Full Text
TESTAMENTARY AND INTESTATE JURISDICTION
MISCELLANEOUS PETITION NO. 116 OF 2017
IN
TESTAMENTARY PETITION NO. 530 OF 1992
Manju Anil Aggarwal @ Manju Lalchand Aggarwal ...Petitioner
Lalchand Bhikaram Goyal @ L.B. Goyal ...Deceased
***
Mr. Simil Purohit a/w Mr. Gaurav Jangalle and Mr. Akshay Sawant i/b I.V.
Merchant and Company, for Petitioner in MPT/116/2017.
Mr. Sudhir Voditel i/b M/s Utangale & Co., for Respondent / Original
Petitioner
***
JUDGMENT
1. The petitioner in this miscellaneous petition has invoked Section 263 (b) of the Indian Succession Act, 1925 (hereinafter referred to as the “Succession Act”), for seeking revocation of Letters of Administration granted by this Court on 08th September, 1993 in favour of the respondent and his deceased mother. The basis for invoking Section 263(b) of the Succession Act and claiming that the Letters of Administration were obtained fraudulently by making a false suggestion and concealing material particulars from this Court, is an assertion on the part of the petitioner that the original petitioners in the Shrikant Malani SHRINIVAS MALANI testamentary petition for grant of Letters of Administration i.e. the respondent herein and his mother had falsely stated that the deceased, being the father of the respondent herein, had not left behind any daughters. It is the specific claim of the petitioner that she was an adopted child / daughter of the deceased Lalchand Goyal and that therefore, she ought to be have been cited in the testamentary petition and citation ought to have been duly served upon her before this Court considered granting the Letters of Administration.
2. It is the case of the petitioner that sometime in August, 2015, when she visited her maternal house on account of illness of the mother i.e. the original respondent No.1 and while going through a drawer for ascertaining the medical needs of the deceased respondent No.1, that the petitioner came across an undated letter addressed by the respondents in the present petition i.e. the deceased mother and brother Rajeev Lalchand Goyal to the Estate Manager of Mumbai Port Trust, wherein reference was made to the aforesaid Letters of Administration dated 08th September, 1993, granted by this Court. According to the petitioner, she made necessary enquiries and she filed third party application for grant of certified copies of the papers pertaining to original Testamentary Petition No. 530 of 1992. Thereupon, on 26th April 2016, the petitioner filed the present miscellaneous petition for revocation of grant. According to the petitioner, since the aforesaid fraud committed by the original petitioners in the testamentary petition came to her knowledge in August, 2015, by application under Section 17 of the Limitation Act, 1963, read with Article 137 thereof, the miscellaneous petition was filed within the period of limitation.
3. The original respondent No.1 i.e. the deceased mother filed reply affidavit in the present miscellaneous petition, denying the claims made by the petitioner. It is submitted that while the said respondent and the original deceased person i.e. Lalchand Goyal were childless, they had duly adopted the respondent herein i.e. Rajeev Lalchand Goyal as their son, while the petitioner was not adopted and that she could not make any claim of being the adopted daughter of the deceased. Along with the reply affidavit certain documents were filed, including copies of Partnership Deeds to indicate that the petitioner was never given share or status of partner in the Partnership Deeds by virtue of being the adopted daughter of the deceased Lalchand Goyal and that therefore, the claims made in the miscellaneous petition regarding fraud allegedly committed by the original petitioners in the testamentary petition was without any substance, apart from the fact that the miscellaneous petition was barred by limitation.
4. The petitioner filed rejoinder affidavit to place on record documents to show that in judicial proceedings the respondent Rajeev Lalchand Goyal had filed affidavit, stating that the petitioner was indeed the married daughter of the deceased Lalchand Goyal and that this was a clinching admission to demonstrate the fraud committed by the original testamentary petitioners while filing the testamentary petition for grant of Letters of Administration.
5. Before referring to the contentions of the learned counsel appearing for the rival parties, it would be appropriate that the chronology of events is stated in brief, as discernible from the material placed on record.
