Holding

A grant of probate obtained without complying with the mandatory citation requirements of Section 283(3) and Rule 683 is revocable, and an agnate is a legal heir under the Hindu Succession Act, making the revocation application under Section 263 maintainable.

Summary

A Hindu widow executed a will in favour of the respondent. After her death, the respondent obtained a grant of probate from the High Court, but failed to disclose that the testator owned property in Uttar Pradesh and did not publish citations there as required by Section 283(3) of the Indian Succession Act. The appellant, an agnate and heir under the Hindu Succession Act, filed an application under Section 263 for revocation of the probate, alleging lack of proper citation and the existence of another will in her favour. The High Court dismissed the revocation application, holding that the appellant was not a legal heir and that no citation was required. The Supreme Court held that agnates are heirs under the Hindu Succession Act, that Rule 683 mandates citation to all heirs, and that non‑compliance with Section 283(3) makes the revocation application maintainable. Consequently, the Supreme Court set aside the High Court’s order, allowed the appeal, and remitted the matter to the probate court for consideration of the revocation application.

Issues considered

Whether an application under Section 263 of the Indian Succession Act for revocation of a grant of probate is maintainable when the applicant’s name was not cited in the probate proceedings.
Whether an agnate of a Hindu widow is a legal heir under the Hindu Succession Act, 1956.
Whether the failure to disclose property situated outside the state of the primary probate and to publish citations as required by Section 283(3) and Bombay High Court Rule 683 renders the grant of probate revocable.

Legislation cited

Hindu Succession Act, 1956s. 15, s. 3(f), s. 8
Indian Succession Act, 1925s. 263, s. 283(3)

Subjects

probaterevocationjudgment in remheiragnatecitationIndian Succession ActHindu Succession Actprobate court jurisdictionSection 263Section 283Rule 683

Judgment

A BASANTI DEVI
v.
RAVIPRAKASH RAMPRASAD JAISWAL

OCTOBER 12, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]

Indian Succession Act, 1925:

C ss.263 & 283(3)-Revoking of probate-Just cause-Held:
Application for grant of probate is a proceeding in rem-Being a
judgment in rem, a person, who is aggrieved thereby and having had
no knowledge about the proceedings and proper citations having not
been made, is entitled to file an application for revocation ofprobate
D on such grounds as may be available to him-Hindu.Succession Act,
1956-ss. 3(/), 8 & I 5-Bombay High Court Rules-r. 683.

A Will had been executed in favour of Respondent by a Hindu
widow. Pursuant to her death, Respondent filed an application for grant
E of probate in relation to the Will which was granted by the High Court.

Appellant filed application for revocation of the said grant of
probate, inter alia, on the premise that although she was one ofthe heirs
of the said deceased widow, no citation was made and that furthermore,
a Will had also been executed in her favour. A Single Judge of the High
F Court dismissed the application for revocation of probate on the ground
thatthough public notice was issued before issuing the probate, Appellant
neither filed any caveat nor filed any objection after the publication. Intra-
Court appeal flied thereagainst was dismissed by Division Bench of the
said Court on the premise that Appellant, being an agnate, was not a
G legal heir of the deceased widow.

Appellant contended before this Court that the H~gh Court
committed a grave error insofar as it failed to take into consideration
that an agnate is also an heir in terms of the provisions of the Hindu
H 444
f
BASANTI DEVI v. RA VIPRAKASH RAMPRASAD 445
: - }' JAISWAL
Succession Act, 1956. It was furthermore contended that the said A
application should have been entertained having regard to Explan~tion
(c) appended to Section 263 of the Indian Succession Act, 1925
irrespective of the fact as to whether the appellant had any notice of
the probate of the said Will.
B
The primary question which arose for consideration in the present
appeal is whether an application under Section 263 of the Indian
y Succession Act for revocation of grant of probate would be maintainable,
inter alia, on the premise that the Appellant's name was not cited in the
~
said application for grant of probate.
c
Allowing the appeal and remitting the matlerto the Probate Court,
this Court

