Karnataka High Court
Mrs. Lynette Fernandes W/O C.F.G. ... vs Mrs. Gertie Mathias (Since Dead By Lrs. ... on 30 November, 2006
Equivalent citations: AIR 2007 (NOC) 653 (KAR), AIR 2007 (NOC) 653 (KAR.) = 2007 (2) AIR KAR R 183, 2007 (3) ABR (NOC) 504 (KAR.) = 2007 (2) AIR KAR R 183, 2007 (2) AJHAR (NOC) 691 (KAR.), 2007 (2) AIR KAR R 183, 2007 A I H C 1134, (2007) 1 HINDULR 685, (2007) 2 KANT LJ 413, (2007) 3 ICC 306
Author: V. Jagannathan
Bench: V. Jagannathan
JUDGMENT V. Jagannathan, J.
Page 0409
1. Grant of probate in favour of the mother (Mrs Gertie Mathias) an 9.9.1960 in O.P. 26/60, was sought to be revoked by the daughter (Lynette Fernandes) in the year 1996 and the learned trial Judge rejected the application filed by the daughter, giving rise to this appeal, is the long and short of this case.
2. The facts briefly stated are to the fact that one Mr. Richard P. Mathias was the testator who executed a will on 11.8.1959 bequeathing all his assets in favour of his wife Mr. Gertie Mathias and he died in Mangalore on 5.11.1959. The deceased left behind him his wife, two daughters and a son and the appellant herein is one of the two daughters. The executrix Mrs. Gertie Mathias filed a petition in O.P. 26/1960 for grant of probate and the trial Court did grant the probate in respect of the will Ex.A.1 on 9.9.1960. It is not in dispute that the entire family was residing at Mangalore and the appellant herein was born and brought up at that place and the deceased also lived at Mangalore till his death After the grant of probate in the year 1960, the appellant herein attained majority on 9.9.1965. She also filed a suit for partition in OS 152/95 on 6.7.1995 almost after 30 years of attaining majority. In the said suit, the appellant claimed 1/4th share of the property referred to in the will of the deceased. Thereafterwards, based on the agreement dated 17.3.1993, the appellant received a sum of RS. 9,30,000/- in full and final settlement in respect of the will of one Mrs. Pressy D'souza and Arthur. Thereafterwards, the appellant herein filed the present petition under Section 263 of the Indian Succession Act. ('The Act' in brief) seeking revocation of the probate granted to her mother in the year 1960 and the said petition for revocation was filed Page 0410 after 36 years of grant of probate. The parties led no evidence in respect of the above petition filed in P&SC 23/96 and they consented for marking of the documents. The learned trial Judge after hearing the parties found that the petition did not merit consideration mainly on the ground of the petition being barred hopelessly by limitation inasmuch as the said petition was filed long after the appellant attained majority and precisely 36 years later and therefore on the ground of limitation the trial Court felt the petition has to be dismissed. Apart from the said ground, the trial Court did not find any case made out by the appellant in order to bring her case within any one of the grounds for a 'just cause' mentioned in Section 263 of the Act. Sofaras the defect concerning no citation being taken out at Chickmagalur where the estate of the deceased was situated, the trial Court felt that as all the interested persons were residing at Mangalore, it was not necessary to take out the citation at Chickmagalur. The trial Court also noted that the appellant had failed to place any evidence with regard to the fraud or undue influence placed by the respondent herein and as the genuineness of the will was not called in question and signature of the deceased also not being disputed, for all the above said reasons, the trial Court declined to allow the petition filed to revoke the probate granted in the year 1960. Aggrieved by the aforesaid order dtd. 29.3.2000, the appellant is before this Court.
3. I have heard the submissions made by learned senior counsel Sri V. Tarakaram for the appellant, learned senior counsel Sri Udaya Holla for respondent 1(c) and Sri R.I.D'sa for Respondent 1(a).
4. Both sides have placed reliance on number of decisions to support their contentions.
5. Learned Counsel for the appellant has challenged the impugned order of the trial Court on several grounds. I therefore deem it necessary to summarize the grounds as under for proper appreciation of the case of the parties.
(1) No citation was taken out and proclamation made at Chickmagalur within which district the estate of deceased was situated (2) The probate of the will was sought in "Common form" and not in "Solemn form".
(3) The will at Ex.A.1 is liable to be declared as void as having been brought about by importunity for constituting fraud or coercion or undue influence. (4) The petition filed under Section 263 of the Act is not barred by limitation against Article 137 of the Limitation Act has no application to the said proceeding under Section 263 of the Act. (5) The cause of action arose on 5.9.1995 when the respondent stated in her written statement in. OS 152/95 that the will of the deceased was not prepared or written by the respondent.
