Holding

A transferee of property during the pendency of probate proceedings is not a necessary party and cannot be impleaded; citations are required only for persons claiming under or disputing the will.

Summary

The Supreme Court considered an appeal by Sunil Gupta, successor of a purchaser of property belonging to the deceased Har Bhagwan, who sought to be impleaded in probate proceedings concerning a will dated 09‑09‑1997. The petitioners (the daughters of the deceased) had applied for probate, while the sons objected and one son, Raj Kumar, claimed a later will dated 30‑10‑1997. The purchaser, Amit Pahwa, had bought the properties before any probate was granted and later sold them onward. The Court held that a transferee of property during the pendency of probate is not a necessary party and citations under Sections 263 and 283 of the Succession Act are limited to persons claiming under or disputing the will. Consequently, the appellant could not be impleaded, and the appeal was dismissed with costs.

Issues considered

Whether a purchaser of property belonging to a deceased testator is a necessary party to be impleaded in probate proceedings under the Succession Act, 1925.
Whether citations under Section 283 of the Succession Act must be issued to such a purchaser.
Whether the court's discretionary jurisdiction permits impleadment of a transferee pendent lite.

Legislation cited

Indian Succession Act, 1925s. 211, s. 263, s. 283, s. 307

Subjects

probatesuccession actimpleadmenttransfereenecessary partycitationproperty transferlegal heirscaveat

Judgment

)
SUNILGUPTA A
v.
KIRAN GIRHOTRA AND ORS.

OCTOBER 9, 2007
B
[S.B. SINHA AND HARJIT SINGH BEDI, JJ.]

Succession Act, 1925-ss. 263 and 283-Probate proceedings-
Jmpleadment ofpurc~aser of property belonging to testator as a
necessary party-Entitlement of-Held: Transferee ofproperty during C
pendency of proceedings is not a necessary party-Citation are
necessary to be made to only of those who, claim through or under
the Will or deny or dispute execution thereof-On facts, purchaser and!
or his predecessor, ofthe property forming subject matter of Will, took
risk of the result of the probate proceedings before purchasing D
properties, as such is not a necessary party-Thus, purchaser not
entitled to be impleaded in the probate proceedings.
HB executed a Will on 09.09.1997. Respondent-HB's daughters
filed application for grant of probate. Sons ofHB filed objections E
thereto. Son RK submitted another Will of HB, allegedly executed
on 30.10.1997. RK executed sale deeds in favour of AP with regard
to the properties forming subject matter of grant under the Will.
'"' Neither probate nor objection from other legal heirs was obtained
in respect of Will dated 30.10.1997. AP entered into sale agreement
in respect of the properties. Appellant, successor of AP filed F
application for impleadment in the probate proceedings. Application
was allowed. However, High Court set aside the order. Hence the
present appeal.
)
Dismissing the appeal, the Court G
HELD: 1 A transferee of a property during the pendency of a
proceeding is not a necessary party. Citations are necessary to be
made to only of those who, inter alia, claim through or under the Will
827 H
828 SUPREME COURT REPORTS [2007] 10 S.C.R.

A or deny or dispute the execution thereof. Citation should be
conspicuously displayed on a notice board. Even otherwise ordinarily
a transferee pendent lite without leave of the court cannot be
impleaded as a party. Further, plaintiff in the suit is the dominus litis.
If he intends to take a calculated risk in the matter, the court may
B not exercise its discretionary jurisdiction.
(Paras 13, 17, 20 and 21] [832-G; 833-C; 834-C-D]

