http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (civil)  4896 of 2007

PETITIONER: Basanti Devi

RESPONDENT: Raviprakash Ramprasad Jaiswal

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No. 20484 of 2006)

S.B. Sinha, J.

1.      Leave granted. 2.      A short but interesting question which arises for consideration in this  appeal is as to whether an application under Section 263 of the Indian  Succession Act for revocation of grant of probate would be maintainable,  inter alia, on the premise that the appellant\022s name was not cited in the said  application for grant of probate.   3.      The basic fact of the matter is not in dispute.   4.      A Will was executed by one Lakhpati Devi widow of late Mahadeo  Jaiswal in favour of the respondent herein who was one of the grand sons of  late Bhagwatidina, one of the brothers of late Mahadeo Prasad.  Appellant  herein claimed that the said Lakhpati Devi had executed another will on or  about 12.3.1996.  The said Lakhpati Devi admittedly expired on 13.03.1996.   Whereas the appellant did not file any application for grant of probate in  relation to the aforementioned will dated 12.03.1996, the respondent did so  on 6.9.1996.  In the said application, it was contended that the properties  under the Will are situated in Bombay stating : \023That the said deceased at the time of her death  had a fixed place of abode at Room No.10-11,  Bharat Building, Sonapur Lane, Chira Bazar,  Mumbai \026 400 002 and left property within  Greater Bombay in the State of Maharashtra.\024

       It was furthermore stated :

\023That no application has been made to any District  Court or District Delegate or to any other High  Court for probate of any will of the said deceased  or for Letter of Administration with or without the  Will annexed to her property and credits.\024

5.      However, an application for amendment of the application for grant of  probate was filed in the said testamentary proceedings which was allowed.   On the basis of the averments made by the respondent in the amended  application, citations were published only at Bombay on 28.1.1997.   Respondent, however, filed an application for amendment of the petition for  grant of probate on 21.03.1997, inter alia, stating : \023That the said deceased at the time of her death  had a fixed place of abode at Room No.10-11,  Bharat Building, Sonapur Lane, Chira Bazar,  Mumbai -400 002 and left property within Greater

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

Bombay in the State of Maharashtra and elsewhere  in Union of India.\024

       It was, therefore, not disclosed at what other places the properties are  situated. 6.      It was furthermore averred that there was no heir known to the  petitioner on the side of husband of the deceased.  The schedule of assets  allegedly left by the deceased was also inserted in the schedule of the  properties stating : 1. All that piece and parcel of pension tax  land of ground (since redeemed) with the  messauges tentament or dwelling house  standing thereon situate lying behind at  Sonapur Street Girgaum Road outside  the Fort of Bombay in the Registration  Sub-District of Bombay in the land of  the Bombay contained by  admeasurement 243 )two hundred and  forty three) square yards or thereabouts  and registered in the Books of Collector  New No. 980 New Survey No.8158 and  Cadastral Survey No.567 of Bhuleshwar  Division and in the books of the  Collector of Municipal Rates and Taxes  under (C) wards No.3385 and Street  No.6 and bounded as follows : that is to  say on or towards the East by the  properties bearings Cadastral Survey  Nos.570, 571, 572, 573 and 574 on or  towards the west partly by the properties  bearing Cadastral Survey No.565 and  566 and partly by a passage on or  towards the north by the property  bearing Cadastral Survey No.568 and or  towards the south by the Sonapur Street  Valued at Accrued gross rent of the above  immoveable property from the date of  death till filing of this petition

Rs.1,00,000/-  

Rs.    7,500/- 2. S.B. A/c No.21416 with Bank of India,  Kolabadevi Branch Mombai-2 standing  in the name of deceased with accrued

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

interest upto date of filing this petition

Rs.    1,000/- 3. Amount standing to the credit of the  deceased in current A/c No.31080 with  Bank of India Kolabadi Branch Mumbai  standing in the name of M/s Mahadeo  forthwith in which deceased was sole  Proprietor

Rs.    3,000/- 4. The Milk shop being shop No.1/11  situated at Bharat Building Sonapur lane  Chira Bazar Mumbai-2 currently  infrastructure in the name & style of  Mahadeo farm : together with valued at  

Rs.  50,000/-

IN THE STATE OF UTTAR PRADESH

5. One open piece of land situate at Dist.  Pratap Gad, Village \026 Mahadeo Nagar,  (U.P.) Valued at The above plot does not fetch any rent of  income.