HELD: 1. Parliament enacted the Hindu Succession Act, 1956 to
amend and codify the law relating to intestate succession among Hindus. D
Section 3(f) of the Hindu Succession Act defines 'heir' to mean any
......
person, male or female, who is entitled to succeed to the property of an
intestate under the Act. Section 15 of the Act lays down the gene(al
rules of succession in the case of female Hindus. For the purpose of
ascertaining as to who would be heirs of the husband if the deceased E
did not leave any sons and daughters or husband; reference has to be
made to Section 8 of the Act In view thereof, it is not correct to say that
agnates of the deceased are not heirs. [Paras 11and12]

2. Also, in view of Rule 683 of the Bombay High Court Rules, it is
~r not correct to contend that no citation in regard to the heirs of the F
deceased Hindu widow was necessary. [Para 14) [453-A, BJ

3.1. The properties left by the deceased widow were situated at
two places, one in the State of Maharashtra and another in the district
of Pratapgarh in the State ofUttar Pradesh. However, the Respondent1 G
for the reasons best known to him, did not, at the first instance, disclose
,-J, that any property belonging to the testator was situated at a place other',
than the State of Maharashtra. Such disclosure was required to be made
in terms of sub-section (3) of Section 283 of the Indian Succession Act.
Citations were also required to be published by the concerned District H
t
\_

446 SUPREME COURT REPORTS [2007] 11 S.C.R.

1' -- j
A Judge in terms thereof. In the application for amendment of the
application, a vague statement was made. Even therein it was not
disclosed that another property is situated in the District of Pratapgarh
in the State ofUttar Pradesh, the reason therefor is beyond anybody's
comprehension. [Paras 14, 15and16] [453-B, C, D, E]
B
3.2. The provisions contained in sub-section (3) of Section 283 are
mandatory in nature. Once the statutory requirements are found to have
not been complied with, an application for revocation of the grant of ·---r
probate would be maintainable in terms of Section 263 of the Act, apart
from the factthat non-publication of citation could be one of the grounds "
c to revoke the grant of probate. Explanation (c) appended thereto in a
case of this nature would be attracted. It may, therefore, be permissible
for the appellant to show that a Will was executed by said deceased
widow in her favour also. [Paras 17and18] [453-E, F; 454-B]
D 4.1. It was contended that the appellant had given up the right to
the property under the said Will. Even if that is so, this Court is not }-
concerned therewith at this stage. [Para 18) [454-B]
4.2. Appellant had merely filed an application. The said application
E has not been entertained although the same should have been done.
[Para 18] [454-C]
5.1. The Probate Court exercises a limited jurisdiction. It is not
concerned with the question of title. But if the probate has been granted
subject to compliance of the provisions of the Act, an application for
F revocation would also lie. [Para 20] [454-F]
'i-
5.2. An application for grant of probate is a proceeding in rem. A
probate when granted not only binds all the parties before the Court
but also binds all other persons in all proceedings arising out of the Will
G or claims under or connected therewith. Being a judgment in rem, a
person, who is aggrieved thereby and having had no knowledge about
the proceedings and proper citations having not been made, is entitled
to file an application for revocation of probate on such grounds as may
be available to him. Therefore, the application for revocation of the
H
t
BASANTI DEVI v. RAVIPRAKASH RAMPRASAD 447
JAISWAL [SINHA, J.]
grant of probate should have been entertained. A
[Para 22) [455-D, E, F]

