Chandra Prabha v. Satish Chand Sharma & Others

1. Whether Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not ?

3. Whether the judgment should be reported in the Digest ? l^ G I M.L. MEHTA. I.

1. This appeal is directed agairrst the ordei' dated 23'd February, 2010 passed by learned Single judge whereby three applications viz. lA No.6043 of 2OO[7], lA No. 6044 of 2OO[7] and lA No. 6045 of 2OO[7] filed by the appellant/ plaintiff in her suit CS(OS) No. 526 of 2007 came to be dismissed.

2. The admitted facts are that the appellant/ plaintiff is daughter of Pt. Moolchand'sharma who died on 25th Decembei'1939 leaving behind FA(OS) No359-361.2070 Poge 7 of 75 2011:DHC:10947-DB IL "1 his widow and five minor children i.e. three sons (Mr. S.C. Sharma, Mr. R.C. Sharma and Mr. H.C. Sharma) and two daughters (Chander Lekha and appellant Chander Prabha). A will was executed by Pt. Moolchand Sharma dated 10th December, 1937 whereby he vested his entire property, movable as well as immovable, in five persons (trustees) who were to manage the said propefty and ensure that the family of the deceased was maintained, educated and marri6O. fne said Will was proved and registered before a Senior Subordinate Judge, Delhi on 14th December, 7g4O in probate proceedings. The probate came to be granted by the Court on 28th May, 1941. The. mother of the appellant also passed away in L942 and her sister (Chander Lekha) got married in the year 1942. The appellant was married in the year L95l-. On l-2th July, 1954, a Transfer Deed was executed by the Trustees in favour of H.C. Sharma and S.C. Sharma who had attained inajority. Since Mr. R.C. Sharma was minor at that time, his share co.ntinued to remain with Pt.,r. Moolchand Trust. Mutation in the names of Mn S.C. Sharma and Mr. H.C. Sharma was effdctbd on 7th 1uly, 1956. The si-rbre'' of Mr. R.C. Sh"arma was transferred by the trustees irr his name on.llth October, 1958, after he attained majority. Admitteilly, the shares of the sons of tate pt. Moolchand Sharma were mutated in their lta.mes and that tl-re! themselves or through their Lrs are in possession ot.ttreii sfrares in the property.

3. lt is also admitted that in a suit being cS (oi) 2L66.of 1999 titled '..,"'.:r"'. ' " as 5.C. Sharma and Others v. R.C. Sharma'an-d..'Others, the appeliant moved an apptication dated 4th Novemoei r$ot'unillr'oroar. r rii,i;.io 'r' ' l FA(1S) No359-367.2070 '(. I J[1] €' CPC for impleadment and she was allowed 'to be impleaded as defendant no.9 in the said suit limited to her rights/ benefits as per the Will of her deceased father. lt is also a matter of record that on 29th June, 1996 a suit being CS(OS) 1573 of 1996 titled as Chadra Prabha v. Satish Chand Sharma and othets was filed by the appeilant seeking relief of declaration, renditicn' of accounts and permanent injunction against the defendants including her brotheis. One of the pleas taken in the said suit was that she came to know of the factum of the Will on 19th July, 1993 i.e.'ten days before her filing the application for impleadment under Order 1 Rule 10 CPC in suit bearing number CS (OS) 2166/1990. The present suit came to be filed on 12th March, ZOO[7] by the appellant / plaintiff. lt is also an admitted fact that she filed ah application being lA No. 11875 | 2OOO under Section 55 of lndian Trust Act, 1882 in suit being CS(OS) No.2166 of 1990 claiming her rights oir the basi[5] of the Will and seeking withdrawal of the rent of the propei"ties depoisited by the tenants." The said application of tire appellant/ plaintiff came to be dismissed by Justice Sanjay Kishan Kaul of this Court vide order dated 29th May, 2OO[7]. Admittedly the said order has not been challenged by the appellant/ plaintift and. has attained finality. The appellant thereafter got her name deleted frcm the array oF defendants in CS (OS) No.2166 of 1990 vide order dated 3'd December 2009 of the said this Court, lt is further an admitted fact that appellant also filed a suit being CS(OS) No.2272/2OOL in this Court cidiming relief for her maintenance and that the same has been vrithdrawn by her. FA(OS) No359-367.2070 Poge 3 of 75,J IB {

