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PETITIONER: MRS. NALINI NAVIN BHAGWATI & ORS.

       Vs.

RESPONDENT: MR. CHANDRAVADAN M. MEHTA

DATE OF JUDGMENT:       11/10/1996

BENCH: K. RAMASWAMY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      These appeals  by special leave arise from the judgment of the Gujarat High Court dated August 14,1995 made in Civil Revision Application Nos.1142 and 1148 of 1995 and the order dated July  18, 1995  made in  Civil Application Nos. 2825 & 2829 of 1995 in CRA Nos.1142 & 1148 of 1995.      The admitted  facts are that one Manvantrai Mehta owned Plot  No.13   in  Krishna  Cooperative  Housing  Society  at Ahmedabad and  also an  open plot No.14 in the said society. He died  on 16.1.1995  leaving behind his widow Kamlaben and five children,  namely, Narendra,  Chandravadan (respondents herein)   and    Nalini,   Chandrakalaben    and   Vasantben (petitioners herein).  In   other words,  he left behind him three daughters  and two sons. Plot No.13 was in the name of Narendera Mehta   who  died on August 8,  1971. But his wife was not   known.  Kamlaben also  died on September 16, 1984. The   respondents filed  C.M. Application  No.123 of 1985 in the Civil  Court at  Ahmedabad and  obtained probate to  the will left  by Kamlaben,  their  mother.  The  probate    was granted on  January 16,  1987. The  appellants on  coming to know of the said probate filed an application  to revoke the probate.   The Civil  Judge, City Civil Court, Ahmedabad was prayed to  convert the  application  into a regular suit. It was rejected  by the  trial   Court. On  revision, the  High Court by  order dated  July   18, 1995  held that  there was proper explanation  for the  delay in filing the application for revocation  of the   probate  but directed  to treat the application as  a suit filed under Section 295 of the Indian Succession  Act,   1925  (for   short  the  ‘Act’).  Feeling aggrieved by  the latter  direction, these appeals have come to be filed.      Shri Harish Salve, learned senior counsel appearing for the  appellants,   contended  that   the   application   for revocation cannot  be treated  to a suit filed under Section 295 of  the Act.  That would  apply only  in  a  case  where probate was  sought for  and there  was  contentious  issues involved in that behalf. Therefore, it would be treated as a suit and  the propounder  who seeks  probate  or  letter  of administration will be treated as a plaintiff and the person

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opposing the claim as defendant and the application would be set out as a suit for trial under the provisions of CPC. But application for  revocation is  required to be considered on the grounds  set out  under Section 263 of the Act. When the person who  seeks revocation  of the  probate or  letter  of administration  is   required  to   be  dealt   with  as  an application but not as a suit. The District Judge, depending upon the  given fact-situation  would dispose  it of  either summarily  or   on  full-dress  enquiry,  on  recording  the evidence of  witness as  a suit. But in no circumstances, it would be  treated as a suit. Shri H.K. Puri, learned counsel for the  respondents, contended  that Part  IX  of  the  Act itself gives  indication as  to  the  manner  in  which  the proceedings could be dealt with at different stages. Chapter IV of  Part IX clearly indicates that when an application is filed for  probate it  should be  dealt with as suit and for revocation of  a probate  similarly to  be treated as a suit and would  be considered  in accordance  with the  procedure provided under  the CPC.  The applicant who seeks revocation of probate  would be  treated as  a plaintiff and the person who opposes the revocation as defendant. Therefore, the High Court was  right in  directing to  treat the application for revocation as  a suit  and to proceed with the trial on that basis.      Having  considered   the  respective  contentions,  the question  that  arises  for  consideration  is  whether  the application For  revocation of  the probate would be treated as a  suit under  Section 295  of the  Act? The said section reads as under:      "In any  case before  the  District      Judge       in   which   there   is      contention, the   proceedings shall      take, as  nearly as maybe, the form      of a  regular suit,   according  to      the provisions  of  the  Code    of      Civil Procedure, 1908, in which the      petitioner for  probate or  letters      of  administration, as the case may      be, shall be the plaintiff, and the      person   who has appeared to oppose      the grant  shall be the defendant."      ln   other   words,   when   probate   or   letter   of administration was  sought, on the basis of a will and there sas a  contentious issue  in that behalf, the District Judge had to  set it  out in  the form  of a  regular suit and the provisions of  CPC would  be applied in trying it as a suit. The  propounder  of  the  will  for  probate  or  letter  of administration would  be a  plaintiff  and  the  person  who opposes it shall be the defendant.      But  when   the  grant   of  probate   or   letter   of administration is  sought to  be revoked, it is not clear to what nomenclature would be ascribed to it and what procedure would be  adopted for  its disposal.  Take  for  instance  a situation when  the suit  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 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  letter of  administration is  granted and  it is sought to  be revoked,  Section 263 provides for the 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 treated  to be  a suit?  We are of the

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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  after  recording evidence. The application to revoke 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 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  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 contemplated under Section 295 of the Act. If the contention  of   Shri  Puri   merits  acceptance,  then  any proceedings under  the application  to revoke the probate or letter of  administration should  be treated  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. 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 administration. It would be treated as miscellaneous  application and  disposed of  as 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 in  an analogous  situation  in Narbheram  Jivaram   Purohit  vs.     Jevallabh   Harijivan, [Vol.XXXV(1933) BLR  998]. 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 testamentary  and intestate  jurisdiction of  the Court, 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  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.      The appeals are accordingly allowed. The trial Court is directed to  dispose  of  the  matter  as  expeditiously  as possible. No costs.