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CASE NO.: Appeal (civil)  4729 of 2007

PETITIONER: Sunil Gupta

RESPONDENT: Kiran Girhotra & Ors

DATE OF JUDGMENT: 09/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T W I T H

CONTEMPT PETITION NO. 270 OF  2007

[Arising out of S.L.P. (Civil) No. 6795 of 2007]

S.B. SINHA, J :

1.      Leave granted.

     2.      The question as to whether a purchaser of a property belonging to the  deceased testator should be impleaded as a party in a probate proceedings is  the question involved in this appeal which arises out of judgments and  orders dated 31.08.2006 in C.M. (Main) No. 285 of 2005 and 13.11.2006  passed in Review Petition No. 393 of 2006  by a learned Single Judge of the  Delhi High Court.   3.      The property in question admittedly belonged to one Har Bhagwan.   He died on 03.11.1997.  He was survived by his wife, four daughters and  two sons.  Respondents herein are daughters of the said Har Bhagwan.  One  of the sons of Har Bhagwan was Raj Kumar.  Wife of Har Bhagwan has  passed away.  Allegedly, another son of Har Bhagwan was given in  adoption.   

4.      Har Bhagwan executed a Will on 09.09.1997.  Respondents herein are  the beneficiaries thereof.  They filed an application for grant of probate in  the year 2000.  Both the sons of Har Bhagwan filed objections thereto.  Raj  Kumar propounded another Will of the said Har Bhagwan which was  allegedly executed on 30.10.1997.  Indisputably, Raj Kumar executed two  deeds of sale dated 20.06.2003 and 27.06.2003 in favour of one Amit  Pahwa.  The properties purported to have been transferred by reason of the  said deeds of sale forming subject-matter of the grant under the  Will.  No  probate was obtained in respect of the said Will dated 30.10.1997.  Even no  objection from other legal heirs of the late Har Bhagwan was obtained.   Immediately after execution of the said deeds, the said Amit Pahwa entered  into an  agreement to sell dated 25.07.2003 in  respect of one of the  properties.   In furtherance thereto, a purported deed of sale is said to have  been executed in respect of the other property on 29.08.2003.   

5.      Appellant herein  filed an application for his impleadment in the said  probate proceedings.  It was allowed by an order dated 24.12.2004.  By  reason of the impugned judgment, the High Court has reversed the said  judgment and order on an application filed under Article 227 of the  Constitution of India by the respondents herein.   

6.      Mr. Raju Ramachandran, learned Senior Counsel appearing on behalf  of the appellant, in support of the appeal,  would submit that the High Court

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committed a serious error insofar as it failed to take into consideration that in  a proceeding under the Indian Succession Act, 1925, (for short, \021the Act\022)  the court should always make an endeavour to avoid multiplicity of  proceedings.  It was contended that the court\022s power to implead a party,  who, strito sensu,  may not be a necessary party is wide.  Strong reliance in  this behalf has been placed on a decision in Banwarilal Shriniwas v. Kumari  Kusum Bai and Others [AIR 1973 (MP) 69] as also in Seth Beni Chand  (since Dead) Now by L.Rs. v. Smt. Kamla Kunwar and Others [(1976) 4  SCC 554].

7.      Mr. O.P. Khadaria, learned counsel appearing on behalf of  Respondent Nos. 1 to 3 and Respondent No. 4, who appeared in person, on  the other hand, submitted that the appellant is not a necessary party to the  proceeding and, thus, the impugned judgment should not be interfered with.   

8.      Chapter I of Part IX of the Act provides for grant of Probate and/or  Letters of Administration.  A probate can be granted only to an executor  appointed by the Will.  Chapter III of the Act provides for revocation or  annulment for just cause.  Illustration appended to Section  263 of the Act  reads as under :

                                          \023Illustration (i)     The Court by which the grant was made had no  jurisdiction.

(ii)    The grant was made without citing parties who  ought to have been cited.

(iii)   The will of which probate was obtained was forged  or revoked.

(iv)    A obtained letters of administration to the estate of  B, as his widow, but it has since transpired that she  was never married to him.

(v)     A has been taken administration to the estate of B  as if he had died intestate, but a will has since been  discovered.

(vi)    Since probate was granted, a latter will has been  discovered.

(vii)   Since probate was granted, a codicil has been  discovered which revokes or adds to the  appointment of executors under the will.

(viii)  The person to whom probate was, or letters of  administration were, granted has subsequently  become of unsound mind.\024  

9.      Illustration (ii) provides  for revocation of grant if made without citing  parties who ought to have been cited.   

10.     Section 283 of the Act provides for the powers of the District Judge to  grant probate, which is in the following terms :

\023283. Power of District Judge.- (1) In all cases the  District judge or District Delegate may, if he thinks  proper, -

(a)     examine the petitioner in person, upon oath;

(b)     require further evidence of the due execution of the  will or the right of the petitioner to the letters of  administration, as the case may be;

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(c)     issue citations calling upon all persons claiming to  have any interest in the estate of the deceased to  come and see the proceedings before the grant of  probate or letters of administration.