Rs.     1,000/-

TOTAL    

Rs.1,62,500/-

7.      However, no citation was made in the State of Uttar Pradesh.  A  probate was granted in favour of the respondent by the High Court by order  dated 7.4.1997.  An application for revocation of the said grant of probate  was made by the petitioner herein, inter alia, on the premise that although  she was one of the heirs of the said Lakhpati Devi, no citation was made.   Furthermore, a Will had also been executed in her favour.   8.      A learned Single Judge of the Bombay High Court dismissed the  application for revocation of probate filed by the petitioner which was  marked as Miscellaneous Petition No.1 of 2000 by a judgment and order  dated 23.6.1996 opining : \023The requirements for letter of administration and  grant of probate are different.  It is an admitted  position that public notice was issued before  issuing a probate.  The petitioner neither filed any  caveat nor filed any objection after the publication.   Therefore, this petition does not survive for  consideration.\024

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

8.      On an intra court appeal having been preferred thereagainst, a  Division Bench of the said Court, on the premise that the appellant was not a  legal heir of the deceased being an agnate, dismissed the same.   9.      Mr. Raju Ramachandran, learned senior counsel appearing on behalf  of the appellant, inter alia, would submit that the High Court committed a  grave error in passing the impugned judgment insofar as it failed to take into  consideration that an agnate is also an heir in terms of the provisions of the  Hindu Succession Act.  It was furthermore contended that the said  application should have been entertained also having regard to Explanation  (c) appended to Section 263 of the Indian Succession Act irrespective of the  fact as to whether the appellant had any notice of the probate of the said Will  or not.  Even on the ground of non-compliance of the requirement of Sub- section (3) of Section 283 of the Indian Succession Act, the learned counsel  would contend, probate was granted without complying with the  requirements of law.   10.     Husband of late Lakhpati Devi late Mahadeo Prasad was one of the  five sons of Vindeshwari Prasad-Ganesh Jaiswal; his brothers being late  Bhagwatidina, late Gayadin, late Mahavir Prasad and late Kailash.  Late  Bhagwatidina had three sons, namely, late Mata Prasad, late Ram Prasad and  late Moti Lal.  Respondent herein is one of the sons of late Rama Prasad.   Late Ramaprasad died leaving behind his widow Sursati and three sons,  Suresh, Ramesh and Ravi Prakash (Respondent).  Other brothers of  Mahadeo Prasad have died leaving behind their respective heirs and legal  representatives. Late Mahabir Prasad had six sons.  Appellant is widow of  late Harihar Prasad, one of the sons; other sons being being late Ganga  Prasad, Jamuna Prasad, Babulal, Late Amrit Lal and Surya Lal. 11.     Parliament enacted the Hindu Succession Act, 1956 to amend and  codify the law relating to intestate succession among Hindus.  Section 3(f) of  the Hindu Succession Act defines \023heir\024 to mean any person, male or  female, who is entitled to succeed to the property of an intestate under the  Act.  Section 15 of the Act lays down the general rules of succession in the  case of female Hindus in the following terms : \02315. General rules of succession in the case of  female Hindus.\027(1)The  property of a female  Hindu dying intestate shall devolve according to  the rules set out in section 16.\027 (a)     firstly, upon the sons and daughters  (including the children of any pre-deceased  son or daughter) and the husband; (b)     secondly, upon the heirs of the husband; (c)     thirdly, upon the mother and father; (d)     fourthly, upon the heirs of the father; and (e)     lastly, upon the heirs of the mother. (2)     Notwithstanding anything contained in sub- section (1),-- (a)     any property inherited by a female Hindu  from her father or mother shall devolve, in  the absence of any son or daughter of the  deceased (including the children of any pre- deceased son or daughter) not upon the other  heirs referred to in sub-section (1) in the  order specified therein, but upon the heirs of  the father; and (b)     any property inherited by a female Hindu  from her husband or from her father-in-law  shall devolve, in the absence of any son or  daughter of the deceased (including the  children of any pre-deceased son or  daughter) not upon the other heirs referred  to in sub-section (1) in the order specified  therein, but upon the heirs of the husband.\024

12.     For the purpose of ascertaining as to who would be heirs of the  husband if the deceased did not leave any sons and daughters or husband;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

reference has to be made to Section 8 of the Act which reads as under : \023Section 8. General rules of succession in the  case of males.\027The property of a male Hindu  dying intestate shall devolve according to the  provisions of this Chapter\027 (a) firstly, upon the heirs, being the relatives  specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then  upon the heirs, being the relatives specified in  class II of the Schedule; (c) thirdly, if there is no heir of any of the two  classes, then upon the agnates of the deceased; and  (d) lastly, if there is no agnate, then upon the  cognates of the deceased.\024

       It is, therefore, not correct to say that agnates of the deceased are not  heirs. 13.     Mr. R.P. Bhatt, senior counsel appearing on behalf of the respondent,  however, would contend that in terms of the Rules framed by the Bombay  High Court, it was not necessary to make any citation in the State of Uttar  Pradesh.  Rule 683 of the Bombay High Court Rules reads as under : \023683. Notice to next-of-kin \026 In all applications for  Probate, Letters of Administration and Succession  Certificate, Notice of the application shall be given  to all the heirs and next-of-kin of the deceased  mentioned in the Petition except to those whose  consent has been filed in the proceedings.\024  