6. As per the copy of the passport and PAN card placed on record, the date of birth of the petitioner is stated to be 12th September, 1956, when she was borne to her biological parents. Her biological father is the brother of the original petitioner No.1 in the testamentary petition i.e. the adoptive mother as claimed by the petitioner. According to the petitioner, sometime in the year 1959, she was adopted by the deceased Lalchand Goyal and the original respondent No.1 in this miscellaneous petition i.e. Ramamurti Lalchand Goyal. It is further placed on record that on 01st February, 1974, an adoption deed was executed by the biological parents of respondent – Rajeev Lalchand Goyal in favour of the deceased i.e. Lalchand Goyal and his wife i.e. Ramamurti Lalchand Goyal. The respondent - Rajeev Lalchand Goyal is said to have been born on 16th August, 1968 and his father was also one of the brothers of the said Ramamurti Lalchand Goyal.
7. The petitioner has placed on record copy of her School / College Leaving Certificate showing the deceased as her father (there is no serious dispute that the deceased Lalchand Goyal used to earlier write his name as Lalchand Aggarwal). This School / College Leaving Certificate is dated 12th September, 1956. The petitioner has also placed on record copy of her Marriage Certificate, showing the deceased Lalchand Goyal as the father of the petitioner. Copy of photographs of the marriage ceremony are also placed on record showing the deceased Lalchand Goyal performing ritual of “Kanyadan” of the petitioner.
8. Upon the death of Lalchand Goyal on 11th May, 1990, obituary was published in the newspaper ‘Times of India’ dated 13th May, 1990, wherein respondent Rajeev Lalchand Goyal was shown as the son and the petitioner was shown as the daughter of the deceased Lalchand Goyal. It is the case of the petitioner that the said obituary was published on the instructions of the respondent Rajeev Lalchand Goyal. The petitioner has also placed on record copy of the publication made on 11th May, 1991 in the ‘Times of India’ on the first death anniversary of Lalchand Goyal, wherein again the respondent was shown as the son and the petitioner as the daughter of the deceased Lalchand Goyal. The petitioner claims that this publication was also made on the instructions of the respondent.
9. The petitioner has also placed on record copy of a suit filed by the Mumbai Port Trust for eviction of the deceased Lalchand Goyal on 13th December, 1985, bearing Suit No. 501/564 of 1985. Upon the death of Lalchand Goyal, on 11th May, 1990, the advocate representing the deceased Lalchand Goyal, on 20th April, 1991, sent a letter to the advocate representing the plaintiff in the said Suit, giving the details of the legal heirs of the deceased Lalchand Goyal. He informed, on instructions, that the respondent Rajeev Lalchand Goyal, the deceased original respondent No.1 Ramamurti Goyal and the petitioner (as the married daughter) were the legal heirs of the deceased Lalchand Goyal. On the basis of such details furnished by the advocate of the deceased Lalchand Goyal, an application was moved by the plaintiff in the said suit for bringing on record legal heirs of the deceased Lalchand Goyal. Accordingly, by an order dated 08th February, 1993, the cause title of the said suit was amended by deleting the name of the deceased Lalchand Goyal and in his place adding the names of his legal heirs, including the petitioner as his daughter.
10. The said suit was decreed ex-parte on 20th March, 2004. On 23rd March, 2008, an application was moved for setting aside of the ex-parte decree under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) along with an application for condonation of delay. In the said application also, it was specifically stated that the petitioner was the married daughter of the deceased Lalchand Goyal. The said application was signed and sworn by the respondent Rajeev Lalchand Goyal.
