Madras High Court
Unknown vs Kalaiselvam) on 23 August, 2012
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.08.2012 CORAM THE HON'BLE MR. JUSTICE R.SUBBIAH APPLICATION Nos.2105 & 2106 OF 2012 IN O.P.No.503 OF 2011 ORDER
The above applications have been filed to revoke the grant of Probate of the Will, dated 30.1.1991 executed in favour of the Respondent herein by order, dated 22.11.2011 in O.P.No.503 of 2011.
2. The brief facts which are necessary for the disposal of the above two applications are as follows:-
a. The respondent herein filed O.P.No.503 of 2011 for grant of Probate in respect of the Will, dated 30.1.1991 of late Tmt. P.Thirupurasundari Ammal. This Court, by order, dated 22.11.2011 granted the probate. Now the present applications have been filed by the applicants herein for revocation of the grant of probate stating that the applicant (V.N.Soundararajan) and his elder brothers late V.N. Sampath Kumar, late V.N. Punithavel and himself are the orphaned children of late V. Natarajan and late N.Sulochana. After the demise of their parents in the year 1946 and 1947 respectively, all the three brothers being the legal heirs of their aunt late Dr. Miss P.S. Ravikannammal were brought up by the said Ravikannammal, who is the unmarried sister of their mother late N. Sulochana.
b. It is the case the applicants that during the life time, late Dr. Miss P.S.Ravikannammal had acquired several assets and in particular the property bearing plot and Door No.73 C, First Main Road (East) Shenoy Nagar, Chennai-30 the said property measuring an extent of 6629 sq.ft. together with land and building was purchased in the year 1954 by way of sale deed registered as document No.1988 of 1954, from and out of her own earnings. Late Dr. Miss P.S. Ravikannammal was residing in the said premises along with this applicant, his brothers and their aunt late L. Thripurasundari Ammal, the widowed sister of late Dr.Miss. P.S. Ravikannammal.
c. It is the further case of the applicants that during her life time, in the year 1982 late Dr. Miss P.S. Ravikannammal sold a portion of the above said property measuring an extent of 2918 sq.ft. of land together with the building under document No.315/1982 and retained the balance part of the land in the property measuring about 3711 sq.ft. of land and constructed the existing building thereupon. The said Ravikannammal died intestate on 5.2.1988 at the age of 70.
d. It is stated that after the demise of his aunt the said Ravikannammal in the year 1988, the applicant's eldest brother late V.N.Sampath Kumar and the applicant, his widowed aunt L. Thirupurasundari Ammal and his another brother V.N.Punithavel, they are in joint possession and enjoyment of the above said property. The applicant's elder brotherV.N. Sampath Kumar died in the year 1992 leaving behind his son S.Sivakumar and his wife Mrs. Usha Sampath Kumar. The applicant and his another brother V.N. Punithavel had reposed full confidence with the respondent S. Sivakumar and authorised him to collect rent from the said property. The respondent collected the original title deeds pertaining to the said property from the applicant's (A.No.2106 of 2012) brother V.N.Punithavel in the year 2004 stating that the said document is required for the transfer of ownership of the said property in the name of legal heirs of the said Ravikannammal. But the respondent with an intention to grab the entire property of the said Ravikannammal has not made any attempt to transfer the ownership of the said property as represented by him.
e. Further, it is the case of the applicant that his brother V.N. Punithavel and himself are entitled to 1/3rd share each of them in the said property. Hence, the applicant had filed a suit for partition and separate possession of his 1/3rd share in the suit property as against the respondent herein and his brother in which the applicant's another brother V.N. Punithavel was added as 3rd respondent. The said suit has been numbered as C.S.No.3 of 2007 on the file of this Court and due to pecuniary jurisdiction the same has been transferred to the Fast Track Court No.I, Chennai and renumbered as O.S.No.6029 of 2011 and during the pendency of the suit the said V.N. Punithavel died in the year 2011. The respondent by suppressing the pendency of the said suit for partition filed the petition for probate. The alleged Will shows that even the signature of the deceased Thirupurasundari Ammal is forged and a fraud has been played by the respondent upon this Court. When the suit is pending and the right of the applicant is involved in the said property, the applicant should have been added as a party to the O.P. Proceedings and even on the ground of non joinder of necessary party, the probate can be revoked. The respondent suppressed the material facts and obtained the probate. The grant of probate is not brought to the knowledge of the applicant immediately, though the grant of probate was ordered on 22.11.2011. Only on 3.2.2012 the learned counsel appearing for the respondent herein informed the Fast Track Court Judge about the granting of probate in the suit filed bythe applicant for partition. Hence, the present application has been filed for the relief as stated supra.
