Madras High Court
R.Sheela vs Radhalakshmi on 4 December, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 21 / 03 / 2019
PRONOUNCED ON: 18 / 09 / 2020
CORAM:
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
CMA NO.163 OF 2014
AND MP NO.1 OF 2014
R.Sheela ... Appellant
Vs.
Radhalakshmi ... Respondent
PRAYER: Civil Miscellaneous Appeal filed Order 43 Rule 1 of Code of
Civil Procedure, 1908, against the fair and decreetal order in I.A.No.511 of
2013 in probate O.P.143 of 2009 on the file of the I Additional District Court,
Salem, dated 04.12.2013.
For Appellant : Mr.V.Raghavachari
For Respondent : Mr.T.S.Vijaya Raghavan
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JUDGMENT
Inveighing the order of revocation of probate granted in favour of the
appellant by the I Additional District Court, Salem, dated 04.12.2013, the
present Civil Miscellaneous Appeal has been preferred.
2.Based on the WILL dated 01.06.1984 executed by the paternal
grandfather of the appellant, she filed an Original Petition in O.P.No.143 of
2009 for grant of Probate and it was granted on 21.02.2011. Thereafter, she
had settled the property in favour of her mother on 23.05.2011. Thereafter,
the respondent, who has no caveatable interest, filed an interlocutory
application in I.A.No.511 of 2013 for revocation of probate. The application
was allowed on 04.12.2013 revoking the probate, against which, the present
appeal has been filed.
3.Learned counsel for the appellant would vehemently contend that the
respondent is the daughter-in-law of the Testator and she has no caveatable
interest in the property and has no locus standi to maintain the petition for
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revocation. Since she had been married to an outsider, she has no right of
succession as per Hindu Succession Act and she is not entitled to any
citation. Further, the revocation of probate was sought on the ground that the
testator bequeathed the property in favour of his son retaining life interest to
the wife. During the lifetime of the mother, son has no right. The son died
during the lifetime of the mother. In that event, the daughter-in -law, even as
per her own statement, has no right to file an application. On the other hand,
the so called WILL executed in favour of her husband itself was disproved in
O.S.No.1002 of 2004 on the file of District Munsif Court, Salem. Therefore,
the application filed by the respondent was not maintainable and the order
passed by the Court below is liable to be set aside. Hence, the respondent
neither a beneficiary nor a person having any interest in the estate of the
Testator, has no right to maintain the application and the Lower Court ought
not to have ordered revocation.
4.In support of his contention, the learned counsel for the
appellant would rely on the judgment of this Court in VELAYUDHAM VS.
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S.PONNAMBALAM [2008 (6) CTC 205] for the proposition that a person,
who is a stranger to the scope and object of the Hindu Succession Act, cannot
validly claim revocation on the ground that he has got caveatable interest.
The order reads as under:
“20.A legal heir to a Testator or Testatrix, who
claims right or title to the property bequeathed under the
Will as per the provisions of the Hindu Succession Act may
have caveatable interest to enter into the arena of
Testamentary jurisdiction of this Court challenging the plea
of propounder seeking Letters of Administration. Of course,
a person, who claims right and title to the property
bequeathed under a Will beyond the scope of the Hindu
Succession Act cannot validly claim that he has got
caveatable interest in the property bequeathed as he is a
stranger to the scope and operation of the Hindu Succession
Act. He cannot have access to the Testamentary Court
claiming caveatable interest in the property bequeathed as
his claim for title would be decided by the competent Court.
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But, based on the passport given to one of the legal heirs of
the Testator to challenge the Will on the ground that he has
caveatable interest in the property bequeathed, he cannot
question the title of the Testator or competency of the
Testator to execute the Will, as the forum for such challenge
is totally different.”
5.For the proposition that a person having no chance of
succession cannot file an application for revocation of probate on the ground
of absence of citation. Such person is not entitled to get revocation of probate
under the purview of “just cause” as stated in Section 263 of the Indian
Succession Act, 1925 (Shortly “the Act”). To buttress his arguments, he
relied on a Division Bench judgment of this Court in RAMANI U.