4. The present suit being CS (OS) No.526-of 2OO[7] was filed by the appellant/ plaintiff seeking a decree for execution of the Trust Deed, seizure and impounding of entire estate of the deceased and for directions to defendant no.4 to produce the accounts of the trust properties and another records peftaining to the trust in which his father late Bawa Milkha Singh was the trustee and also for appointment of a receiver who may take care of the estate untii the date this Court appoints trustees for administration of the trust. lt was during pendency of this suit that the aforesaid three applications were filed by the appellant which came to be dismissed by learned Single Judge vide the impugned order dated 23'd February, 2010. -5. Appiication lA 6043 of 2OQ[7] under Section L51 CPC read with Section 55 and 56 of the lndian Trust Act was based on the averments that though she was a beneficiary of the trust propefties and was entitled to have a share therein, she has been denied her share in the trust properties, urhich should have been collected by the trustees and deposited in the Court. She averred that the rent proceeds from the trust properties were being deposited in CS(OS) 21-66 /1990 and vide order dated 8th August,2006, the defendants have used a portion of the amount deposited without her knowledge. She prayed for grant of rent proceeds out of the trust properties of her share or atleast t[5] lac per month till pendency of the suit as a financial support to her since she' was'living a life of poverty and has been depenCent on her husband and sons throughout. FA(OS) No359-361.2010 Page 4 of L[5] {t[7] '( I I

6. lA 6044 of 2OO[7] was filed for execution of the trust of which she claimed to be a beneficiary. She prayed for appointment of a trustee or the trustees under Section 7L of the Indian Trust Act alleging the trustees having failed in their duties to deposit her share with the District Judge, and instead having transferred the trust properties to thb male beneficiaries in collusion with them in order to deprive her of her lawful entitlements. She averred that the trustees have acted detrimental and prejudicial to her interests and for all these reasons she prayed that the Court should appoint trustee/ trustees to safeguard her benefit and interests.

7. ' ln lA 6045 of 2008 filed under Section 68 of the Act, she,has averred that the trustees of late Moolchand Sharma have acted in malafide manner. In this regard, it has been alleged that the probate was applied only by one trustee namely Bawa Milkha Singh and the same was granted to him. Prayer is made for attacltment of the trust properties and its profits till the pendency of the suit and to administer the trust property in the best beneficial interest of the plaintiff/ appellant.