3. The respondent has filed a counter interalia contending as follows:-
a. The above application is not maintainable in law nor sustainable on facts. The applicant knew that the said Ravikannammal died intestate on 5.2.1988 leaving behind her only sister Thirupurasundari Ammal and that under the Will, dated 30.1.1991 of the said Thirupurasundari Ammal the property was bequeathed in his favour and he initiated the probate proceedings. His mother Smt. Usha Sampath Kumar and the respondent filed a written statement on 22.12.2008 in O.S.No.6209 of 2001 on the file of the Fast Track Court and in the said written statement all the details were given by the respondent. The applicant, who is the plaintiff in the said suit has not even filed a reply statement. The above said property was absolutely owned by the said Ravikannammal and that on her death, her only surviving sister by then Smt. P. Thirupurasundari Ammal became entitled to the above said property. Since then, the said Thirupurasundari Ammal was in absolute enjoyment of the said property till her death on 8.9.1996. The said Thirupurasundari Ammal by her Will, dated 31.1.1991 had bequeathed the above said property in his favour.
b. It is further stated that without having any right whatsoever in the above said property, the applicant has filed the said suit claiming 1/3rd share in the said property. The said suit was filed against him, his mother and the brother of the applicant, namely, V.N. Punithavel. In the written statement filed, he had stated the above facts. This Court probated the Will as there was no Class I legal heirs of Testatrix Smt. P. Thirupurasundari Ammal as she died issueless and her husband P. Loganatha Mudaliar predeceased the testatrix. As there was no Class I heirs of the testatrix, none were needed to be shown as the respondents in the probate proceedings relating to the Will of the Thirupurasundari Ammal. Since the above Will is in respect of the above said property left behind by Smt. P. Thirupurasundari Ammal who acquired title on the death of the said Ravikannammal, the above application for revocation cannot be entertained. On the aforesaid pleadings, the respondent prayed for the dismissal of the above application.
4. Heard the learned counsel on either side.
5. At the outset, it is pertinent to see the genealogy tree and the related facts for the better understanding of the case.
Janakiammal (died 1976) grandmother | |
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| | | | | | |
Daughter Daughter Daughter Daughter Daughter son Daughter
1 2 3 4 5 6 7
Gigi Bai Radha Bai Thirupura- Padma Ravikan- Radha- Sulochana
sundari namal krishnan
died in/on
----------
1933 1935 12.09.1996 1932 5.2.1988 1947 1943
| no issues no issues unmarried unmarried wife sons
daughter died |
Hamsaveni Children- |
died 1982 whereabouts not |
known |
|
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| | |
| | |
V.N.Sampathkumar V.N.Punithavel V.N.Soundararajan
died 1992 died on 16.9.2011
| | Applicant in
wife wife & A.No.2106/2012
son 4 children
Shivakumar
(Petitioner in O.P.& Applicants in
Respondent in both A.No.2105/2012
Applications)
a. The applicant V.N. Soundararajan and V.N. Punithavel and V.N. Sampath Kumar are the sons of Mrs. Sulochana, who died in the year 1943 and their father V.Natarajan died in the year 1946. The respondent herein, namely, Sivakumar, the petitioner in O.P.No.503 of 2011 is the son of V.N. Sampath Kumar, who is one of the brothers of the applicant. The applicant's mother Mrs. Sulochana had five sisters, namely, Mrs. Gigi Bai, Mrs. Radha bai, Mrs. Thirupurasundari, Miss Padma, Dr.Miss. Ravaikannammal and one brother Mr. Radhakrishnan. The suit property was the self acquired property of Dr. Miss Ravikannammal, who is one of the sisters of the applicant's mother and she died on 5.2.1988. Except one of the sisters, namely, Mrs. Thirupurasundari Ammal, all the other sisters and brother died before the death of the said Ravikannammal.
