Karnataka High Court
Jagjeevan Prasad vs Smt. Parvati Bai on 3 February, 2020
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
R
IN THE HIGH COURT OF KARNATAKA AT
KALABURAGI BENCH
DATED THIS THE 03rd DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
M.F.A.NO.200373/2016(ISA)
BETWEEN
JAGJEEVAN PRASAD
S/O LAXMINARAYANA PRASAD SHUKLA
AGED ABOUT: 55 YEARS, OCC: PRIVATE SERVICE
R/O LOHAR GALLI, PRESENTLY RESIDING AT
BHANASHANKARI LAYOUT,
BRMHAPUR LOCALITY, KALABURGI
TALUK AND DISTRICT. KALABURAGI
...APPELLANT
(BY SRI. R.S.SIDHAPURKAR, ADVOCATE)
AND
1. SMT. PARVATI BAI
W/O LATE MANOHAR PRASAD SHUKLA
AGED ABOUT 61 YEARS
OCC: HOUSEHOLD
R/O DEVI COLONY, ALAND ROAD
KALABURAGI - 585 104.
2. SMT. RITA BAI
W/O BALESINGH THANKUAR
AGED ABOUT: 39 YEARS, OCC: HOUSE HOLD
R/O SHOLAPUR, NOW C/O SMT.PARVATHIBAI
DEVI COLONY, ALAND ROAD
KALABURGI - 585 104.
3. SMT. GEETA BAI
W/O LAXMI PRASAD TRIVEDI
AGED ABOUT 37 YEARS, OCC: HOUSE HOLD
R/O JHOPADPATTI, NEAR BIJAPUR NAKA
SHOLAPUR, (MAHARASHTRA STATE) - 540 513.
2
4. SMT. REKHA BAI W/O ANAND SINGH BOIS
AGED ABOUT 35 YEARS, OCC: HOUSE HOLD
R/O DHETURA VILLAGE, TALUK & DIST. SHOLAPUR
(MAHARASHTRA STATE) - 540 013.
5. MITHUN PRASAD S/O LATE MANOHAR PRASAD SHUKLA
AGED ABOUT: 32 YEARS, OCC: UNEMPLOYED
R/O DEVI COLONY, ALAND ROAD
KALBURAGI DIST: KALABURAGI - 585 104.
...RESPONDENTS
(BY SRI.S.M. CHANDRASHEKAR, SENIOR COUNSEL APPEARING
FOR SRI. A.M.NAGRAL CAVEATOR FOR R-1 TO R-5, ADVOCATE)
THIS APPEAL IS FILED UNDER SECTION 384 OF INDIAN
SUCCESSION ACT R/W ORDER 41 RULE 1 OF CPC, PRAYING TO
CALL FOR THE RECORD, ALLOW THE APPEAL AND SET ASIDE THE
ORDER DATED: 09.02.2016 PASSED IN CIVIL MISC.CASE NO.36 OF
2003 BY THE LEARNED PRINCIPAL DISTRICT THE SAID MISC.
CASE, WITH COSTS IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this Appeal is posted under the caption "Orders", with the consent of both sides, the matter is taken up for final disposal.
2. This appeal is directed against the impugned judgment and order dated 09.02.2016 passed in Civil Misc.36/2003 by the Prl.District Judge, Kalaburagi (for short 'the trial court'), whereby the petition filed by the respondents 3 against the appellant under Section 263 of the Indian Succession Act (for short 'the Act') was allowed by the trial court. By the impugned judgment and order, the trial court annulled and revoked the probate granted in favour of the appellant in P & SC No.1/2001 dated 15.3.2001 in respect of the alleged last Will and testament of one late Manohar Prasad, who died on 02.05.2000.
3. The brief facts giving rise to the above appeal are as under:
(i) The respondents filed a petition against the appellant herein before the trial court in Civil Misc.No.36/2003 under Section 263 of the Act inter-alia contending that they were the wife and children of one late Manohar Prasad who died intestate on 02.05.2000. It was contended that upon the death of the said Manohar Prasad, the respondents herein being his wife and children succeeded to his estate comprising of movable and immovable properties as his only heirs and legal representatives. It was contended that the land bearing Sy.No.38 measuring 35 acres 8 guntas owned by the said 4 Manohar Prasad was acquired by the University of Agricultural Sciences(UAS), Dharwad to establish an Agriculture Research Station, Gulbarga and Rs.5,000/- per acre was awarded in his favour by way of compensation. The said Manohar Prasad having sought for enhancement, Reference court increased the compensation to Rs.40,000/- per acre in LAC No.9/1989 by order dated 18.03.2000. Both the aforesaid UAS, Dharwad as well as the State of Karnataka challenged the aforesaid order passed by the Reference Court by preferring MFA No.2534/2000 and MFA No.2463/2000 respectively before this Court. In the said appeals, the aforesaid Manohar Prasad was arrayed as the 1st respondent.
(ii) The respondents further contended that even during the life time of Manohar Prasad and even after his demise on 02.05.2000, the respondents were not aware of the aforesaid land acquisition proceedings. Upon the death of Manohar Prasad, the appellant herein filed an application to come on record as his sole legal representative in the aforesaid MFA No.2534/2000. In the said application and accompanying 5 affidavit, the appellant contended that he was the son of Manohar Prasad's brother i.e., Lakshminarayan Prasad Shukla. It was also contended that Manohar Prasad having executed a Will dated 04.11.1993 in favour of the appellant, upon the death of Manohar Prasad, the appellant had obtained a Probate in respect of the said Will by the competent court in P & SC No.1/2011 dated 15.03.2001. It was therefore contended by the appellant that he was the sole legatee and legal representative of Manohar Prasad and that he was entitled to come on record in MFA No.2534/2000.
