Partly allowed

B.B.Paymaster and Ors. v. Baurawa Sangappa Kadappati and Anr.

Bombay HC16 Aug 2004FA/1734/2002

Case brief

AI extract

What is this about?

In an appeal concerning the rejection of a probate application, the High Court of Bombay held that probate courts do not decide title to property. The court quashed the lower court's order for failing to examine evidence of execution and failing to issue citations to excluded heirs under Section 283 of the Indian Succession Act, 1925. The matter was remanded to decide afresh.

What did the court decide?

The appeal was partly allowed; the impugned order was quashed; the application for probate was remanded to the trial court for fresh hearing with directions to issue citations and amend the schedule.

B.B.Paymaster and Ors. Vs Baurawa Sangappa… — Succession and Inheritance | Bombay HC (2004)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

CIVIL APPELLATE JURISDICTION

¶3

FIRST APPEAL NO.1734 OF 2002

¶4

Mr.B.B.Paymaster, Age: 90 years, Occ: Retired (ICS) residing at No.1, Kamal Mahal, Carmichael Road, Mumbai 400 026. 2. Mr.Shivling G.Bhosale, age about 63 years, Occ.: Retired (IAS) residing at B-1 Chanakya Housing Society, 411, Shivaji Nagar, Pune 411 014.

¶5

Mr.Ramesh N.Rao, aged about 57 years, Occ.:C.A. residing at Nilkanth, Survey No.39, Mate Nagar, Wadaonsheri, Pune 400 014. 4. Mr.Jay Sangappa Kadapatti, Age: 41 years, Occ.: Social Worker, Business, residing at 6/A, Boat Club Road, Pune 411 001. 5. Mr.Rajiv Sangappa Kadapatti, Age: 36 years, Occ.: Business, residing at 6/A, Boat Club Road, Pune 411 001. .... Appellants. (Org.Applicants) Versus. 1. Mrs.Baurawa Sangappa Kadapatti, Age: 60 years, Occ. Housewife. 2. Miss Renuka Sangappa Kadapatti, Age: 35 years,Occ.: research Student. 3. Mr.Sanjay Sangappa Kadapatti, Age: 30 years, Occ.: Service. All residing at 6/A, Boat Club ... Respondents Road, Pune 411 001. (Org.Non-Applicants)

¶6

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¶7

Mrs.Anita Agarwal for the Appellants.

¶8

Shri V.B.Rajure for the Respondents Nos.1 to 3.

¶9

CORAM ; ABHAY S. OKA, J.

¶10

DATED : 16th August, 2004.

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Hearing concluded on : 29th July 2004.

¶12

Date of Prouncement : 16th August 2004.

¶13

JUDGMENT.

¶14

1.	On July	27th	and	29th	July	2004 this	A	ppeal	was
heard	finally.	The	order	impu	gned	in the	Appeal	is	an
order	rejecting	an	Applic	ation	for	Probate	filed	by	the
Appellants.		Conside	ring	the	fact	s and	circu	mstances	of
the	case and in	view	of	the	case	made out	in	the	Civil

¶15

Application No.1437 of 2002, this Appeal was taken up

¶16

for final hearing out of turn.

¶17

2.	The Ap	pellants appli	ed for	grant of	Probate	in
respect	of the	alleged last	will	dated 29th	April	1998
of	late Dr.(M	iss) Indu	Shankarrao	Patwardhan.	The	will
is a	registered	will. T	he Ap	plication under	section	276
of the	Indian	Succession	Act,	1925 (herei	nafter	referred
to as	"the	said Act")	was f	iled by	the A	ppellants
claiming	to	be the Ex	ecutors	appointed under	the	said
Will.	The	Testator died	on 8th	February 1999	. It	is

¶18

stated in the Application that the only real brother of

¶19

Testator passed away 40 years ago and the said brother

¶20

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¶21

is s	urvived		by his widow Mrs.Laila	Parw	ardhan his	son
Shri	Pranay		Patwardhan and a	daug	hter M	rs.Pravasini
Sawhney.		The	Respondents who	were	impleaded	as
Opponents	in		the Application	are	the	alleged
beneficiaries		under	the Will along	with	the	Appellant
Nos.4	and	5.	It appears from the	Appli	cation that	the
deceased	left		behind large and valuab	le	moveable	and
immoveable		prope	rties. The Respondents	fil	ed a	pursis

¶22

stating therein that they had no objection if the

¶23

Probate was granted.