b. It is the case of the applicant that the applicant and his two brothers, namely, V.N.Sampath Kumar and V.N. Punithavel are the orphaned children of Dr.Miss Ravikannammal and after the demise of the said Ravikannammal, the applicant and his two brothers are entitled for 1/3rd share each in the said property. The applicant's brother V.N. Sampathkuar died in the year 1992 leaving behind him his son Sivakumar, the respondent herein and his wife Usha Sampathkumar.
c. It is the further case of the applicant that the respondent had obtained the original documents of the said property from his brother V.N.Punithavel for transfer of ownership of the property. Thereafter, without making any effort to transfer the property in the name of the legal heirs of the said Ravikannammal, the respondent herein made an attempt to grab the property, which necessitated the applicant to file a suit for partition against the respondent and his mother and the brother of the applicant, namely, V.N. Punithavel. The said suit has been numbered as C.S.No.3 of 2007 on the file of this Court and subsequently due to the enhancement of pecuniary jurisdiction of the City Civil Court, the same has been transferred to the Fast Track Court No.I, Chennai and renumbered as O.S.No.6029 of 2011 and the same is pending for trial. In the said suit, Mr.V.N. Punithavel filed a counter in support of the applicant's case. When the suit was pending the respondent by suppressing the pendency of the suit for partition filed O.P.No.503 of 2011 based on the alleged Will, dated 30.1.1991 executed by the said Thirupurasundari Ammal, who is one of the sisters of the said Ravikannammal and obtained the probate.
d. It is the case of the respondent that after the demise of the said Ravikannammal, the property devolved upon one of the suruviving sisters, namely, Thirupurasundari Ammal. The said Thirupurasundari Ammal had executed the Will in favour of the respondent and she died on 12.9.1996 as issueless. Subsequently, he filed the O.P.No.503 of 2011 and got the Will probated.
e. Therefore, from the above facts, it is clear that the applicants are claiming right over the said property through the said Ravikannammal as adopted sons of the said Ravikannammal. On the other hand, the respondent is claiming right through the said Thirupurasundari Ammal, who had executed the alleged Will and she is the sister of the said Ravikannammal.
6. It is the contention of the learned counsel for the applicants that when the suit for partition is pending as against the respondent and suppressing the same, the respondent had obtained the probate in a fraudulent manner. It is the further contention of the learned counsel for the applicant that the applicant and his two brothers,namely, V.N.Sampath Kumar and V.M. Punithavel are the adopted sons of the said Ravikannammal, who is none other than the sister of her mother and therefore, they are entitled for 1/3rd share as the legal heirs of the said Ravikannammal. In such, the applicant ought to have been impleaded in the O.P. as a party, whereas the respondent by suppressing the entire facts filed the above O.P. and obtained the probate in common form.
7. In this regard, the learned counsel also invited the attention of this Court to Section 15(1)(d) of the Hindu Succession Act and submitted that the property of a female died intestate shall devolve upon her legal heirs as set out under Section 16 of the Act. Since there is no issues for the said Ravikannammal, who was unmarried and her mother and father also predeceased her, as per Section 15(1)(d) of the Act the property devolved upon her father of the said Ravikannammal under the proviso (e) it devolves upon heirs of the mother of the Ravikannammal. The applicant and his brother V.N. Punithavel and V.N.Sampath Kumar are the grandsons of the mother of the said Ravikannammal. Therefore, under Section 15, they are the legal heirs of the said Ravikannammal. Therefore, on that account, they ought to have been shown as respondents in the above O.P. Therefore, by suppressing the material facts as the probate has been obtained, the same has to be revoked.
8. In this regard, the learned counsel for the applicant by inviting the attention of this Court to Section 263 of the Indian Successions Act and submitted that as per sub section (a) to Section 263 which provision deals about revocation or annulment for just cause that the proceedings to obtain the grant were defective in substance and sub section (b) to Section 263 which says that the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case could be revoked on the ground of just cause.