lshwardeo Narain Singh v. Smt. Kamta Devi & Ors., AIR (1954)
SC 980 and Chiranjilal Shrilal Goenka v. Jasjit Singh & Ors., [1993) 2
SCC 507, referred to. B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4896 of
2007.
From the final Judgment and Order dated 29.8.2006 of the High
Court of Judicature at Bombay in Appeal No. 544 of 2006 in Misc.
Petition No. 1/2000 in T. & 1.1. Petition No. 73411996. C
Raju Ramachandran, Ar_un. K. Sinha, Rakesh Singh and Mukesh
Kumar Sinha for the Appellant.
RP. Bhatt, Mukesh Kumar and Chirag M. Shroff for the Respondent.
D
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
2. A short but interesting question which arises for consideration in
this appeal is as to whether an application under Section 263 of the Indian E
Succession Act for revocation of grant of probate would be maintainable,
inter alia, on the premise that the appellant's name was not cited in the
said application for grant of probate.
3. The basic fact of the matter is not in dispute.
F
4. A Will was executed by one Lakhpati Devi widow of late
Mahadeo Jaiswal in favour of the respondent herein who was one of the
grand sons of late Bhagwatidina, one of the brothers of late Mahadeo
Prasad. Appellant herein claimed that the said Lakhpati Devi had executed
another will on or about 12.3.1996. The said Lakhpati Devi admittedly G
expired on 13.03.1996. Whereas the appellant did not file any application
for grant of probate in relation to the aforementioned will dated
12.03 .1996, the respondent did so on 6.9 .1996. In the said application,
it was contended that the properties under the Will are situated in Bombay
stating: H
448 SUPREME COURT REPORTS [2007] 11 S.C.R.

A "That the said deceased at the time of her death had a fixed place
of abode at Room No.10-11, Bharat Building, Sonapur Lane,
Chira Bazar, Mumbai - 400 002 and left property within Greater
Bombay in the State of Maharashtra."
It was furthermore stated :
B
"That no application has been made to any District Court or District
Delegate or to any other High Court for probate of any will of the
said deceased or for Letter of Administration with or without the ·-r
Will annexed to her property and credits."
c 5. However, an application for amendment of the application for grant
of probate was filed in the said testamen_tary proceedings which was
allowed. On the basis of the averments made by the respondent in the
amended application, citations were published only at Bombay on
D 28.1.1997. Respondent, however, filed an application for amendment of
the petition for grant of probate on 21.03 .1997, inter alia, stating :
"That the said deceased at the time of her death had a fixed place
of abode at Room No. I 0-11, Bharat Building, Sonapur Lane,
Chira Bazar, Mumbai -400 002 and left property within Greater
E Bombay in the State of Maharashtra and elsewhere in Union of
India."
It was, therefore, not disclosed at what other places the properties
are situated.
F 6. It was furthermore averred that there was no heir known to the
petitioner on the side of husband of the deceased. The schedule of assets
allegedly left by the deceased was also inserted in the schedule of the
properties stating :
1. All that piece and parcel of pension tax land
G
of ground (since redeemed) with the
messauges tentament or dwelling house
standing thereon situate lying behind at
Sonapur Street Girgaum Road outside the
Fort of Bombay in the Registration Sub-
H
BASANTI DEVI v. RA VIPRAKASH RAMPRASAD 449
JAISWAL [SINHA, J.]
District of Bombay in the land of the Bombay A
contained by admeasurement 243 )two
hundred and forty three) square yards or
thereabouts and registered in the Books of
Collector New No. 980 New Survey
No.8158 and Cadastral Survey No.567 of
Bhuleshwar Division and in the books of the
Collector of Municipal Rates and Taxes
under (C) wards No.3385 and Street No.6
and bounded as follows : that is to say on or
towards the East by the _properties bearings C
Cadastral Survey Nos.570, 571, 572, 573
and 574 on or towards the west partly by the
properties bearing Cadastral Survey No.565
and 566 and partly by a passage on or
towards the north by the property bearing D
Cadastral Survey No.568 and or towards the
south by the Sonapur Street Valued at Rs.1,00,000/-
Accrued gross rent of the above immoveable
property from the date of death till filing of
this petition Rs. 7,500/- E
2. S.B. Ale No.21416 with Bank of India,
Kolabadevi Branch Mombai-2 standing in the
name of deceased with accrued interest upto
date of filing this petition Rs. 1,000/- F
3. Amount standing to the credit of the
deceased in current Ale No.31080 with
Bank of India Kolabadi Branch Mumbai
standing in the name of M/s Mahadeo
forthwith in which deceased was sole G
Proprietor Rs. 3,000/-
4. The Milk shop being shop No.I/I I situated
at Bharat Building Sonapur lane Chira Bazar
Mumbai-2 currently infrastructure in the name
H
450 SUPREME COURT REPORTS (2007] 11 S.C.R.