2.1. Sons of late HB had entered Caveats. Their objections
would be considered in the probate proceedings. RK is not only
opposing grant of probate in favour of the respondents in respect of
C the Will dated 09.09.1997; but he himself is said to be claiming under
a Will executed by late HB on 30.10.1997. RK evidently was aware
of the proceedings. If a proceeding had been initiated for grant of
probate, appellant and/or his predecessor, AP would be deemed to
have notice thereof. Before purchasing the properties, AP and
D consequently the appellant had taken a calculated risk. In a situation
of this nature, he is not a necessary party. He took the risk of the
result of the probate proceedings. His apprehensions that RK may
not take any interest in the litigation cannot by itself be a ground
for interfering with the impugned judgment. It is speculative in nature.
E More so, the appellants are only the speculators who had purchased
litigated properties.
(Paras 12, 14, 16 and 17] [832-E-F; 833-B, C, D; 833-A]

2.2. High Court in its impugned judgment has noticed that the y
F attesting witnesses of the Will had already been examined. If the
appellant is impleaded as a party, the clock would be put back.
[Paras 14] [832-H]

Banwarilal Shrinilms v. Kwnari Kusum Bai and Ors., AIR (1973)
MP 69; Seth Beni Chand (since Dead) Now by L.Rs. v. Smt. Kamla
G Kunwar and Ors., [1976] 4 SCC 554; Bibi Zubaida Khatoon v. Nabi
Hassan Saheb and Anr., [2004] 1 SCC 191; Kasturi v. Jyyamperumal
and Ors., [2005] 6 SCC 733; Dhannalal v. Kalawatibai and Ors.,
[2002] 6 SCC 1 and Indian Associates v. Shivendra bahadur Singh &
Ors., 104 (2003) DLT 820, referred to.
H
SUNILGUPTAv. KIRANGIRHOTRA[SINHA,J.] 829

) CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4729 of A
2007.
From the Judgment and final Order dated 31.08.2006 & 13.11.2006
of the High Court of Delhi at New Delhi in Civil Misc. (Main) No. 285
of2006 & Review Petition No. 393 of2006 respectively.
B
WITH
Contempt Petition (C) No. 270/2007.
Raju Ramachandran and Meenakshi Arora for the Appellant.
O.P. Khadaria (for Mitter & Co.) for the Respondents and Indra,
c
Respondent No. 4, In-Person.
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
D
2. The question as to whether a purchaser of a property belonging
to the deceased testator should be impleaded as a party in a probate
proceedings is the question involved in this appeal which arises out of
judgments and orders dated 31.08.2006 in C.M. (Main) No. 285 of 2005
and 13.11.2006 passed in Review Petition No. 393 of2006 by a learned E
Single Judge of the Delhi High Court.
3. The property in question admittedly belonged to one Har
·-.; Bhagwan. He died on 03 .11.1997. He was survived by his wife, four
daughters and two sons. Respondents herein are daughters of the said
Har Bhagwan. One of the sons of Har Bhagwan was Raj Kumar. Wife F
of Har Bhagwan has passed away. Allegedly, another son of Har Bhagwan
was given in adoption.
4. Har Bhagwan executed a Will on 09.09.1997. Respondents herein
) are the beneficiaries thereof. They filed an application for grant of probate G
in the year 2000. Both the sons of Har Bhagwan filed objections thereto.
Raj Kumar propounded another Will of the said Har Bhagwan which was
allegedly executed on 30.10.1997. Indisputably, Raj Kun1ar executed two
deeds of sale dated 20.06.2003 and 27.06.2003 in favour of one Amit
Pahwa. The properties purported to have been transferred by reason of H
\

~/
\

830 SUPREME COURT REPORTS [2007] 10 S.C.R.

A the said deeds of sale forming subject-matter of the grant under the Will.
No probate was obtained in respect of the said Will dated 30.10.1997.
Even no objection from other legal heirs of the late Har Bhagwan was
obtained. Immediately after execution of the said deeds, the said Amit
Pahwa entered into an agreement to sell dated 25.07.2003 in respect of
B one of the properties. In furtherance thereto, a purported deed of sale is
said to have been executed in respect of the other property on
29.08.2003.
5. Appellant herein filed an application for his impleadment in the
C said probate proceedings. It was allowed by an order dated 24.12.2004.
By reason of the impugned judgment, the High Court has reversed the
said judgment and order on an application filed under Article 227 of the
Constitution oflndia by the respondents herein.
6. Mr. Raju Ramachandran, learned Senior Counsel appearing on
D behalf of the appellant, in support of the appeal, would submit that the
High Court committed a serious error insofar as it failed to take into r

