Madras High Court
S.D. Ponnuswamy Mudaliar vs S.K. Somasundaram on 28 June, 1991
Equivalent citations: (1992)1MLJ210
JUDGMENT Mishra, J.
1. A learned single Judge of this Court has allowed an application for revocation of the probate in O.P. No. 15 of 1982 granted in favour of the appellant. Hence the appeal under Clause 15 of the Letters Patent of this Court.
2. One S.T. Subbaraya Mudaliar who died on 23rd August, 1978, executed a will with respect to his properties including a property at Mallan Ponnappa Mudali Street, Triplicane in the city of Madras. This property, according to the respondent herein, belonged to one Sundara Mudaliar who had four sons, Manicka Mudaliar, Thangavelu Mudaliar, Kuppuswamy Mudaliar, Kamatchi Mudaliar. Manicka Mudaliar died leaving behind his only son Loganatha Mudaliar. Thangavelu Mudaliar died leaving behind Doraisami Mudaliar. Kuppuswami Mudaliar died leaving the respondent herein and Kamatchi Mudaliar died without any issues.
3. Loganatha Mudaliar died leaving his only son Arumugha Mudaliar. Arumugha Mudaliar filed a suit for partition of his share in the joint family property. It had so happened however that the property in Triplicane had been purchased by Subbaraya Mudaliar in Court auction. Arumugha attacked The court auction purchase and obtained a preliminary decree setting aside the court auction sale and directing Subbaraya Mudaliar to pay a sum of Rs. 3,092. It was alleged that Subbaraya Mudaliar paid the amount. He however died leaving his three sons and six daughters, one daughter pre-deceasing him. Subbaraya Mudaliar took possession of the property in May, 1981. The respondent herein, it is claimed, purchased 1/8th share in the property from one of the daughters of Subbaraya Mudaliar, namely Rajeswari, for a consideration of Rs. 4,000 and another 1/8th share for a consideration of Rs. 3,000 from the legal heirs of Indirani. He filed a suit in O.S. No. 906 of 1980 on the file Of the City Civil Court, Madras, for partition and separate possession of 1/4th share in the property. He however came to know in the said proceeding that a will was probated on 18.2.1982. Alleging that the appellant herein was well aware of the fact that he (the respondent) had purchased 1/4th share in the property and that he was deliberately not cited as one of the persons interested in the property by the appellant herein in the application for grant of probate the respondent herein moved the court for revocation of the probate.
4. In this application, the respondent stated that Rajeswari, daughter of Subbaraya Mudaliar and the husband of Indirani for himself and on behalf of his minor son transferred Rajeswari's 1/8th share in the property bearing door No. 75, Mallan Ponnappa Mudali Street, for a consideration of Rs. 4,000on 7.12.1979 and Indirani's 1/8th share in the property on 21.12.1979 for a sum of Rs. 3,000. He thereafter filed the suit in O.S. No. 906 of 1980 on the file of the IX Assistant Judge, City Civil Court, Madras, for partition and separate possession. He impleaded all the heirs of Subbaraya Mudaliar as defendants. They took the defence that their father had executed a will and that application for grant of probate had already been filed by the appellant herein. It is then stated in the petition: "The said suit came up on the list for trial on 16.12.1982 and the examination of the applicant was over on 17.12.1982. It is only on that day, suddenly without notice a probated will was sought to be marked in the suit. It is only at that time I came to know that a will in respect of the premises No. 75, Mallan Ponnappa Mudali Street was probated by this Hon'ble Court ex parte in the above O.P. on 13.2.1982"...It is noteworthy to mention here that the heirs of the late Subbaraya Mudaliar who derive benefit from the alleged will said to have been executed by late Subbaraya Mudaliar have not whispered even in all proceedings regarding the probate of the will....The very same counsel who is conducting case for the heirs Of Subbaraya Mudaliar is the counsel who filed the above O.P. for probate and who is aware of that I have purchased the substantial portion of the property covered in the alleged will said to have been executed. The petitioner Ponnuswamy Mudaliar and also the heirs of the late Subbaraya Mudaliar are all quite alive to the fact that I have purchased 1/4th share of the property. In this regard a notice was already issued through my counsel to the executor, the petitioner in the above O.P. and the other heirs of Subbaraya Mudaliar that I have purchased the valuable 1/4th share of the property for valuable consideration and' attacking the alleged will said to have been executed by Subbaraya Mudaliar. All the persons including the petitioner in the above O.P. received the notice and replied through their counsel on 10.9.1990. In the same notices, I also demanded a copy of the alleged will which was not complied with. Right from the beginning I was attacking and challenging the alleged will said to have been executed by late Subbaraya Mudaliar as a rank forgery and not valid in law....Suppressing all these facts and without making me as a party in the above O.P. the petitioner has snatched away an ex pane order of probate from this Hon'ble Court by misguiding this Hon'ble Court....
