Whether Defendant can take a defence of unprobated will in a partition suit?

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Shubham Budhiraja[1]

 

Mr. A filed a partition suit against Mr. B. Mr. B took a defence that ad-valorem fees were not paid and there is already a will. The Hon’ble Court held that in the case of joint / co-owner unless ouster is pleaded, only fixed court fee to be paid. Merely because Mr. A married to a US citizen and she's living there doesn't mean she is not in possession of property. It further held that Mr. B can take a defence of will even if will is not probated. In Delhi, the Probate of a Will is not mandatory and if there is a challenge raised to the title of the defendants in any proceedings, they cannot be rendered remediless to set up the Wills in support of their claim to a share in property. Merely non-seeking of Probate by the defendant, would not render the Wills invalid nor are they debarred under law to rely on the Wills to establish their title to the suit property.[2]

 

 

(I)                In Prakash Wati vs Dayawanti, (1990) 42 DLT 421, that it is a settled principle of law that in the case of co-owners, the possession of one is in law the possession of all unless ouster or exclusion is proved.

 

(II)              In Jagdish Pershad v. Joti Pershad, 1974 SCC OnLine Del 214, this court in Prakash Wati (Supra) re-iterated that, when the plaintiff asserts shared possession of the property for which partition is requested, whether actual or constructive, the plaintiff is only required to pay a fixed court charge in accordance with Article 17(vi) Schedule II of the Court Fees Act, 1870.

 

(III)            Thus, ad volarem court fee under Section 7(iv) (b) of the Court Fees Act, 1870 can be applied only when the plaintiff has been ousted from its enjoyment of the suit property and seeks restoration of the joint possession by way of a suit as was held in Asa Ram Vs. Jagan Nath and others, AIR 1934 Lahore 563

(IV)             The actions relating to succession of an estate, are on different footing from a civil suit, the rationale substantially being that these proceedings have an efficacy in rem rather than in personam.

 

(V)               Third party interest may not be in jeopardy inter alia, because of the application of the principles of res judicata in the latter category. Public citation, among other reasons, is therefore, carried out in Probate/ Letter of Administrative/ Succession petitions.

 

(VI)             The partition suit and the probate proceedings are distinct and title suit need not be stayed while the probate proceedings are pending.

 

(VII)           In a civil suit where the Will is called in issue, the court can look into various surrounding circumstances including allegations relating to suspicious circumstances, if any. The genuineness of a Will, the Wills prior or subsequent to the execution of the Will relied upon are issues which may not arise in a probate petition. Thus, the scope of proceedings in a partition suit is thus broader than that in a probate petition.

 

(VIII)        The scope and the nature of a partition suit and a probate petition are different, the outcome in a probate petition does have an impact on the judgement in a partition suit.

 

(IX)             In an application filed for grant of probate or Letters of Administration, no right or claim of the applicant is ascertained as he merely seeks recognition of the Court to perform a duty. The probate or Letter of Administration issued by the competent Court is a conclusive proof of the legal character of the Will. That the proceedings filed for grant of probate or Letters of Administration is not an action in personam but is an action in rem.


[1] Advocate, Delhi High Court [LLB, ACS, BCOM(H)], Budhirajalawchambers@gmail.com , +91-9654055315

[2] Geeta Tandon v. Dr. Sunil Gomber, CS (OS) 2036/2012 dated 10/04/2023

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