A & style of Mahadeo farm : together with
valued at Rs. 50,0001-
IN THE STATE OF UTTAR PRADESH
5. One open piece of land situate at Dist. Pratap
B Gad, Village-Mahadeo Nagar, (lJ.P.)
Valuedat Rs. 1,000/-
The above plot does not fetch any rent of
income.

c TOTAL Rs.1,62,500/-
7. However, no citation was made in the State ofUttar Pradesh. A
probate was granted in favour of the respondent by the High Court by
order dated 7.4.1997. An application for revocation of the said grant of
probate was made by the petitioner herein, inter alia, on the premise
D that although she was one of the heirs of the said Lakhpati Devi, no citation
was made. Furthermore, a Will had also been executed in her favour.
8. A learned Single Judge of the Bombay High Court dismissed the
application for revocation of probate filed by the petitioner which was
marked as Miscellaneous Petition No. I of 2000 by a judgment and order
E dated 23.6.1996 opining:
"The requirements for letter of administration and grant of probate
are different. It is an admitted position that public notice was issued
before issuing a probate. The petitioner neither filed any caveat nor
filed any objection after the publication. Therefore, this petition does
F
not survive for consideration."
8. On an intra court appeal having been preferred thereagairist, a
Division Bench of the said Court, on the premise that the appellant was
not a legal heir of the deceased being an agnate, dismissed the same.
G 9. Mr. Raju Ramachandran, learned senior counsel appearing on
behalf of the appellant, inter alia, would submit that the High Court
committed a grave error in passing the impugned judgment insofar as it
failed to take into consideration that an agnate is also an heir in tenns of
the provisions of the Hindu Succession Act. It was furthermore contended
H
J
BASANTI DEVI v. RA VIPRAKASH RAMPRASAD 451
' - )
JAISWAL [SINHA, J.]
that the said application should have been entertained also having regard A
to Explanation (c) appended to Section 263 of the Indian Succession Act
irrespective of the fact as to whether the appellant had any notice of the
probate of the said Will or not. Even on the ground of non-compliance
of the requirement of Sub-section (3) of Section 283 of the Indian
Succession Act, the learned counsel would contend, probate was granted B
without complying with the requirements oflaw.
"' y 10. Husband oflate Lakhpati Devi late Mahadeo Prasad was one
of the five sons ofVindeshwari Prasad-Ganesh Jaiswal; his brothers being
late Bhagwatidina, late Gayadin, late Mahavir Prasad and late Kailash.
Late Bhagwatidina had three sons, namely, late Mata Prasad, late Ram c
Prasad and late Moti Lal. Respondent herein is one of the sons of late
Rama Prasad. Late Ramaprasad died leaving behind his widow Sursati
and three sons, Suresh, Ramesh and Ravi Prakash (Respondent). Other
brothers of Mahadeo Prasad have died leaving behind their respective
heirs and legal representatives. Late Mahabir Prasad had six sons. D
Appellant is widow of late Harihar Prasad, one of the sons; other sons
... being being late Ganga Prasad, Jamuna Prasad, Babulal, Late Amrit Lal
and Surya Lal.
11. Parliament enacted "the Hindu Succession Act, 1956 to amend
and codify the law relating to intestate succession among Hindus. Section E
3(f) of the Hindu Succession Act defines "heir" to mean any person, male
or female, who is entitled to succeed to the property of an intestate under
the Act. Section 15 of the Act lays down the general rules of succession
in the case of female Hindus in the following terms :