5. It is not necessary to take notice of the details stated in the objections and rejoinders filed on behalf of the appellant, for, this has not been disputed before us that the respondent herein had not been cited in the probate application as a person interested in the property. It is however clear that the appellant in his application for probate cited all the sons and daughters of Subbaraya Mudaliar including Rajeswari. While all other heirs cited in the petition filed consent affidavits accepting the genuineness of the will, Rajeswari did not do so. Before however the probate was granted, Rajeswari's name was excluded from the citation. No notice thus was ever issued to her. She, of course, in the meanwhile had transferred her interest, if the claim of purchase of her 1/8th interest in the property by the respondent herein is correct, before her name was removed from the citation.
6. The disposition of one's estate by a testament is a rule that applies to succession to the property of a Hindu when the will is found written, whether registered or not, and attested by witness. Indian Succession Act takes care of the applications for probate or letters of administration with the will annexed and the contents thereof stating fully the time of the testator's death, that the writing annexed was his last will and testament that it was duly executed etc; The Court which is empowered to grant probate or the letters of administration however has to issue citation before the grant of administration calling on the next of kin to accept or refuse. However, if all conditions are satisfied, due execution is proved and the attesting witnesses corroborate, probate or letters' of administration is granted. Section 263 of the Act however states:
263. Revocation or annulment far just cause: The grant of probate or Letters of Administration may be revoked or annulled for just cause. Explanation: Just cause shall be deemed to exist, where-
(a) the proceeding to obtain the grant were defective in substance; or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant though such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that chapter an inventory or account which is untrue in a material respect.
One of the illustrations of just cause for revocation or annulment is, "the grant was made without citing parties who ought to have been cited."
In Anil Behari Ghosh v. Latika Bala Dassi , it has been stated by the Supreme Court:
The omission to issue citations to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant. But this is not an absolute right irrespective of other considerations arising from the proved facts of a case. The law has vested a judicial discretion in the court to revoke a grant where the court may have prima facie reasons to believe that it was necessary to have the will proved afresh in the presence of interested parties. But in the present case we are not satisfied in all the circumstances of the case that just cause within the meaning of Section. 263 had been made out.
In a judgment of this Court in Sivagnanam v. Sadananda Mudaliar , a Division Bench has taken notice of this provision and noted the judgment of the Supreme Court to state the law in these words:
The grant of a probate may be revoked for a just cause; 'just cause' is explained in the body of the section itself. The various clauses which explain the expression 'just cause' provide guidelines for the court, whose assistance is sought for revocation of a proper grant under the Act. As revocation of a grant implies the effect of the earlier valid judicial order of a court, not only there should be caution in acceding to such a request but strict proof of the existence of one or other of the circumstances enumerated in explanation to Section 263 of the Indian Succession Act is necessary before the Court could accede to such request.
Revocation should be for a just cause. The illustrations to the section also provide some material to the Court as to when it could exercise its discretion to reverse a grant. Illustration (ii) to Section 263 probably is the only material illustration which has an impact on the facts and circumstances of this same.... Then it would be a just cause which would enable the Court to revoke the grant. We doubt it is fundamental that a judgment in rem should be pronounced in the presence of all parties interested, however slight such interest may be. But this is not axiomatic. Each case has to be decided on its own merit. Absence of just cause cannot be presumed on a priori consideration.
Speaking in the same vein yet another Bench of this Court in Shanmugham Cherry v. Chinnammal (1978) 1 M.L.J. 496, has said:
The mere absence of a special citation in proceedings in which probate of a will is granted is not, where the parson to whom a citation has not been issued is otherwise aware of the proceedings, a 'just' cause for revocation.