8. Learned Single Judge while dismissing the aforesaid three applications observed that without going into the merits of the case as to whether the suit as such is maintainable or not, the rival submissions raised by the parties need to be examinecj at the time of trial of the matter. The contentions raised before us by learned Senior Advocate Dr. K.S. Siddhu on behalf of the appellant on merits are the same as urged before the learned Single Judge. lt was submission of learned FA(1S) No359-367.2010 k" Senior Counsel that creation of trust by Will 'bxecuted by late Pt. Moolchand Sharma was not complete without there being acceptance thereof by the trustees. That being so, he submitted that though it was not a trust but a situation similar to trust which he termed as resultant trust or nominal trust. He submitted that in such a situation, when there was no trust and the property was in the hands of third person, the said third person would be trustee de son tort which would mean a person who acquired possession of the property by fraud. He submitted that the trustees colluded with the male beneficiaries i.e. appellant's three brothers and transferred the properties in their favour by playing fraud. In this regard, he submitted that the probate is a fraudulerit document which was granted in favour of only one of the five trustees namely Bawa Milkha Sirrgh who applied and obtained, whereas tire other four names oi the trustees were nc.t in the probate proceedittgs, but on the margin of tlre said document and subsequentiy corresponding chatrges and interpolaLions were made therein. He also submitted that in place of trustee Mr. Prem Lal Gupta, the narne of Meia Ram W'as adcjed as one of the trustees fraudulently. He submitted that the transfer docurnents in favour of her brothers Mr. H.C. Sharma Mr. 5.C. Sharma and Mi'. R.C. Sharma were outcome of fraucl, forgery and consiriracy by the trustees and her brothers. lt was one of the lrounds of appellant that because of this fraudulent acts oi cmission artd commissions on the part of trustees and her brothers, that aforesaid three irpplications were filed to protect the trust property and to prevent the irreparable injuries to her. LearrieO counsel submitted that cn the face of tlrese documelrts, the FA(2S) No359-367.2010 Poge 6 cf 75 ( J 2t { learned Single Judge ought to have expressed his prima facie opinion on provisional basis, instead of observing that the averments need to be tested. ln any case, it was submitted by learned Senior Counsel that the appellant has been denied her share of proceeds of the trust properties which should have been collected and deposited by the trustees in the Court and that despite having a share in the properties, she has been living a life of poverty and depravity. Learned Senior Counsel submitted that since the trustees had failed in their duty to deposit their share with the District Judge and instead had transferred the trust properties to the male beneficiaries, the Court ought to have a'ppointed Trustee(s) under Section 74 of the Act. He urged that for the administration of the trust properties and the beneficial interest of the appeilant, the trust properties and its profits need to be attached immediately during pendency of the suit. These contentions rlrere made by the Learned Counsel on the submission that the trust is not extinguished, but it survives.

9. On the other hand, learned counsel for the respondent in tliis regard submitted that the issues as sought to be agitated by the appellant are not permissible in the present proceedings inaSmuch as the probate was not only granted more tlran 60 years back, but the same has since been acted upon by the parties. The appqllant has nowlrere sought of cancellation or revocation of the said probate and thai beirtg so, it has obtained finality and would constitute judgment in rem and thus be binding on all the parties incluCing the appeilant. Learned counsel also submitted that the trust on completion of the task FA(1S) No359-361.2010 Poge 7 of 75 {' I 2^ ( assigned to it, has extinguished and that being so, the present suit as such was not maintainable. Learned counsel for the appellant placed reliance on Smt' Rukmani Devi and others v Narendra Lal Gupta (1985) 1 SCC L44; Chiranjitat Shrilal Goenka v lasiit Singh and others (L993) 2 SCC 5O[7] and Crystal Developers v Smt Asha Lata Ghosh (Dead) (Through L.Rs.) AIR 2004 SC 4980.

10. We have considered the rival submissions of learned counsel for the parties and gone through the record. The admitted facts emerging from the pleadings of the parties and material on record have been noted above. With regard to execution of the Will on 10th December 1937.by Pt. Moolchand Sharma, there is no dispute. As perthis Will, the entire property, movable as well as immovable, was vested in five persons/trustees who were to manage the same and to ensure that the family of the deceased was maintainecj, edtrcated and married. The said Will was proved and registered before the ccmpetent Court on 14th December 1940 in the probate proceedings and probate rr'ras granted on 28th May, 1941. Admittedly, the said probate has neither been revoked nor cancelled, nor ahyr 51"0t taken by anyone, much less the appellant in challenging the same. That being so, it cannot be disputed that the probate has attained finality and thus binding upon all including Lhe appef lant. ln'the case of smt. Rukmani Devi (supra), the supreme Court held thus: "2.... /t is well-setlled that the decision of the probate court is a iudgment in rem. The High Court FA(OS) No3s9-367.2070. Poge 8 of 75 ),[3] t_ rightty held that titt the order granting probate remainsinforceitisconclusiveastotheexecution and validity of the Witt titt the grdnt of probate is revoked. Apart from the fact that a decision of the probate court would be a iudgment in rem not only binding on the parties to the probate proceedings but it witt be binding on the whole world. Therefore, a solemn duty is cast on the probate court' Section 4TofthelndianEvidenceAct,l-BT2providesthata finat iudgment or order of a competent court in the exercise of probate iurisdiction is conclusive proof of what is decicted therein that is about the genuineness of the Witt. To be precise, a probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate' Apart from anything else, the citation having been issued to the appellants and having been served upon them, their failure to enr:er a caveat to contest the proceedings would preclude them from contesting the valictity of the Will in other proceedings'

