Case Note & Summary
The dispute arose from a probate granted by the City Civil Court at Ahmedabad in respect of the will of one Kamlaben Mehta. Manvantrai Mehta, the original owner of Plot No.13 and open Plot No.14 in Krishna Cooperative Housing Society, died on 16.1.1995 leaving behind his widow Kamlaben and five children, namely two sons Narendra and Chandravadan and three daughters Nalini, Chandrakalaben and Vasantben. Plot No.13 stood in the name of Narendra Mehta, who died on 8.8.1971, and Kamlaben died on 16.9.1984. The respondents, Chandravadan M. Mehta and others, filed C.M. Application No.123 of 1985 in the Civil Court at Ahmedabad and obtained probate of the will left by Kamlaben, their mother; probate was granted on 16.1.1987. The appellants, Mrs. Nalini Navin Bhagwati and others, later became aware of the probate and filed an application to revoke it. They prayed that the application be converted into a regular suit, but the trial court rejected that prayer. On revision, the Gujarat High Court by order dated 18.7.1995 held that the delay in filing the revocation application was properly explained, but directed that the application be treated as a suit filed under Section 295 of the Indian Succession Act, 1925. Aggrieved by this direction, the appellants approached the Supreme Court by special leave. The core legal issue was whether an application for revocation of probate or letters of administration under Section 263 of the Indian Succession Act, 1925 is required to be treated as a suit under Section 295. Shri Harish Salve, learned senior counsel for the appellants, contended that Section 295 applies only to contentious original probate proceedings where the propounder is plaintiff and the objector is defendant; a revocation application under Section 263 is a separate proceeding that may be disposed of summarily or after evidence, but not as a suit. Shri H.K. Puri, learned counsel for the respondents, argued that Part IX Chapter IV of the Act indicates that both probate and revocation proceedings should be conducted as suits under the Code of Civil Procedure, with the applicant for revocation as plaintiff and the opponent as defendant. The Supreme Court analyzed Section 295, which states that in any case before the District Judge in which there is contention, the proceedings shall take the form of a regular suit, in which the petitioner for probate or letters of administration shall be the plaintiff and the person opposing the grant shall be the defendant. The Court observed that this provision applies to the initial grant of probate or letters of administration when there is a contentious issue. When a grant is sought to be revoked under Section 263, the proceeding is analogous to an application under Order IX Rules 9 or 13 of the Code of Civil Procedure, 1908 for setting aside an ex parte decree or dismissal for default; such applications are not treated as suits. The Court held that an application to revoke probate or letters of administration is a miscellaneous application and may be disposed of either summarily or after recording evidence, depending on the fact situation. The burden is on the applicant to prove grounds for revocation, and the respondent who obtained the grant must disprove the contentions. The Court reasoned that if a revocation application were treated as a suit under Section 295, the applicant would be placed in the contradictory position of having to prove the will and at the same time contend that it was not validly executed. The Court also noted that the Bombay High Court in Narbheram Jivaram Purohit v. Jevallabh Harijivan, (1933) 35 BLR 998, had held that the proper procedure for revocation of probate is by way of a petition in testamentary and intestate jurisdiction, not by way of a suit in ordinary original civil jurisdiction. Accordingly, the Supreme Court held that the High Court erred in directing the revocation application to be treated as a suit under Section 295. The appeals were allowed, the High Court direction was set aside, and the trial Court was directed to dispose of the matter expeditiously. No costs were awarded.
Headnote
A) Probate and Letters of Administration - Revocation of Probate - Nature of Proceedings - Indian Succession Act, 1925, Sections 263, 295 - The court considered whether an application for revocation of probate is a suit under Section 295. Held that it is a miscellaneous application, not a suit, and may be disposed of summarily or after recording evidence as the fact situation requires. The applicant bears the burden of proving grounds for revocation, while the grantee must disprove them. B) Procedural Law - Applicability of Code of Civil Procedure, 1908 - Section 295 of Indian Succession Act, 1925 - Section 295 requires contentious original probate proceedings to take the form of a regular suit with propounder as plaintiff and objector as defendant. This provision does not apply to revocation proceedings under Section 263 because the applicant for revocation cannot simultaneously prove the will and contend that it was not validly executed. Therefore, adoption of regular suit procedure is not necessary. C) Evidence and Burden of Proof - Revocation Proceedings - Section 263 Indian Succession Act, 1925 - The court may decide a revocation application either summarily or after giving both parties opportunity to adduce evidence. The burden rests on the applicant to prove the grounds, and the respondent who obtained the probate must disprove the contentions. This flexible procedure avoids the self-contradiction inherent in treating the matter as a suit.
Issue of Consideration
Whether an application for revocation of probate or letters of administration under Section 263 of the Indian Succession Act, 1925 should be treated as a suit under Section 295 of the Act.
Final Decision
Appeals allowed. The High Court order directing the revocation application to be treated as a suit under Section 295 was set aside. The trial Court was directed to dispose of the matter expeditiously. No costs were awarded.
Law Points
- Application for revocation of probate under Section 263 of Indian Succession Act is a miscellaneous application
- not a suit under Section 295
- may be disposed summarily or after recording evidence
- burden on applicant to prove grounds
- procedure under Section 295 applies only to contentious original probate proceedings
- self-contradictory to treat revocation as suit
