Karnataka High Court
Revanna vs A.H. Govindaraja on 8 July, 1998
Equivalent citations: ILR1999KAR656, 1999(3)KARLJ126
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT
1. The appellant has filed this appeal assailing the order of the learned Single Judge dismissing the probate civil petition filed under Section 263 of the Indian Succession Act for revocation of the Will executed by late Smt. Gangarama in favour of her sister's son Govindaraja, respondent herein.
2. The brief facts of the case are, that one Huchaiah was owning a house property in Bangalore which is a disputed property. Appellant is the brother of Huchaiah. Huchaiah has got a wife by name Gangamma. Huchaiah died in the year 1982 leaving behind him Smt. Gangamma as his sole legal heir. After the death of Huchaiah, Smt. Gangamma succeeded to the property of her husband. She has a sister by name Shan-thamma. Before her death, Smt. Gangamma was suffering from cancer. She executed a Will on 10-8-1990, and died on 5-9-1990. After her death, a probate civil petition was filed in this Court under Section 263 of the Indian Succession Act, for probate of the Will. This Court after elaborately considering the contentions, granted a probate vide order dated 19-9-1991. Thereafterwards, a probate civil petition was filed under Section 263 of the Indian Succession Act, for revocation of probate, on the ground that, the appellant was not impleaded to the probate petition and no notice was issued to him. Late Smt. Gangamma was not in a fit condition to execute a Will. Will is a forged one. Under law, the appellant is the legal heir as per Section 15 read with Section 16 of the Hindu Succession Act. Therefore, to deprive the appellant, the Will is concocted. Objection statement is filed by the respondent denying the allegations made therein. Appellant examined himself as P.W. 1 and no document is marked on behalf of the appellant. Respondent examined himself as R.W. 1 and other witnesses as R.Ws. 2 and 3. R.W. 2-A. Ganesh who drafted the Will and R.W. 3-B.G. Narayana is the attesting witness.
3. The learned Single Judge after considering the rival contentions and the material evidence on record, dismissed the probate civil petition. Against that, the present appeal is filed.
4. Learned Counsel for the appellant firstly contended that Ex. R. 1 is not a Will and it is gift or settlement. Therefore, no probate can be granted, under the provisions of the Indian Succession Act. On the other hand, learned Counsel for the respondent contended that, by reading the document itself, it is manifest that the document is a Will.
5. To appreciate the above contention, it is relevant to refer the contents of Ex. R. 1.
6. This Will was executed on 10-8-1990 and in the preamble of the document, it is stated that the testator is aged about 58 years and stated that she has not made any Will or testamentary writing before and declared this Will to be her last Will and testament. It is stated that she executed this Will out of her free will and on her own volition without the influence of anyone. It is further stated that, she was suffering from cancer and due to uncertain future, she felt, it is necessary to make proper arrangements for the disposal of her property after her death. It is further stated that she is the owner of house property at No. 684, 6th Main Road, Vijayanagar, Bangalore-560 040, wherein, she resides at present, and which is more fully described in the schedule to the Will, which is occupied by her with one Govindaraju and that the schedule property has been mortgaged to the Co-operative Bank, Rajajinagar, Bangalore, to borrow a loan of Rs. 50,000/- and that the said Govin-daraja has been residing with her and has been looking after her for the last 4-5 years and that the said Govindaraja has been managing her affairs including providing her medical treatment etc., and in consideration of the services done by Sri Govindaraja and out of natural love and affection, she bequeathed the schedule property in favour of the said Govindaraja who shall enjoy the schedule property as the absolute owner of the same after her death and he shall repay the loan borrowed from the bank against the security of the schedule property and that she also appoint the said Govindaraja to be the Executor of this Will.
7. Thus, by reading the entire contents of the document, it is evident that the document is a Will and not a gift or settlement. Learned Counsel for the appellant contended that, in the last para, it is mentioned that the schedule property shall be enjoyed by Govindaraja as the owner of the same. Therefore, it is to be interpreted as the settlement during the life time of the testator. Therefore, it is not a Will. We are not able to agree with the said contention. By reading the entire sentence, i.e., "I do hereby bequeath the schedule property to the said Sri Govindaraja, who shall enjoy the schedule property as the absolute owner of the same after my death", it is evident that the absolute enjoyment by Govindaraja comes into effect only after her death. Therefore, when the property bequeathed can be enjoyed only after the death of the testator, it amounts to a Will, but not a settlement or Gift.
8. Learned Counsel for the appellant secondly contended that, it is not established that the testator has capacity to execute the Will with the soundness of mind as she was suffering from cancer, even according to the respondent who was the propounder of the Will. It is to be noticed that the appellant except examining himself, not adduced any evidence.