14.     It is, therefore, not correct to contend that no citation in regard to the  heirs of Lakhpati Devi was necessary.  The properties left by the deceased  Lakhpati Devi were situated at two places, one in the State of Maharashtra  and another in the district of Pratapgarh in the State of Uttar Pradesh.   15.     We have noticed hereinbefore that the respondent, for the reasons best  known to him, did not, at the first instance, disclose that any property  belonging to the testator was situated at a place other than the State of  Maharashtra.  Such disclosure was required to be made in terms of sub- section (3) of Section 283.  Citations were also required to be published by  the concerned District Judge in terms thereof. 16.     In the application for amendment of the application, a vague statement  was made.  Even therein it was not disclosed that another property is situated  in the District of Pratapgarh in the State of Uttar Pradesh, the reason therefor  is beyond anybody\022s comprehension.   17.     The provisions contained in sub-section (3) of Section 283 are  mandatory in nature.  Once the statutory requirements are found to have not  been complied with, an application for revocation of the grant of probate  would be maintainable in terms of Section 263 of the Act, apart from the fact  that non-publication of citation could be one of the ground to revoke the  grant of probate.   Explanation (c) appended thereto in a case of this nature  would be attracted.  The said provision reads thus : 263. Revocation or annulment for just cause.\027 The grant of probate or letters of administration  may be revoked or annuleed for just cause. Explanation.\027Just cause shall be deemed to exist  where\027  (a) & (b)      ... (c)     the grant was obtained by means of an  untrue allegation of a fact essential in point  of law to justify the grant, though such  allegation was made in ignorance or  inadvertently; or (d) to (e)      ...\024

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

18.     It may, therefore, be permissible for the appellant to show that a Will  was executed by said Lakhpati Devi in her favour also on 12.03.1996.  Mr.  Bhat contends that the appellant had given up the right to the property under  the said Will.  Even if that is so, this Court is not concerned therewith at this  stage.          Appellant had merely filed an application.  The said application has  not been entertained although the same, in our opinion, should have been  done.  The question, therefore, is as to whether the said application should  have been entertained. 19.     Reliance has been placed by Mr. Bhat on a decision of this Court in  Ishwardeo Narain Singh v. Smt. Kamta Devi & Ors. [AIR 1954 SC 980]  wherein, inter alia, it was held : \023The Court of Probate is only concerned with the  question as to whether the document put forward  as the last will and testament of a deceased person  was duly executed and attested in accordance with  law and whether at the time of such execution the  testator had sound disposing mind.  The question  whether a particular bequest is good or bad is not  within the purview of the probate Court.\024

20.     The Probate Court, indisputably, exercises a limited jurisdiction.  It is  not concerned with the question of title.  But if the probate has been granted  subject to compliance of the provisions of the Act, an application for  revocation would also lie. 21.     In Chiranjilal Shrilal Goenka v. Jasjit Singh & Ors. [(1993) 2 SCC  507], whereupon again Mr. Bhat relied upon, this Court held : \023On a conspectus of the above legal scenario we  conclude that the Probate Court has been conferred  with exclusive jurisdiction to grant probate of the  will of the deceased annexed to the petition (suit);  on grant of refusal thereof, it has to preserve the  original Will produced before it. The grant of  probate is final subject to appeal, if any, or  revocation if made in terms of the provisions of the  Succession Act, It is a judgment in rem and  conclusive and binds not only the parties but also  the entire world. The award deprives the parties of  statutory right of appeal provided under Section  299. Thus the necessary conclusion is that the  Probate Court alone has exclusive jurisdiction and  the Civil Court on original side or the Arbitrator  does not get jurisdiction, even if consented to by  the parties, to adjudicate upon the proof or validity  of the Will propounded by the executrix, the  applicant. It is already seen that the executrix was  nominated expressly in the will is a legal  representative entitled to represent the Estate of the  deceased but the heirs cannot get any probate  before the Probate Court. They are entitled only to  resist the claim of the executrix of the execution  and genuineness of the Will. The grant of probate  gives the executrix the right to represent the estate  of the deceased, the subject-matter in other  proceedings. We make it clear that our exposition  of law is only for the purpose of finding the  jurisdiction of the arbitrator and not an expression  of opinion on merits in the \023probate suit\024.\024

22.     It is now well settled that an application for grant of probate is a  proceeding in rem.  A probate when granted not only binds all the parties  before the Court but also binds all other persons in all proceedings arising  out of the Will or claims under or connected therewith.  Being a judgment in  rem, a person, who is aggrieved thereby and having had no knowledge about

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

the proceedings and proper citations having not been made, is entitled to file  an application for revocation of probate on such grounds as may be available  to him.  We are, therefore, of the opinion that the application for revocation  of the grant of probate should have been entertained. 23.     The impugned judgment, therefore, is set aside and the appeal is  allowed and the matter is remitted to the learned Single Judge of the Probate  Court with costs.  However, we make it clear that we have not entered the  merit of the matter.