11. It is the case of the petitioner that all through her life she was treated and brought up as the adopted daughter of the deceased Lalchand Goyal and his wife Ramamurti Goyal. She relies upon the aforementioned documents in support of her case, particularly the admissions made on affidavit by respondent Rajeev Lalchand Goyal i.e. her brother about the fact that the petitioner was indeed the daughter of the deceased Lalchand Goyal. It is submitted that despite these facts, when the original Testamentary Petition No. 530 of 1992 was filed by the said Ramamurti Goyal (now deceased) and the respondent Rajeev Lalchand Goyal, they willfully and deliberately suppressed and concealed the fact about the petitioner being the daughter of the deceased Lalchand Goyal. They made a false statement that the deceased Lalchand Goyal did not have any daughters. As a consequence, citation was never served on the petitioner and she could not appear before this Court in the testamentary petition for grant of Letters of Administration. Along with the written submissions placed on behalf of the petitioner, copy of a Power of Attorney dated 04th December, 2014, was annexed. This was a Power of Attorney said to have been executed by the said Ramamurti Goyal and Rajeev Lalchand Goyal, wherein they reiterated in paragraph No.8 that the petitioner i.e. Manju Anil Aggarwal was the married daughter of Ramamurti Goyal and the sister of the respondent Rajeev Lalchand Goyal. It was stated that the petitioner was living a happy married life with her family and that therefore, she had not objected to obtaining the said Letters of Administration from this Court. It was submitted that this was another example of the blatant falsehoods in which the now deceased Ramamurti Goyal and the respondent herein i.e. Rajeev Lalchand Goyal had indulged, while obtaining the Letters of Administration and on that basis making representations before various authorities. On pointed queries being put to the learned counsel for the respondent as regards the statements made on affidavit in the said suit before the Small Causes Court, an additional affidavit was tendered, dated 09th September, 2023. It was simply stated that the statements before the Small Causes Court in the application for setting aside of ex-parte order and the application for condonation of delay were made due to oversight and because the affidavit was not read by the deponent i.e. Rajeev Lalchand Goyal before signing and affirming the same. The said original additional affidavit dated 09th September, 2023, is taken on record and marked “X” for identification. It is in this backdrop that the submissions of the learned counsel for the rival parties were heard.
12. Mr. Simil Purohit, learned counsel appearing for the petitioner in this miscellaneous petition submitted that copies of the plethora of documents on record clearly indicated that the petitioner was throughout treated as the adopted daughter of the deceased Lalchand Goyal. It was submitted that the respondent cannot now claim that in the absence of an Adoption Deed, the present petition is not maintainable. It was submitted that when the original Testamentary Petition No. 530 of 1992 was filed, it was well within the knowledge of the original testamentary petitioners i.e. Ramamurti Goyal (adoptive mother) and the respondent Rajeev Lalchand Goyal (brother), about the fact that the petitioner was indeed the adopted daughter of the deceased Lalchand Goyal. Yet, they chose to make a false statement before this Court and the petitioner was not even cited in the said petition. It was submitted that such false statements and suggestions made on behalf of the original testamentary petitioners and the fact that they concealed material facts from this Court, has rendered the grant of Letters of Administration liable to be revoked under Section 263 (b) of the Succession Act. It was submitted that the original testamentary petitioners, particularly respondent herein i.e. Rajeev Lalchand Goyal had undertaken various steps and actions, including swearing affidavit in judicial proceedings, stating the fact that the petitioner was the daughter of the deceased Lalchand Goyal and yet, he chose to suppress this material fact in the testamentary petition, while fraudulently obtaining the Letters of Administration.
13. It was submitted that the petitioner approached this Court in the year 2016, upon becoming aware for the first time in August, 2015, about the fraudulently obtained Letters of Administration. The learned counsel for the petitioner relied upon Section 17 read with Article 137 of the Limitation Act, to contend that the petition was filed well within the period of limitation. He further relied upon judgment of the Supreme Court in the case of Kamla Rani vs. Ram Lalit Rai alias Lalak Rai (Dead) Through Legal Representatives and others[1], to contend that the facts and circumstances of the present case clearly demonstrated that the petitioner was the adopted daughter of the deceased Lalchand Goyal and that merely because there was no formal ceremony of giving and taking of the petitioner in adoption, it could not come in her way.