KRISHNAN VS. DR.AMMINI PRAVEEN JOSHUA @ VEENA [2005 (4)
CTC 165] wherein it is observed as under:
“ 13.There is no dispute that under the procedure to
be followed in the matter of Grant of Probate or Letters of
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Administration, an affidavit stating the right and interest
of the caveator and the grounds of objections to the
application has to be filed. Section 263 of the Indian
Succession Act, 1925 makes it clear that the Grant of
Probate or Letters of Administration can be revoked or
annulled only for just cause.
14.In the light of the above provisions, now let us
consider whether the applicant, who is a third party has
established her caveatable interest and whether she has locus
standi to file the said application. The applicant is neither a
legal heir nor would she got an interest in the property, but
for the Will. It is a well established principle that only
when the person has got some interest in the property but for
the Will, for any of the reasons mentioned in Section 263 of
the Indian Succession Act, he can file an application for
revocation of probate. The above provision makes it clear
that the Grant of Probate or Letters of Administration may
be revoked or annulled for a just cause, but the case of the
applicant claiming right through an agreement of sale will
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not come under the purview of just cause as stated
in Section 263 of the Indian Succession Act.
18.In the case of Dular Kuter vs. Kesar Kuer and
others reported in AIR 1964 Patna 518, after
referring Sections 263 and 283 (1) ( c ) of Indian Successions
Act, it is held that the person having no possible chance of
succeeding to testators estate cannot file an application for
revocation or probate on the ground of absence of citation.
In the light of the provisions referred to above, we are in
agreement with the above referred decisions. Accordingly,
we hold that the applicant does not have any interest or
charge over the property and therefore she is not the
appropriate person to seek for revocation of order of
Probate. To make it clear that a person who seeks for
revocation of Probate should have a right to claim citation
or to oppose the grant. As rightly concluded by the learned
Judge, the applicant does not have a claim to cite or oppose
the grant of Probate. Further, a person who is not claiming
any right under testator nor a beneficiary of a Will nor who
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is likely to inherit the estate of the deceased whose claim is
adverse to the interest of the testator, cannot file an
application under Section 263 of the Indian Succession Act,
1 925 for revocation of the Probate. Here, the applicant is
claiming neither the right from the testator nor is she the
beneficiary under the Will, nor is she likely to inherit the
estate of the deceased or her claim is adverse to the interest
of the testator. “
6.Per contra, the learned counsel appearing for the respondent
would contend that the respondent is the wife of the title holder. As a Class–I
legal heir, she has every right to succeed the property and thereby possess
caveatable interest. In fact, in the suit filed by the appellant's father for
partition, she was impleaded as 9th defendant, as the legal representative of
her husband. The decree passed in the said suit has been set aside on appeal,
in which she was the appellant. The matter was remanded to trial court for a
limited purpose to cross examine the attestor of the WILL executed by her
husband's father. Therefore, the respondent has caveatable interest over the
property. The District Court, after finding that in spite of WILL dated
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01.06.1984, which was sought to be probated disclosed the legal heirs of the
Testator, the appellant omitted to issue citation to any of them and obtained
probate in their absence. Such a fraudulent act squarely falls under “just
cause” as per Section 263 of the Act and the District Court has rightly
revoked the probate giving liberty to the appellant to apply again after issuing
notice to all the interested persons. He would rely on the following judgments
in support of his case:-
(i)Judgment of this Court in
S.D.PONNUSWAMY MUDALIAR VS.
S.K.SOMASUNDARAM [O.S.A.NO.94 OF 1983
DECIDED ON 28.06.1991]
(ii)Judgment of this Court in N.SAROJA VS.
SRI VIDYA CHITS AND FINANCE (P) LTD., AND
ANOTHER [1996 (2) MLJ 74]
(iii)Judgment of this Court in
S.D.RAMANATHAN (DIED) AND OTHERS VS.