¶24

3.	The learned	trial Jud	ge	directed	that	a cit	ation be
published	in a	Newspaper	which	was	published	in	Daily
Prabhat.	Citation	was not		issued	to	the	legal
representatives	of the	deceased		brother	of	the	Testator.

¶25

The Appellants examined on oath the Appellant No.5, the

¶26

alleged attesting witnesses and a Medical Practitioner.

¶27

4.	The		learned	trial	Judge	by	his Judgment	and	Order
dated	29th	J	uly	2002	rej	ected	the Ap	plication	for
Probate.	The learned	trial	Judge	rejected	the

¶28

Application on the gr	ound that (i) t	he averments	in the
Application	were	vague,	(ii)	avermen	ts	in	the	Applicant
were not	proved	as requi	red by	Order	VI	Rule	2	of the

¶29

Code of Civil Procedure, 1908, (iii) the Schedule of the

¶30

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¶31

property	annexed to	the	Appli	cation	is	not	signed	by the
Advocate	for the	Appell	ants,	(iv)	the	des	cription	of the
property	mentioned	in	the	Will	and	the	description	of
the	property m	entioned	in		the	Schedul	e was	not
identical,	(v) it	was	not	proved	that	the	Testator	was
the	owner of	the	property	men	tioned	in	the Will,	(vi)
relatives	of the	deceased	Testat	or	who	were	named	in the
Application	were	not	imple	aded	as	parties,	(vii)	the
Death	Certificate	of	paren	ts of	the	of	the	deceased

¶32

Testator were not filed on record and (vii) the contents

¶33

of the Will were not proved.

¶34

5. The submis	sion of	the	learn	ed Co	unsel	Mrs	A	garwal
for the Appellant	is that	the	exe	cution	of	the	Will	was
duly proved after	a cita	tion		was	pub	lished	in	a
Newspaper. No one	had fi	led	a	caveat	in	the	proc	eedings
and the Court did	not rece	ive	any	objec	tion	on	the	basis
of publication of	the cita	tion.		She	sub	mitted	that	the
Application was sup	ported b	y		the	Res	pondents		and
therefore, the same	should	have		been		allowed.		She
pointed out that a	Probate	Cou	rt	cannot	de	cide	the	issue
of title. It	was not	nece	ssary	to	pro	ve	that	the
deceased was the	owner	of	the	proper	ties	mentio	ned	in

¶35

the Will. The learned Counsel for the Respondent

¶36

supported the Appellant.

¶37

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¶38

6.	I have considered	th	e ri	val submission	s. The	trial
Court	has found fault	with	the	Appellants	on the	ground
that	the title or own	ership	of	the decease	d in	respect
of th	e property subject		matter	of the	Will is	not
established.	The Apex	Court	in	a Judgment	reported	in
(1993)	2 S.C.C.	page	507	(Chiranjilal	Shrilal	Goenka
since	deceased through	LRs	.	v/s. Jasjit	Singh	and
others)	held that the g	rant	of	Probate wit	h will	annexed
establishes	conclusively as		to	the	appointment	of
executor	and the valid	exe	cution	of the	Will.	The
Probate	Court does not	decid	e a	ny question	of title	or
of	existence of the	propert	y its	elf. This	Court in	a
Judgment	reported in 200	3(1)	Mah.L	.J. page	113	(Baban
Rambhau	v/s. Heman	Ramb	hau)	held that	it is	well
settled	that it is not	the	duty	of the	Probate Cou	rt to
consider	any issue as	to	the	title of th	e Testator	to
the	property with whic	h	the	will propoun	ded purport	s to
deal.	In view of	this	posit	ion, the	Application	for
Probate	made by the	App	ellants	could not	have	been
rejected	on the ground	that	the	Appellants	did not	prove

¶39

that the Testator was the owner of the properties

¶40

affected by the will.