14. The learned counsel for the petitioner further relied upon judgments of the Supreme Court in the case of Basant Singh vs. Janki Singh and Others[2] and Union of India vs. Ibrahim Uddin and Another[3], to contend that under Indian Law an admission made by party in a judicial proceeding that if the admission is clear and unambiguous, it is certainly relevant, subject to the deponent giving such admission being given an opportunity to explain. In this context, the learned counsel for the petitioner relied upon aforesaid statement made on affidavit by the respondent Rajeev Lalchand Goyal to the effect that the petitioner was indeed the daughter of deceased Lalchand Goyal and on that basis, bringing her on record along with the mother Ramamurti Goyal and the respondent as legal heirs and representatives of the deceased Lalchand Goyal. It was submitted that the contention raised on behalf of the respondent that since such an admission was made in judicial proceedings filed after the testamentary petition for grant of Letters of Administration was allowed, was clearly without any substance, for the reason that the respondent himself all along knew and treated the petitioner to be his sister and the daughter of the deceased Lalchand Goyal. It was submitted that the respondent could not be permitted to avoid the effect of such an admission solemnly made in the judicial proceedings before a Competent Court. On this basis, it was submitted that the present petition ought to be allowed, revoking the grant of Letters of Administration.
15. On the other hand, Mr. Sudhir Voditel, learned counsel appearing for the respondent submitted that at the time when the original Testamentary Petition No. 530 of 1992 was filed, the petitioners therein i.e. now deceased Ramamurti Goyal and respondent herein Rajeev Lalchand Goyal had made correct statements on facts. Since, there was an Adoption Deed only in respect of the respondent, for having been adopted as the son of the deceased Lalchand Goyal and Ramamurti Goyal, it was correctly stated in the original testamentary petition that the respondent and Ramamurti Goyal were the only two legal heirs of the deceased Lalchand Goyal and that he did not have any daughters.
16. It was submitted that the deceased Ramamurti Goyal in her reply affidavit, in the present miscellaneous petition, had denied all the claims made by the petitioner. It was further submitted that the Letters of Administration had been acted upon after they were granted as far back as on 08th September,
1993. The petitioner was clearly aware about the grant of Letters of Administration and that the statement that she became aware only in August, 2015, was not believable, thereby indicating that the petition suffered from delay and latches. It was further submitted that the since a grant like the present grant of Letters of Administration operates in rem, the period of limitation was triggered from the date of issuance of the grant i.e. 08th September, 1993. The present revocation petition having been filed in the year 2016 was clearly barred by limitation. In this context, the learned counsel for the respondent placed reliance on the judgment of the Supreme Court in the case of Ramesh Nivrutti Bhagwat Vs. Dr. Surendra Manohar Parakhe[4].
17. The learned counsel for the respondent further submitted that the conditions for a valid adoption are clearly not satisfied by the petitioner, even according to her own statements in the petition. In the absence of any such material to indicate valid adoption of the petitioner, she cannot claim that any false statement was made in the original testamentary petition for grant of
Letters of Administration. In this context, reliance was placed on judgment of the Supreme Court in the case of M. Vanaja Vs. M. Sarla Devi (Dead)5.
18. The learned counsel for the petitioner has also placed reliance on the judgment of the Madras High Court in the case of R. Sivagnanam vs. P. K., to contend that an alleged false allegation made at the time of issuance of grant could not be the basis for invoking Section 263 of the Succession Act. Reliance was also placed on judgment of this Court in the case of Sharad Shankarrao Mane and etc. vs. Ashabai Shripati Mane[7], to contend that photocopies of documents could not be the basis for seeking revocation under Section 263 of the Succession Act. Further reliance was placed on the judgment of this Court in the case of Adil Phiroz Makhania vs. Dilip Gordhandas Gondalia (judgment and order dated 29th April, 2014 passed in Miscellaneous Petition No. 29 of 2014). It was submitted that in the said judgment, this Court had taken note of the fact that the party who has not contributed to the maintenance of the property which has been bequeathed, cannot assert rights.
19. The learned counsel for the respondent also sought to rely upon a further additional affidavit dated 13th September, 2023 along with copies of documents annexed therewith to contend that certain transactions had been
6 AIR 1978 Madras 265 7 AIR 1997 Bombay 275 undertaken in respect of the properties forming subject matter of Letters of Administration, including transactions by partnership firm of which the deceased was a partner and subsequently the mother i.e. Ramamurti Goyal and the respondent herein were partners. It was claimed that such documents clearly indicated that the Letters of Administration were acted upon and that this fact was in the public domain, further indicating that the petitioner cannot be permitted to feign ignorance about the issuance of the said grant as far back as on 08th September, 1993. Copy of the further additional affidavit along its exhibits is taken on record and marked “Y” for identification. On this basis, it was submitted that the present petition deserves to be dismissed.
