Mr. Sushil Salwan, Sr. Adv. with Mr. Bharat Deepak, Mr. Kaustubh Sinha, Mr. Tarun v. MEENAKSHI SARDANA & ANR

Judgment

1. Mr. Praveen Kumar & Mr. Kumar Shubham, Advs. for R-2. + FAO 290/2023 & CM APPL. 58392/2023 K.P.R. NAIR .....Appellant Through: Mr. Sushil Salwan, Sr. Adv. with Mr. Bharat Deepak, Mr. Kaustubh Sinha, Mr. Tarun Kapoor & Mr. Ashutosh Kumar Singh, Advs. versus SUNDER CHATHLI & ORS. .....Respondents Through: Mr. Sanjeev Sindhwani, Sr. Adv. with Mr. Sanjay Dua & Mr. Akash Madan, Advs. for R1. Mr. Praveen Kumar & Mr. Kumar Shubham, Advs. for R-2. FAO 288/2023 & 290/2023 Page 1 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44 CORAM: HON'BLE MR. JUSTICE DHARMESH SHARMA J U D G M E N T DHARMESH SHARMA, J. 1. These First Appeals have been preferred under Section 299 of the Indian Succession Act, 1925 [“ISA”] by the appellant herein who is the nephew and sole executor of the last Will and testament of Late Smt. Rajamma S. Madden [“testatrix”]. He is assailing the impugned judgment dated 30.05.2023 passed by the learned Additional District Judge-03, New Delhi District, Patiala House Courts, New Delhi [“Probate Court”] in Misc. DJ No. 25/2022 titled as “Meenakshi Sardana v. K.P.R. Nair & Ors.”, whereby the learned Probate Court has allowed the application filed by the respondent No.1 herein under Section 263 of the ISA, thereby revoking the Letter of Probate granted vide order dated 25.11.2014 in P.C. No. 5/2014 in respect of the registered Will dated 23.10.2013 of the testatrix. Since the present appeals raise common questions of fact and law, they can be conveniently disposed of together by way of a common judgment. FACTUAL MATRIX:

2. Before probing into the facts leading to the filing of the present appeals, it is necessary to first establish the genealogy of the parties involved. There is no dispute that late Mrs. Chandnee Widya Madden, had acquired two properties in her lifetime viz. (1) Property No. 11-A, Prithvi Raj Road, New Delhi, and (2) Property No. 21 and 21-A, FAO 288/2023 & 290/2023 Page 2 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44 Tughlak Road, New Delhi, and upon her death, she left behind four

daughters and one son, namely Mrs. Rasina Bhatia, Ms. Prem Madden, Mrs. Sheila Chathli, Mrs. Meenakshi Sardana and Mr. Santosh M. Madden respectively. Ms. Prem Madden remained unmarried and died on 11.01.1989. Mrs. Sheila Chathli married Mr. Sunder Chathli and they had a daughter Ms. Jyotika Oguz. Mrs. Sheila Chathli died on

12.01.2018 and Mr. Sunder Chathli died on 01.07.2021 and are survived by the abovenamed daughter, who is being represented in the present proceedings through her attorney Mrs. Meenakshi Sardana. On the other hand, Mr. Santosh M. Madden married Mrs. Rajamma S. Madden and he died issueless on 09.12.2006. Mrs. Rajamma S. Madden died on 07.12.2013 leaving behind no son or daughter or Class-1 legal heir, but she had one sibling/sister, namely Mrs. Saraswathy Amma, who is claimed to be her sole legal heir. The aforesaid position can be explained through the following family tree: FAO 288/2023 & 290/2023 Page 3 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44

3. Upon the demise of Mrs. Chandnee Widya Madden on

20.10.1965, several disputes arose between her legal heirs regarding the division of the aforesaid two properties, however, upon the intervention of the Court, eventually the disputes were resolved in the following terms: (1) The property bearing No. 11-A, Prithvi Raj Road, New Delhi devolved exclusively upon the son Mr. Santosh M. Madden. (2) The property bearing No. 21 and 21-A, Tughlak Road, New Delhi devolved upon the above named four daughters in equal share i.e., 25% each. However, it is pertinent to note that upon the death of one of the daughters Ms. Prem Madden, by the operation of law, the remaining three sisters as well as one brother inherited her 25% undivided share in the said property in equal proportion i.e., 6.25% each.