_'Ir'
"15. General rules of succession in the case of female F
Hindus.-{1 )The property of a female Hindu dying intestate shall
devolve according to the rules set out in section 16.-
(a) firstly, upon the sons and daughters (including the children of
any pre-deceased son or daughter) and the husband;
G
(b) secondly, upon the heirs of the husband;
,,J
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother. H
452 SUPREME COURT REPORTS [2007] 11 S.C.R.

A (2) Notwithstanding anything contained in sub-section ( 1),--
(a) any property inherited by a female Hindu from her father or
mother shall devolve, in the absence of any son or daughter
of the deceased (including the children of any pre-deceased
son or daughter) not upon the other heirs referred to in sub-
B section (1) in the order specified therein, but upon the heirs
of the father; and
(b) any property inherited by a female Hindu from her husband
or from her father-in-law shall devolve, in the absence of any
son or daughter of the deceased (including the children of any
c pre-deceased son or daughter) not upon the other heirs
referred to in sub-section ( 1) in the order specified therein,
but upon the heirs of the husband."
12. For the purpose of ascertaining as to who would be heirs of the
husband if the deceased did not leave any sons and daughters or husband;
D reference has to be made to Section 8 of the Act which reads as under:
"Section 8. General rules ofsuccession in the case ofmales.-.
The property of a male Hindu dying intestate shall devolve
according to the provisions of this Chapter-
E (a) firstly, upon the heirs, being the relatives specified in class I of
the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being
the relatives specified in class II of the Schedule;
F (c) thirdly, if there is no heir of any of the two classes, then upon ~
\
the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the
deceased."
G It is, therefore, not correct to say that agnates of the deceased are
not heirs.
>- -.
13. Mr. R.P. Bhatt, senior counsel appearing on behalf of the
respondent, however, would contend that in terms of the Rules framed
by the Bombay High Court, it was not necessary to make any citation in
H
BASANTI DEVI v. RA VIPRAKASH RAMPRASAD 453
JAISWAL [SINHA, J.]
the State of Uttar Pradesh. Rule 683 of the Bombay High Court Rules A
reads as under :
"683. Notice to next-of-kin - In all applications for Probate,
Letters of Administration and Succession Certificate, Notice of tii.e
application shall be given to all the heirs and next-of-kin of the
deceased mentioned in the Petition except to those whose consent B
has been filed in the proceedings."
14. It is, therefore, not correct to contend that no citation in regard
to the heirs of Lakhpati Devi was necessary. The properties left by the
deceased Lakhpati Devi were situated at two places, one in the State of C
Maharashtra and another in the district of Pratapgarh in the State of Uttar
Pradesh.
15. We have noticed hereinbefore that the respondent, for the
reasons best known to him, did not, at the first instance, disclose that any
property belonging to the testator was situated at a place other than the D
State of Maharashtra. Such disclosure was required to be made in terms
of sub-section (3) of Section 283. Citations were also required to be
published by the concerned District Judge in terms thereof.
16. In the application for amendment of the application, a vague
statement was made. Even therein it was not disclosed that another E
property is situated in the District of Pratapgarh in the State of Uttar
Pradesh, the reason therefor is beyond anybody's comprehension.
17. The provisions contained in sub-section (3) of Section 283 are
mandatory in nature. Once the statutory requirements are found to have
not been complied with, an application for revocation of the grant of F
probate would be maintainable in terms of Section 263 of the Act, apart
from the fact that non-publication of citation could be one of the ground
to revoke the grant of probate. Explanation (c) appended thereto in a
case of this nature would be attracted. The said provision reads thus :
263. Revocation or annulment for just cause.-The grant of G
probate or letters of administration may be revoked or annuleed
for just cause.
Explanation.-Just cause shall be deemed to exist where-
(a) & (b) ... H
454 SUPREME COURT REPORTS [2007] 11 S.C.R.