BABY AMMAL (DIED) AND OTHERS [2013 (3)
MWN (CIVIL) 258]
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(iv)Judgment of the High Court of Calcutta in
SM.ANNAPURNA KUMAR VS. SUBODH
CHANDRA KUMAR [1970 AIR (CALCUTTA) 433]
(v)Judgment of the Hon'ble Supreme Court in
KRISHNA KUMAR BIRLA VS. RAJENDRA SINGH
LODHA AND OTHERS [2008 (4) SCC 300]
(vi)Judgment of the Hon'ble Supreme Court in
JAGJIT SINGH AND OTHERS VS. PAMELA
MANMOHAN SINGH [2010 (5) SCC 157]
(vii)Judgment of this Court in YASHODHA VS.
CHELLAMMAL [2017 (1) CTC 244]
(viii)Judgment of this Court in SELVI VS.
K.ALAGARSAMY AND ANOTHER [2010 (2) TN
MAC 328]
(ix)Judgment of the Hon'ble Supreme Court in
G.GOPAL VS. C.BASKAR AND OTHERS [2008 (10)
SCC 489]
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(x)Judgment of this Court in E.SANKARAN VS.
MRS.KRISHNAVENI AND ANOTHER [2011 (3) LW
841]
(xi)Judgment of this Court in K.KARTHIK AND
ANOTHER VS. JAYANTHI IYENGAR AND
OTHERS [2015 (1) LW 723]
(xii)Judgment of the Hon'ble Supreme Court in
ANIL BEHARI GHOSH VS. SMT. LATIKA BALA
DASSI AND OTHERS [AIR 1955 SC 566(1)]
(xiii)Judgment of this Court in T.PONNALAGI
VS. RM.RAMACHANDRAN AND OTHERS [2007
(2) MLJ 254]
7.I have heard both sides.
8.This Court had the benefit of going through the genealogy of
the Testator and the dates and events from the typed-set filed by the
respondent. It is beneficial to refer to the family background and the
distribution of properties to the legal heirs.
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9.Originally, on 23.04.1963, the Testator of the WILL in
question M.S.Narayana Rao and his brother M.S.Raja Rao entered into a
partition with respect to co-parcenary properties. The said M.S.Narayana
Rao, on 13.12.1974, entered into a partition deed with his sons. As per the
partition, the property in dispute, bearing D.No.5, Madurai Kuppaiyer Street,
Shevapet, Salem was allotted to M.S.Narayana Rao along with other
properties. All the four sons and the father M.S.Narayana Rao had taken
possession and enjoyed the properties alloted to them. In other words,
partition deed dated 13.12.1974 was acted upon. It is also submitted that
M.N.Radhakrishnan, father of the appellant had sold one of the properties
allotted to him in partition.
10.Thereafter, on 28.07.1986, M.S.Narayana Rao executed a
registered WILL bearing Document No.50/1986 in favour of his son
M.N.Mothilal and bequeathed certain properties to which the other sons
namely M.N.Krishnamoorthy (husband of the respondent),
M.N.Radhakrishnan and his wife Rajalakshmi stood as witnesses. He
executed another registered WILL bearing Document No.51/1986 dated
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28.07.1986 in favour of another son M.N.Krishnamoorthy (husband of the
respondent) in respect of the property under dispute in the present appeal,
bearing D.No.5, Madurai Kuppaiyer Street, Shevapet, Salem, which was
witnessed by M.N.Mothilal and M.N.Radhakrishnan (father of the appellant).
After one year, M.S.Narayana Rao, died on 30.12.1987.
11.In the year 2000, the father of the appellant had filed a suit
for partition in O.S.No.572 of 2000 before the Sub Court, Salem, which was
later transferred to 2nd Additional District Munsif Court, Salem and numbered
as O.S.No.1002 of 2004, without disclosing the partition dated 13.12.1974
and two WILLs' registered as Document Nos.50 and 51 of 1986, but based on
the partition deed 23.04.1963 between M.S.Narayana Rao and his brother
M.S.Raja Rao. In the suit, the husband of the respondent filed his written
statement and examined the witness to WILL one Rukmangathan. During the
pendency of the suit, M.N.Krishnamoorthy, husband of the respondent met
with a motor accident and died on 01.02.2008. Thereafter, the respondent
was impleaded as 9th defendant in the suit. Since the attestor of the WILL
executed in favour of M.N.Krishnamoorthy was not cross-examined, the suit
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was decreed on 19.10.2011. Against which, it appears that the respondent
herein, along with the other legal heirs filed an appeal in A.S.No.20 of 2012
and the same was allowed and remanded back to the Trial Court for a limited
purpose of cross-examining the witness to the WILL dated 28.07.1986
executed in favour of M.N.Krishnamoorthy and to let in additional evidence
if any, on both sides.
