Harinder Kaur vs Indira U. Nigham and Others

Kuldip Singh, J—Impugned in the present appeal is the judgment dated 13.02.1992 passed by learned Addl. District Judge, Chandigarh, vide which in an application filed by Indira U. Nigham and Savinder Singh Sachdev for revocation of the probate issued on 06.04.1984 in respect of the estate of Harbans Singh Sachdev, under Section 263 of the Indian Succession Act, 1865 (in short ''the Succession Act''), the objections were accepted and probate issued on 06.04.1984 was revoked.

Brief facts of the case are that on 19.08.1983, Harinder Kaur wife of Tarlochan Singh moved an application under Section 276 of the Succession Act for grant of probate regarding the estate of Surjit Kaur widow of Harbans Singh Sachdev. It was claimed in the application that Harinder Kaur, petitioner (appellant herein) is the daughter of Surjit Kaur widow of Harbans Singh Sachdev, resident of Kothi No. 583, Sector 18-B, Chandigarh and that Surjit Kaur widow of Harbans Singh Sachdev executed a Will on 20.12.1981 in the presence of witnesses in favour of her daughter Harinder Kaur. Surjit Kaur died on 25.04.1982 at Chandigarh. It was further averred that Harbans Singh Sachdev had executed a Will in respect of Kothi No. 583, Sector 18-B, Chandigarh in favour of Surjit Kaur, mother of the petitioner on 29.11.1974. Harbans Singh Sachdev died on 28.04.1978. The said Will was also annexed with the petition. Therefore, it was prayed that probate of the Will of deceased Surjit Kaur widow of Harbans Singh Sachdev, resident of Kothi No. 583, Sector 18-B, Chandigarh be granted in favour of the petitioner, namely, Harinder Kaur.

Notice of the said application was given to the General Public through publication Dainik Tribune, Chandigarh. In order to prove her case, the petitioner appeared herself in the witness box as PW1 and also examined Paramjit Singh, one of the attesting witnesses of the Will dated 29.11.1974 executed by Harbans Singh Sachdev as PW2 and Narinderjit Singh, one of the attesting witnesses of the Will dated 20.12.1981 executed by Surjit Kaur wife of Harbans Singh Sachdev. The then learned District Judge, after recording the ex-parte evidence vide order dated 06.04.1984 issued probate with regard to the Will dated 20.12.1981 executed by Surjit Kaur wife of Harbans Singh Sachdev. At the same time, he also issued probate of Will dated 29.11.1974 executed by Harbans Singh Sachdev in favour of Surjit Kaur (mother of the petitioner).

The applicants (respondent herein) Indira U. Nigham and Savinder Singh Sachdev are the daughter and son of Harbans Singh Sachdev from his first marriage with Jit Tara @ Jagjit Kaur. They filed the present application for revocation of the probate.

Learned Addl. District Judge framed the following issues:

"1. Whether the applicants are daughter and son of Shri Harbans Singh Sachdev, deceased, from his previous wife? OPA.

Whether Harbans Singh executed a valid Will dated 29.11.1974 in favour of Smt. Surjit Kaur? OPR.

Whether Surjit Kaur executed a valid Will dated 20.12.1981 in favour of Harinder Kaur, respondent? OPR.

Relief."

Learned Addl. District Judge, Chandigarh determined issue No. 1 in favor of the objectors-applicants holding that the applicants are children of Harbans Singh Sachdev from his first wife Jit Tara @ Jagjit Kaur. Issue Nos. 2 and 3 were taken up together and it was held that both the Will are suspicious and not proved to be genuine one. Issue Nos. 2 and 3 were decided in favour of the applicants and accordingly, the probate was revoked.

I have heard learned counsel for the parties and have also carefully gone through the case file.

First of all coming to the facts of the case, it comes out that an application under Section 276 of the Succession Act was filed by Harinder Kaur wife of Tarlochan Singh for grant of probate regarding the estate of deceased Surjit Kaur widow of Harbans Singh Sachdev, who happens to be her real mother. This was claimed on the basis of Will dated 20.12.1981. In the prayer clause also, prayer was made for issuing the probate of Will executed by deceased Surjit Kaur only. However, the Will of Surjit Kaur in favour of the petitioner as well as Will of Harbans Singh Sachdev executed in favour of Surjit Kaur were proved. Therefore, learned District Judge, Chandigarh granted probate in respect of both the Wills despite the fact that probate of Will of Harbans Singh Sachdev was never prayed for in the petition.

