Supremecourt Kanwarjit Singh Dhillon Vs

SUPREME
COURT

KANWARJIT SINGH DHILLON VS HARDYAL SINGH DHILLON AND ORS ON
12 OCTOBER, 2007

Summarised
Judgement (Scroll for Complete Judgement)

Introduction:

This appeal is directed against the
judgment and final order dated 22nd of March, 2004 passed by the High Court of
Punjab and Haryana at Chandigarh in Civil Revision No.3861 of 2002 whereby an
order dated 18th of January, 2000 of the learned Civil Judge, Jallandhar,
dismissing a suit for declaration and permanent injunction of the appellant,
was affirmed.

Facts of the Case:

Originally, the suit properties
stood in the name of Ishar Singh (paternal grandfather of the appellant) which
was subsequently mutated in the name of his two sons, S.Hazara Singh and
S.Kirpal Singh. Late S.Kirpal Singh was the father of the appellant. Late
S.Kirpal Singh died leaving behind some properties, both movable and immovable
comprising agricultural land measuring 48 Kanal 10 Marlas situated at
Jallandhar, a residential house bearing No.148, Sector 27A, Chandigarh and two
deposits of Rs.20,000/- and Rs.10,000/- respectively [hereinafter referred to
as “the suit properties”].

According to the appellant, the suit
properties left behind by late S.Kirpal Singh were their ancestral properties.
After eight years of the death of late S.Kirpal Singh, the respondent No.1
propounded an unregistered Will left behind by late S.Kirpal Singh and applied
for probate thereof in the High Court of Punjab and Haryana.

As per the said Will executed by
late S.Kirpal Singh, the suit properties, both movable and immovable, were
bequeathed by late S.Kirpal Singh in favour of respondent No.1 herein. Only a
right of residence was given in favour of the widow of late S.Kirpal Singh and
his unmarried daughter.

In the suit filed at the instance of
the appellant, the respondent No.1 raised a preliminary issue by filing an
application saying that after the probate having been granted of the Will
executed by late S.Kirpal Singh, the Civil Court had no jurisdiction to proceed
with the suit for declaration of title and permanent injunction and accordingly
the suit should be dismissed. The preliminary issue framed by the Civil Court
is to the following effect:

“Whether this Court has
jurisdiction in view of the probate granted by the Hon’ble Punjab &
Haryana High Court vide order dated April 5, 1991, confirmed by the Divisional
Bench of Punjab & Haryana High Court on 1st December, 1993 and
confirmed by the Hon’ble Supreme Court of India on 2.7.1994.”

Observation of Court:

It is true that the probate of the Will granted by the competent probate court
would be admitted into evidence that may be taken into consideration by the
civil court while deciding the suit for title but grant of probate cannot be
decisive for declaration of title and injunction whether at all the testator
had any title to the suit properties or not.

Such being the position, we,
therefore, hold that the High Court as well as the trial court had acted
illegally in dismissing the suit of the appellant on the aforesaid sole ground
after framing the preliminary issue. For the reasons aforesaid, the judgments
of the High Court as well as of the trial court are set aside. The appeal is
allowed to the extent indicated above. The trial court is now directed to
decide the suit after framing issues, including the issue of maintainability of
the suit after the probate being granted, if not already framed in the meantime
and dispose of the same within a year from the date of production of a copy of
this order before the trial court.

Before parting with this judgment,
we may express one more aspect. As noted herein earlier, a suit was dismissed
by the trial court which was affirmed by the High Court in revision after
framing preliminary issue which we have already noted herein earlier. A
question may arise whether the preliminary issue could be raised without
deciding the other issues and the suit could be dismissed in view of Order XIV,
Rule 2 of the Code of Civil Procedure. In view of our decision in this matter,
we do not feel it proper to dwell on this aspect which is kept open for future
consideration.

Judgement:

For the aforesaid
reasons, the impugned order is set aside. The appeal is allowed. There will be
no order as to costs.

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Complete Judgement

SUPREME COURT

KANWARJIT SINGH DHILLON VS HARDYAL SINGH DHILLON AND ORS ON 12 OCTOBER, 2007

Supreme
Court of India

Bench:
Tarun Chatterjee, Dalveer Bhandari

CASE
NO: Appeal
(civil) 4890 of 2007

PETITIONER: Kanwarjit
Singh Dhillon

RESPONDENT: Hardyal
Singh Dhillon and Ors.

DATE
OF JUDGMENT: 12/10/2007

BENCH:

TARUN
CHATTERJEE & DALVEER BHANDARI

JUDGMENT:

1. Delay condoned.

2. Leave granted.

3. This appeal is directed against
the judgment and final order dated 22nd of March, 2004 passed by the High Court
of Punjab and Haryana at Chandigarh in Civil Revision No.3861 of 2002 whereby
an order dated 18th of January, 2000 of the learned Civil Judge, Jallandhar,
dismissing a suit for declaration and permanent injunction of the appellant,
was affirmed.