A (c) the grant was obtained by means of an untrue allegation of a
fact essential in point of law to justify the grant, though such
allegation was made in ignorance or inadvertently; or
(d) to (e) ... "
B 18. It may, therefore, be permissible for the appellant to show that
a Will was executed by said Lakhpati Devi in her favour also on
12.03.1996. Mr. Bhat contends that the appellant had given up the right
to the property under the said Will. Even if that is so, this Court is not
concerned therewith at this stage.
C Appellant had merely filed an application. The said application has
not been entertained although the same, in our opinion, should have been
done. The question, therefore, is as to whether the said application should
have been entertained.
19. Reliance has been placed by Mr. Bhat on a decision of this Court
· D in Ishwardeo Narain Singh v. Smt. Kamta Devi & Ors., AIR (1954)
SC 980 wherein, inter alia, it was held : +·
"The Court of Probate is only concerned with the question as to
whether the document put forward as the last will and testament
of a deceased person was duly executed and attested in
E
accordance with law and whether at the time of such execution
the testator had sound disposing mind. The question whether a
particular bequest is good or bad is not within the purview of the
probate Court."
f 20. The Probate Court, indisputably, exercises a limited jurisdiction.
It is not concerned with the question oftitle. But ifthe probate has been "'·-
granted subject to compliance of the provisions of the Act, an application
for revocation would also lie.
21. In Chiranjilal Shrilal Goenka v. Jasjit Singh & .Ors., [1993]
G 2 SCC 507, whereupon again Mr. Bhat relied upon, this Court held :
"On a conspectus of the above legal scenario we conclude that_
the Probate Court has been conferred with exclusive jurisdiction
to grant probate of the will of the deceased annexed to the petition
(suit); on grant of refusal thereof, it has to preserve the original Will
H
BASANTI DEVI v. RA VIPRAKASH RAMPRASAD 455
JAISWAL [SINHA, J.]
produced before it. The grant of probate is final subject to appeal, A
if any, or revocation if made in terms of the provisions of the
Succession Act, It is a judgment in rem and conclusive and binds
not only the parties but also the entire world. The award depdves
the parties of statutory right of appeal provided under Section 299.
Thus the necessary conclusion is that the Probate Court alone has B
exclusive jurisdiction and the Civil Court on original side or the
Arbitrator does not get jurisdiction, even if consented to by ~he
parties, to adjudicate upon the proof or validity of the Will
propounded by the executrix, the applicant. It is already seen that
the executrix was nominated expressly in the will is a legal C
representative entitled to represent the Estate of the deceased ~ut
the heirs cannot get any probate before the Probate Court. They
are entitled only to resist the claim of the executrix of the execution
and genuineness of the Will. The grant of probate gives the executrix
the right to represent the estate of the deceased, the subject-ma~er
in other proceedings. We make it clear that our exposition oflaw D
is only for the purpose of finding the jurisdiction of the arbitrator
and not an expression of opinion on merits in the "probate suit''."
22. It is now well settled that an application for grant of probate is
a proceeding in rem. A probate when granted not only binds all the parties E
before the Court but also binds all other persons in all proceedings arisiJl.g
out of the Will or claims under or connected therewith. Being a judgment
in rem, a person, who is aggrieved thereby and having had no knowledge
about the proceedings and proper citations having not been made, is
entitled to file an application for revocation of probate on such grounds
as may be available to him. We are, therefore, of the opinion that the F
application for revocation of the grant of probate should have been
entertained.
23. The impugned judgment, therefore, is set aside and the appeal
is allowed and the matter is remitted to the learned Single Judge of th~ G
Probate Court with costs. However, we make it clear that we have not
entered the merit of the matter.
B.B.B. Appeal allowed.

H