The admitted facts of the case are that Sh. Harbans Singh Sachdev was previously married with Jit Tara @ Jagjit Kaur. After his divorce with Jit Tara @ Jagjit Kaur, he remarried and started living with Surjit Kaur. Petitioner Harinder Kaur is the daughter of Surjit Kaur from her first marriage and was not born out from the wedlock of Surjit Kaur with Harbans Singh Sachdev. The applicants Indra U. Nigham and Savinder Singh Sachdev are the daughter and son of Harbans Singh Sachdev from his first marriage with Jit Tara @ Jagjit Kaur. In this way, it is clear that at the first instance, petitioner Harinder Kaur was pichlag and not a daughter born out from the wedlock of Surjit Kaur with Harbans Singh Sachdev. It is not disputed that Harinder Kaur is the daughter of Surjit Kaur and whether there is a Will or no Will, Harinder Kaur will succeed the property of Surjit Kaur even on the basis of natural succession.

Learned counsel for the appellant has argued that the will can be revoked under Section 263 of the Succession Act for just cause. In the proceedings under Section 263 of the Succession Act, the Court cannot go into the merits of the case and determine on merits whether the Will is proved or not. For this purpose, reliance has been placed in cases of Anil Behari Ghosh Vs. Smt. Latika Bala Dassi and Others, AIR 1955 SC 566 : (1955) 2 SCR 270 , Hans Raj Mittal v. Khushi Ram and others", The Punjab Lal Reporter (LXVI-1964) 902 and "Atma Singh v. Smt. Guro & others", 1983 (CLJ (C&Cr) 75.

Section 263 of the Succession Act regarding revocation of the Will provides as under:

"263. Revocation or annulment for just cause.--The grant of probate or letters of administration may be revoked or annulled for just cause."

Therefore, the probate of the Will can be revoked for just cause. It also comes out from the impugned order dated 13.02.1992 that while dealing the application for revocation of Will, learned District Judge, Chandigarh, recorded the findings on merits and held that Will dated 29.11.1974 executed by Harbans Singh Sachdev and Will dated 20.12.1981 executed by Surjit Kaur are suspicious documents and therefore, held that these Wills are not proved. Apparently, learned Addl. District Judge, Chandigarh, traveled beyond the scope of Section 263 of the Succession Act.

A perusal of the application for probate mentioned above clearly shows that Harinder Kaur had applied for the probate of the Will dated 20.12.1981 executed by her mother Surjit Kaur in her favour. In the pleadings, she had mentioned that the Will dated 29.11.1974 executed by Harbans Singh Sachdev is in favour of her mother Surjit Kaur. However, no prayer was made that the probate of Will dated 29.11.1974 executed by Harbans Singh Sachdev be also granted. Therefore, learned District Judge, Chandigarh, in fact, without any prayer being made and without any ground for the same also granted the probate of the Will dated 29.11.1974, which was in fact in favour of Surjit Kaur, deceased mother of the petitioner. Therefore, without going into the controversy regarding the genuineness of the Will, there is just cause for revoking the probate granting regarding the Will dated 29.11.1974 allegedly executed by Harbans Singh Sachdev in favour of Surjit Kaur (now deceased).

Learned Addl. District Judge, Chandigarh erred in discarding the Will executed by Harbans Singh Sachdev and Surjit Kaur on merits. Therefore, the findings of learned Addl. District Judge, Chandigarh, in issue Nos. 2 and 3 are set aside being beyond the scope of provision of Section 263 of the Succession Act.

Now, the result is that the controversy is shortened to the probate of Will dated 20.12.1981 executed by Surjit Kaur in favour of Harinder Kaur. It comes out that while granting the probate, learned District Judge, Chandigarh had recorded the evidence and came to the conclusion that Will is proved. Therefore, on merits, this could not be set aside as it was done by learned Addl. District Judge, Chandigarh.

Learned counsel for the respondents on the other hand has argued that after the death of Harbans Singh Sachdev, Kothi No. 583, Sector 18-B, Chandigarh owned by him will go by mutual succession to his legal heirs i.e. his wife Surjit Kaur, son Savinder Singh Sachdev and daughter Indira U. Nigham and the Will, if any, was to be set up by Surjit Kaur. During her life time, Surjit Kaur did not set up any Will before any competent court nor she got her name entered in the record of ownership maintained by the Municipal Authorities, Chandigarh. Now, it is left to the petitioner (daughter of Surjit Kaur) to prove that Surjit Kaur exclusively succeeded to the said kothi on the basis of Will dated 29.11.1974 executed by Harbans Singh Sachdev.

It has also been argued that succession never remain in abeyance and immediately devolve upon the legal heirs, the moment the last owner dies.

Reliance in this regard has been placed upon the authorities of Hari Ram Vs. Harjinder Singh, (2013) 169 PLR 811 : (2014) 2 RCR(Civil) 946 : (2014) 1 RCR(Rent) 461 , Smt. Mohinder Partap Singh and others v. Chandigarh Administration and others" in CWP No. 661 of 2013, decided on 17.07.2014, "Abdul Qayum and others v. Abdul Rahman and others", AIR 1933 Oudh 439 and "Rup Kishore v. Kanhaiya Lal and others", AIR 1923 Oudh 227.

