Lack of locus standi for tenants to challenge a probate and the application of the Limitation Act, 1963, in determining the timeliness of the petition.

VALMIKI J. MEHTA, J (ORAL)

1. The matter was passed over on the first call on behalf of the appellants. On the second call, no one is present for the appellants. I have therefore heard he counsel for the respondent and after perusing the record am proceeding to dispose of this appeal which is about 10 years old.

2. The challenge by means of this appeal under Sections 384 and 299 of the Indian Succession Act, 1925 (in short „the Act?), is to the impugned judgment dated 20.4.2002. By the impugned judgment the trial court/probate court had allowed an application under Order 7 Rule 11 CPC filed by the respondents in a petition filed by the appellants under Section 263 of the Act, and therefore rejected the petition under Section 263 of the Act. By the impugned judgment, the trial court has dismissed the petition under Section 263 of the Act on two counts. The first count was that the tenants in a property viz the appellants have no interest so as to seek revocation of a probate granted to the beneficiaries of a Will. The second count was that the petition was held to be barred by time as having been filed beyond three years.

3. The facts of the case are that the suit property was owned by one Smt. Sona Devi. Smt. Sona Devi executed a Will dated 16.7.1981 bequeathing the suit property to Sh. Gopal Gupta, S/o Sh. Raj Kishore Gupta. A probate case bearing no. 246/1985 was filed by Sh. Raj Kishore Gupta for grant of probate of the Will dated 16.7.1981 and vide order dated 4.5.1987, probate petition was allowed and Sh. Raj Kishore Gupta was granted probate of the Will of Smt. Sona Devi dated 16.7.1981.

4. The appellants were the petitioners before the probate court under Section 263 of the Act and sought revocation of the probate granted vide order dated 4.5.1987. The stated interest of the appellants was that they were tenants in the property owned by the deceased. The trial court with respect to the issue of lack of entitlement of tenants to file a petition for revocation of a probate held that tenants who have no concern with the beneficial interest in the bequeathed property, can have no rights/locus standi to file a petition under Section 263 of the Act. The relevant observations of the trial court in this regard are contained in para 12 of the impugned order and which reads as under:-

“12. There cannot be any dispute about the fact that the tenancy rights are very valuable rights. It is true that in para 18 of the Municipal Corporation Greater Bombay Vs. Lal Pancham and Others (supra) it was observed by the Hon?ble Supreme Court that the tenant has an interest in the demise premises under the Transfer of Property Act as well as Under Section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In my view that interest is not the interest in the estate of the deceased under Section 218 of the Indian Succession Act. The question which came up for consideration before the Hon?ble Supreme Court in the above mentioned case was regarding vires of Section 354 R and 354 RA of the Bombay Municipal Corporation Act, 1888. Plea raised on behalf of tenants (respondents in the SLP) was that the Section 354R and 354RA did not contemplate any notice to the tenant though they had interest in the demise premises. It was held by the Hon?ble Supreme Court that under the scheme the tenants could have filed objections to the order for clearance being occupants of the building or being the persons likely to be dishoused and therefore, Section 354R and 354RA were intra-vires of the Constitution. Similarly, in Ratnamala Dasi and others Vs. Ratan Singh Bawa (supra) what was held was that a tenant is entitled to the declaration relating to his interest in the tenanted property. Similarly, in Banwarilal Shriniwas Vs. Kumari Kusum Bai and others (supra) what was in dispute before the Hon?ble Madhya Pradesh High Court was whether a purchaser of a property by reason of transfer from the legal heirs of the deceased h