4. Accordingly, when Mr. Santosh M. Madden died intestate on

09.12.2006, his widow Mrs. Rajamma S. Madden/testatrix became the sole and absolute owner of the residential free-hold property bearing No. 11-A, Prithvi Raj Road, New Delhi, and she also acquired 6.25% undivided right, title, share and interest in the lease-hold property bearing No. 21 and 21-A, Tughlak Road, New Delhi. 5. In her lifetime, Mrs. Rajamma S. Madden appears to have executed two Agreements to Sell dated 20.03.2010 and 19.10.2013 both in favour of one Mr. Om Prakash Arora, for the sale of the aforesaid two properties to the extent of her acquired share. Although no sale deed was ever executed or registered by Mrs. Rajamma S. Madden during FAO 288/2023 & 290/2023 Page 4 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44 her lifetime in this regard, it is alleged that by way of her last Will and testament dated 23.10.2013, which was duly registered, she bequeathed the said two properties to the extent of her share, in favour of Mr. Om Prakash Arora and also distributed the balance sale consideration payable, among her sisters, brothers, nieces, nephews (including the appellant herein), friends and other relatives. Incidentally, the appellant herein, who is one of the nephews of the testatrix and beneficiaries under her alleged Will, was appointed by the testatrix/ Mrs. Rajamma S. Madden as the sole executor of her Will. 6. In the aforesaid backdrop, upon the demise of the testatrix on

07.12.2013, the appellant herein, being the sole named executor, filed a petition under Section 276 of the ISA bearing PC No. 5/2014 before the learned Probate Court for grant of probate of the registered Will dated

23.10.2013. In the said probate petition, the appellant herein impleaded only two parties viz. the State as the respondent No.1, and Mrs. Saraswathy Amma, the real sister of the deceased, as the Respondent No.2 therein. 7. Pursuant thereto, the notice of the probate petition was served on both the respondents in said probate proceedings, i.e., the State and Mrs. Saraswathy Amma (now deceased), and citation of the said probate petition to the public at large was duly published through the Court, thereby inviting objections, if any, of the public at large to the same. However, since no objection was received by the Court either from the State or from any other person, and upon Mrs. Saraswathy Amma filing FAO 288/2023 & 290/2023 Page 5 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44 her ‘No-objection’ to the grant of probate, the said probate petition was allowed by the learned Probate Court vide judgment dated 25.11.2014 and Letter of Probate with copy of the Will annexed was granted and issued in favour of the appellant herein. 8. Accordingly, the assets of the testatrix were distributed among the beneficiaries as per the alleged Will dated 23.10.2013 of the testatrix, and vide order dated 04.09.2015, the learned Probate Court discharged the appellant/ sole executor from his duties upon noting that the compliances under Section 317 of the ISA had been made by the appellant herein. 9. The events that transpired thereafter bring us to the precipice of the issues raised herein. After a lapse of about 6 years from the date of grant of probate, the respondents herein who happen to be the sister-in- law and the husband of another sister-in-law of the testatrix, filed separate applications on 11.12.2020 and 01.04.2021 respectively, under Section 263 of the ISA bearing Misc. DJ Nos. 25/2022 and 26/2022 before the learned Probate Court, for revocation of the judgment dated

25.11.2014 allowing the probate of the registered Will dated

23.10.2013. The application bearing Misc. DJ No.26/2022 has been filed by Mr. Sunder Chathli, which is being contested by Mrs. Meenakshi Sardana on the basis of Power of Attorney dated

19.02.2021. 10. The prayer for revocation of probate of Will was sought primarily on the ground that in terms of Sections 15(1)(b), 15(2)(b) and 8(b) read FAO 288/2023 & 290/2023 Page 6 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44 with Class II of the Schedule to the Hindu Succession Act, 1956 [“HSA”], the legal heirs of the husband of the testatrix who was a female Hindu, are entitled to succeed the estate of the testatrix. It was also contended that notice of the probate proceedings was never issued to the legal heirs of the husband of the testatrix i.e., Mr. Santosh M. Madden, by the appellant herein, as per Rule 3 of Chapter XXIX of the Delhi High Court (Original Side) Rules, 2018, and thus, the grant of probate of the alleged Will dated 23.10.2013 is materially defective for non-issuance of notice to necessary and proper parties, thereby vitiating the entire probate proceedings. 11. The appellant herein objected to the said application filed under Section 263 of ISA on various grounds inter alia challenging the same to be barred by limitation besides assailing the locus standi of the respondents herein; and discharge of the appellant as the executor herein vide judgment dated 25.11.2014 followed by order dated