In Hari Ram''s case (supra), a Division Bench of this Court in somewhat similar circumstances regarding succession by natural heirs, gave the following directions:

"Therefore, we dispose of the present writ petition with a direction to the Chandigarh Administration to mutate the house in favour of all the legal heirs subject to rights of the parties to be determined by Civil Court and also subject to the right of the Administration to take action against the property in question for the building violations, if any, in accordance with law."

Therefore, the Chandigarh Administration shall always be at liberty to mutate the house in question in favour of all the legal heirs of Harbans Singh Sachdev, subject to the rights of parties to be determined by the civil court and also subject to the right of he Administration to take action against the property in question for the building violations, in any, in accordance with law. There is no dispute with the said authorities. The Administration shall always be at liberty to follow the directions as contained in Smt. Mohinder Partap Singh''s case (supra) by the Division Bench of this Court.

It is to be further noted that present applicants-respondents claimed the inheritance of their father Harbans Singh Sachdev. They do not claim the inheritance of Surjit Kaur. Therefore, their claim is confined only to the Will allegedly executed by Harbans Singh Sachdev and the claim regarding the property left behind by Harbans Singh Sachdev. Another fact, which needs to be noticed is that in the petition for probate, the probate was sought regarding two properties one Kothi No. 583, Sector 18B, Chandigarh, and House No. 620-I, Model Town, Jallandhar, which were allegedly owned by Surjit Kaur at the time of her death.

A perusal of the relationship discussed above shows that Harbans Singh Sachdev left behind three natural heirs, namely, Indira U. Nigham (daughter), Savinder Singh Sachdev (son) and Surjit Kaur (wife). Harbans Singh Sachdev died on 28.04.1978 and Surjit Kaur died on 25.04.1982. Therefore, what is required to be determined is as to whether the entire property left behind by Harbans Singh Sachdev go to Surjit Kaur on the basis of Will dated 29.11.1974 or it will go to all the natural heirs in equal shares by way of natural succession, which would mean that each of them will get 1/3rd share?

Further complication has arisen as Indra U. Nigham has died during the pendency of the present petition. She was married to a foreign national and subsequently divorced and allegedly did not leave behind any class-1 heir and that Savinder Singh Sachdev is stated to be the only legal heir of Indira U. Nigham.

Net result of the above discussion will be that the probate of Will dated 29.11.1974 executed by Harbans Singh Sachdev in favour of Surjit Kaur by learned District Judge, Chandigarh on 06.04.1984 stands set aside for the simple reason that the probate of said Will was never sought. It is apparent that it was for this reason that the applicants Indira U. Nigham and Savinder Singh Sachdev were not made party to the said proceedings.

So far as the probate of the Will dated 20.12.1981 executed by Surjit Kaur is concerned, the property left behind by Surjit Kaur is to go to the present petitioner Harinder Kaur being the only daughter even on the basis of natural succession. However, in the Will dated 20.12.1981, Surjit Kaur had also bequeathed Kothi No. 583, Sector 18-B, Chandigarh to the present petitioner assuming that she had exclusively succeeded to the said property on the basis of Will dated 29.11.1974 executed by her husband Harbans Singh Sachdev. Since the question as to whether Surjit Kaur will exclusively succeed the said kothi or the other Class-I heirs of Harbans Singh Sachdev will also succeed along with her, is yet to be determined by the competent court, therefore, the probate in respect of Will dated 20.12.1981 executed by Surjit Kaur in favour of petitioner regarding Kothi No. 583, Sector 18-B, Chandigarh will remain in abeyance, till the succession of Harbans Singh Sachdev either on the basis of natural succession or on the basis of Will dated 29.11.1974 is decided by the competent court.

As a result of the foregoing discussion, the present appeal is partly allowed. The impugned judgment dated 13.02.1992 passed by learned Addl. District Judge, Chandigarh, so far as the revoking the probate of Will dated 20.12.1981 executed by Surjit Kaur in favour of the petitioner Harinder Kaur is set aside, subject to the condition that the probate of the said Will qua Kothi No. 583, Sector 18-B, Chandigarh shall remain in abeyance till the exclusive title or the share of Surjit Kaur over the said kothi on the basis of Will dated 29.11.1974 executed by Harbans Singh Sachdev or on the basis of natural succession, is determined by the competent court.

However, the impugned order revoking the probate of Will dated 29.11.1974 executed by Harbans Singh Sachdev in favour of Surjit Kaur is maintained though for different reasons.

Appeal is partly allowed.