¶41

The learned trial Judge has not at all considered

¶42

the evidence of the attesting witnesses and the Doctor

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¶44

examined	by		the	Appella	nts.		The	Court	was	concerned
only	with	the	qu	estion	as	to	whe	ther the	document	put
forward	as	the	la	st	Will	of	the	Testa	tor was	duly
executed	and	at	tested	as	req	uired	by	law	and wheth	er at
the	time	of	execu	tion	of	the	Will	the T	estator was	in
sound	disposing		min	d.		Ther	efore,	the	learned	Judge
committed	an	e	rror	by	not	co	nsiderin	g and	deciding	the
said	question.		The		fact	that	the	Advo	cate for	the
Appellant	has	not	si	gned	the		Schedu	le to	the A	pplication
for	Probate	is	a	mere	tec	hnical	ity	and th	e trial	Court
could	have	call	ed	upon	the		concern	ed Adv	ocate to	comply

¶45

with formality instead of rejecting the Application on

¶46

the said ground.

¶47

therefore, necessary to refer to the provisions of the

¶48

said Act. Section 283 of the said Act reads thus:

¶49

In all cases the District Judge or District

¶50

Delegate may, if he things proper, -

¶51

(a) examine the petitioner in person,

¶52

upon oath;

¶53

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¶54

(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 m	ay be;
(c)	issue	citations	calling		upon	all
	persons	claiming	to	have	any	interest
	in the	estate	of the	dece	ased to	come
	and	see	the proc	eedings	before	the
	grant of prob administration	ate or letters .	of

¶55

.	(2)	The	cita	tion	shall	be	fixed up	in	some
conspicuous		part		of	the	cou	rt-house,	and	also
the	office		of	the	Coll	ector	of the		district
and	otherw	ise	publ	ished	or	made	known	in	such

¶56

manner as the Judge or District Delegate

¶57

issuing the same may direct.

¶58

.	(3)	Where any	porti	on of	the	assets	has
been	stated	by	the	petitioner	to	be	situate
within	the	jurisdiction	of	a	District	Judge	in
another		State, the	Di	strict	Judge	issuing	the
same	shall	cause a	copy	of	the	citation to	be
sent	to	such other	Dis	trict J	udge,	who	shall

¶59

publish the same in the same manner as if it

¶60

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¶61

were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation.

¶62

The	section vests	a	discret	ion in	the	Judge	in	the
matter	of issuing	cita	tions.	The	said	discret	ion	is
required	to be	exe	rcised	with	utmost	care	co	nsidering
the	fact that th	e	finding	of the		Probate	Court	as
regards	execution of	the	Will	operates	in	rem.	In	a
case	where Probate	of	a w	ill is	asked	for, a		special
citation	ought to	be	served	upon	those	persons		whose
interests	are directly		affected	by	th	e Will.		The
practice	of issuing	only	a	general	ci	tation and		ordering
publication	thereof	in	a	newspape	r o	r ordering		affixing
the c	itation in conspi	cuous	part	of	Court	house	may	tend
to enc	ourage fraud.	Tho	ugh	the sect	ion	does not	ma	ke it
obligatory	to serve		a s	pecial	citation,	it is		desirable
to	serve special c	itation	on	the	persons	who w	ould	have
been	entitled to inhe	rit	the	property	of	the de	ceased	as
per	the law of	inte	state	succession	and	who hav	e	been
excluded	from succ	ession	by	the wi	ll.	Whenever	it	is
disclosed	in the	Pro	bate	petition	itself	that	there	are
persons	claiming to	have	any	interest	in	the esta	te	of
the	deceased, the	Court	will	have	to	exercise	d	iscretion

¶63

under section 283 by directing service of citation on

¶64

such persons.

