Jai Ram vs Som Prakash

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 2025 INSC 227 CIVIL APPEAL NOS. OF 2025 (@ SPECIAL LEAVE PETITION (C) NOS.1073-1074 OF 2023)

JAI RAM ...APPELLANT(S) VERSUS

SOM PRAKASH & ANR. ETC. ….RESPONDENT(S)

J U D G M E N T

Leave granted.

2. Briefly stated the facts of the case are that one Satwanti

Devi was the absolute owner of the property in question i.e., a

single storied building situated in Bagh Rao Ji, Khasra No.

157/48-51/2, Block A/68, Double Phatak Road, Delhi. She executed a

registered will dated 01.01.1991 in favour of Som Prakash (the

respondent No.1 herein), her nephew. However, it is alleged that

this will dated 01.01.1991 was subsequently revoked through a

registered revocation deed dated 26.09.1995. Thereafter, Satwanti

Devi is said to have executed another will on 30.01.1996 in favour

of Jai Ram (the appellant herein), who was a tenant in the

property in question. Satwanti Devi passed away issueless on

30.12.1996.

3. Thereafter, respondent No.1 filed a civil suit in Suit No. 91

of 1997 seeking the relief of permanent injunction against the Signature Not Verified Digitally signed by NEETU SACHDEVA appellant herein in respect of the property in question which was Date: 2025.02.17 11:48:14 IST Reason:

subsequently dismissed as withdrawn. In the meantime, the

1 appellant filed a Probate Petition bearing No. 136 of 1997 on the

basis of the will dated 30.01.1996 and the same was dismissed for

default.

4. Later, respondent No.1, on the basis of Will Deed dated

01.01.1991, filed a probate petition No. 382 of 1997 before the

Court of District Judge, Delhi. By order dated 01.09.1999, the

learned District Judge granted Letters of Administration of the

property in question in favour of respondent No.1.

5. Thereafter, respondent No.1 sold the property in question in

favour of one Raj Kumar Choudhary in the year 2008. Subsequently,

Raj Kumar Choudhary filed a civil suit No. 261 of 2009 seeking

possession, permanent injunction and recovery of damages against

the appellant herein. By judgement dated 03.02.2012, the suit was

decreed ex parte in favour of Raj Kumar Choudhary who has

thereafter filed an execution petition.

6. During the pendency of this litigation, the appellant claims

to have received the summons in the year 2013, at which time he

discovered that Letters of Administration had already been granted

to respondent No.1 concerning the property in question.

7. Being aggrieved, the appellant filed an application under

Order IX Rule 13 of the Code of Civil Procedure, 1908 (“Code” for

short) in Suit No. 261 of 2009 on 27.02.2013 seeking for setting

aside the ex parte decree and the same was allowed by order dated

31.10.2019.

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8. Thereafter, the appellant also filed an application Misc No.

61012 of 2016 before the learned District Judge, Delhi seeking for

revocation of Letters of Administration dated 01.09.1999 granted

in favour of respondent No.1 in respect of will dated 01.01.1991.

The learned District Judge by order dated 20.12.2017 allowed the

miscellaneous application filed by the appellant under Section 263

of the Indian Succession Act, 1925 (for short “1925 Act”) and

revoked the grant of Letters of Administration dated 01.09.1999 in

respect of will dated 01.01.1991 in favour of respondent No.1. The

learned District Judge held that the will dated 01.01.1991 in

favour of respondent No.1 had been revoked by way of a revocation

deed dated 26.09.1996 and a second will dated 30.01.1996 was

executed by the testator in favour of the appellant herein.

9. Being aggrieved, respondent No.1 approached the High Court of

Delhi by way of filing FAO No. 223 of 2018. By the impugned order

dated 10.10.2022, the High Court allowed the appeal preferred by

respondent No.1 and set aside the order dated 20.12.2017. The High

Court observed that the appellant herein filed the revocation

application beyond the period of limitation. Hence the instant

appeal has been filed.

10. We have heard learned counsel for the appellant and learned

senior counsel for the respondents and perused the material on

record.

11. During the course of submissions, learned counsel for the

appellant contended that the High Court was not right in setting

3 aside the order dated 20.12.2017 passed by the District Court on

an application filed by the appellant herein under Section 263 of

the 1925 Act seeking revocation of the grant of probate in favour

of the appellant/Som Prakash in Probate Case No.382/1997 titled as

Som Prakash vs. The State by Order dated 01.09.1999. He contended

that to said application, there was no objection filed in Misc.

No.61012/2016 before the concerned District Court. There was no

objection raised with regard to the application being belated.

