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Heera Lal v. Heera Lal And Another - FIRST APPEAL FROM ORDER No. 174 of 2001 [2006] RD-AH 14146 (23 August 2006)


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First Appeal From Order No. 174 of 2001

Heera Lal S/o Jangi Seth                Vs.      Heera Lal  S/o Moti Lal and another.

Hon'ble  Prakash Krishna, J.

The present appeal is under Section 384 of Indian Succession Act, rejecting the application filed by the appellant to revoke the probate issued by the court below by its earlier order dated 13th of November 1988 in favour of the respondent, in respect of estate left by the deceased Shiv Nath.

Shiv Nath died issueless and had executed a registered Will dated 13th of July, 1988 in favour of his wife's sister's son, who is respondent in appeal.  After the death of Shiv Nath, petition for grant of probate of the Will of Shiv Nath dated 30th of July, 1997 was filed.  It was registered as Misc. Case No.19 of 1988.  The notices etc. were published in newspaper and public notice was given through beat of drums.  The probate, thereafter, was granted by the court below in the name of Heera Lal son of Moti Lal vide order dated 13th of November, 1998.  The present appellant namely Heera Lal son of Jangi Seth is claiming himself as the son of first cousin of Shiv Nath and applied for revocation of the aforesaid grant of probate. He pleaded that Shiv Nath was a lunatic and he was appointed as his guardian.  In that capacity a sum of Rs.50,000/- (Rupees Fifty Thousands only) was deposited with the bank in fixed deposit receipt along with Shri Shiv Nath.  The probate of the Will of Shiv Nath was obtained without impleading him as a party,  in probate proceedings and fully knowing that he is claiming succession from Shiv Nath.  The court below by the order under appeal has rejected the said application filed by the present appellant for revocation of the probate of the  Will on the finding that indisputably the present appellant is not heir of the deceased.  Further Shiv Nath during his life time applied for recall of the order dated 6th of May, 1988 whereby Heera Lal son of Jangi Seth was appointed as his guardian being lunatic.  The application filed  by Shiv Nath was allowed later on meaning thereby the order appointing guardian treating Shiv Nath as lunatic was obtained  on incorrect facts.

Feeling aggrieved against the aforesaid judgment and order the present appeal has been filed.

Heard Shri Muralidhar, Senior Advocate along with Shri B.C. Rai and Shri R.K. Singh, the learned counsel for appellant and the learned counsel appearing on behalf of the Bank, who is not concerned with regard to the question of succession of the estate left by the deceased Shiv Nath.

The learned counsel for the appellant strenuously submitted that the court below committed illegality in refusing to revoke the grant of probate to the respondent namely Heera Lal son of Moti Lal as admittedly the present appellant namely Heera Lal son of  Jangi Seth was not impleaded as a party in the probate proceedings.  He further submitted that the appellant was appointed as a guardian by order dated 6th of May, 1988 treating Shiv Nath as Lunatic and on the date when the registered Will was executed by Shiv Nath, the said order was in force, although it has been vacated subsequently, therefore an opportunity should have been given to the present appellant to contest the probate proceedings.  

I have given careful consideration to the aforesaid submission of the learned counsel for the appellant.  The fact that the appellant was appointed as guardian treating Shiv Nath as lunatic is not in dispute.  It is also not in dispute that the said order was recalled/set aside subsequently and the recall application was filed by Shiv Nath himself on 26th of Ma, 1988 i.e. within the period of 20 days as soon as he came to know about the order dated 6.5.1988. The said recall application remained pending and was allowed subsequently on 23rd of May 1991 i.e. during the lifetime of Shiv Nath.  The argument that at any rate the day on which Will in question was executed, the order dated 6th of May, 1988 was in operation is meritless. Filing of the recall application immediately after the order appointing the appellant as guardian and its recall by the subsequent order dated 23.5.1991 leaves no room of doubt that in the eyes of law the order dated 6th of May, 1988 stands recalled from its very inception.  It is not the case whether a person who was earlier a lunatic has become, by the passage of time, a person of sound mind.  The case of Shiv Nath was that there was absolutely no occasion for appointment of his guardian as he was never a lunatic.  In this regard it is apt to note the following observations of the court below -

"The applicant (Appellant in the appeal)  had tried to get himself appointed as guardian of his personal property by the court which was allowed but when Shiv Nath came to know about it, he moved before the court and order of appointment of his guardian  was set aside. It goes to show that the applicant was trying to grab the property of Shiv Nath and with that view, he started saying that Shiv Nath was lunatic and tried to become his guardian but when Shiv Nath came to know it he got set aside the order of appointment of guardian.  It shows the mind and conduct of the applicant."

The above observation of the court below clearly shows that the application for appointment of guardian of person and property of Shiv Nath was not a bona fide one and as a matter of fact it was filed with an oblique motive to some how grab the property of Shiv Nath. The learned Senior Counsel could not show any thing to this court to take a different view of the matter.  The whole gamut of the argument of the learned Senior Counsel is that an opportunity of hearing should be afforded to him.  It is difficult to accept the said argument as indisputably he is not an heir of the deceased Shiv Nath. Moreover he has not been able to point out even a single suspicious circumstance surrounding the execution of the Will by Shiv Nath in favour of the respondent.  The Will though not required under law to be a registered document, is a registered document in the present case.  The executor of the Will has taken extra precaution so that his estate may go to the desired person as he was apprehensive from the conduct of the appellant who had filed an application for his appointment as guardian of his person and  property treating him as a lunatic.  The filing of application for his appointment as guardian of person and  property of Shiv Nath is suicidal to the appellant's version.

In view of the above discussion, there is no merit in the appeal.  The appeal is dismissed with costs.




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