12.While the matter stood thus, a legal notice dated 26.04.2012
was issued by Suryakumari, mother of the appellant addressed to
Rajalakshmi, wife of M.S.Narayana Rao, in whose favour life estate was
bequeathed and to the respondent setting out the details of Probate, to which
the respondent issued a reply notice dated 15.07.2012 and filed the above
application for revocation of probate in I.A.No.511 of 2013. The revocation
order passed by the Court below is the subject matter of the issue.
13.From the above factual background, it is clear that the present
appeal has a checkered history. The main issue to be decided is as to
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whether the respondent who filed the application has locus standi and
whether the ground on which the order is passed is justifiable or not.
14.At the outset, it is seen that a registered WILL bearing
Document No.51 of 1986 dated 28.07.1986 was executed in favour of
M.N.Krishnamoorthy, the husband of the respondent bequeathing the
property bearing D.No.5, Madurai Kuppaiyer Street, Shevapet, Salem. In the
suit filed for partition by the father of the appellant in O.S.No.1002 of 2004,
the respondent was impleaded as 9th defendant as the legal heir of the said
M.N.Krishnamoorthy. Against the decree passed in O.S.No.1002 of 2004, the
respondent also filed an appeal and the same was allowed setting aside the
decree dated 19.10.2011. In that event, it can be seen that the respondent has
some caveatable interest in the property.
15.The Hon'ble Supreme Court in G.GOPAL VS. C.BASKAR
AND OTHERS [2008 (10) SCC 489] has held as under:
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“5.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. “
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16.As per the above judgment, if a person who has even a slight
interest in the estate of the testator is entitled to file a caveat and contest the
grant of probate of the WILL of the testator. If so, the respondent, who was
impleaded by none other than the father of the appellant in the suit filed by
him for partition clearly show that she has caveatable interest in the property.
17.In the judgment in E.SANKARAN VS.
MRS.KRISHNAVENI AND OTHER [2011 (3) LW 841] a Division Bench
of this Court has held as under:
“13. The Honourable Apex Court had categorically
distinguished the parties who can participate in the probate
proceedings and the parties who are affected by the order of
grant of probate, who can resort to the provisions of Section
263 of the Indian Succession Act for getting the appropriate
relief, which has been categorically found that caveatable
interest have a limited effect and they cannot deprive the
right of any portion to invoke the provisions of Section
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263 of the Act. Therefore, we could find that the revocation
application can be filed by any person whose interest is
affected by an order of grant of probate to invoke provisions
of Section 263 of the Act and if those provisions are
satisfied, an order has to be passed under the said Section
263 of the Indian Succession Act. Therefore, we find that it
is clear from the dictum of the Honourable Apex Court that
theory of requirement of caveatable interest for maintaining
an application for revocation of probate order reached by the
learned single Judge, cannot be sustained for any moment.
13A. The appellant who was the applicant before the
learned single Judge, had pleaded that the Will has been
fabricated by the propounder/first respondent and the first
respondent herself had shown to be the sister's daughter of
testatrix which was obviously untrue and thereby the
respondents had played fraud upon the Court. Apart from
that, the brother of testatrix viz., Dharmalingam and sister
viz., Mohana were not impleaded or cited as respondents in
the probate proceedings. The appellant had prayed for
revocation of probate on these grounds.
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17.According to Section 263 of the Indian Succession
Act, 1925 there should be a 'just cause' for revocation of the
probate order and the instances of just cause have also been
listed in the explanation. Similar illustrations also given for
revocation of probate under Section 263 of the Act. For
better understanding, the provisions of Section 263 of the
Indian Succession Act has to be explained and the
illustrations are extracted below:
"263. Revocation or annulment for 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 proceedings 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
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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.
Illustrations
(i) The court by which the grant was made had no
jurisdiction.
(ii) The grant was made without citing parties who
ought to have been cited.
