan, Advs. , Mr. Praveen Kumar & Mr. Kumar Shubham, Advs.
Case Title: K.P.R. Nair v. Meenakshi Sardana & Anr. / K.P.R. Nair v. Sunder Chathli & Ors.
Neutral Citation: 2025: DHC:3284
Case Numbers: FAO 288/2023 & FAO 290/2023
Bench: Justice Dharmesh Sharma
[Read/Download order]