11. Similarly in the case of Crystal Developers (supra) the Supreme Court held as under: '29...... Under Section 263, as stated above, grant of probate or letters of administration is liable to be revoked on any of five grounds'ntentioned therein' One of the grounCs as stated above in failure on the part of the grantee to exhibit/ file an invdntory an inventory or statement of account. Similarly, the probate or letter of administration is liable 'tp be revoked if the grant is obtained fraudulently' Can it FA(OS) No359'367.2070 Poge 9 of 15 /1 J be said that revocation of the probate on the ground of non-exhibiting an inventory or statement ' of account will make the grant ab initio void so as to obliterate all intermediate acts of the executor? tf it is not ab initio void in the case of non-filing of inventory or statement of account then equally it cannot be ab initio void in case of a grant obtained fraudulently. ln other words, what aoplies to clau1e (e) of the explanation equally applies to clause (b) of the explanation. At this stage, we clarify that if the intermediate act of the executor is not for the purpose of administration' of the estafe or if the act is performed in breach of trust then such act(s) is not protected. However, acts which are in consonance with the testator's intention and which are compatible with the administration of the estate are protected. Therefore, on reading sections 277, 227 along with section 263, it is clear that revocation of the grant shall operate prospectively and such revocation shall not ' invalidate the bona fide intermediate acts performed by the grantee during the pendency of the probate. L[2]. Similarly in the case of Chiraniilal Shrilal Goenka (supra) the Supreme Court while reiterating the law that it is only the probate court alone which has the jurisdiction and not the civil court, which is to adjudicate upgn the probate proceedings held as under: '76. The grant of a Probate by Court of competent jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the will unless it is duly r FA(OS) Noj59-367.2070 Poge 10 of 75 r I,( revoked as per law. lt binds not only upon all the parties made before the court but also upon all other persons in all proceedings arising out of the Will or claimsunder or connected therewith' The decision of the t Probate Court, therefore, is the judgment in rem. The probate granted by the competent court is conclusive of the vatidity of the Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. In Sheoparsan Singh v. Ramnandan Prasad Singh, (1916) ILR 43 Cal., 694 PC the judiciat committee was to consider, whether the Will which had been affirmed by a Court of competent jurisdiction, would not be impugned in a court exercising original iurisdiction (Civil Court) in suit to declare the grant of probate illegal etc.The privy council held that the Civit Court has no iurisdiction to impugne the grant of probate by the court of competent jurisdiction. tn that case the subordinate court cf Muzafarbad was held to be having no iurisdiction to question the vatidity of the probate granted by the Calcutta High Court. tn Narbheram Jivram v. Jevallabh Harjivan, AtR 7933 Bombay, 469 probate was granted by the High Court exercisittg probate iurisdiction. A civil suit on the Original Side was filed seeking apart from questioning the probate, also other reliefs. The High Court hetd that when a probate was granted., it operates upon the whole estate and establishes the Will from the - death of the testator, Probate is conclusive evidence not only of the factum, ' but also of the vatidity of the Wilt and after the prohate has heen granted, it is incumbent on a person who wants to have the Wiil declared null and void, to have the probate revctked before proceeding FA(2S) No359-367.2070 ( ) ).G \t fufther, That could be done only before the Probate Couft and not on the original side of the High Court.