(iii) Similarly, in the connected MFA No.2463/2000 filed by the State of Karnataka, the respondents herein filed an application to come on record as the legal representatives of Manohar Prasad.
(iv) Both the aforesaid applications filed by the appellant and the respondents in MFA No.2534/2000 and MFA No.2463/2000 respectively were allowed by this Court for the limited purpose of permitting both parties to represent the estate of the deceased Manohar Prasad without giving any 6 finding with regard to either the alleged Will of Manohar Prasad propounded by the appellant or the relationship of the respondents with Manohar Prasad.
(v) Subsequently, both MFA No.2534/2000 and MFA No.2463/2000 were disposed of by this Court vide Order dated 28.11.2007 whereby both the appeals were dismissed. The Civil Appeals in C.A.7040/2009 and C.A.7050/2009 filed by UAS and the State of Karnataka were also dismissed by the Apex Court vide Order dated 4-11-2015. However, it is relevant to state that the right, title and interest of the appellant or the respondents to the estate of late Manohar Prasad was not decided by this Court or by the Apex Court while disposing off the aforesaid appeals.
(vi) In the meanwhile, upon coming to know about the application filed by the appellant herein in MFA No.2534/2000 and the fact that the appellant was claiming to be the legatee under a Will alleged to have been executed by Manohar Prasad and the grant of Probate in favour of the appellant in P & SC No.1/2001, the respondents preferred MFA 7 No.5117/2002 before this Court challenging the aforesaid order dated 15-3-2001 passed in P & SC No.1/2001. This Court dismissed the said appeal on the ground that the respondents herein were not parties to P & SC No.1/2001 and consequently, the appeal in MFA No.5117/2002 was not maintainable. However, liberty was reserved in favour of respondents herein to seek revocation of the Probate granted in favour of the appellant in P & SC No.1/2001 by filing necessary petition under Sections 263 & 264 of the Act.
(vii) The respondents contended that pursuant to the liberty reserved in their favour in MFA No.5117/2002 as stated supra, respondents filed the instant petition before the trial court seeking revocation of the Probate granted in favour of the appellant in P & SC No.1/2001. It was further contended that the respondents being the wife and children of the deceased Manohar Prasad had succeeded to his estate and that the alleged Will dated 04.11.1993 propounded by the appellant was not a genuine or a valid document and that the same was a forged and fabricated document. The execution, 8 genuineness and validity of the alleged Will was specifically disputed and denied by the respondents.
(viii) It was also contended by the respondents that the order dated 15.03.2001 passed in P & SC No.1/2001 was illegal and contrary to the provisions of the Act. The proceedings to obtain the grant were defective in substance and the grant was obtained fraudulently by making a false suggestion and by concealing from the Court material facts and without citing all parties, in particular, the respondents herein. It was also contended that no special citation to the respondents was taken or issued by the appellant during the said proceedings as required in law.
(ix) It was further contended that the paper publication purported to have been taken out by the appellant in a Newspaper called 'Jai Bheemagada' was illegal in as much as, the said Newspaper has no publicity or circulation in the locality since the same was not published regularly and was a completely unknown paper. It was therefore contended that the appellant herein was guilty of suppression of material facts 9 before the Court and had clandestinely obtained the Probate by putting forth false allegations and by producing concocted documents including the alleged Will dated 04.11.1993 which was a fabricated document having not been executed by Manohar Prasad. Putting forth these contentions as well as urging other grounds, the respondents filed the instant petition before the trial court seeking revocation of the probate granted in P & SC No.1/2001.
(x) The appellant who was arrayed as a sole respondent in the aforesaid Civil Misc.36/2003 contested the same by filing his statement of objections. In addition to denying the various factual and legal grounds urged by the respondents in their petition, the appellant admitted the land acquisition proceedings which were pending before this Court and the fact that both parties were brought on record in the said appeals. Appellant disputed the relationship of the respondents with Manohar Prasad and contended that he was not related to the respondents in any manner, particularly when he was married to one Smt.Janaki Bai who had 10 predeceased Manohar Prasad and her name has been referred to in the Will dated 04.11.1993 executed by Manohar Prasad in favour of the appellant.
(xi) It was contended that Manohar Prasad had executed his last Will and Testament dated 04.11.1993 bequeathing his properties in favour of the appellant in addition to a GPA which was executed by him in favour of the appellant during his life time. It was therefore contended that upon the death of Manohar Prasad, the appellant approached the Probate court in P & SC No.1/2001 and obtained a Probate of the aforesaid Will dated 04.11.1993 since the appellant was the sole legatee and executor under the Will. It was contended that the Probate was granted in favour of the appellant after following all legal requirements by the Probate court and the respondents had not made out any valid or sufficient ground for revocation of the Probate lawfully granted in favour of the appellant. Putting forth the said contentions in support of his defence, the appellant sought for dismissal of the said Civil Misc.36/2003 filed by the respondents. 11
4. Based on the above pleadings, the trial court formulated the following points for consideration:-
"(i) Whether the respondent (appellant herein) obtained an order of Probate fraudulently in P & SC No.1/2001 behind the back of the petitioners who are having a subsisting interest in the case?
(ii) Whether the publication issued and
published in the newspaper known as 'Jai
Bheemaghada' had no wide circulation, the same is not a newspaper widely circulated in the area?
(iii) Whether the order of probate was obtained in utter violation of principles of natural justice?"
(iv) What order?"