4. Originally, the suit properties
stood in the name of Ishar Singh (paternal grandfather of the appellant) which
was subsequently mutated in the name of his two sons, S.Hazara Singh and
S.Kirpal Singh. Late S.Kirpal Singh was the father of the appellant. Late
S.Kirpal Singh died leaving behind some properties, both movable and immovable
comprising agricultural land measuring 48 Kanal 10 Marlas situated at
Jallandhar, a residential house bearing No.148, Sector 27A, Chandigarh and two
deposits of Rs.20,000/- and Rs.10,000/- respectively [hereinafter referred to
as “the suit properties”]. According to the appellant, the suit
properties left behind by late S.Kirpal Singh were their ancestral properties.
After eight years of the death of late S.Kirpal Singh, the respondent No.1
propounded an unregistered Will left behind by late S.Kirpal Singh and applied
for probate thereof in the High Court of Punjab and Haryana. As per the said
Will executed by late S.Kirpal Singh, the suit properties, both movable and
immovable, were bequeathed by late S.Kirpal Singh in favour of respondent No.1
herein. Only a right of residence was given in favour of the widow of late
S.Kirpal Singh and his unmarried daughter. In the aforesaid probate proceeding,
objections were, however, filed by the appellant alleging that the said Will
was a forged and fabricated one. However, the probate was granted to the
respondent No.1 by the High Court and thereafter, the matter came up before
this Court which also affirmed the order of the High Court granting probate in
respect of the Will executed by late S.Kirpal Singh. Subsequent to the grant of
probate of the Will of late S.Kirpal Singh in respect of the suit properties
more precisely on 9th of March, 1995, the appellant instituted a civil suit for
declaration and injunction wherein the appellant sought a declaration to the
effect that the suit properties were joint Hindu family properties.

5. In the suit filed at the instance
of the appellant, the respondent No.1 raised a preliminary issue by filing an
application saying that after the probate having been granted of the Will
executed by late S.Kirpal Singh, the Civil Court had no jurisdiction to proceed
with the suit for declaration of title and permanent injunction and accordingly
the suit should be dismissed. The preliminary issue framed by the Civil Court
is to the following effect:

6. By an order dated 18th of
January, 2000, the learned Civil Judge, Jallandhar dismissed the suit on a
finding that once the probate was granted by a competent probate court, and in
view of the fact that in the suit the appellant had not challenged the probate
proceeding, the Civil Court cannot have any jurisdiction to entertain the suit
on the aforesaid ground and the suit was dismissed.

7. Feeling aggrieved, a revision
petition was filed before the High Court and the High Court by the impugned
judgment and order had also affirmed the order of the Civil Court holding that
the suit was not maintainable after the grant of probate by the competent
probate court. The present special leave petition has been filed against the
aforesaid order of the High Court in respect of which leave has already been
granted.

9. It is true that probate of the
Will executed by late S.Kirpal Singh has been granted by the competent probate
court which relates to the suit properties. But we have to look into the
allegations made in the plaint. The plaint clearly states that the civil suit
was for a declaration to the effect that the suit properties were joint Hindu
family properties of the HUF of which the appellant and his two brothers
Hardyal Singh Dhillon and Harbans Singh Dhillon, mother Surjit Kaur and
unmarried daughter Amarjit Kaur were the members. Consequential relief for
permanent injunction was also sought restraining the respondent No.1 from
alienating the suit properties, in any manner, whatsoever. Besides claiming that
the suit properties were the joint family properties, it was also averred in
the plaint that late S.Kirpal Singh was the Karta of the aforesaid HUF and by
utilizing the income from their ancestral agricultural land had acquired
various properties including the suit properties.