9. In this case, the above O.P. has been filed by the applicant is defective in substance since he suppressed the pendency of the partition suit. That apart, he has also played fraud upon the Court by concealing the materials facts from this Court. Further, the learned counsel for the applicant submitted that even if there is slightest caveatable interest to a person, such person should be shown as respondent in the O.P. proceedings. Therefore, since the probate was obtained by suppressing the material facts, the same can be revoked on the ground of just cause.
10. In support of his contention, the learned counsel for the applicant relied on the following decisions:-
a. 1995-2-L.W.65 ( G. Nagappan vs. kalaiselvam) b. 1995 -2 L.W. 862 (V. Muralidharan vs. R. Raghavendran) c. (1997) 9 SCC 689 (Nalini Navin Bhagawati(Mrs) and others vs. Chandravadan M. Mehta) d. (2005) 12 SCC 154 (Manibhai Amidas Patel and Another vs. Dayabhai Amaidas) e. AIR 2007 Madras 28 (G. Gopal vs G. Nagarathinam & Another) f. AIR 2008 SC 295 (Basant Devi v. Raviprakash Ramprasad Jaiswal).
g. AIR 2007 ANDHRA PRADESH 314 ( Alluri Satyavathi and others vs. State Financial Corporation and another) h. (2008) 1 SCC 267 (Basanti Devi vs. Ravi Prakash Ram Prasad Jaiswal) i. (2008) 10 SCC 489 ( G. Gopal vs C. Baskar and others)
11. Per contra, the learned counsel for the respondent contended that it is incorrect to state that the applicant and his brothers are the legal heirs of the said Ravikannammal. After the demise of the said Ravikannammal, the property automatically devolves on the only surviving sister Thirupurasundari Ammal, who is the legal heir of the father of testatrix. The said Thripurasundari Ammal executed the Will in favour of Sivakumar. Therefore, it is incorrect to state that the applicant and his two brothers are the legal heirs of the said Ravikannammal and on the other hand, they are totally strangers and they do not have any caveatable interest in the property and therefore, they need not be shown as party to the O.P. Proceedings.
12. In support of his contention, the learned counsel relied on the following decisions:-
a. 2001 (2) CTC 713 ( R. Ramachandran vs. G. Hariharan ) b. 125 (2005) DLT 401 (Yuv Rajnarain Gorwaney vs. State and Others).
c. 2008 (3) CTC 43 (Krishna Kumar Birla vs. Rajendra Singh Lodha and others).
13. With regard to the submission made by the learned counsel for the applicants relying upon section 15 of the Hindu Succession Act, the learned counsel for the respondent submitted that in the case of the property of a female Hindu dying intestate, the property firstly devolved upon the son, daughter and husband of the said female; secondly, upon the heirs of the husband; thirdly, upon the mother and father; fourthly, upon the heirs of the father and lastly, upon the heirs of the mother. In the instant case, the owner of the property, viz., Ravikannamal died as spinster. Therefore, as per section 15(b) and (e), after the demise of the said Ravikannamal, the property has to be devolved upon the heirs of the father and the heirs of the mother. So far as the present case is concerned, the another sister of Ravikannamal, viz., Thirupurasundari Ammal is the only surviving legal heir to the father and mother of Ravikannamal. So far as the applicant in A.No.2106 of 2012 and other two brothers, viz., V.N.Sampath Kumar V.N.Punithavel are concerned, they will not come within the purview of the legal heirs of the father and mother of the deceased Ravikannamal. Therefore, after the demise of Ravikannamal, as per the Hindu Succession Act, the property went to the hands of Thirupurasundari Ammal, who had executed the Will in favour of the respondent. Since the applicant in A.No.2105 of 2012 and his brothers are not the legal heirs of the father of Ravikannamal, they need not be shown as parties in the original proceedings. Therefore, it is incorrect to state that as per section 15(d) and (e) of the Hindu Succession Act, the applicant in A.No.2105 of 2012 and his two brothers would come within the purview of the legal heirs of the deceased Ravikannamal. When they cannot be construed as the legal heirs of the owner of the property, the question of showing them as respondents in the original petition proceedings does not arise.