5. During trial, on behalf of the respondents, respondent No.1 was examined as PW-1 and two witnesses as PWs 2 and 3. The respondents also adduced documentary evidence at Ex.P-1 to P-24. The appellant examined himself as RW-1 and 11 witnesses having been examined as RWs 2 to 12, Ex.R-1 to R-9 were marked on his behalf.
6. After hearing both sides, the trial court answered the aforesaid points in favour of the respondents and 12 consequently allowed the petition by the impugned judgment and order thereby annulling/revoking the probate granted in favour of the appellant in P & SC No.1/2001 dated 15-3-2001.
7. Aggrieved by the impugned judgment and order allowing the petition filed by the respondents, the appellant is before this Court by way of the present appeal.
8. Learned counsel for the appellant submitted that the trial court committed an error in revoking the probate that was validly and legally granted in favour of the appellant in P & SC No.1/2001. It was submitted that the respondents had not adduced legal or acceptable evidence to establish their relationship with the deceased Manohar Prasad and the impugned order deserves to be set aside on this ground alone. Elaborating his submissions, learned counsel would submit that the trial court did not have jurisdiction to decide the said issue and as such, the impugned order was bad in law and requires to be set aside.
13
9. It was also contended that apart from the fact the evidence of the appellant and his witnesses on all aspects of the matter had been not impeached by the respondents, the probate court in P & SC No.1/2001 had granted probate in favour of the appellant by properly following the due process of law and the newspaper publication in 'Jai Bhimaghada' satisfied all the legal requirements and consequently, no ground had been made out by the respondents for revocation of probate. It was further submitted that mere absence of citing the respondents as parties to P & SC No.1/2001 or non- issuance of citation to them, in absence of anything else did not vitiate the order granting probate in favour of the appellant. It was therefore submitted that impugned order passed by trial court was illegal, arbitrary and perverse and that the same deserves to be set aside by this Court.
10. Per contra, learned senior counsel appearing on behalf of the respondents would support the impugned judgment and order passed by the trial court. Learned senior counsel would also place reliance upon the judgment of the 14 Apex Court in the case of Basanti Devi vs. Ravi Prakash 1 Ram Prasad Jaiswal - and a decision of this Court in the case of Laxman vs. Basavanni 2 .
11. I have given my careful consideration to the rival submissions and perused the entire material on record including the impugned judgment and order passed by the trial court.
12. The following points arise for consideration in the present appeal:
"(i) Whether the Probate of Manohar Prasad's alleged Will dated 4-11-1993 granted in favour of the Appellant vide Order dated 15-3-
2001 passed by the Trial Court in P & SC No.1/2001 is liable to be revoked?
(ii) Whether the impugned judgment and
order passed by the trial court warrants
interference by this Court?
(iii) What Order?"
1
. (2008)1 SCC 267
2
. AIR 2018 KAR 100.
15
Point No.1:
13. A perusal of the impugned judgment and order Will indicate that though the respondents raised several grounds in support of their contentions, the trial court has allowed the petition filed by respondents and annulled/revoked the probate granted in favour of the appellant for the following reasons:
(a) The material on record prima facie indicates that the respondents were the wife and children of the deceased Manohar Prasad and consequently, it was essential that respondents were cited as parties to P & SC No.1/2001;
(b) Since prima facie, the respondents were the wife and children of the deceased Manohar Prasad, special citation ought to have been issued to them in P & SC No.1/2001 and they should have been notified about the said proceedings;
(c) In the absence of the respondents being made parties or being notified about P & SC No.1/2001, the proceedings culminating in the grant of probate in favour of appellant were violative of principles of natural justice in that 16 no opportunity was given to them to contest P & SC No.1/2001;
(d) The publication of the public notice of institution of P & SC No.1/2001 in a daily newspaper, 'Jai Bheema Gada', which had extremely insufficient circulation which vitiated the proceedings;
(e) The appellant had not chosen to produce the alleged unregistered original Will dated 4-11-1993 alleged to have been executed by Manohar Prasad and this conduct of the appellant casts a doubt on the genuineness and validity of the said Will propounded by the appellant.
14. Upon re-appreciation of the entire material on record and after consideration and appreciation of the provisions contained in Section 263 of the Indian Succession Act and other inter-related provisions of the Act, the various facts and circumstances that are germane, relevant and material, would constitute 'just cause' so as to entail revocation/annulment of the probate granted in favour of the appellant are as under:- 17
Locus Standi of Respondents to seek Revocation/Annulment :
(1) It is the specific contention of the respondents that they are the wife and children of Manohar Prasad and that upon his death, they have succeeded to his entire estate comprising of all his movable and immovable properties as his only heirs and legal representatives. It is well settled that a person is entitled to seek annulment/revocation of a probate if he is able to show even a semblance of a right/claim over the estate of the alleged testator.
(2) The Apex Court in Basanti Devi's case (supra), is held as under:
"22. It is now well settled that an application for grant of probate is a proceeding in rem. A probate when granted not only binds all the parties before the Court but also binds all other persons in all proceedings arising out of the Will or claims under or connected therewith. Being a judgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings and proper citations having not been made, is entitled to file an application for revocation of probate on such grounds 18 as may be available to him. We are therefore, of the opinion that application for revocation of the grant of probate should have been entertained."