20. On a conspectus of the above legal scenario we conclude that the Probate Court has been conferred with exclusive iurisdiction to grant probate of the Will of the deceased annexed to the petition (suit); on grant or refusal thereof, it has to preserve the original Will produced before it. The grant of probate is final subiect to appeal, if any, or revocation if made in terms of the provisions of the Succession Act. lt is a iudgment in rem and con-clusive and binds not only the parties but also the entire world. The award deprives the parties of statutory right of appeal provided under section 299. Thus the necessary conclusion is that the Probate Court alone has exclusive iurisdiction and the Civil Court on original side or the Arbitrator. does not get jurisdiction even if consented fo by the patties, to adjudicate upon the proof or validity of the Will propounded by the executrix, the applicant. L[3]. In view of the law as laid down by the Supreme Court in the aforesaid cases, we have no hesitation to arrive at a conclusion that the challenge to the probate on all the allegations as noted hereinabove was misplaced in the present proceedings. On one hand the learned senior counsel argues that there was no Trust at all and on the other he argues for the entitlement of relief of appellant, being beneficiary Trust. lf there was no trust as alleged then the suit as filed was not maintainable. The Probate Court alone will have the jurisdiction to enteriain the challenge to grant of probate. Till such time, the probate 'FA(OS) Noj59-361-.2070 ( {? r-l was revoked or cancelled by a competent court, it was a judgment in rem and was binding on all the pafties including the appellant, In fact by way of present suit, the appellant seems to be invoking jurisdiction of this Court in challenging the probate granted by a court of competent jurisdiction more than 60 years before. This aspect would require further testing by the Court of learned Single judge as to whether the suit in present form was maintainable or not. 1"4. By virtue of probate, the Will got recognition of its execution and validity. ln fact, there is no dispute that Will executed by Pt. Moolchand Sharma, the basis of probate, was a genuine one. The appellant is also relying upon the said Will. By virtue of the said \lJill, a trust was created by Pt. Moolchand Sharma with the specific task of devolving the propefties on male beneficiaries natnely sons of the Testator, while making a provision for tlre maintenance, education and marriage and residence for other family mernbers. A reading of the Will makes it clear that the Testator Pt. Moolchand Sharma clearly and in unequivocal terms mentioned that after his dbath, all the properties would go to his sons in equal shares, subject to ceftain conditions such as right of residence of his wife, marriage of his daughters, rnaintenance and education of all his children, including the appellant. The right and benefit tlrose vrrere to accrue to the appellant were limited to education, maintenance and marriage. The appellant got married many years before and is now stated to be aged around 80 years. That being so, all that was required to be performed by the trusties has already been accomplished qua the appellant. The trustees lrave alreaily FA(oS) No359-367.2070 Poge 73 of 75 ( 2g t accomplished the tasks assigned to them decades before. Apparently, the trust appears to have extinguished. On this aspect as well in the tria.l court of Learned single judge will have to examine as to whether suit was maintainable in view of Section 59 of the Act. All this is the matter of adjudication after trial, subject to the jurisdiction of the Court.

15. lt is to be noted that the appellant also became a party in Suit No.2166/L990 and was arrayed as defendant no.9. Silnilar relief lvas sought by her in that suit. The relief, as sought by her, was declined by this Court vide order dated 29th May, 20A[7]. The court observed as under:- 'l am unable to persuade myself to agree with the contention of learned counsel for defendant no.9 for the reason that the intent of the Will is clear. Ane cannot lose sight of the fact that the Will was made on 70.72.L937 and has to be construed to indicate the intent of the testator. The intent is clear that the three sons should be the beneficiaries of the property. There are certain provisions made for the residence of the wife and the children. The obiect of providing so was that the children would be required to be educated, maintained, supported and then married. That has already happened in the case of defendant no.9 who has chosen to file these applications decades after the matter had attained some finatity on account of rnutation with the LandDO, awards being passed and the decree being passed by this Court."