14. With regard to the other submission made by the learned counsel for the applicants on the ground of suppression of material facts, it is the submission of the respondent that in the written statement filed by the respondent in the partition suit filed by the applicants, the respondent had clearly stated about the probate proceedings; but the applicants have not chosen to file any reply of such written statement. After the granting of probate, now the applicants have filed the present applications to revoke the probate, who knew very well about the pendency of the probate proceedings. Therefore, the question of revoking the probate on the ground of just cause also does not arise. In support of the submissions, the learned counsel has relied on the decisions reported in the cases of R.Ramachandran .vs. G.Hariharan (2001(2)CTC 713), Yuv Rajnarain Gorwaney .vs. State and others (125 (2005) DLT 401) and Krishna Kumar Birla .vs. Rajendra Singh Lodha and others (2008(3) CTC43).
15. The submission of the learned counsel for the applicants for revocation of leave is two folds;
(i) the applicant in A.No.2106 of 2012, i.e. V.N.Soundararajan, V.N.Sampath Kumar and V.N.Punithavel are the orphaned children of the owner of the property Ravikannamal. Therefore, they are necessary parties in the original petition proceedings;
(ii) pendency of partition suit filed by one of the applicants against the respondent was suppressed in the original petition proceedings. Therefore, the original petition is defective in substance.
16. To the above said grounds, it is the reply of the respondent that after the demise of Ravikannamal, the property devolved upon the surviving sister Thirupura Sundari, who had executed the Will in his favour. As per section 15 of Hindu Succession Act, one of the applicants viz., Soundararajan and his brothers cannot be construed as the legal heirs of Ravikannamal. Only Thirupura Sundari, the surviving sister alone has to be construed as her legal heir. Therefore, the applicants need not be shown as parties. But in my considered opinion, neither the respondent nor the applicants are Class I heirs of the deceased Ravikannamal. Both of them are standing on the same footing. Though the respondent has claimed that the Will was executed by the surviving sister of Ravikannamal, the applicants are disputing the said Will stating that it was a created one. One of the applicants has already initiated a partition suit as against the respondent and his mother in C.S.No.3 of 2007 on the file of this Court, which was subsequently transferred to City Civil Court and re-numbered as O.S.No.6029 of 2011. When the said suit was pending, the respondent herein filed original petition in a hurried manner and obtained the order of probate. According to the respondent, the applicant (Soundararajan) and his brothers are totally strangers and therefore, they need not be shown as the respondents in the original petition. But I find that the applicants are the children of Sulochana and Natarajan. The said Sulochana is one of the sisters of Ravikannamal. Similarly, the other sister Thirupurasundari who had said to have executed a Will in favour of S.Sivakumar is the another sister of Ravikannamal. The respondent is the grandson of the said Sulochana and Natarjana and is the son of the applicant's (A.No.2106 of 2012) brother V.N.Sampath Kumar.
17. A perusal of the genealogy tree would also show that the parties are very closely related to each other. Therefore, I am of the opinion that whether the applicants are class I legal heirs of Ravikannamal or not is immaterial in this case. On the other hand, it has to be seen, whether the applicants are having caveatable interest in the property to ask for revocation of leave, which was obtained by the respondent, who is also not the class I legal heir of Ravikannamal. It is the case of the applicant Soundararajan that himself, V.N.Sampath Kumar (since deceased), the father of the respondent and V.N.Punithavel are the sons of Natarajan and Sulochana. Their father died in the year 1946 and their mother Sulochana died in the year 1947 and they were brought up by Ravikannamal and they are the orphaned children of the said Ravikannamal. Therefore, the applicant (A.No.2106 of 2012) and two brothers are having 1/3rd share in the suit property. After the demise of Ravikannamal in the year 1988, the original document was handed over to the respondent, who is the son of one of the brothers of Soundararajan for the purpose of effecting transfer of ownership of property in the name of the legal heirs of Ravikannmal, namely, one of the applicants and his two brothers. But, after obtaining the title deed, the respondent was evading to transfer the name of the ownership of the suit property in the revenue records. Hence, according to the applicants, by knowing the intention of the respondent to grab the property, the applicant in A.No.2106 of 2012 filed a suit for partition in the year 2007. When the said suit was pending, the respondent obtained the probate from this Court by stating that after the demise of Ravikannamal, the property went to one of the surviving sisters Thirupura Sundari and she had executed a Will in his favour. But, in the original petition proceedings the pendency of the partition suit between the parties was not disclosed.