10. The High Court by the impugned
order, relying on a decision of this Court in the case of Smt. Rukmani Devi and
Ors. v. Narendra Lal Gupta, [1985] 1 SCC 144 affirmed the order of the civil
court by holding that a probate granted by a competent probate court was
conclusive of the validity of the Will of late S.Kirpal Singh until it was
revoked and no evidence could be admitted to impeach the said Will except in a
proceeding taken for revoking the probate. According to the High Court, a
decision of the probate court would be a judgment in rem which would not only
be binding on the parties to the probate proceeding but would be binding on the
whole world. Upon the aforesaid finding, the High Court had affirmed the order
of the civil court holding that the suit must be dismissed in view of the fact
that the probate court had already granted probate in respect of the Will
executed by late S.Kirpal Singh relating to the suit properties. We are not in
a position to agree with the views expressed by the High Court in the impugned
order nor are we in agreement with the order passed by the civil court. As
noted herein earlier, the suit for declaration of title and injunction has been
filed by the appellant inter alia on the allegations that the suit properties
are joint family properties of the HUF of which the appellant and his two
brothers Hardyal Singh Dhillon and Harbans Singh Dhillon, mother Surjit Kaur
and unmarried daughter Amarjit Kaur are members. It has also been claimed by
the appellant in the suit that by utilizing the income from the ancestral
agricultural land, various properties including the suit properties were
acquired. Such being the allegations made in the plaint which can only be
decided on trial after parties are permitted to adduce evidence in respect of
their respective claims, it is difficult to hold that only because probate of
the Will of late S.Kirpal Singh has been granted, the suit for title and
injunction must be held to be not maintainable in law. It is well settled law
that the functions of a probate court are to see that the Will executed by the
testator was actually executed by him in a sound disposing state of mind
without coercion or undue influence and the same was duly attested. It was,
therefore, not competent for the probate court to determine whether late
S.Kirpal Singh had or had not the authority to dispose of the suit properties
which he purported to have bequeathed by his Will. The probate court is also
not competent to determine the question of title to the suit properties nor
will it go into the question whether the suit properties bequeathed by the Will
were joint ancestral properties or acquired properties of the testator.

11. In Chiranjilal Shrilal Goenka v.
Jasjit Singh and Ors., [1993] 2 SCC 507, this Court while upholding the above
views and following the earlier decisions of this Court as well as of other
High Courts in India observed in paragraph 15 at page 515 which runs as under
:-

“In Ishwardeo Narain Singh v.
Smt. Kamta Devi this Court held that 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 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. Therefore, the only issue in a probate
proceeding relates to the genuineness and due execution of the will and the court
itself is under duty to determine it and perverse the original will in its
custody. The Succession Act is a self-contained code insofar as the question of
making an application for probate, grant or refusal of probate or an appeal
carried against the decision of the probate court. This is clearly manifested
in the fascicule of the provisions of the Act. The probate proceedings shall be
conducted by the probate court in the manner prescribed in the Act and in no
other ways. The grant of probate with a copy of the will annexed establishes
conclusively as to the appointment of the executor and the valid execution of
the will. Thus, it does no more than establish the factum of the will and the
legal character of the executor. Probate court does not decide any question of
title or of the existence of the property itself”.

That being the position and in view
of the nature of allegations made in the plaint, we do not find any reason as
to how the High Court as well as the civil court could come to a conclusion that
after the probate of the Will executed by late S.Kirpal Singh was granted, the
suit for declaration for title and injunction on the above allegation could not
be said to be maintainable in law. The High Court also while holding that the
suit was not maintainable, in view of the probate granted of the Will of late
S.Kirpal Singh had relied on a decision of this Court, as noted herein earlier,
in the case of Rukmani Devi (supra). We are not in a position to agree with the
High Court that this decision could at all be applicable in the facts and
circumstances of the present case. A plain reading of this decision would not
show that after the grant of probate by a competent court, the suit for title
and permanent injunction cannot be said to be maintainable in law. What this
Court held in that decision is that once a probate is granted by a competent
court, it would become conclusive of the validity of the Will itself, but, that
cannot be decisive whether the probate court would also decide the title of the
testator in the suit properties which, in our view, can only be decided by the
civil court on evidence. It is true that the probate of the Will granted by the
competent probate court would be admitted into evidence that may be taken into
consideration by the civil court while deciding the suit for title but grant of
probate cannot be decisive for declaration of title and injunction whether at
all the testator had any title to the suit properties or not.

12. Such being the position, we,
therefore, hold that the High Court as well as the trial court had acted
illegally in dismissing the suit of the appellant on the aforesaid sole ground
after framing the preliminary issue. For the reasons aforesaid, the judgments
of the High Court as well as of the trial court are set aside. The appeal is
allowed to the extent indicated above. The trial court is now directed to
decide the suit after framing issues, including the issue of maintainability of
the suit after the probate being granted, if not already framed in the meantime
and dispose of the same within a year from the date of production of a copy of
this order before the trial court.

13. Before parting with this
judgment, we may express one more aspect. As noted herein earlier, a suit was
dismissed by the trial court which was affirmed by the High Court in revision
after framing preliminary issue which we have already noted herein earlier. A
question may arise whether the preliminary issue could be raised without
deciding the other issues and the suit could be dismissed in view of Order XIV,
Rule 2 of the Code of Civil Procedure. In view of our decision in this matter,
we do not feel it proper to dwell on this aspect which is kept open for future
consideration.

14. For the aforesaid
reasons, the impugned order is set aside. The appeal is allowed. There will be
no order as to costs.

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AS – 23122019

CA ANIL K JAIN

Supremecourt Kanwarjit Singh Dhillon Vs

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