04.09.2015. IMPUGNED JUDGMENT 12. Suffice it to state that after hearing parties at length, the learned Probate Court allowed applications applicants/respondents herein, under Section 263 of ISA vide common impugned judgment dated 30.05.2023, thereby revoking the Letter of Probate with the copy of the Will dated 23.10.2013 annexed, which was granted by it earlier vide judgment dated 25.11.2014 passed in PC No. FAO 288/2023 & 290/2023 Page 7 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44 5/2014, besides reviving the proceedings in PC No. 5/2014 which are still sub judice. 13. In summary, the learned Probate Court vide impugned judgment dated 30.05.2023, found that the non-applicant/appellant herein i.e., the sole executor, could not establish anything on record to prove that the applicants/respondents herein had prior knowledge of the execution of the alleged Will of the testatrix, or the probate so granted. The learned Probate Court reasoned that in view of the non-issuance of notice and non-impleadment of the applicants/respondents herein to the probate proceedings, the right to file the applications under Section 263 of ISA accrued from the date of knowledge and not from the date of grant of probate. Accordingly, it was held that the applications at hand are maintainable for having been moved by the applicants/respondents herein well within the prescribed period of limitation of three years. 14. Pertinently, learned Probate Court inter alia opined that since the testatrix and her husband Mr. Santosh Madden did not leave behind any issue of their own, and since the husband predeceased the testatrix, therefore, as per Sections 15(1)(b), 8 and 9 of the HSA besides the Schedule annexed to the HSA, the subject properties would have devolved upon the heirs of the husband i.e., Mr. Santosh Madden, including the applicants/respondents herein. It was observed that since the alleged Will of the testatrix had disturbed this natural line of succession/ devolution, therefore, the non-applicants/respondents FAO 288/2023 & 290/2023 Page 8 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44 herein should have been put to notice of the probate proceedings by the appellant herein as mandated by the settled law. 15. In view of the aforesaid, the learned Probate Court held that since the applicants/respondents (who were alive at the time of filing of the probate petition) were indeed necessary and proper parties to the probate proceedings, thus, the omission on the part of the appellant to implead them in the said proceedings amounts to material concealment from the Court. Therefore, the learned Probate Court found it fit to exercise the discretion vested with it by virtue of Section 263 of ISA to revoke the grant of probate dated 25.11.2014, which decision is challenged in the instant appeal. LEGAL SUBMISSIONS ADVANCED BY THE LEARNED SENIOR COUNSELS FOR THE PARTIES:

16. In short, Mr. Sushil Salwan, learned senior counsel for the appellant has urged that the impugned judgment dated 30.05.2023 allowing the applications for revocation of probate of Will is liable to be set aside as the learned Probate Court failed to appreciate that the applications filed by the respondents herein are hopelessly barred by limitation as the period of limitation starts reckoning from the day of grant of probate and not from the date of knowledge. Learned senior counsel further relied upon the decision of this Court in Snehansu Sen Gupta v. Sitangsu Sen Gupta1 and the decision of the Bombay High 1 AIR 2013 Del 116 FAO 288/2023 & 290/2023 Page 9 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44 Court in S.A. Modi v. Mrs. T.A. Rana2 to substantiate his contention that the belated filing of an application under Section 263 of ISA on the ground of omission to issue citations to the persons required to be apprised of the probate proceedings, does not beget an absolute right to claim revocation of probate of Will. 17. On merits, it was urged that the respondents herein have no locus standi to file the applications for revocation since Section 15(2)(b) of HSA is not applicable to the facts of the present case for the reason that Mrs. Rajamma S. Madden did not die intestate, and rather she left behind a registered Will. It was further contended that even otherwise, the testatrix had already disposed of the two subject properties during her lifetime by way of two Agreements to Sell executed in favour of Mr. Om Prakash Arora, thus, the estate of the testatrix consisted of only a part of the monetary consideration in lieu of the sale, which has since been distributed among the beneficiaries under the Will dated

