In my view, thus the beneficiary under the Will in respect of which letter of administration has been granted by this Court is neither necessary
party nor proper party. The original petitioner would represent interest of the beneficiaries.
Bombay High Court
C vs Indian Inhabitant Residing At ... on 9 July, 2013
Bench: R.D. Dhanuka
Pradeep Manek ShahaniVERSUS
Rajendra Kumar Shahani,
CORAM : R.D. DHANUKA, 1
Citation;AIR 2013 bombay 157
By this Chamber Summons, applicant seeks his impleadment as respondent no.2 to the Misc.Petition No. 87 of 2011 on the ground that the deceased had C
bequeathed the property known as Gurdasmal Mansion situated at National Library Road, Bandra (West), Mumbai 400 050 in equal shares to the applicant alongwith the 1st respondent.
h
2. Mr.Kapadia, the learned counsel appearing for the applicant submits that if ig
probate granted by this Court in respect of the last Will of the deceased is revoked, applicant who is one of the beneficiary under the said Will, would be seriously H
affected and is thus necessary and proper party to the revocation petition filed by the petitioner and should be impleaded. The learned counsel also placed reliance y
upon the judgment of the Supreme Court in case of State Bank of India vs. Rajendra Kumar Singh and others reported in 1969 Mh.L.J. 527 and in particular ba
paragraph (3) thereof which reads thus :-
3. In support of this appeal, it was contended in om
the first place that the High Court had reversed the order of the Sessions Judge directing me return of the currency notes without giving a notice to the appellant and without giving an opportunity to it for being heard the argument was stressed that B
there was a violation of the principle of natural justice and the order of the High Court dated 5th April, 1963 was illegal. It was, however, contended on behalf of the respondents that there was no provision in Section 520 of the Code of Criminal Procedure for giving notice to the affected parties and the order of the High Court cannot be challenged on the ground that no hearing was given ::: Downloaded on - 16/07/2013 17:45:19 ::: kvm
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to the appellant. In our opinion, there is no warrant or justification for the argument advanced on rt
behalf of the respondents. It is true that the statute does not expressly require a notice to be issued, or ou
a hearing to be given to the parties adversely affected. But though the statute is silent and does not expressly require issue of any notice there is in the eye of law a necessary implication that the C
party adversely affected should be heard before the Court makes an order for return of the seized property. The principle is clearly stated in the leading case of Cooper v. Wandsworth Board of h
Works, . In that case Section 76 of the Metropolis Local Amendment Act, 1855 authorised the ig
District Board to demolish the building if it had been constructed by the owner without giving notice to the Board of his intention to build. The H
statute laid down no procedure for the exercise of the power of demolition, and, therefore, the Board demolished the house in exercise of the above power without issuing a notice to the owner of the house. It was held by the Court of Common Pleas y
that the Board was liable in damages for not having ba
given notice of their order before they proceeded to execute it. Erie, C.J. held that the power was subject to a qualification repeatedly recognised that no man is to be deprived of his property without om
his having an opportunity of being heard and that this had been applied to "many exercises of power which in common understanding would not be at all a more judicial proceeding than would be the act of the district board in ordering a house to be B
pulled down". Willes, J. said that the rule was "of universal application and founded upon the plainest principles of justice" and Byles, J. said that "although there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common Jaw will supply the omission of the legislature." The same principle has been reaffirmed in a recent case Ridge v. ::: Downloaded on - 16/07/2013 17:45:19 ::: kvm
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Baldwin, . In that case, Section 191 of the Municipal Corporations Act, 1881 provided that a rt
watch committee may at any time suspend or dismiss any borough constable whom they think ou
negligent in the discharge of his duty, or otherwise unfit for the same. The appellant, who was the chief constable of a borough police force, was dismissed by the watch committee on the ground C
that he was negligent in the discharge of his duties as chief constable. He brought an action against the members of the watch committee by stipulating that his dismissal was illegal and ultra vires the h
powers. It was held by the House of Lords that the decision of the watch committee was ultra vires ig
because they dismissed the appellant on the ground of neglect of duty and as such they were bound to observe the principles of natural justice by H
informing him of the charges made against him and giving him an opportunity of being heard. The same principle was applied by this Court in Board of High School and Intermediate Education, U.P., Allahabad v. Ghanshyam Das Gupta and Ors, y
MANU/SC/0090/1962 : AIR1962SC1110 . It was ba
held in that case that an examination committee of the Board of Secondary Education in Uttar Pradesh was acting quasi-judicially when exercising its power under Rule 1(1) of Chapter VI of the om
Regulations dealing with cases of examinees using unfair means in examination hall and the principle of natural justice which require that the examinee must be heard, will apply to the proceedings before the Committee. Though there was nothing express B
one way or the other in the Act or the Regulations casting a duty on the committee to act judicially, where no opportunity whatever was given to the examinee to give an explanation and present their case before the Committee, the Resolution of the committee cancelling their results and depriving them from appearing at the next examination was defective. Applying the principle to the present ::: Downloaded on - 16/07/2013 17:45:19 ::: kvm
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case it is manifest that the High Court was bound to give notice to the appellant before reversing the rt
order of the Sessions Judge directing the disposal of the property under Section 517 of the Code of ou
Criminal Procedure. As no such notice was given to the appellant, the order of the High Court dated 5th April, 1963 is vitiated in law. C
3. Mr.Kapadia also invited my attention to the paragraph (3) of the revocation petition in which it has been alleged that the petitioner came to know about the death of the deceased through Mr.Pradeep Manek Shahani, the applicant herein h