(iii)The will of which probate was obtained was
forged or revoked.
(iv) A obtained letters of administration to the estate
of B, as his widow, but it has since transpired that she was
never married to him.
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(v) A has taken administration to the estate of B, as
if he had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been
discovered.
(vii) Since probate was granted, a codicil has been
discovered which revokes or adds to the appointment of
executors under the will.
(viii) The person to whom probate was, or letters of
administration were, granted has subsequently become of
unsound mind."
18...
19. We have to see whether the commission of fraud
and the non-citation of the persons who have got caveatable
interest would lead to revocation. According to the
explanation given under clause (b), making a false
suggestion or concealing something material to the case in
order to obtain the grant of probate is also a "just cause". In
the illustration No.(ii), it has been clearly pointed out that
the persons who out to be cited as respondents are not cited,
would amount to a just cause for revocation of the probate
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order. As far as this case is concerned, the contents in the
Will would show that the first respondent is the sister's
daughter of the testatrix whereas the complaint filed by her
would show something else that she has obtained the
property from the testatrix from the oral sale through the
respondents' ancestors and the said allegations in the
complaint were made long after the alleged date of the Will.
Therefore, we find that some false suggestions appear to
have been made so as to obtain the grant of probate by
fraudulent means from the Court. However, the said prima
facie finding should be confirmed only in the full-fledged
trial by converting the Testamentary Original Petition into
a Testamentary Original Suit by impleading the appellant
also. Similarly, the testatrix's brother Dharmalingam and
sister Mohana ought to have been impleaded as respondents
as interested persons, who are the legal heirs. But for the
will, their presence is necessary for adjudication of the claim
of the respondents before the Testamentary Court. In the
said circumstances, the contents to clause (b) and
explanation to illustration No.(ii) of Section 263 of the Act
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would constitute a "just cause" for revocation of the probate
order.”
18.From the above judgment, it can be seen that anyone who has
a caveatable interest or whose right is affected can maintain the application
for revocation for want of citation. The appellant, who had knowledge about
the other legal heirs, omitted to issue citation to them and obtained the orders
with the support of the evidence of a third party. In that event, the respondent
having some interest in the property is entitled to file for revocation.
19.In K.KARTHIK AND ANOTHER VS. JAYANTHI
IYENGAR & OTHERS [2015 (1) LW 723] this Court has held as under:
“18-6. It is the contention of the learned counsel for
the 1st respondent that since the applicants are not the blood
relatives to the testator P.D.Rajagopalan, they cannot have
any caveatable interest in the estate of the testator
P.D.Rajagopalan. But, I am not inclined to accept the said
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contention of the learned counsel for the 1st respondent,
since several documents filed on the side of the applicants
would show the close relationship between the testator
P.D.Rajagopalan and the applicants' family, for a quite
long time. Therefore, in may considered opinion, as the
applicants are having a caveatable interest in the estate of
the testator P.D.Rajagopalan, the applicants are entitled to
file the present applications for the reliefs as stated supra.
In this regard, a reference could be placed in the judgment
reported, which was relied upon by the learned counsel for
the applicants, in AIR 1973 CAL 433 (Sm.Annapurna
Kumar Vs. Subodh Chandra Kumar), wherein it has been
held as follows:-
“It is well settled now that any interest, however
slightly, and even the bare possibility of an interest, is
sufficient to entitle a party to oppose a testamentary paper.
Even in a case where the person is not entitled to get a
compulsory citation, but the citation is discretionary, the
absence of citation to such a person, also would invalidate
the grant in certain circumstances.”
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From the dictum laid down in the above said
judgment, it could be seen that even if there is a slightest
interest in the property that is sufficient for a party to
oppose the testamentary paper. In the instant case, the
evidence on record would show that the applicants are
certainly having caveatable interest in the estate of the
testator P.D.Rajagopalan, they are entitled to seek
revocation of Letters of Administration.”