consideration that in a proceeding under the Indian Succession Act, 1925,
(for short, 'the Act') the court should always make an endeavour to avoid
multiplicity of proceedings. It was contended that the court's power to
E implead a party, who, strito sensu, may not be a necessary party is wide.
Strong reliance in this behalf has been placed on a decision in Banwarilal
Shriniwas v. Kumari Kusum Bai and Ors., AIR (1973) MP 69 as also
in Seth Beni Chand (since Dead) Now by L.Rs. v. Smt. Kam/a Kunwar
and Ors., [1976] 4 SCC 554].
F 7. Mr. O.P. Khadaria, learned counsel appearing on behalf of
Respondent Nos. 1 to 3 and Respondent No. 4, who appeared in person,
on the other hand, submitted that the appellant is not a necessary party
to the proceeding and, thus, the impugned judgment should not be
interfered with.
G
8. Chapter I of Pai1 IX of the Act provides for grant of Probate
and/or Letters of Administration. A probate can be granted only to an
executor appointed by the Will. Chapter III of the Act provides for
revocation or annulment for just cause. Illustration appended to Section
H 263 of the Act reads as under :
SUNILGUPTAv. KIRANGIRHOTRA[SINHA,J.] 831

)
"Illustration A
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have
been cited.
(ill) The will of which probate was obtained was forged or B
revoked.
(iv) A obtained letters of administration to the estate of B, as his
widow, but it has since transpired that she was never married
to him.
c
(v) A has been taken administration to the estate of B as if he
had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a latter will has been discovered.
(vii) Since probate was granted, a codicil has been discovered D
which revokes or adds to the appointment of executors under
the will.
(viii) The person to whom probate was, or letters of administration
were, granted has subsequently become of unsound mind."
E
9. Illustra'tion (ii) provides for revocation of grant if made without
citing parties who ought to have been cited.

-.. 10. Section 283 of the Act provides for the powers of the District
\
Judge to grant probate, which is in the following terms :
"283. Power of District Judge.- (1) In all cases the District judge F
or District Delegate may, ifhe thinks proper, -
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the will or the
right of the petitioner to the letters of administration, as the case G
maybe;
(c) issue citations calling upon all persons claiming to have any
interest in the estate of the deceased to come and see the
proceedings before the grant of probate or letters of H
832 SUPREME COURT REPORTS (2007] 10 S.C.R.

A administration.
(2) The citation shall be fixed up in some conspicuous part of the
court-house, and also the office of the Collector of the district and
otherwise published or made known in such manner as the Judge
or District Delegate issuing the same may direct.
B
(3) Where any portion of the assets has been stated by the petitioner
to be situate within the jurisdiction of a District Judge in another
State, the District Judge issuing the same shall cause a copy of the
citation to be sent to such other District Judge, who shall publish
c the same in the same manner as if it were a citation issued by
himself, and shall certify such publication to the District Judge who
issued the citation.".
11. Section 307(1) of the Act provides for power of the Executor
or Administrator to dispose of property in the following terms :
D
"307. Power of executor or administrator to dispose of property. - ,,.
(I) Subject to the provisions of sub-section (2), an executor or
administrator has power to dispose of the property of the
deceased, vested in him under section 211, either wholly or in part,
E in such mannef'as he may think fit."
12. Sons oflate Har Bhagwan had entered Caveats. Their objections
would be considered in the probate proceedings. Raj Kumai is not only
opposing grant of probate in favour of the respondents herein in respect y
of the Will date 09 .09.1997; but he himself is said to be claiming under a
F Will executed by Late Har Bhagwan on 30.10.1997.
13. A transferee of a property during the pendency of a proceeding
is not a necessary party. Citations are necessary to be made to only of
those who; inter alia, claim through or under the Will or deny or dispute
G the execution thereof. ~