(2)     The citation shall be fixed up in some conspicuous  part of the court-house, and also the office of the  Collector of the district and otherwise published or made  known in such manner as the Judge or District Delegate  issuing the same may direct.     

(3)     Where any portion of the assets has been stated by  the petitioner to be situate within the jurisdiction of a  District Judge in another State, the District Judge issuing  the same shall cause a copy of the citation to be sent to  such other District Judge, who shall publish the same in  the same manner as if it were a citation issued by  himself, and shall certify such publication to the District  Judge who issued the citation.\024.    

11.     Section  307(1) of the Act provides for power of the Executor or  Administrator to dispose of property in the following terms :  

\023307.  Power of executor or administrator to dispose of  property.-(1) Subject to the provisions of sub-section (2),  an executor or administrator has power to dispose of the  property of the deceased, vested in him under section  211, either wholly or in part, in such manner as he may  think fit.\024

 12.     Sons of late Har Bhagwan had entered Caveats.  Their objections  would be considered in the probate proceedings.  Raj Kumar is not only  opposing grant of probate in favour of the respondents herein in respect of  the Will date 09.09.1997;  but he himself is said to be claiming under a Will  executed by Late Har Bhagwan on 30.10.1997.   

13.     A transferee of a property during the pendency of a proceeding is not  a necessary party.  Citations are necessary to be made to only of those who,  inter alia,  claim through or under the Will or deny or dispute the execution  thereof.

14.     The High Court in its impugned judgment has noticed that the  attesting witnesses of the Will had already been examined.  If the appellant  herein is impleaded as a party, the clock would be put back.  Before the High  Court as also before us, arguments have been advanced in regard to conduct  of the appellant as also the fact that they are only speculators who had  purchased  litigated properties.  But we may not go thereinto.

15.     In Banwarilal Shriniwvas (supra) whereupon Mr. Ramachandran has  placed reliance, the High Court was considering the case of a purchaser in a  proceeding under Section 263 of the Act.   

16.     Raj Kumar evidently was aware of the proceedings.  If a proceeding  had been initiated  for grant of probate, the appellant and/or his predecessor,  Shri Amit Pahwa would be deemed to have notice thereof.   

17.     Citation, as is well-known,  should be conspicuously displayed  on a  notice board.  Before purchasing the properties, Amit Pahwa and  consequently the appellant had taken a calculated risk.  In a situation of this  nature, he is not a necessary party.  He took the risk of the result of the  probate proceedings.  His apprehension that Raj Kumar may not take any  interest in the litigation cannot by itself a ground for interfering with the  impugned judgment.   It is speculative in nature.

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18.     In Seth Beni Chand (supra), whereupon reliance has been placed by  Mr. Ramachandran, this Court was considering an argument as to whether  alienees of properties are entitled to citation in  probate proceedings.  This  Court proceeded on the assumption that Banwarilal Shrinivas (supra) lays  down the correct law.  But even therein a distinction was made stating that  the alienee  was a transferee pendent lite.   The said decision, therefore, is an  authority for the proposition that no citation need be issued to any person  who had no right to the property prior to the commencement of the probate  proceedings.  This Court in no uncertain term opined that the alienees had no  right to be heard in the appeal  The said decision, therefore, runs counter to  the submission of Mr. Ramachandran.   

19.     We may notice that a Division Bench of the Delhi High Court in  Indian Associates v. Shivendra Bahadur Singh & Others [104 (2003) DLT  820], opined that the court must be satisfied in regard to the execution of the  Will.  It is not concerned with any other arrangement.  It was held :

       \02326.  The respondent on the other hand have tried  to distinguish the cases relied upon by the appellant by  contending that all those were cases where, certain  persons were allowed to intervene or were impleaded but  all were cases of family members and as such as the  appellant-herein, could apply to be made a party in  probate proceedings.

       27.  During the hearing of the matter, we drew the  attention of both the parties to the provisions of Section  307 of the Succession Act, which made the permission of  the court to be mandatory for purposes of transfer of  property by an administrator.  Both the parties were  heard on this aspect.\024        20.     Even otherwise ordinarily a transferee pendent lite without leave of  the court cannot be impleaded as a party.  [See Bibi Zubaida Khatoon v.  Nabi Hassan Saheb and Another  (2004) 1 SCC 191].   21.     Furthermore, the plaintiff in the suit is the dominus litis.  If he intends  to take a calculated risk in the matter, the court may not exercise its  discretionary jurisdiction. [See Kasturi  v.  Iyyamerumal and Others  (2005)  6 SCC 733 \026 Para 18 and  Dhannalal v. Kalawatibai & Others (2002) 6 SCC  16 \026 Para 23]       22.     For the reasons aforementioned, we do not find any merit in this  appeal, which is dismissed accordingly with costs.  Counsel\022s fee assessed at  Rs. 10,000/-.  23.     In view of the aforementioned judgment and order,  no orders are  necessary to be passed in the contempt petition.