¶65

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¶66

9. In the present	case the Testator was unmarried.	As
disclosed in the Prob	ate Application, her real	brother’s
widow, son and daughte	r are alive. The Appellant	No.5
has stated in his	deposition that except the said	three
relatives, no other	close relative of the Testator	is
alive. In absence	of any testamentary disposition	by
the deceased Testator,	her property would have	devolved
on the heirs of her	father in view of section	15(1)(d)
of the Hindu Succession	Act, 1956. The widow, the	son
and the daughter of	testator’s brother are Class I	heirs
specified in the Sch	edule under the said Act of	1956.
The learned Counsel	Mrs.Agarwal submitted that	after
publication of public	notice, the said persons have	not
come forward for raising	any objection. She stated	that
the Respondents have	given their no objection for	grant
of Probate and there	fore, Probate ought to have	been
granted. A Court of	Probate is said to be a Court	of
conscience which should	not to be influenced by	private
arrangement of parties.	A Court of Probate has to	act
cautiously and with utmos	t care. When the learned	trial
Judge has taken a not	e of the fact that the said	close
relatives of the deceas	ed were alive who may	be
interested in the est	ate of the deceased as they	were
her heirs as per the	said Act of 1956, he ought to	have

¶67

issued citations to the said persons named in the

¶68

Probate Application.

¶69

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¶70

10.	The	learned	J	udge ha	s	found fault	with	the
Appellant	for		not	producing	death	certificate	of	the
parents	of	the	Testa	tor.	The	Applicant No.5	has	stated
on	oath	that	the	deceased	had	no close rela	tive	alive
except	her	sister-i	n-law	and	the	sister-in-law’s	son	and

¶71

daughter. Therefore, no fault can be found with the

¶72

Appellants if they did not produce the death

¶73

certificates of the parents of the Testator.

¶74

11.	In t	he c	ircumsta	nces,	the impu	gned	order	will have
to be	set	aside	and	the	Application	for	Pro	bate will
have to	be	reman	ded t	o the	trial Co	urt.	As	the trial
Court	has	made	obse	rvation	regarding	dis	crepancy	in the
description	of the	pr	operty	in	the wil	l a	nd t	he schedule
to the	Application,	lib	erty	will	have to	be	given	to the
Appellants	to	amend	the	Sche	dule to	the	Applica	tion if
it is	deeme	d nec	essary.	T	he trial	Court	will	have to
decide	the m	atter	afresh	in	the lig	ht	of th	e discussion

¶75

made above after issuing citations as directed by this

¶76

Judgment and order.

¶77

Hence I pass the following order:

¶78

(i) The Appeal is partly allowed with no order

¶79

as to costs.

¶80

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¶81

(ii) The impugned Judgment and Order is quashed and set aside.

¶82

(iii) Misc.Application No.393 of 2001 is remanded to the Court of the learned Second Joint Civil Judge, Senior Division, Pune. The Parties to this Appeal are directed to appear before the learned Trial Judge on 6th September 2004 at 11.00 a.m.

¶83

The	learned trial		Judge wil	l	direct	that the
citation	shall	be	served	on	the	persons
named in	paragraph 5 of the	Misc.	Civil
Applicatio	n for Probate.

¶84

(v) The learned trial Judge will give opportunity to the Appellant to amend the Application for probate and the Schedule annexed thereto.

¶85

(vi) The learned trial Judge will allow the parties to lead further evidence.

¶86

(vii) After considering the evidence which is already on record and further evidence which

¶87

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¶88

may be led by the parties, the learned trial Judge will decide the application afresh in the light of the observations made in this Judgment. (viii) The learned trial Judge will decide the application as expeditiously as possible and in any event on or before 30th June 2005.

¶89

Judge.

B.B.Paymaster and Ors. v. Baurawa Sangappa Kadappati and Anr.

Case brief

What is this about?

What did the court decide?

B.B.Paymaster and Ors. v. Baurawa Sangappa Kadappati and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

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