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The Delhi High Court recently held that, the power to grant of probate or letter of administration or the revocation or annulment are vested not in the Civil Courts but the Probate Court in terms of Section 263 of the Indian Succession Act.

The Single Bench of Justice Mukta Gupta during the course of hearing observed that, the suit wasn’t maintainable as a bare perusal of Section 263 of the Indian Succession Act reveals that the grant of probate or letter of administration or the revocation or annulment thereof for just cause can be ordered only by the probate Court.

Factual Matrix –

The present suit was filed by the brothers of Late Shanti Swaroop Gupta(deceased) who was the owner of the suit property situated in Delhi. It must be noted that the wife and the daughter pre-deceased him.

According to the defendants, the deceased left a Will in the name of his son-in-law who has also since passed away. Based on the Will whereby the properties of Late Shanti Swarup Gupta were bequeathed on his son-in-law who was the brother of the defendant Nos. 1 to 3, defendant Nos. 1 to 3 claimed ownership in the suit property and on the said basis, have conveyed the rights in the suit property to the defendant No. 4, who has, in turn, conveyed it to defendant No. 5 and has further conveyed to the third parties.

The plaintiffs are the four brothers of Late Shanti Swarup Gupta and claimed rights in the suit property by virtue of being Class-II legal heirs.

The present suit was filed through Ankur Gupta, son of plaintiff No. 4 as the power of attorney holder who claimed to have filed power of attorney on behalf of the plaintiff Nos. 1 to 4. However, the power of attorneys were not filed with the plaint but filed subsequently.

Previously, a probate petition was filed by the son-in-law of Late Shanti Swarup Gupta i.e. Anand Parkash Verma which was granted in his favour vide order dated 7th August, 2014.

The plaintiffs by the present suit seek a declaration of the impugned registered Will dated 7th September, 2010 as null and void, void-ab-initio and illegal, decree of possession of the suit property, decree of permanent injunction against the defendants from creating any third party rights and direction to the office of Sub-Registrar not to register any sale till the disposal of the suit.

The prayers made in the present suit are as under:

“(a) To declare the registered impugned "Will" dated 07.09.2010 is null and void ab-intio and illegal and is of no effect; and

(b) Pass a decree of Possession of the suit property being house bearing No. 53, Vaishali, Pitampura, Delhi may kindly be passed in favor of the plaintiffs and against the defendants with costs thereby directing the defendants or anyone acting on their behalf of handover and deliver the vacant and peaceful possession of the suit property to plaintiffs; and

(c) Pass a decree of permanent injunction whereby the defendants, their henchmen and agents and their assignees be restrained permanently from creating third party rights from the suit property, from raising and doing construction activities at Suit Property, being house bearing No. 53, Vaishali, Pitampura, Delhi; and

(d) Pass a decree of damages/ menses per order 20 rule 12 CPC against the Defendants thereby directing them to pay the same to the plaintiffs from the date of filing of the suit till the handing over of the possession along with interest@ 12% per annum.

(e) Further direct the registrar of office of Sub- Registrar, Sub - District VI A, Delhi to not to register any types sale deed in favour of anyone till disposal of this suit for the said suit property mentioned in Para 2 of this plaint and cancel all sale deeds done by defendants.”

It was evident that the basic prayer in the present suit was to declare the “Will” dated 7th September, 2010 as null, void ab-inito, illegal and of no effect.

Though the learned counsel for the defendants had taken multiple objections to the maintainability of the present suit however, the present Court at the moment was only required to go into the fact as to whether prayer (a) before it is maintainable or not as for the reason prayers (b) to (e) are consequential to prayer (a).

The plaintiffs contended that the present suit is a title suit and hence the present Court was competent to decide the title in the suit property which the Probate Court cannot decide. Reliance in this regard was placed on Section 41 of the Indian Evidence Act by learned counsel for the plaintiffs to contend that the order dated 7th August, 2014 is not an order granting probate of the Will dated 7th September, 2010 for the reason the order dated 7th August, 2014 had not been complied with, no Court fee, no indemnity bond nor the surety bond has been furnished and no letter of administration/probate has been granted due to the non-compliance of the order and hence the same cannot be a judgment in rem.

“Since the order in probate case has been obtained by fraud, the same can be set aside only by the civil court in the present suit and not by the probate court,” asserted plaintiff’s counsel

On the contrary the Learned counsel for the defendants challenged the maintainability of the present suit and claimed that, “the present suit is inter alia barred by limitation, barred by Section 34 of the Specific Relief Act and probate having been granted in favour of Anand Prakash Verma in respect of the Will dated 7th September, 2010, this Court cannot go into the validity of the probate granted and hence no consequential reliefs can be granted to the plaintiff.”

Taking into account the factual matrix of the present case the Bench noted that,

“From the cause of action as pleaded by the plaintiffs claiming that Anand Prakash Verma obtained probate of the Will dated 7th September, 2010 by playing fraud by not disclosing about the other legal heirs of the deceased and hence the Will dated 7th September, 2010 be declared null and void ab initio and illegal and of no effect. This power vests not in the civil Court but the probate court in terms of Section 263 of the Indian Succession Act as noted above.’

The Bench stated that the plaintiffs have applied for revocation of the probate granted and thus the relief as sought in prayer (a) of the present suit was not maintainable before the Court but before the probate Court under Section 263 of the Indian Successions Act.

“As regards to prayers (b) to (e) , the same were consequential to the relief prayed in prayer (a) by plaintiffs and can be granted by the civil court only in case prayer (a) is allowed in favour of the plaintiffs by the probate court. Considering the facts noted above this court finds no ground to grant interim injunction,” held Bench.

In Court’s opinion, no ground was found to grant an interim injunction.Hence, present suit was not maintainable.

[Case title - Niranjan Swarup Gupta v. Bimla Devi, 2020]