20. This Court has heard the learned counsel for the rival parties. It has to be kept in mind that this Court as the testamentary Court is a Court of conscience and that contentions regarding suppression and falsehood indicating fraud committed on the Court, have to be considered seriously by examining the material placed on record. It is the case of the petitioner that the original petitioners in Testamentary Petition No. 530 of 1992, indulged in blatant falsehood by claiming that the deceased Lalchand Goyal did not have any daughters. It is the positive case of the petitioner that she was the daughter of Lalchand Goyal as the said deceased Lalchand Goyal and his wife Ramamurti Goyal had brought up the petitioner as the adopted daughter and hence a sister of the respondent herein. It is the case of the petitioner that this fact was clearly within the knowledge of the original petitioners in the testamentary petition and that on this ground alone Section 263 (b) of the Succession Act can be successfully invoked by the petitioner.
21. Before this Court considers the said contentions based on the material placed on record, since it was argued on behalf of the respondent that the present petition for revocation of grant suffers from delay and latches, it would be appropriate to first deal with the said aspect of the matter. In the present case, the Letters of Administration were granted on 08th
1993. The present miscellaneous petition for revocation of grant was admittedly filed in the year 2016. The period of limitation for filing such a revocation petition is three years under Article 137 of the Limitation Act. But, since the petitioner has specifically raised grounds under Section 263(b) of the Succession Act, which pertains to grant having been fraudulently obtained by making a false suggestion and by concealing material facts from this Court, there can be no doubt that Section 17 of the Limitation Act would come into play. Under the said provision, the cause of action for taking appropriate steps to seek revocation would arise when the fraud comes to the knowledge of the petitioner for the first time or when such fraud could have come to her knowledge with reasonable diligence. It is the case of the petitioner that she first came to know about the grant of the Letters of Administration in August, 2015, when she came across the aforesaid undated letter. The revocation petition was filed on 26th April, 2016 and if August, 2015, is taken as the trigger point for the petitioner to seek revocation, the present petition was filed within limitation.
22. In this context, the learned counsel for the respondent has placed reliance on the judgment of the Supreme Court in the case of Ramesh Nivrutti Bhagwat Vs. Dr. Surendra Manohar Parakhe (supra). In the said judgment, emphasis is placed on the fact that when a grant is issued, it is a judgment in rem and since the grant operates from the date of its issuance, for the purposes of limitation under Article 137 of the Limitation Act, the time period would stand triggered on the date of the issuance of the grant. But, it is significant to note that in the said judgment, there is no discussion on Section 17 of the Limitation Act, which pertains to the aspect of fraud or mistake, while discussing the period of limitation under Article 137 of the Limitation Act. In the present case, the petitioner has specifically invoked Section 17 of the Limitation Act to claim that the period of limitation in the facts of the present case stood triggered in August, 2015.
23. This Court is of the opinion that although, the now deceased original respondent No.1 in the present petition i.e. Ramamurti Goyal in her reply affidavit denied the claim of the petitioner of having obtained knowledge of the grant for the first time in August, 2015, the surrounding circumstances cannot be ignored while dealing with the said aspect of the matter. The material on record shows that while filing the application for setting aside ex-parte order and application for condonation of delay in filing the same, before the Small Causes Court, it was specifically stated on affidavit on 23rd May, 2008 that the petitioner was indeed the daughter of the deceased Lalchand Goyal. Much prior to this, even before filing of the testamentary petition for grant of Letters of Administration, on 20th April, 1991, a letter was issued on the instructions of the respondent Rajeev Lalchand Goyal to the advocate for the plaintiff before the Small Causes Court that the legal heirs of deceased Lalchand Goyal included the petitioner herein as his married daughter, apart from Ramamurti Goyal and the respondent Rajeev Lalchand Goyal. On this basis, an application was moved and by a specific order dated 08th February, 1993, the Small Causes Court brought on record all three i.e. Ramamurti Goyal, respondent Rajeev Lalchand Goyal and the petitioner herein i.e. Manju Anil Aggarawal as the legal heirs / representatives of the deceased Lalchand Goyal in the suit pending before the Small Causes Court.