(3) Similarly, this Court in the case of M.A.Sreenivasan vs H.V.Gowthama and another 3, has held as under:
" 8. Section 263 of the Act under which application for revocation of the probate is made, only deals with the circumstances under which the grant may be revoked or annulled. It does not deal with the question who is entitled to file an application for revocation of the grant. Generally speaking who ever has a right to contest the grant can also be said to be having locus standi to seek for revocation of the grant of probate. Such a person must show that he has some interest in the estate of the deceased, whose Will is said to be probated. In order to entitle him to locus standi in the probate Court, he must show an interest in the estate of the deceased person either by inheritance or otherwise. The test for determining generally whether a person has sufficient interest is this: Will the grant displace any right to which he is otherwise entitled? If so he has an interest. If not he is not. An interest, however slight and even bare possibility of an interest is sufficient to entitle a party to oppose the grant or to maintain a petition for revocation of the grant. Persons seeking to revoke the grant or 3 . ILR 2005 KAR 1138 19 probate or letters of administration must prove that they have an interest in the estate of the deceased sufficient to entitle them to a locus standi in Court... ."
15. As held by the Apex Court and this Court (supra), a person having even a semblance of a right or even a bare possibility of an interest in the estate of the alleged testator is entitled to seek revocation/annulment of a probate. It is therefore clear that for the purpose of ascertaining locus standi of the respondents to seek annulment/revocation, it would be sufficient for them to establish prima facie that they are the wife and children of Manohar Prasad and it is not necessary for them to conclusively establish their relationship with him. At any rate, the trial court while dealing with the petition for revocation/annulment is not competent to fully, completely and finally adjudicate upon the said relationship and the jurisdiction of the trial court in such a proceeding is restricted/confined to finding out prima facie whether the respondents are the wife and children of Manohar Prasad for 20 the limited purpose of ascertaining the locus standi of the respondents.
16. In order to prima-facie establish their relationship with Manohar Prasad, the respondents examined respondent No.1 as PW-1 and two witnesses as PWs 2 and 3. The respondents also produced documentary evidence viz., photographs, marriage records, school records, election id cards, ration card, family planning card, tax paid receipts, etc., in support of their contention. The trial court, upon a correct and proper appreciation of the said evidence on record has come to the correct conclusion that respondents had prima facie established their relationship with Manohar Prasad for the limited purpose of establishing their locus standi to institute the instant revocation /annulment proceedings.
17. Upon re-appreciation of the material on record and in the light of the limited scope of enquiry contemplated as regards the prima facie relationship of the respondents with Manohar Prasad for the purpose of locus standi, I am of the 21 considered opinion that the trial court was fully justified in coming to the correct conclusion that the respondents had prima facie established that they were the wife and children of the deceased Manohar Prasad. In this context, though it is vehemently contended on behalf of the appellant that he has adduced substantial oral and documentary evidence to establish that not only was Manohar Prasad married to one Smt.Janaki Bai who had predeceased him, but also that the respondents were not his wife and children, I am of the view that in the light of the law laid down by Apex Court and this Court supra, the material on record clearly indicated that respondents had prima facie established their relationship with Manohar Prasad which was sufficient to come to the conclusion that the respondents had locus standi to file the instant revocation/annulment petition.
Grounds for Annulment/Revocation under Section 263 of the Act:
18. Before I deal with the provisions contained in Section 263 of the Act, it is necessary to point out that 22 illustrations (i) to (viii) to Section 263 are merely illustrative and not exhaustive and in the facts of a given case, there could arise other circumstances which would constitute 'just cause' for revocation/annulment of a probate under any of the independent and mutually exclusive provisions contained in Section 263(a) to Section 263(e) of the Act. In other words, the circumstances constituting 'just cause' for revocation of probate under Section 263(a) to Section 263(e) of the Act are not restricted or confined to only any of the 8 illustrations to Section 263 and there could be other circumstances which could be said to constitute 'just cause' also. With this background, let me examine whether the various circumstances that emerge from the material on record in the instant case constitutes 'just cause' for revocation of probate.
Section 263(a) of the Indian Succession 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.23
Explanation -- Just cause shall be deemed to exist where -
(a) the proceedings to obtain the grant were defective in substance: or
19. A plain reading of Section 263(a) of the Act will indicate that if the proceedings seeking grant of probate were defective in substance, the same would constitute just and sufficient cause for revocation of probate.
20. Though the words, 'proceedings were defective in substance' have not been defined or explained in the Act, the Apex Court in the case of Anil Behari Ghosh vs Smt.Latika Bala Dassi and Others 4, held as under:
"15 - Defective in substance" must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. If there were any suggestions in the present proceedings or any circumstances were pointed out to show that if Girish had been cited he would have been able to enter a caveat, the absence of citation would have rendered those proceedings "defective in substance... ."4
. AIR 1955 SC 566, 24
21. Some of the circumstances that emerge from the material on record in the instant case which would lead to the inescapable conclusion that "proceedings in P & SC No.1/2001 were defective in substance" and which would constitute 'just cause' for revocation of the probate granted therein in favour of the appellant are:
(a) It is an undisputed fact that the respondents herein who have sufficient interest in the estate of Manohar Prasad were not cited as parties to P & SC No.1/2001. In this context, it is relevant to note that Illustration (ii) to Section 263, reads as under:
"(ii) The grant was made without citing parties who ought to have been cited."
(b) Illustration (ii) clearly indicates that it was incumbent upon the appellant to cite the respondents as parties to P & SC No.1/2001 and the omission on the part of the appellant to do so not only renders the proceedings defective in substance but would also vitiate the grant of probate in favour of the appellant and rendering the same liable to be 25 revoked/annulled as held by the Apex Court in Anil Behari Ghosh's case (supra) and Basanti Devi's case ( supra).