In evidence of respondent-R.W. 1 who is the propounder of the Will, R.W. 2 who prepared the Will and who is an Advocate and R.W. 3 who is the attestor of the Will, in one voice, stated that the testator-Gangamma executed a Will bequeathing her properties in favour of the respondent-Govindaraja and when the Will was executed in the office of an Advocate by name A. Ganesh (R.W. 2), he was also present. He has stated that Ex. R. 1 is the Will which was executed by Gangamma and he signed it as an attestor at Ex. R. 1 (a). When the Will was executed, Gangamraa, R.W. 2, himself and another attestor by name Suresh were present. After Ex. R. was drafted and prepared, the Advocate read over the contents and explained to them the contents of it. First Gangamma signed on Ex. R. 1 at Ex. R. 1 (c) in his presence. Then himself and Suresh Kumar signed on it. Suresh Kumar signed on Ex. R. 1 at Ex. R. 1 (b) in the presence of Gangamma. Gangamma signed on Ex. R. 1 in the presence of himself and Suresh Kumar. No question is put to any of the witnesses that, on the date of the Will, that Smt. Gangamma was not well or that she was not able to travel to the office of the Advocate or she being taken in a cart as she was not in a position to move. On the other hand, it is the evidence of R.W. 1 and R.W. 3 that she herself came to the Advocate's office and requested for the preparation of a Will and on such a request, a Will was drafted and executed in their presence. In that Will, she has stated that, out of her own will and volition she is executing the same and that there is no force or fraud and that the stamp paper is also came to be purchased in her name. Therefore, if all these things taken together, it is proved that the testator with conscious and sound mind has executed the Will out of her own free will and volition. Therefore, it cannot be said that the testator was not having any capacity and soundness of mind to execute the Will.
9. It is thirdly contended that the Will is surrounded by suspicious circumstances and that the burden is on the propounder of the Will to remove such suspicious circumstances. One of the circumstances is that, signature of the testator is only on one page of the Will though the Will contains three pages. There is no doubt that the signature of the testator is only on one page. Bequeath part of the Will contains two pages on two sides of one stamp paper. The third page contains the recital that the Will was executed in the presence of the testator. Therefore, not signing on either pages of the Will, it will not make the Will suspicious, particularly, when the execution of the Will has been proved by cogent and convincing evidence. Therefore, we are not able to agree with the contention that this fact itself makes the Will to be thrown out.
10. Learned Counsel for the appellant relied on the decision in PPK Gopalan Nambiar v PPK Balakrishnan Nambiar and Others and Vrin-davanibai Sambhaji Mane v Ramachandra Vithal Ganeshkar and Others , for the proposition that the propounder has to remove the suspicious circumstances surrounding the Will. There is no dispute about the principles laid down by the Supreme Court. In this case, as stated supra, these suspicious circumstances are already removed by cogent and convincing evidence adduced by the propounder. Therefore, we are not able to accept the contention of the learned Counsel for the appellant. We also hold that the testator has got testamentary capacity as it is proved that she is of sound mind and capable of going to the office of the Advocate to execute the Will though she was suffering with cancer.
11. It is fourthly contended by the learned Counsel for the appellant that in the probate petition filed by the respondent, the appellant was not made a party, though he is an interested person and an heir to the testator. Therefore, the petition filed praying for revoking the probate has to be allowed on this ground alone. Section 263 of the Indian Succession Act deals with revocation of the Will which reads as follows:
"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
(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".
The said section envisages that, a probate can be revoked or annulled for just cause. The just cause has been enumerated in the explanation that, the proceedings to obtain the grant were defective in substance or the grant was obtained fraudulently by making a false representation or concealing from the Court something material to the case or it 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 where the grant has become useless and inoperative through circumstances or 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 the part or has exhibited under that Chapter an inventory or account which is untrue in a material aspect. These are the justifiable causes to enable the Court to revoke the probation granted. The legislature has specifically enumerated the justifiable cause for revocation. If anything is added, it amounts to amending of the provision and the same is not within the purview of the Court.
12. By reading the above section, it is evident that, if ground stated above are established, probate has to be revoked or set aside. In the present case, there is an allegation that the alleged Will is a forged and concocted one. As stated supra, it is not proved that the Will is concocted or forged or brought into existence by fraud, nor any other grounds contained in Section 263 are established. Therefore, it cannot be said that merely non-impleading of the appellant, is a ground for revocation of the Will as enumerated in the explanation. Learned Counsel for the appellant relied on Illustration (ii) to Section 263 in support of his contention, which reads:
"(ii) The grant was made without citing parties who ought to have been cited".
There is no dispute about the illustration but the illustration has to be read with Section 283 of the Indian Succession Act, which reads as follows:
"283. Powers of District Judge.--(1) In all cases the District Judge or District Delegate may, if he thinks proper.-
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the Will or the right of the petitioner to the letters of administration, as the case may be;
(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.
(2) The citation shall be fixed up in some conspicuous part of the Court-house, and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.
(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation".
13. As per Section 283 of the Act, the District Judge has to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings. It is not the case of the appellant that such a procedure is not followed. Merely because, the appellant is not impleaded to the probate petition, it cannot be a ground for revocation. The legislature has specifically mentioned the grounds for revocation; if any one of the grounds is proved or estab-
lished, then only probate can be revoked. But, in the present case, none of the grounds is proved. Therefore, the ground for revocation is not made out. In view of the above circumstances, we do not find any merit in the appeal.
Appeal is dismissed.
No order as to costs.