24. The statements made on affidavit before the Small Causes Court by the respondent Rajeev Lalchand Goyal and on behalf of now deceased Ramamurti Goyal have not been denied. This is significant. The only explanation given before this Court on behalf of respondent Rajeev Lalchand Goyal in the said additional affidavit dated 09th September, 2003 (taken on record and marked “X”) is only that in view of urgency the respondent Rajeev Lalchand Goyal had signed the affidavit on 23rd May, 2008, without reading the contents and that the affidavit was mistakenly prepared, for which the respondent deeply regretted and apologized. It is of great significance that the aforesaid statement made on affidavit before the Small Causes Court is not denied by the respondent Rajeev Lalchand Goyal.
25. Along with the written submissions the petitioner placed on record copy of a Power of Attorney executed by Ramamurti Goyal i.e. the deceased mother and the respondent Rajeev Lalchand Goyal dated 04th December, 2014, which reiterated the aforesaid statement about the petitioner being the married daughter of deceased Lalchand Goyal. This statement is in line with the repeated statements and representations made before the Small Causes Court in year 1991-1993, as also in the year 2008, thereby indicating that all through Ramamurti Goyal and the respondent Rajeev Lalchand Goyal solemnly maintained before the Court that the petitioner was indeed the daughter of the deceased Lalchand Goyal. In such circumstances, the statement made in the present miscellaneous petition seeking revocation of grant that the petitioner became first aware only in August, 2015 about the Letters of Administration obtained from this Court, is believable and therefore, this Court finds that the petition filed on 26th April, 2016, was within the period of limitation. Hence, the contentions raised on behalf of the respondent in this regard are rejected.
26. As regards the allegations of fraud and falsehood leveled by the petitioner against the respondent, this Court has considered the material on record. The learned counsel appearing for the respondent sought to discredit the documents placed on record along with the miscellaneous petition on the ground that photocopies of documents could not be relied upon to hold against the respondent, further placing reliance on the aforesaid judgment of this Court in the case Sharad Shankarrao Mane and etc. vs. Ashabai Shripati Mane (supra). It is relevant to note that in the said case, the petitioner in the miscellaneous petition had approached the Court seeking a declaration that the respondent in whose favour the Letters of Administration were granted, was not the legally wedded wife of the deceased. It is in the backdrop of such facts that this Court observed in the said judgment that a declaration of such a nature could not be given on the basis of photocopies of documents.
27. On the other hand, in the present case, the photocopies of documents placed on record on behalf of the petitioner corroborate the clear, unequivocal and specific admission given on affidavit on behalf of the respondent and the deceased Ramamurti Goyal to the effect that the petitioner was indeed the daughter of Lalchand Goyal. As noted hereinabove, the statement made on affidavit before the Small Causes Court on 23rd May, 2008, that the petitioner was the daughter of deceased Lalchand Goyal has not been denied by the respondent. The only explanation given is in the aforesaid additional affidavit dated 09th September, 2023 (taken on record and marked “X”). The said explanation also does not deny the statement made on affidavit on the behalf of the respondents before the Small Causes Court and the explanation is absolutely flimsy and frivolous, not deserving acceptance by this Court.
28. The respondent has also not been able to deny the fact that letter dated 20th April, 1991, was issued by the advocate representing the original deceased Lalchand Goyal to the advocate for the plaintiff before the Small Causes Court in the aforesaid suit, asserting that the petitioner along with Ramamurti Goyal and respondent Rajeev Lalchand Goyal were indeed the legal heirs of the deceased Lalchand Goyal. On the basis of this representation, made as far back as in the year 1991, an application was moved by the plaintiff before the Small Causes Court in the said suit and by an order of the Court dated 08th February, 1993, the petitioner was added as legal heir of deceased Lalchand Goyal along with Ramamurti Goyal and respondent Rajeev Lalchand Goyal.
29. These undeniable facts completely take the wind out of the argument raised on behalf of the respondent that the petitioner cannot rely upon photocopies of documents placed on record along with the present petition. As noted hereinabove, the said documents corroborate the admissions given in judicial proceedings on behalf of the respondents, particularly respondent Rajeev Lalchand Goyal and hence, such documents cannot be ignored by this Court. A perusal of the said documents shows that from the period as far back as in the year 1956 onwards, the petitioner was treated as the daughter of the deceased Lalchand Goyal. The publications in newspapers of obituary and first death anniversary of Lalchand Goyal show the respondent as his son and the petitioner as the daughter. These are glaring instances that corroborate the admissions on affidavit given by respondent Rajeev Lalchand Goyal.
30. The contention raised on behalf of the respondent that the admissions in judicial proceedings ought to be ignored since they were made after the Letters of Administration were granted, is stated only to be rejected. The chronology of events clearly shows that after Lalchand Goyal expired on 11th May, 1990, information was placed before the advocate for the plaintiff in the pending suit before the Small Causes Court, in the year 1991 itself, to the effect that the petitioner along with the respondent and Ramamurti Goyal were the legal heirs of the deceased Lalchand Goyal. It is on the basis of such representation that by order of the Court, all the three aforesaid legal heirs, including the petitioner, were brought on record by an order dated 08th February, 1993, in the pending suit before the Small Causes Court. It is in continuation of the said proceeding that when the application was filed for setting aside ex-parte order / decree, the respondent himself on affidavit stated, on 23rd May, 2008, that the petitioner was the married daughter of deceased Lalchand Goyal. Hence, the aforesaid contention is found to be without any substance and it is rejected.
31. Reliance placed on behalf of the respondent on the judgment of the Madras High Court in this context in the case of R. Sivagnanam vs. P. K. Sadananda Mudaliar (supra), cannot take the case of the respondent any further. It is relevant to note that in the said judgment it was found on facts that a false allegation was indeed made in an affidavit in support of an application for excusing delay in payment of probate duty, but the Court found that in such circumstances, Section 263 (c) of the Succession Act could not be invoked. In the present case, the petitioner has specifically invoked Section 263 (b) of the Succession Act, pertaining to a situation where the grant is obtained fraudulently by making false suggestion and by concealing material facts from this Court, thereby indicating that reliance placed on the said judgment of the Madras High Court is misplaced.
32. Much emphasis was placed on behalf of the respondent on the judgment of the Supreme Court in the case of M. Vanaja Vs. M. Sarla Devi (Dead) (supra), which pertained to conditions of valid adoption. It is relevant to note that the said judgment concerned mandatory requirement of valid adoption, including consent of wife and proof of ceremony of actual giving and taking in adoption. There can be no quarrel with the said proposition. But, it is relevant to note that in the case of Kamla Rani vs. Ram Lalit Rai alias Lalak Rai (Dead) Through Legal Representatives and others (supra), the Supreme Court held as follows: “6. We cannot lose sight of the principle that though the factum of adoption and its validity has to be duly proved and formal ceremony of giving and taking is an essential ingredient for a valid adoption, long duration of time during which a person is treated as adopted cannot be ignored and by itself may in the circumstances carry a presumption in favour of adoption. In this regard, we may refer to the observations of this Court in L. Debi Prasad v. Tribeni Devi [(1970) 1 SCC 677]: (SCC pp.681-82, para 9) “9. There is no doubt that the burden of proving satisfactorily that he was given by his natural father and received by Gopal Das as his adoptive son is on Shyam Behari Lal. But as observed by the Judicial Committee of the Privy Council in Rajendro Nath Holdar v. Jogendro Nath Banerjee [1871 SCC OnLine PC 11: (187172) 14 Moo IA 67]; that although the person who pleads that he had been adopted is bound to prove his title as adopted son, as a fact yet from the long period during which he had been received as an adopted son, every allowance for the absence of evidence to prove such fact was to be favourably entertained, and that the case was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a considerably time, and afterwards impeached by a party, who had a right to question the legitimacy, where the defendant, in order to defend his status, is allowed to invoke against the claimant every presumption which arises from long recognition as an adopted son, raised even a stronger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family. In Rup Narain v. Gopal Devi [1909 SCC OnLine PC 3: (1908-09) 36 IA 103] the Judicial Committee observed that in the absence of direct evidence much value has to be attached to the fact the alleged adopted son had without controversy succeeded to his adoptive father’s estate and enjoyed till his death and that documents during his life and after his death were framed upon the basis of the adoption. A Division Bench of the Orissa High Court in Balinki Padhano v. Gopakrishna Padhano [1963 SCC OnLine Ori 33: AIR 1964 Ori 117]; held that in the case of an ancient adoption evidence showing that the boy was treated for a long time as the adopted son at a time when there was no controversy is sufficient to prove the adoption although evidence of actual giving and taking is not forthcoming. We are in agreement with the views expressed in the decision referred to above.
7. We are satisfied that the reversal of the decree of the trial court by the High Court was not called for.
8. Accordingly, we allow this appeal, set aside the impugned order [Ram Lalit Rai v. Kamla Rani, 2014 SCC OnLine Del 4080] and restore the order passed by the trial court. Pending applications, if any, shall also stand disposed of.”
33. In the present case, the material placed on record on behalf of the petitioner, read with the clear and unequivocal admission on the part of the respondent Rajeev Lalchand Goyal clearly give rise to circumstances that show adoption in favour of the petitioner. In this regard, reliance placed on behalf of the petitioner on the judgments of the Supreme Court in the case of Basant Singh vs. Janki Singh and Others (supra) and Union of India vs. Ibrahim Uddin and Another (supra), is also justified. The respondent has not denied the specific admissions made in judicial proceedings before the Small Causes Court about the petitioner being the daughter of deceased Lalchand Goyal. The explanation sought to be given in the affidavit dated 09th 2023, is also found to be flimsy and frivolous, apart from the fact that in the said affidavit also there is no denial of the admission made in judicial proceedings. Therefore, this Court is of the opinion that when the original Testamentary Petition No. 530 of 1992 was filed, the original petitioners therein made a false statement that there were no daughters of deceased Lalchand Goyal. They fraudulently made a false suggestion before this Court and certainly concealed material facts from this Court, well within their knowledge. Hence, the petitioner has made out a case under Section 263 (b) of the Succession Act for revocation of the grant.
34. The learned counsel for the respondent has also placed reliance on further additional affidavit dated 13th September, 2023 along with copies of documents annexed thereto (taken on record and marked “Y”), to contend that the petitioner all along knew about the issuance of grant and that she was feigning ignorance. Reliance was also placed on the judgment of this Court Adil Phiroz Makhania vs. Dilip Gordhandas Gondalia (supra), to contend that when the petitioner had not contributed at all to the bequeathed property, she could not be permitted to seek revocation of grant.
35. In the first place, in the case of Adil Phiroz Makhania vs. Dilip Gordhandas Gondalia (supra), this Court was considering a prayer for revocation of a probate granted in favour of the respondent. It was found that properties were bequeathed in favour of the respondent, in respect of which the revocation petitioner had not made any contribution at all. In the present case, there is no question of any property having been bequeathed in favour of the respondent as the Letters of Administration were granted without any Will annexed. The testamentary petition proceeded on the basis that the deceased Lalchand Goyal died intestate. Therefore, the said judgment has no application. As regards the said further additional affidavit, suffice it to say that even if the documents annexed thereto are to be considered, they only indicate certain transactions in respect of the properties, but, since the respondents in the present petition, including the deceased Ramamurti Goyal and Rajeev Lalchand Goyal had stated on affidavit that the petitioner was the legal heir of the deceased Lalchand Goyal, in judicial proceedings and even in a Power of Attorney said to have been executed in the year 2014, there can be no reason to accept the further additional affidavit, to hold against the petitioner.
36. In view of the above, this Court finds that the petitioner has made out a case for revocation of grant under Section 263(b) of the Succession Act. Accordingly, the petition is allowed in terms of prayer clause (a) and the grant of Letters of Administration dated 08th September, 1993, is revoked. Consequently, the original Testamentary Petition No. 530 of 1992, stands revived. In the said petition, citation will have to be served upon the petitioner herein and the matter shall then proceed further in accordance with law. (MANISH PITALE, J.)