20.The judgment of SM.ANNAPURNA KUMAR VS. SUBODH
CHANDRA KUMAR [AIR 1973 CAL 433] referred in the above judgment
will clearly show that the daughter-in-law cannot be thrown out of
consideration. It is observed that any interest, however slightly and even the
bare possibility of an interest is sufficient to entitle a party to oppose a
testamentary paper. In that view of the matter, this Court is of the considered
opinion that the respondent does have the caveatable interest.
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21.In so far as revocation under Section 263 of the Act, lays
down certain grounds for revocation of grant of probate. Section 263 of the
Act reads as under:
“263.Revocation or annulment for 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 proceedings 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
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(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.
Illustrations
(i) The Court by which the grant was made had no
jurisdiction.
(ii) The grant was made without citing parties who
ought to have been cited.
(iii) The Will of which probate was obtained was
forged or revoked.
(iv) A obtained letters of administration to the estate
of B, as his widow, but it has since transpired that she was
never married to him.
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(v) A has taken administration to the estate of B as if
he had died intestate, but a will has since been discovered.
(vi) Since probate was granted, a latter Will has been
discovered.
(vii) Since probate was granted, a codicil has been
discovered which revokes or adds to the appointment of
executors under the Will.
(viii) The person to whom probate was, or letters of
administration were, granted has subsequently become of
unsound mind.”
22.The familiar judgment of Three Judges Bench of the Hon'ble
Supreme Court in ANIL BEHARI GHOSH VS. SMT. LATIKA BALA
DASSI AND OTHERS [AIR 1955 SC 566 (1)] holds the field till date. The
Hon'ble Supreme Court has categorically observed that 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 in the following lines:-
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“....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. “
23.The District Court has followed the above decision and found
that omission to issue citations to other legal heirs namely Rajalakshmi, wife
of the testator, M.N.Mothilal, M.N.Chandra Pal, M.N.Krishnamoorthy, sons
of the testator and their legal heirs will fall under the ground “just cause” as
specified under Section 263 of the Act.
24.The same view was expressed by this Court in its judgment in
S.D.PONNUSWAMY MUDALIAR VS. S.K.SOMASUNDARAM [1992 (1)
LW 77] which reads as under:
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“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”. 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. On this thesis it would be reasonable to hold
that there was a just cause to the respondent to seek
revocation of the probate.”
25.In yet another judgment of this Court in T.PONNALAGI VS.
RM. RAMACHANDRAN AND OTHERS [2007 (2) MLJ 254] the same was
was expressed, in the following lines:
“28. Just cause shall be deemed to exist when the
proceedings in the O.P. are defective and also when the
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grant was obtained by concealing from the courts something
material to the case. It is also important that the necessary
parties should be made as parties to the petition for grant of
letters of administration. “
Therefore, it is clear that the grant of probate was obtained by the appellant,
without putting the interested parties on notice and by not disclosing the
litigations involving subsequent partition and registered WILLs' which are
material to consider the grant of probate, will fall under the ground “just
cause”.
26.From the factual background of the case, even assuming that
the WILL executed in favour of M.N.Krishnamoorthy is not proved, the
property will fall in the common hotchpot where all the legal heirs will have
appropriate shares. In that view of the matter, the property which was an
absolute property of the testator, after the partition between him and his son,
dated 13.12.1974, will be inherited by his legal heirs. The respondent, being a
Class – I legal heir of M.N.Krishnamoorthy is entitled to a share in the
property. In view of the above finding, the judgments relied on by the learned
counsel for the appellant are not applicable to the facts of the case.
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27.Therefore, viewing from any angle, it is proved that the
respondent possesses a caveatable interest in the property and she is entitled
to maintain the application for revocation. The omission to issue citation to
the respondent will fall under the ground “just cause” as per Section 263 of
the Act and the order of the Court below revoking the grant of probate is
absolutely legal and justified. Therefore, I do not find any merit in the appeal
and accordingly inclined to dismiss the same.
28.In fine, the Civil Miscellaneous Appeal stands dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
18 / 09 / 2020
Index : Yes/No
Internet : Yes/No
TK
To
The I Additional District Judge
I Additional District Court
Salem.
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M.GOVINDARAJ, J.
TK PRE-DELIVERY JUDGMENT MADE IN CMA NO.163 OF 2014 18 / 09 / 2020 33/33 http://www.judis.nic.in