Consequently, the learned District Judge considered the said

application on merits and granted relief by order dated

20.10.2017. However, in the appeal(s) filed as against the said

order, a contention was raised for the first time before the High

Court to the effect that the application filed by the appellant

herein under Section 263 of the 1925 Act was belated and therefore

was not maintainable. He submitted that the High Court was not

right in accepting the said contention, firstly, because there was

no such plea made before the District Court and secondly, no

evidence was let in on the plea regarding limitation before the

District Court. Consequently, the impugned order setting aside the

order of the District Court is erroneous as the issue of

limitation is a mixed question of law and facts. He therefore

submitted that at best the respondents could only have had a

consideration of their appeals on merits and not on the issue of

limitation. He, therefore, submitted that the impugned order may

be set aside and the order of the District Court may be restored.

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12. Per contra, learned senior counsel appearing for the

respondent(s) submitted that although the contention regarding

limitation was not raised before the District Court in the

application filed under Section 263 of the 1925 Act by the

appellant herein, nevertheless, it was the duty of the District

Court to have considered the said aspect and on a consideration of

Article 137 of the Limitation Act, 1963, it would be evident that

the application filed by the appellant herein seeking revocation

of grant of probate under Section 263 of the 1925 Act was highly

belated and hit by Article 137 of the Limitation Act. He,

therefore, submitted that the High Court rightly appreciated the

contentions of the respondents herein and consequently set aside

the order of the District Court and there is no merit in these

appeals.

13. We have considered the arguments advanced at the Bar in light

of the facts of the case as well as the contentions raised by

learned counsel for the respective parties.

14. It is noted that there was no objection raised to the

application being filed by the appellant herein under Section 263

of the 1925 Act as being hit by Article 137 of the Limitation Act.

Had such an objection being raised by the respondents expressly

possibly the District Court would have raised the issue in that

regard and evidence would have been let in by the parties.

However, in the absence of such a plea raised by the respondents

herein, the District Court proceeded to consider the application

5 filed under Section 263 of the 1925 Act on its merits and allowed

the said application.

15. Being aggrieved by the said order, the respondents herein

preferred the appeal(s) before the High Court. We find that the

High Court was not right in setting aside the order of the

District Court on the ground that the application filed by the

appellant herein under Section 263 of the 1925 Act was hit by

Article 137 of the Limitation Act and thereby setting aside the

order of the District Court passed on the application filed by the

appellant herein. This is more so because there was no objection

raised by the respondents herein before the District Court.

Consequently, in the absence of any averment, no issue was raised

and no evidence was let in on that aspect of the matter. But, in

the absence of such a plea or evidence on the issue of limitation,

the High Court could not have set aside the order of the District

Court.

16. In the circumstance, we set aside the order of the High Court

dated 10.10.2022 and restore FAO Nos. 223/2018 and 239/2018 on the

file of the High Court.

17. The High Court is requested to consider the said appeals

purely on merit and without going into the question of limitation

as there is no pleading on this aspect and consequently no issue

raised or evidence being let in before the District Court.

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18. It is needless to observe that all contentions on the merits

of the appeal(s) are reserved to be raised by the respective

parties.

19. The High Court shall consider the appeals as expeditiously as

possible and in accordance with law.

20. The Appeals are allowed and disposed of in the aforesaid

terms. No costs.

Pending application (s) shall stand disposed of.

………………………………………………………J. [B.V. NAGARATHNA]

………………………………………………………J. [SATISH CHANDRA SHARMA]

NEW DELHI;

FEBRUARY 03, 2025.

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ITEM NO.38 COURT NO.7 SECTION XIV

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 1073-1074/2023

[Arising out of impugned final judgment and order dated 10-10-2022 in FAO No. 223/2018 10-10-2022 in FAO No. 239/2018 passed by the High Court of Delhi at New Delhi]

JAI RAM Petitioner(s) VERSUS

SOM PRAKASH & ANR. ETC. Respondent(s)

[TO BE TAKEN UP IMMEDIATELY AFTER FRESH CASES] IA No.8735/2023-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT

Date : 03-02-2025 These petitions were called on for hearing today.

CORAM :

HON'BLE MRS. JUSTICE B.V. NAGARATHNA HON'BLE MR. JUSTICE SATISH CHANDRA SHARMA

For Petitioner(s) :Mr. Rakesh Uttamchandra Upadhyay, AOR Ms. Aarti U. Mishra, Adv.

Mr. Harsh Som, Adv.

For Respondent(s) :Mr. Sanjeev Anand, Sr. Adv.

Mr. Sanjay Jain, AOR Ms. Kajal Chandra, Adv.

Mr. Hatneimawi, Adv.

UPON hearing the counsel the Court made the following O R D E R Leave granted.

The Appeals are allowed and disposed of in terms of the

signed non-reportable judgment.

Pending application(s) shall stand disposed of.

(NEETU SACHDEVA) (DIVYA BABBAR) ASTT. REGISTRAR-cum-PS COURT MASTER (NSH)

(signed non-reportable judgment is placed on the file.)

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