23.10.2013, and not the immovable property itself. 18. Lastly, it was argued that the impugned notice inviting objections to grant of probate of Will which was duly published in ‘The Statesman’ newspaper on 15.02.2014 is a publication in rem, therefore, it covers the entire conspectus as regards the relatives of the testatrix and it is the applicants/respondents herein who should have been more vigilant and not slept on their rights for six years. Reliance in this regard has been placed on the decision of the Bombay High Court in Uma Vithal 2 AIR 2004 Bom 353 (DB) FAO 288/2023 & 290/2023 Page 10 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44 Jhaveri v. Nikhil Vithal Jhaveri3. Lastly, it was contended that the impugned judgment is liable to be set aside as it was passed by the learned Probate Court before service of notice of the applications under Section 263 of ISA to the legal heirs of the respondent No. 2 i.e., Mrs. Saraswathy Amma (since deceased). 19. Per contra, Mr. Sanjiv Kakra, learned senior counsel for the respondent No.1 in FAO 288/2023 i.e., legal heir of the husband of the testatrix, urged that the applications filed by them under Section 263 of ISA are not barred by limitation as the applicants/respondents herein derived knowledge of the alleged Will dated 23.10.2013 and the probate proceedings only in June 2020 when Mr. Om Prakash Arora filed a suit for partition with respect to the property situated in Tughlak Road and served notice of the same to the applicants/respondents herein. It was submitted immediately thereafter in December 2020, application for revocation was filed by the respondent No.1 in FAO 288/2023, therefore, the question of filing the application for revocation at a belated stage does not arise. 20. While drawing the attention of this Court to Section 263 of ISA and Illustration (ii) thereof, learned senior counsel pointed out that the mandate of the law is that while impleading parties to a probate petition, the petitioner has to assume that the testator died intestate and based on that assumption, those persons who would have acquired rights in the 3 2014: BHC-OS:4627 FAO 288/2023 & 290/2023 Page 11 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44 estate of the testatrix as per the general rules of succession, ought to be impleaded in the probate proceedings as necessary and proper parties. In view of the aforesaid, it was contended that since the heirs of the husband of the testatrix i.e., his three sisters, would have inherited the estate of the testatrix, a female Hindu, as per general rules of succession contained in Sections 15(1)(b) and 15(2)(b) of the HSA, thus, they should have been impleaded to the probate proceedings initiated by the appellant herein. 21. Additionally, it was urged that citing the sister of the testatrix in the probate proceedings instead of the legal heirs of the husband, is of no consequence whatsoever since the chain of succession in the present case stops at Section 15(2)(b) i.e., heirs of the husband, who were still alive at the time of filing of the probate petition, whereas the sister of the testatrix would’ve fallen under Section 15(2)(d) i.e., heirs of the father, thus, she holds no locus in the chain of succession applicable to the estate in question. While inviting the attention of this Court to Section 17 of the Limitation Act, 1963, learned senior counsel urged that a fraud has been played upon the Court as well as the respondents/applicants herein as regards obtaining probate as the same has been done without impleading the rightful legal heirs of the testatrix to the probate proceedings. 22. On the other hand, Mr. Sanjeev Sindhwani, learned senior counsel for the respondent No.1 in FAO 290/2023 i.e., legal heir of the sister-in-law of the testatrix, urged that even the publication dated FAO 288/2023 & 290/2023 Page 12 of 26 Signature Not Verified Digitally Signed By:PRAMOD KUMAR VATS Signing Date:05.05.2025 19:08:44

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, and thus, the said publication is also tainted on account of suppression of facts as well as fraud played by the appellant herein in conniving with Mr. Om Prakash Arora so as to illegally usurp the estate of the testatrix. Accordingly, it was contended that since fraud vitiates everything, the grant of probate dated 25.11.2014 has been rightly revoked by the learned Probate Court vide impugned judgment dated 30.05.2023. 23. In support of their submissions, learned senior counsels for the applicants/ respondents have relied upon the decisions in the cases of Swaminathan v. Alankamony (dead) though LRs4, Manibhai Amaidas Patel v. Dayabhai Amaidas5, Yuv Rajnarain Gorwaney v. State6, Seethalakshmi Ammal v. Muthuvenkatrama Iyenger7, Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal8, Manju Puri v. Rajiv Singh Hanspal9, Pallav Sheth v. Custodian10, and A.V. Papayya Sastry v. Government of A.P.11. ANALYSIS & DECISION: