grounds so enumerated under Section 263 of the Indian Succession
Act permitting revocation and one of the grounds happens to be
absence of citation. The judgment and order impugned deals with the
aforesaid theme only. In order to scrutinize the finding recorded by
the learned lower Court, the original petition of Civil Misc. (Probate)
Case No.33 of 2010 has been gone through wherefrom it is evident
that in Para-6 of the petition only presence of three daughters have
been shown without disclosing their names as well as full address (at
present or permanent). In absence thereof, really personal service
would have been effected as contended on behalf of learned counsel
for the appellant is a matter of concern which, ultimately frustrate the
submission made on behalf of learned counsel for the appellant.
Record did not speak with regard to identification of three daughters
of testator Late Basudeo Tiwary by name and further, any requisite for
issuance of notice against them to be available on the record.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.78 of 2012
RAMA SHANKAR TIWARI V SNEH LATA PANDEY
CORAM: MR. JUSTICE ADITYA KUMAR TRIVEDI
Citation:AIR 2016 (NOC)435 PAT
Date: 05-04-2016
Heard learned counsel for the appellant as well as
learned counsel for the respondents.
2. Instant appeal has been filed in accordance with
Section 299 of the Indian Succession Act against an order dated
21.12.2011 passed by the Additional District Judge-Vth, Rohtas at
Sasaram in Civil Misc. (Revocation) Case No.04 of 2011 whereby
and whereunder the learned lower Court had revoked the order dated
07.09.2010 passed in Civil Misc. (Probate) Case No.33 of 2010
whereby and whereunder letter of administration was granted in
favour of appellant/ opposite party/ applicant.
3. In order to properly appreciate the lis, there was one
Basudeo Tiwary, who had executed unregistered Will on 15.09.1983
in favour of appellant/ opposite party/ applicant Rama Shankar
Tiwary, cousin brother’ son (nephew). The aforesaid testator Basudeo
Tiwary died on 16.04.1985. On account of some sort of privilege
having in favour of testator’s wife, who survived upto 2001,
appellant/ opposite party/ applicant filed petition for grant of letter of
administration after her death whereupon Civil Misc. (Probate) Case
No.33 of 2010 was drawn up and as there was no contest, hence vide
order dated 07.09.2010, petition was allowed and in pursuance
thereof, vide order dated 20.09.2010, letter of administration relating
to Will dated 15.09.1983 executed by testator, Basudeo Tiwary (since
deceased) was issued in favour of appellant/ opposite party/ applicant
Rama Shankar Tiwari. Subsequently thereof, the three daughters of
Late Basudeo Tiwary, testator of the Will dated 15.09.1983 filed
petition under the guise of Section 263 of the Indian Succession Act
for revocation of order dated 07.09.2010 passed in Civil Misc.
(Probate) Case No.33 of 2010 whereupon notice was issued and after
appearance of the appellant, objection was filed and then, admitting
evidence on behalf of respective parties by the order impugned
revoked order dated 07.09.2010, hence this appeal.
4. Manifold argument has been raised on behalf of
learned counsel for the appellant in order to challenge the judgment
impugned. The first and foremost ground has been urged on behalf of
learned counsel for the appellant that conduct of the parties should be
perceived at a glance. The Will was executed in the year 1983
whereunder testator had made certain provisions relating to his wife
which the wife continued to avail till her death allowing the appellant
to be custodian of the Will in question without any hitch and
hindrance. Furthermore, during course thereof, the respondents have
got frequent visit and were known to the aforesaid event. Allowing
the appellant to act in terms of Will, uninterruptedly at their end is
suggestive of the fact that they have virtually allowed the appellant to
avail usufruct in terms of Will dated 15.09.1983 with regard to the
properties belonging to their father Basudeo Tiwary (Testator).
5. It has also been submitted that filing of petition for
revocation of grant of letter of administration has got no relevancy in
the facts and circumstances of the case and in likewise manner, the
mandate of law governing citation, because of the fact that daughters
were fully known to the aforesaid event much before filing of the
petition and therefore, revocation of order dated 07.09.2010 in
absence of citation happens to be mere a technical flaw which could
not be allowed to persist in the background of aforesaid facts.
6. It has further been submitted that deficiency on the
score of individual citation, as held by the learned lower Court loses
its sanctity, because of the fact that the general citation was made and
further, apart from other places, it was also served at the village itself.
As the daughters have got their frequent visit and even today though
they are on litigating term, but maintained their relationship,
therefore, on that score also, the daughters have no to say.
Furthermore, by their appearance at village, there was every
possibility to perceive the news with regard to filing of a petition for
grant of letter of administration with regard to Will executed by
testator Basudeo Tiwary, since deceased, which had completely been
overlooked by the learned lower Court.
7. It has also been submitted that natural conduct of
daughters should be perceived even at the present moment who are
contesting tooth to nail to nullify the last Will of their deceased father
and this conduct, approach of the daughters really frustrated the
deceased which, the deceased himself confronted and incorporated
while executing the Will, which prompted the deceased to execute
Will in favour of appellant to avoid further complications, which, the
deceased was expecting from his daughters. So, in the totality of the
event, it has been submitted that the judgment and order of the learned
lower Court happens to be cryptic, perverse and is fit to be set aside.
8. While controverting the submission advanced on
behalf of learned counsel for the appellant, it has been submitted on
behalf of learned counsel for the respondents that the judgment and
order passed by the learned lower Court happens to be legal, just,
proper and so, did not attract interference. It has further been
submitted that so many grounds have been enumerated under Section
263 of the Indian Succession Act which prescribes a provision for
revocation and one of the grounds happens to be over absence of
citation, illustration (2) thereof, further specify the same. In the
aforesaid background, it has been submitted that the petition filed by
the appellant relating to Civil Misc. (Probate) Case No.33 of 2010
suffers from inherent lacuna, infirmities which had rightly been
perceived by the learned lower Court and on the basis thereof,
revocation of the Will is legally maintainable. Therefore, instant
appeal lacks merit.
9. There happens to be no controversy with regard to
grounds so enumerated under Section 263 of the Indian Succession
Act permitting revocation and one of the grounds happens to be
absence of citation. The judgment and order impugned deals with the
aforesaid theme only. In order to scrutinize the finding recorded by
the learned lower Court, the original petition of Civil Misc. (Probate)
Case No.33 of 2010 has been gone through wherefrom it is evident
that in Para-6 of the petition only presence of three daughters have
been shown without disclosing their names as well as full address (at
present or permanent). In absence thereof, really personal service
would have been effected as contended on behalf of learned counsel
for the appellant is a matter of concern which, ultimately frustrate the
submission made on behalf of learned counsel for the appellant.
Record did not speak with regard to identification of three daughters
of testator Late Basudeo Tiwary by name and further, any requisite for
issuance of notice against them to be available on the record.
10. That being so, the judgment and order impugned
did not require interference. Consequent thereupon, instant appeal is
dismissed. However, in the facts and circumstances of the case, the
parties will bear their own costs.
Patna High Court,
Dated-05.04.2016
Vikash/-
(Aditya Kumar Trivedi, J)
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