22. Assuming that it was not necessary for the appellant to cite the respondents as parties since he has disputed their relationship with Manohar Prasad, the appellant has also contended that Manohar Prasad had a wife Smt.Janaki Bai, who predeceased him. The appellant has also adduced oral and documentary evidence to contend that Manohar Prasad had many brothers and sisters along with their respective children and has examined some of the said relatives as RWs 2 to 12. It can therefore be seen that on his own showing, apart from the appellant who claims to be Manohar Prasad's brother's son, there are other relatives who are related to Manohar Prasad in the same degree or a nearer degree than the appellant. It is needless to state that even the said relatives had sufficient interest in the estate of Manohar Prasad and consequently, it was incumbent upon the appellant to cite them also as parties to P & SC No.1/2001 and the omission on the part of the appellant to do so not only 26 renders the said proceedings defective in substance but would also vitiate the grant of probate in favour of the appellant.
23. Section 283(1)(c) of the Act contemplates that it was necessary for the trial court seized with proceedings in P & SC No.1/2001 to issue citations calling upon all persons claiming to have any interest in the estate of the deceased Manohar Prasad before the grant of probate in favour of the appellant. In fact, the said proceedings in P & SC No.1/2001 were governed by the "Rules governing Probate and Administration Matters, 1964 (for short 'the Rules'). Rule 5(1)(iv) of the Rules mandate that it was necessary that notice/special citation of the proceedings is served by the appellant on all persons of the same degree of relation or nearer degree than the appellant as per the procedure prescribed under the said Rule. A conjoint reading of Section 283(1)(c) of the Act r/w Rule 5(1)(iv) of the Rules clearly indicate that in the facts of the instant case, it was incumbent upon the appellant as well as the trial court to issue notice/special citation of the proceedings upon respondents 27 herein and other relatives who are related to Manohar Prasad in same degree or a nearer degree as the appellant. The Apex Court in the case of Manju Puri vs Rajiv Singh Hanspal 5, held as under:
"36 - We are of the view that in the facts and circumstances of the present case, learned Single Judge erred in not issuing any citation to Smt. Beena Mehra in the probate proceedings and without any verification of genuineness of no objection certificates mechanically granted probate which was unsustainable. If it is accepted that in probate proceedings persons who have bee dis-inherited in the Will on mere no objection certificates by them without either being called by probate court to appear and certify their no objections or to file any pleading Will lead to unsatisfactory result and may cause prejudice to persons who were not aware of the proceedings and are yet claimed to have submitted no objections. We thus conclude that even though learned Single Judge had discretion to issue citation or not but in the facts of the present case a citation ought to have been issued in exercise of discretion conferred under Section 283 of the Succession Act and the probate granted without issuance of such citation in the facts of the present case deserves to be 5 . 2019 SCC Online SC 1973 28 revoked and learned Single Judge and the Division Bench committed error in rejecting the application for revocation filed by the appellant."
24. It is true that issuance/non-issuance of a citation to a party is left to the jurisdiction of a probate court. However, in facts of the case on hand, having regard to the fact that there was sufficient material to prima-facie indicate that the respondents were the wife and children of Manohar Prasad coupled with the fact that Manohar Prasad had other relatives who are related to Manohar Prasad in the same degree or a nearer degree as the appellant, it was necessary for the appellant as well as the probate court to issue notice/citation to them as provided in Section 283(1)(c) of the Act r/w Rule 5(1)(iv) of the Rules. In the instant case, indisputably, the appellant has not complied with Section 283(1)(c) of the Act r/w Rule 5(1)(iv) of the Rules and notice/special citation of the proceedings was not served by the appellant or the probate court either on the respondents herein or other relatives who are related to Manohar Prasad in the same degree or a nearer 29 degree as the appellant. It is therefore clear that it was incumbent upon the appellant to serve notice/special citation of the proceedings upon the respondents herein or the other relatives of Manohar Prasad and the omission on the part of the appellant to do so not only renders the proceedings defective in substance but would also vitiate the grant of probate.
25. In the said P & SC No.1/2001, apart from not citing anyone else as parties to the proceedings as stated supra, in the cause title to his petition, the appellant described the respondents as "all concerned". Having done so, it was absolutely essential on the part of the appellant to issue notice of the petition by way of paper publication published in a reputed/prominent daily newspaper having wide and sufficient circulation and also published regularly so as to notify all interested/concerned persons, especially the respondents herein and other relatives of Manohar Prasad to become aware of the proceedings and have their say in the matter by affording them sufficient opportunity in this regard. Instead, 30 appellant got the notice of P & SC No.1/2001 published in a newspaper, 'Jai Bhima Gada'.
26. Before the trial court, it was the specific contention urged on behalf of the respondents that the aforesaid newspaper, 'Jai Bhima Gada' was not a reputed/prominent newspaper and that the same was not published regularly and did not have wide/sufficient circulation so as to notify all interested/concerned persons. In view of this specific contention put forth by the respondents, it was incumbent upon the appellant to adduce legal and acceptable evidence in this regard. Though an attempt was made by the appellant by examining RW-7, editor of said newspaper, no supporting/corroborative documentary evidence has been produced by the appellant to substantiate his evidence. On the other hand, in his cross-examination, RW-7 admits that documentary evidence to establish that the said newspaper was widely read and was published regularly was available with him and that he had no difficulty in producing the same. In fact, as noticed by the Trial court, even the registration 31 certificate of the said newspaper has not been produced by the appellant. Under these circumstances, adverse inference as contemplated under Illustration (g) to Section 114 of the Evidence Act would have to be drawn against the appellant for not producing the said evidence. Consequently, the evidence of RW-7 can not be made the basis to come to the conclusion that the newspaper, 'Jai Bhima Gada' was widely read and was published regularly and the notice published by the appellant in the said newspaper complied with and fulfilled all the legal requirements. I am of the considered opinion that the various admissions, inconsistencies and discrepancies in the material on record clearly establishes that entire proceedings in P & SC No.1/2001 which were published in an unknown newspaper, 'Jai Bhima Gada' which was not published regularly and had limited/insufficient circulation were clearly defective in substance and the grant of probate stood vitiated on this ground also.