only after funeral was held. It is submitted that in view of such allegations made ig
by the petitioner, any enquiry by this court in the said revocation petition in absence of the applicant would affect the rights of the applicant. H
4. Mr.Kanade, the learned counsel appearing for the petitioner on the other hand invited my attention to section 263 of Indian Succession Act, 1925 and would y
submit that letter of administration has been granted by this court in favour of the ba
executor which order is sought to be revoked by section 263 of the Act on various grounds available under the said provisions. It is submitted that applicant is neither necessary party nor proper party in revocation petition in view of limited om
scope of enquiry in this proceedings as to whether petitioner has proved just cause as per the explanation to section 263 or not. It is submitted that the respondent who claims to be executor and had obtained letter of administration would B
represent all the beneficiaries including the applicant. The learned counsel placed reliance upon the judgment of the Supreme Court in case of Nalini Navin Bhagwati (MRS) and others vs. Chandravadan M.Mehta reported in (1997) 9 SCC 689 and in particular paragraph 7 thereof which reads as under :-
7. But when the grant of probate or letter of ::: Downloaded on - 16/07/2013 17:45:19 ::: kvm
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administration is sought to be revoked, it is not clear what nomenclature would be ascribed to it rt
and what procedure would be adopted for its disposal. Take for instance a situation when the suit ou
is decreed ex parte. Order IX Rule 13 provides for making of an application to set aside the decree; on proof of certain grounds ex parte decree gets set aside. Similarly, when the suit was dismissed for C
default, under Order IX Rule 9 an application would be filed and on proof of the circumstances for absence, the order would be set aside and suit would get restored. Similarly, when probate or h
letter of administration is granted and it is sought to be revoked, Section 263 provides for the ig
grounds on the basis of which it would be revoked. When the grounds are sought to be proved, the question is : Whether such an application would be H
treated to be a suit? We are of the considered view that an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or y
after recording evidence. The application to revoke ba
the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by om
recording such evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove B
the contentions of the applicant. In that situation, based upon the given facts situation, it will be for the Court to dispose it of either summarily or after giving opportunity to both the parties to adduce evidence and consideration thereof. Under these circumstances, it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as a ::: Downloaded on - 16/07/2013 17:45:19 ::: kvm
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contemplated under Section 295 of the Act. If the contention of Shri Puri merits acceptance, then any rt
proceedings under the application to revoke the probate or letter of administration should be treated ou
as a suit : the applicant cannot prove the will and at the same time cannot contend that the will was not validly executed. Therefore, it would be self contradictory to adopt such a procedure. C
Accordingly, we are of the view that the procedure required under Section 295 need not be adopted for disposal of the application filed under Section 263 for revocation of the probate or the letter of h
administration. It would be treated as miscellaneous application and disposed of as ig
indicated earlier according to the given fact situation. In fact, the Bombay High Court came to consider the question, not directly on this issue but H
in an analogous situation in Narbheram Jivaram Purohit v. Jevallabh Harijivan . Therein, the learned single Judge had held that the proper procedure for revocation of probate granted by the High Court is by way of a petition filed in the y
testamentary and intestate jurisdiction of the Court, ba
and not by way of suit in its Ordinary Original Civil jurisdiction. In other words, the Court indicated that it need not be treated as a suit on the original side of the Court but it could be disposed om
of as an application independent of the suit. Thus, we hold that the High Court was clearly in error in reaching the conclusion that it should be treated as a suit and disposed of under Section 295. B
5. On perusal of section 263 of the Indian Succession Act, it is clear that Court can revoke or annul the grant of probate or letter of administration for just cause described in the explanation of section 263. On perusal of section 263, it is clear that if proceedings to obtain the grant were defective in substance or the person to whom the grant was made has willfully and without reasonable cause omitted to ::: Downloaded on - 16/07/2013 17:45:19 ::: kvm
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exhibit an inventory or account in accordance with the provisions of Chapter VII rt
of that Part amongst various other grounds available, grant of probate or letter of administration may be revoked. In my view, whether action taken by the ou
respondent for obtaining letter of administration was proper or not or was in breach of cause provided in explanation to section 263 has to be inquired with in this proceedings for revocation of letter of administration granted in favour of the C
original petitioner. In my view, thus the beneficiary under the Will in respect of which letter of administration has been granted by this Court is neither necessary h
party nor proper party. The original petitioner would represent interest of the beneficiaries. ig
6. As far as judgment of the Supreme Court in case of State Bank of India H
(supra) relied upon by Mr.Kapadia is concerned, Supreme Court was dealing with the situation where a party whose property was seized was not heard. Considering the facts of that case, Supreme Court held that even if statute is silent and does not y
expressly require issue of any notice, in the eye of law a necessary implication that ba
the party adversely affected should be heard before the Court makes an order for return of the seized property. However, on perusal of section 263 of Indian Succession Act, it is clear that whether action on the part of the executor applying om
for probate or letter of administration was proper or not and whether just cause as described in explanation to section 263 of the Indian Succession Act is made out by the petitioner or not has to be decided. In my view, beneficiaries thus would B
not be necessary and proper party to petition for revocation.
7. Chamber Summons is accordingly dismissed. No order as to costs. [R.D. DHANUKA, J.]
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