The law stated above by a Bench of this court is similar to the one stated by the Madhya Pradesh High Court in Rajeswari Devi v. Harilal . It has been pointed out in the said case that:
Person claiming issue of citation and its service must showprima facie case for revocation. The absence of citations in a Case in which they are ordered but did not issue does not by itself constitute just cause for revocation of probate. In cases where citation had not been ordered, the partly impugning the will on the ground of his non-citation must first show that he ought to have been cited, before the burden of proof is shifted to the executor to show that the defect in the proceedings was not one of substances and that no just cause for revocation exists.
The Madhya Pradesh High Court has said in the case cited above that absence or non-service of citation will not be a defect of substance so as to constitute a just cause under Section 263 of the Act where non-cited party has knowledge of probate proceedings or where he is not prejudicially affected thereby.
6. It is easy thus on the facts of the instant case to say that the respondent has undoubtedly some interest in the property which he claimed as purchaser from Rajeswari and the heirs of Indirani. It is possible on the facts proved to accept that the appellant knew about the two sale deeds executed by Rajeswari and the heirs of indirani respectively. He for the said reason was a person who ought to have been cited before the probate was granted.
7. On this thesis it would be reasonable to hold that there was a just cause to the respondent to seek revocation of the probate.
8. Learned Counsel for the appellant has however contended that the omission to issue a citation to persons, as held by this court in the past as well as the Supreme Court, who should have been apprised of the probate proceedings may be a just cause, but alone will not be enough to efface or nullify the probate. It will be necessary as held by this court as well as the Supreme Court to find that the respondent was unaware of the proceedings or that he had no opportunity to enter caveat and further that his absence in the proceedings has resulted in some miscarriage of justice.
9. Learned Counsel has heavily relied upon the fact that at the first opportunity in the suit for partition, they pleaded the will and the respondent thus came to know about the will. He having thus come to know about the will could always enter caveat or appear before the court to oppose the grant of arobate. There may be truth in what the appellant say that the respondent had known about the probate proceedings and that he could have entered caveat. A caveat is a step preliminary to the commencement of any action. The caveator by a caveat puts the court to caution that nothing should be done in the proceeding without giving him an opportunity of raisingany question arising in respect to the grant of probate. This course was open to the respondent. But then it is conceded before us that one of the vendors of the respondent, namely Rajeswari, besides others, was one of the parties cited in the petition and she thus was entitled to a notice. While all other persons cited gave consent affidavits to the grant of probate, Rajeswari was not one of them. While the contest in the partition suit continued the appellant removed the name of Rajeswari from the citation and thus deprived her of any opportunity to object to the probate. Rajeswari had exercised her right of disposition of the property allegedly covered by the will only on the basis that there was no valid will of any kind or that the properties were to go to the heirs and legal representatives of the testator in accordance with law of intestate succession. Since Rajeswari had been cited and Rajeswari could raise all such objections which as the transferee from Rajeswari the respondent could, they could genuinely believe that the will will be contested and the proceedings for probate would be contentious. There was no need thus for the respondent to enter caveat so long as Rajeswari was cited and he had reasons to believe that she would raise all such objections which he would/ could raise. Moreover, it is easy on the one hand to suggest that the respondent knew about the probate proceedings and thus had the opportunity to enter caveat and question why did he not enter caveat if he had some genuine grounds to object to the grant of probate. On the other hand, the same would apply to the appellant why having come to know about the transfer by Rajeswari of her interest in favour of the respondent and heirs and legal representatives of Indirani, their interest in the property in favour of the respondent, he did not cite the respondent as a person interested. In a natural course when Rajeswari's name was removed one could think of citing the transferee from Rajeswari in her place. That the appellant did not do. A just cause to seek revocation as held by the courts will not be ignored if the propounder's conduct is suspicious. We find sufficient (sic) the reason of removal of the name of Rajeswari and not substituting in her place the name of her transferee.
10. For the reason aforesaid, we find no fault in the order of the learned single Judge. He has rightly revoked the grant of probate. It will be fair that party gets full opportunity and all the contentions are decided in accordance with law. There is no merit in the appeal. The appeal is accordingly dismissed. No costs.