27. The aforesaid facts and circumstances clearly establish that the probate granted favour of the appellant in P 32 & SC No.1/2001 was liable to be annulled/revoked under Section 263(a) of the Act.
28. Section 263(b) of the Indian Succession 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.
(a) xxxxxx
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case."
29. A plain reading of Section 263(b) of the Act Will indicate that it is based on the maxim, " Suppressio Veri and Suggestio Falsi " viz., if the grant of probate was obtained by suppressing/concealing material facts and by putting forth false averments/contentions, same would constitute just and sufficient cause for annulment/revocation of probate.
30. The various circumstances that emerge from the material on record in the instant case clearly indicate that 33 grant of probate of the alleged Will of Manohar Prasad dated 04.11.1993 had been obtained by the appellant by suppressing/concealing material facts and by putting forth untrue/false averments/contentions which clearly constitute 'just cause' for annulment/ revocation of the probate. In this context, a perusal of the petition in P & SC No.1/2001 also indicates that the appellant was also guilty of suppression of material facts in that he had deliberately not disclosed/stated/mentioned the details of either respondents or other relatives of Manohar Prasad who are related to him in the same degree or a nearer degree than the appellant. As stated supra, it is not in dispute that Manohar Prasad had brothers, sisters and their respective children who were related to him in the same degree or nearer degree than the appellant and the necessary requisite details of the said persons have been deliberately withheld/ suppressed by the appellant, obviously with malafide intentions and ulterior motives. In fact, in addition to simply describing the respondents in his petition as 'all concerned', appellant has 34 not even stated that Manohar Prasad was married to Smt.Janaki Bai and/or that she predeceased him and that they did not have any children. Needless to state that upon the appellant furnishing details of the other natural heirs of Manohar Prasad or at least referring to them in his petition, the probate court would have directed issuance of notice/special citation to them before proceeding further in the matter. It is therefore clear that the appellant was guilty of suppression of the aforesaid material facts which also clearly tantamounts to obtaining the probate fraudulently as contemplated in Section 263(b) and consequently, the grant of probate in favour of appellant was vitiated and same was liable to be annulled/revoked on this ground also.
31. The aforesaid facts and circumstances clearly establish that the probate granted in favour of the appellant in P & SC No.1/2001 was liable to be annulled/revoked under Section 263(b) of the Act.
35
32. Section 263(c) of the Indian Succession 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.
(a) xxxxxxxxx
(b) xxxxxxxxx
(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 ".
33. A perusal of Section 263(c) of the Act will indicate that even assuming that the appellant had not obtained the probate by fraudulently putting forth untrue/false averments/contentions in P & SC No.1/2001 as contemplated under Section 263(b) and notwithstanding the fact that the said untrue/false averments/contentions were a result of ignorance/inadvertence, since the said untrue/false averments/ contentions were essential to be put forth to justify the grant, the said untrue/false averments/contentions, albeit 36 put forth in ignorance/inadvertence would constitute just and sufficient cause for annulment/revocation of probate granted in favour of the appellant.
34. While dealing with Section 263(b) of the Act, I have already come to the conclusion that the appellant had suppressed material facts and had put forth untrue/false allegations/contentions. Under these circumstances, even assuming that the appellant was not guilty of fraudulently obtaining the probate by resorting to " Suppressio Veri and Suggestio Falsi " and that the same was due to ignorance and inadvertence, the said untrue/false averments/ contentions essential to obtain probate clearly constituted 'just cause' for annulment/ revocation of the probate under Section 263(c) of the Act and consequently, the grant of probate in favour of appellant was vitiated and same was liable to be annulled/revoked on this ground also.
35. The aforesaid facts and circumstances clearly establish that the probate granted favour of the appellant in P 37 & SC No.1/2001 was liable to be annulled/revoked under Section 263(c) of the Act also.
36. While dealing with Sections 263(a), 263(b) and 263(c) of the Act, the Apex Court in the case of Manibhai Amaidas Patel and another vs Dayabhai Amaidas 6, held as under:
" 9. This would clearly show that it is necessary to cite parties who would otherwise have an interest in the succession to the estate of the deceased. That would naturally include all the heirs of the deceased. Besides, Section 283 gives power to the District Judge as regards the issue of 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. Necessarily therefore the facts on the basis of which the District Judge is required to exercise his discretion must be fairly placed before him. In this case the respondent had done nothing of the sort as we have already noticed.
10. The courts below also overlooked the fact that in their application for revocation the appellants had clearly stated that in other proceedings between 6 . (2005)12 SCC 154 38 the members of the family of Amaidas and the respondent the Will had been successfully disputed. In the circumstances, for the respondent to say that the grant was being opposed by "nobody" was misleading. The grant was obtained by concealing from the court something which was very material to the case. The appellants were entitled to be heard and doubtless the District Judge would have directed to issue of citations to each of Amaidas's heirs on intestacy under Section 283(1)(c) of the Act had the true facts been revealed by the respondent in his application for grant of probate. The advertisement in this case was wholly insufficient to patch up the gross lacuna.
11. In the circumstances we allow the appeal and revoke the probate granted to the respondent on 4-5-2002. The matter is now to be heard as a contentious case. The appropriate District Judge Will make all the heirs of the deceased Amaidas party- respondents before further proceeding in the matter and Will dispose of the matter after allowing the parties to file their written statements as if the probate proceedings were a full-fledged suit."