14. The High Court in its impugned judgment has noticed that the
attesting witnesses of the Will had already been examined. If the appellant
herein is impleaded as a party, the clock would be put back. Before the
High Court as also before us, arguments have been advanced in reg_ard ·
H
SUNILGUPTA v. KIRANGIRHOTRA[SINHA,J.] 833

to conduct of the appellant as also the fact that they are only speculators A ,
who had purchased litigated properties. But we may not go thereinto.
15. In Banwarilal Shriniwvas (supra) whereupon Mr.
Ramachandran has placed reliance, the High Court was considering the
case of a purchaser in a proceeding under Section 263 of the Act.
B
16. Raj Kumar evidently was aware of the proceedings. If a
proceeding had been initiated for grant of probate, the appellant and/or
,.> his predecessor, Shri Amit Pahwa would be deemed to have notice thereof.
17. Citation, as is well-known, should be conspicuously displayed
on a notice board. i3efore purchasing the properties, Amit Pahwa and C
consequently the appellant had taken a calculated risk. In a situation of
this nature, he is not a necessary party. He took the risk of the result of
the probate proceedings. His apprehension that Raj Kumar may not take
any interest in the litigation cannot by itself a ground for interfering with
the impugned judgment. It is speculative in nature. D
18. In Seth Beni Chand (supra), whereupon reliance has been
placed by Mr. Ramachandran, this Court was considering an argument
as to whether alienees of properties are entitled to citation in probate
proceedings. This Court proceeded on the assumption that Banwarilal E
Shrinivas (supra) lays down the correct law. But even therein a distinction
was made stating that the alienee was a transferee pendent lite. The said
decision, therefore, is an authority for the proposition that no citation need
be issued to any person who had no right to the property prior to the
commencement of the probate proceedings. This Court in no uncertain F
term opined that the alienees had no right to be heard in the appeal The
said decision, therefore, runs counter to the submission of Mr.
Ramachandran.
19. We may notice that a Division Bench of the Delhi High Court in
Indian Associates v. Shivendra Bahadur Singh & Ors., [104 (2003) G
DL T 820], opined that the court must be satisfied in regard to the
execution of the Will. It is not concerned with any other arrangement. It
was held:
"26. The respondent on the other hand have tried to distinguish H
't
834 SUPREME COURT REPORTS [2007] 10 S.C.R.

A the cases relied upon by the appellant by contending that all those
were cases where, certain persons were allowed to intervene or
were impleaded but all were cases of family members and as such
as the appellant-herein, could apply to be made a party in probate
proceedings.
B
27. During the hearing of the matter, we drew the attention of
both the parties to the provisions of Section 307 of the Succession
Act, which made the permission of the court to be mandatory for
purposes of transfer of property by an administrator. Both the
parties were heard on this aspect."
c
20. Even otherwise ordinarily a transferee pendent lite without leave
of the court cannot be impleaded as a party. [See Bibi Zubaida Khatoon
v. Nabi Hassan Saheb and Anr., [2004] 1 SCC 191].
D 21. Furthermore, the plaintiff in the suit is the do minus litis. If he
intends to take a calculated risk in the matter, the court may not exercjse
its discretionary jurisdiction. [See Kasturi v. lyyamerumal and Ors.,
[2005] 6 SCC 733 - Para 18 and Dhannalal v. Kalawatibai & Ors.,
[2002] 6 sec 16, Para 23]
E 22. For the reasons aforementioned, we do not find any merit in
this appeal, which is dismissed accordingly with costs. Counsel's fee
assessed at Rs. I 0,000/-.
23. In view of the aforementioned judgment and order, no orders
are necessary to be passed in the contempt petition.
F
N.J. Appeal dismissed.