18. According to the applicants, the suppression of pendency of partition suit between the parties would amount to grant with defective substance and, as such, the probate has to be revoked on the ground of just cause. In this regard, it would be appropriate to refer some judgments relied on by the applicants. In Nagappan's case (supra) and the relevant paragraphs are extracted hereunder:
"6. In the original petition filed by the respondent for grant of probate, he has stated in paragraph 4 thereof that Palani Chettiar, husband of Saraswathi pre-deceased her and she had not issued and "as such, but for the will no other person is entitled to her share in the schedule mentioned properties"(underlying by us). This statement contained in paragraph 4 of the Original Petition is obviously false. Even according to the respondent, his father Balakrishnan lived at the time of the original petition and he died only three months back. Balakrishnan is undoubtedly an heir to Saraswathi and that too, a nearer heir. His sisters Poongavanam, Kumari and Vijaya will also be nearer heirs than the respondent. The respondent ought to have disclosed their names in the petition and informed the Court that they are the nearer relatives and obtained the orders of the court for issue of notice to them in ascertaining whether they contest the will or not. He did not do so. It may be that the respondent is disputing the status of Pavunambal and her children Saroja, Nagappa (appellant herein) and Chinnaponnu, but he is not disputing the status of Balakrishnan and his sisters. Hence, he ought to have impleaded them as parties to the present proceeding particularly in view of the provision in the Original Side Rules. Under O.25, Rule 4 of the Original Side Rules, an application for probate shall be made by a petition with the will annexed, accompanied, if the will is not in English by an Official translation thereof in English and such application shall be in Form No.55 or as near thereto as the circumstances of the case may permit. The language is mandatory and the application ought to be in Form 55. Form 55 found in Appendix II in Cl.7 thereof, which was introduced by R.O.C.No.3618-A/89 F1, reads as follows:
"The petitioner has impleaed all the next of kin or other persons interested as party/respondents. There is no next of kin or other person interested to be impleaded."
No doubt the form was amended only in 1991 but the Court was always insisting upon such impleading of nearer heirs. The petitioner was guilty of not even disclosing the particulars of such persons. The petitioner ought to have impleaded his father Balakrishnan and his sisters as parties. The appellant and his two sisters were undoubtedly interested parties to the Original Petition and notice should have been issued to them. Even if it can be said that they cannot claim to be legal heirs unless they prove their status they were interested parties and they ought to have been made respondents in the original petition.
7. Inasmuch as the respondent herein had made a false suggestion in the Original Petition by stating in paragraph 4 that but for the will no other person was entitled to the property of Saraswathi and concealed from the Court, facts material to the case, viz., the existence of his father Balakrishnan and his three sisters as well as the claims of the appellant and his two sisters, the proceedings to obtain grant were defective in substance as the necessary parties were not impleaded thereto."
The dictum laid down in the above judgment would show that even nearer heirs of the respondent, who claiming right over the property, are necessary parties for the probate proceedings.
19. In Muralidharan's case (supra), a Division Bench of this Court has observed as follows:
"4. But, without disclosing either the pendency of the suit in O.S.No.246 of 1992 or the claim made by the respondent in the said suit, the appellant obtained an order for probate on 25.2.92 in the Original Petition. A petition for revocation of the said probate was filed in Application No.281 of 1993 by the father of the respondent. That petition was dismissed on 22.7.93. The respondent had filed Application No.3534 of 1993 on 5.7.93 for revocation of the probate. That application was ordered on 27.9.93 as stated by us earlier.
5. It is not necessary for us to refer to the other facts. It is sufficient to point out that the appellant had not disclosed the fact that the respondent was claiming as legatee under a Will of 1989, said to have been executed by Ranganatha Rao before getting probate from this court. The learned judge has taken the view that there is just cause within the meaning of Section 263 of the Indian Succession Act for revoking the grant made in favour of the appellant inasmuch as he has omitted to disclose the material facts or issued notice in the original petition to the respondent herein.