37. In view of the aforementioned law laid down by the Apex Court in Manibhai's case (supra), I am of the 39 considered opinion that the probate granted in favour of the appellant in P & SC No.1/2001 was liable to be annulled/revoked under Sections 263(a), 263(b) and 263(c) of the Indian Succession Act.
38. In so far as the contention urged on behalf of the appellant that in Anil Behari Ghosh's case (supra), the Apex Court did not direct revocation of the probate despite noticing that other heirs of the deceased were not cited as parties and no citation was issued to them is concerned, it would be profitable to extract the findings of fact recorded by the Apex Court in the said decision, which reads as under:
" 15. It may be that Girish having been found to have been the next reversioner to the testator's estate in case of intestacy and on the assumption that Charu had murdered the testator, Girish might have been entitled to a revocation of the grant if he had moved shortly after the grant of the probate on the simple ground that no citation had been issued to him. 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 40 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 the circumstances of the present case that just cause within the meaning of section 263 had been made out. We cannot ignore the facts that about 27 years had elapsed after the grant of probate in 1921, that Girish in spite of the knowledge of the grant at the latest in 1933 did not take any steps in his lifetime to have the grant revoked, that there was no suggestion that the Will was a forgery or was otherwise invalid and that the Will was a registered one and had been executed eight years before the testator's unnatural death. Hence the omission of citations to Girish which ordinarily may have been sufficient for a revocation of the grant was not in the special circumstances of this case sufficient to justify the court to revoke the grant."
39. A perusal of the aforesaid findings/observations of the Apex Court Will clearly indicate that the same were recorded in the special and peculiar fact situation obtained in the said case and the same can not be construed/treated as 41 laying down any legal principle, much less an absolute principle for the proposition that non-citing of parties having interest in the subject matter of the estate of the deceased and non-issuance of citation to them Will not entail annulment or revocation of the probate granted without complying with the said requirements. Under these circumstances, reliance placed by the learned counsel for the appellant upon the said findings/observations of the Apex Court in Anil Behari Ghosh's case (supra) is wholly misplaced and the said contention deserves to be rejected.
40. A perusal of the provisions contained in Sections 263(a) to 263(e) r/w Illustrations (i) to (viii) of the Act indicates that the same is a deeming provision by way of legal fiction inserted as an explanation to the expression, "just cause" for the purpose of enabling the Court to annul/revoke a probate granted by it in favour of a party. In this context, it is relevant to state that the various circumstances found in the explanation contained in Sections 263(a) to 263(e) r/w Illustrations (i) to (viii) of the Act are merely illustrative and not 42 exhaustive and it is open for a party seeking annulment/revocation of a probate to plead and prove other circumstances also which would constitute "just cause" for annulment/revocation of a probate. In other words, the expression, "just cause" is not confined or limited or restricted only to Sections 263(a) to 263(e) r/w Illustrations (i) to (viii) of the Act and the said expression has wide scope, ambit and latitude to include situations other than those provided under the Act.
41. I may hasten to add that in the facts of the instant case, I have only examined the provisions contained in Sections 263(a), (b) and (c) r/w Illustrations (i) to (v) and not the other provisions of Section 263. Under these circumstances, the various principles underlying Sections 263(a), (b) and (c) r/w Illustrations (i) to (v) of the Indian Succession Act may be summarized as hereunder:
(a) Section 263(a) is inter-related to Illustrations (i) and
(ii);43
(b) Section 263(b) and (c) are inter-related to Illustrations (iii), (iv) & (v);
(c) "Just cause" for annulment/revocation is deemed to exist if the proceedings to obtain the grant were defective in substance;
(d) The expression "defective in substance" would ordinarily mean that the defect was of such a character so as to substantially affect the regularity and correctness of the probate proceedings;
(e) It could include situations where probate was granted without complying with the provisions of the Indian Succession Act or Rules governing Probate and Administration Matters, 1964 or any other law in force or without complying with any other legal requirement;
(f) 'Just cause' is also deemed to exist if the probate has been obtained fraudulently by a party who is guilty of "
Suppressio Veri and Suggestio Falsi " viz., if the grant of probate was obtained by suppressing/concealing material facts or by putting forth untrue/false averments/contentions; 44
(g) 'Just cause' is also deemed to exist if the probate has been obtained by putting forth untrue/false averments/ contentions out of ignorance or inadvertence and the said averment/contentions were essential to be put forth by a party to justify the grant of probate in his favour;
(h) In this context, it is relevant to state that notwithstanding the fact that the said untrue/false averments/contentions were not made fraudulently and were a result of ignorance/inadvertence, since the said untrue/false averments/contentions resulted in the probate court granting the probate, the said untrue/false averments/contentions, albeit put forth in ignorance/inadvertence, the same would constitute just and sufficient cause for annulment/revocation of probate.
42. As stated supra, the various circumstances narrated above are merely illustrative and not exhaustive and in addition to the same, it is open for a party seeking annulment/revocation of a probate to plead and prove other 45 circumstances also which would constitute just cause for annulment/revocation of a probate.
43. It may also not be out of place to state a probate can be granted only in favour of a person who has been appointed as an executor, either expressly or by implication in the Will sought to be probated. A probate of a Will not be granted in favour of a mere legatee simpliciter or anyone else claiming right over the estate of the testator.
44. It is however needless to state that such other persons who are not executors are entitled to institute appropriate proceedings either under the provisions of the Indian Succession Act or any other law to agitate their rights over the estate of the deceased testator.
45. In view of the aforesaid legal position and facts and circumstances of instant case, I am of the opinion that Probate of Manohar Prasad's alleged Will dated 4-11-1993 granted in favour of Appellant vide Order dated 15-3-2001 passed by 46 Trial Court in P & SC No.1/2001 deserves to be annulled/revoked under Section 263 of the Act.
Point No.1 is accordingly answered in favour of the respondents.
Point No.2:
46. While dealing with Point No.1 (supra), I have already held that the Probate of Manohar Prasad's alleged Will dated 4-11-1993 granted in favour of the appellant vide Order dated 15-3-2001 passed by the trial court in P & SC No.1/2001 deserves to be annulled/revoked under Section 263 of Indian Succession Act and the petition filed by the respondents in Civil Misc.36/2003 deserves to be allowed. As noticed by me in Paragraph No.13 (supra), various reasons assigned by the trial court to allow the petition filed by the respondents and thereby annul/revoke the probate granted in favour of the appellant in P & SC No.1/2001 are just, sound and proper and the same do not suffer from any illegality or infirmity warranting interference.
47
47. Upon re-appreciation of the entire material on record and having regard to the facts and circumstances narrated supra, I am of the considered opinion that the trial court was fully justified in annulling and revoking the Probate granted in favour of the Appellant vide Order dated 15-3-2001 passed in P & SC No.1/2001. The impugned judgment and order passed by the trial court is based on correct and proper consideration and appreciation of the material on record and same is based on legal and acceptable evidence which does not warrant interference by this Court.
Point No.2 is accordingly answered in favour of respondents.
Point No.3:
48. By the impugned judgment and order whereby the trial court allowed the petition in Civil Misc.36/2003 thereby annulling and revoking the probate granted in favour of the appellant in P & SC No.1/2001, the trial court has reserved liberty in favour of the appellant to file a fresh petition for grant 48 of probate. While dealing with Point Nos. 1 and 2 (supra), I have confirmed and affirmed the impugned judgment and order passed by the trial court.
49. In addition to the liberty already reserved by the trial court in favour of the appellant to institute fresh proceedings for grant of probate, in order to do complete and substantial justice and to avoid unnecessary delay by starting proceedings afresh and to prevent multiplicity of proceedings, I also deem it fit and proper to permit the appellant herein to reopen P & SC No.1/2001 by taking necessary steps in this regard before the trial court which passed the said Order in P & SC No.1/2001 dated 15-3-2001.
50. Upon such appropriate steps being taken by the appellant in P & SC No.1/2001 by making suitable application(s) or otherwise, the appellant as well as the trial court seized of P & SC No.1/2001 are directed to implead respondents herein as party-respondents to the said proceedings in P & SC No.1/2001 and give them sufficient opportunity to contest the proceedings before proceeding 49 further in the matter. The trial court is also directed to notify and implead such other parties to P & SC No.1/2001 as may be required in law and also give them sufficient opportunity to contest the proceedings. Further, the trial court is also directed to dispose off the proceedings in P & SC No.1/2001 de- novo/afresh strictly in accordance with law keeping in mind the findings and observations recorded by me in this order as well as the provisions of the Indian Succession Act. It is needless to state that all rival contentions urged by the appellant and respondents are kept open.
Point No.3 is answered accordingly.
51. In the result, I pass the following:-
ORDER
(i) The appeal is hereby dismissed;
(ii) The impugned Judgment and Order dated 09.02.2016 passed in Civil Misc.No.36/2003 by the Principal District Judge, Kalaburagi is confirmed and affirmed;
(iii) In addition to the liberty reserved in favour of the appellant by the trial court in the impugned judgment and order to file a fresh probate, the appellant is also hereby 50 reserved liberty to reopen P & SC No.1/2001 by taking necessary steps in this regard before the trial court which passed the Order dated 15-3-2001 in P & SC No.1/2001;
(iv) Upon such appropriate steps being taken by the appellant in P & SC No.1/2001 by making suitable application(s) or otherwise and the proceedings therein being re-opened before the trial court, the appellant as well as the trial Court seized of P & SC No.1/2001 are directed to implead and notify the Respondents herein as Party-Respondents to the said proceedings in P & SC No.1/2001 and give them sufficient opportunity to contest the proceedings before proceeding further in the matter;
(v) The trial court is also directed to notify and implead such other parties to P & SC No.1/2001 including other heirs of Manohar Prasad as required in law and also give them sufficient opportunity to contest the proceedings;
(vi) The trial court is also directed to dispose of the proceedings in P & SC No.1/2001 de-novo/afresh strictly in accordance with law keeping in mind the findings and observations recorded by me in this Order as well as the provisions of the Indian Succession Act and all other statutory provisions. It is made clear that in the event proceedings in P & SC No.1/2001 are contested by anyone including 51 respondents herein, same shall be treated as a contentious suit as contemplated under Section 295 of the Act ;
(vii) All rival contentions between all the parties including all the contentions of the appellant as well as the respondents are hereby kept open;
(viii) All parties are at liberty to file such interlocutory applications in P & SC No.1/2001 as permissible in law;
(ix) The aforesaid directions as well as the findings and observations recorded by me in this judgment are also equally applicable to any other fresh proceedings instituted by the appellant against anyone including the respondents herein before any court, forum, tribunal etc., in relation to the estate of the deceased Manohar Prasad;
(x) It is needless to state that all parties are also at liberty to file interlocutory applications in the said fresh proceedings as permissible in law;
(xi) Subject to the aforesaid additional directions supra, the present appeal stands dismissed. No costs.
Sd/-
JUDGE Srl.