6. It must also be pointed out that the appellant has not complied with the requirements of Order 25 Rule 3 of the Original Side Rules as the Rule prescribed thereunder contains a provision to set out all the near relations of the deceased.
7. It is the contention of the appellant that so long as the respondent had not obtained probate of the Will under which the respondent claims as a legatee, there was no necessity whatever for the appellant to have disclosed the claim of the respondent or issue notice to him. In short, the contention of the appellant is that the respondent has no caveatable interest in the matter.
8. We do not agree with this contention. The question has been directly considered by the Calcutta High court in Draupadi .vs. Rajkumary (AIR 1919 Calcutta 1012). The Division Bench of the Calcutta High court held that a legatee, whose interest under a Will has been considerably cut down by an alleged Will, said to have been subsequently executed by the testator revoking the earlier one, has locus standi to apply for the revocation of the probate of the later Will on the ground of non-service of citation, even before he has obtained probate of the earlier Will..... In the later judgment, we have referred to a number of earlier rulings of the other High Courts, one of them being Annapurna Kumar .vs. Subodh Chandra Kumar (AIR 1970 Calcutta 433) wherein it was held that any interest, however slight, and even the rare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. That principle was reiterated in Sima Rani Mohanti .vs. Pushpa Rani Bai (AIR 1978 Calcutta 140)."
A reading of the above would show that suppression of any material fact in the probate proceedings is a just cause for revoking the Will. In the instant case also, the respondent has suppressed pendency of partition suit between the parties in the proceedings of the original petition.
20. In G.Gopal .vs. C.Baskar and others, the Hon'ble Apex Court has held as follows:
"The only question that was agitated before us by Mr.Thiayagarajan, learned counsel appearing for the appellant challenging the judgment of the High Court revoking the probate granted in respect of the Will executed by the testator, was that the respondents having no caveatable interest in the estate of the deceased, the application for revocation filed by them could not be allowed. We are unable to accept these submissions made by Mr.Thiayagarajan, learned counsel appearing on behalf of the appellant only for the simple reason that admittedly the respondents were grand children of the testator and they have claimed the estate of the deceased on the basis of a settlement deed executed by the testator himself which admittedly was revoked by the testator. That being the position, we must hold that the respondents had caveatable interest in the estate of the testator and, therefore, they are entitled to be served before the final order is passed. It is well settled that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the will of the testator."
The dictum laid down in the said decision would show that even if a person has slightest interest in the estate in the testator, he is entitled to file caveat to contest the grant of probate. Since the other judgments relied on by the learned counsel for the applicants are also on the same lines, this Court is not dealing with the same.
21. In view of the principles enunciated in the said decisions, I am of the opinion when a person has even a slightest interest in the testator's estate, he is entitled to file a petition for revocation of the probate. In the instant case, I find that the applicants are having substantial interest over the property. The respondent, by suppressing the pendency of the partition suit, has obtained probate proceedings. Therefore, the grant of probate is a defective substance and hence, the probate is liable to be revoked on the ground of "just" cause as defined under section 263 of the Indian Succession Act.
22. Though it is the contention of the respondent that he had stated about the pendency of probate proceedings in the written statement filed in the partition suit, on a perusal of the written statement, I do not find anything with regard to the pendency of probate proceedings. Therefore, the submission made by the learned counsel for the respondent that the applicants are strangers cannot be accepted, particularly when the applicants and the respondents both are not Class I heirs.
23. The learned counsel for the respondent relied on the judgment reported in Ramachandran's case(supra) in support of his contention that when no property was bequeathed to a person under the Will, the filing of an application for revocation of probate on the ground that the Will is forged one and suspicious circumstances surrounded the execution of the Will cannot be allowed. I find that the factual aspects of that case would show that the Will was executed by the owner of the property himself. Here, there is no Will directly from the owner of the property. Under such circumstances, the judgment relied on by the learned counsel for the respondent cannot be made applicable to the facts of the case on hand. Therefore, I am of the opinion that the probate granted is liable to be revoked on the ground of "just cause" since there is suppression of material fact and the grant of the proceedings is defective substance.
For the reasons stated above, both applications are allowed and the probate granted in O.P.No.503 of 2011 dated 22.11.2011 is hereby revoked.
RNB gl