6. Learned Counsel for the appellant in support, of the above grounds placed reliance on a number of decisions and they are the following:
i) AIR 1928 PC 2
ii)
iii) (1933)1 SCC 442 Page 0411
iv) (1990)3 KLJ (Supp.) 324
v) ILR 2005 Kar. 142
vi)
vii)
viii) ILR (XI) Cal. 492
ix) ILR (XXX) Cal. 528
x) AIR 1931 Cal. 713
xi)
xii)
xiii) 1992-I MLJ 210
xiv) 1995-2 L.W.831
xv) 1995-2 L.W.852 xvi) 1995-2 L.W. 862 xvii) 1996-II MLJ 574 xviii) AIR 1967 SC 1450 xix) xx) xxi)
7. On the other hand, learned senior counsel Sri. Udaya Holla for the respondent placed reliance on the following decisions:
i)
ii)
iii)
iv)
v)
vi)
vii) AIR 1931 Cal. 497
viii) Page 0412
ix)
x) AIR 1919 Cal. 618
8. The grounds urged by the appellant's counsel will naturally have to be considered one by one because any one of them may justify the order for revocation of the probate since the appellant's counsel has confined to the above grounds, it is unnecessary to go into the other aspects of the matter, but the entire material on record will have to be examined in the light of the grounds urged above. Having carefully gone through the rulings cited by both the sides at the bar and in the light of the principles laid down, I proceed to examine the grounds urged on behalf of the appellant.
9. Before I proceed to consider the grounds urged in this appeal, it is necessary to reproduce Section 263 of the Act for proper appreciation of the contentions put forward. Section 263 of the Act reads thus:
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.
10. The first ground urged by the appellant's counsel is that no citation was taken out and proclamation made at Chikmagalur where the estate of the appellant was situated. As far as this contention is concerned, there is no doubt that a bare look at the order sheet of the trial court discloses that citation was not in fact taken out at Chikmagalur. The reason given by the trial judge is that the deceased died at Mangalore. Learned Counsel for the appellant referring to this ground submitted that unless citation was taken out as required under law, the proceedings therefore becomes defective in substance. In this regard, he placed reliance on the decision and 1996-II MLJ 74. The principles laid down in the above said decisions in effect is that where notice was not taken out as required by law, the proceedings become defective in substance. In this connection, he also placed reliance on Section 283(1)(c) of the Act which contemplates issuance of citations calling upon all the persons claiming for any interest in the estate of the deceased to come and see the proceedings Page 0413 before the grant of probate and letters of administration. Therefore, a person who is interested in the estate of the deceased is entitled to be issued by the citation under Section 283(1)(c). Referring to the decision reported in AIR 1931 Calcutta 713, it was submitted that where notice of probate proceedings was thrown in the verandah where the woman was in the baraghar at the distance of four or live cubits behind a jhap, it could not be held that the service amounted to formal service, but it was of no greater effect in law than the personal service on an infant of tender years. Therefore, there was no effect of service. Hence, reliance on the aforesaid decisions. It is submitted that in the instant case, as there was no citation taken at Chikmagalur, the appellant has made out a ground to be brought within just because there is mention in Section 263 of the Act and therefore, the grant of probate ought to have been revoked.
11. As far as this ground is concerned, learned Counsel for the respondent placed reliance on the decisions and in the case of Anil Bihari Ghosh v. Smt. Latika Bala Dassi and Ors. , the Hon'ble Supreme Court has observed thus:
Defective in substance" in Clause (a) of the Explanation to Section 263 must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. 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. The Court may refuse to grant annulment in cases where there is no likelihood of proof being offered that the will admitted to probate was either not genuine or had not been validly executed.
12. In the instant case, the facts disclose that the entire family of deceased Richard P. Mathias was dwelling at Mangalore at the time of the death of the testator. In the suit O.S. No. 152/1995 filed by the appellant, it has been stated by her that all the children of Richard P. Mathias including the appellant were all born in the 'Highlands' house at Mangalore and they were residing at that place at the time when the appellant was also born and the said Richard Mathias died at Mangalore is also not in dispute. Therefore, when the entire family was at Mangalore and citation was not taken at Chikmagalur where the property was situated, that is no ground to come to the conclusion that the proceedings has become defective leading to defective in substance. As the appellant herself was living with her parents and at the time when the probate proceedings were initiated in the year 1960, the appellant was almost aged 13 years, it cannot be said that the appellant was totally unaware of the probate proceedings. No doubt, at that point of time, the appellant was still minor. But nevertheless, not taking out the citation at Chikmagalur cannot in the facts and the circumstances of the case can be Page 0414 considered as defective. Therefore, as has been observed by the Apex Court, the defect if at all is there with regard to citation being not taken out at Chikmagalur cannot be considered as one of such a character to substantially affect the regularity and the substance of the proceedings. Therefore, the trial judge has rightly observed in the course of his order for not taking out citation at Chikmagalur cannot foe considered as serious one so as to bring it within the expression defective in substance.
13. As regards the submission that "all the children of Richard P. Mathias were minors at the time when the probate was granted and that no notice was given to them" is concerned and as there existence was also not disclosed by the respondent for seeking grant of probate is concerned, I have already considered the aspect of citation being taken out in respect of the persons interested and in the instant case, the defect cannot be considered as one which is substantive in nature as to affect the proceedings before the probate court and as such, in the light of the facts and circumstances of the case, and when the deceased had bequeathed his property to his wife and to no one else, and the genuineness of the will and signature of the deceased are not in dispute, it cannot be said that the appellant is an interested person nor any of her interest can be said to have been affected in any manner. Hence, the defect that is pointed out cannot be considered as serious enough so as to bring it within the ambit of just cause.
14. The second ground urged by the appellant's counsel is that the proof of the Will was not in common form and solemn form. As far as this contention is concerned, it has been submitted by the learned Counsel for the respondent that so far as our country is concerned, there is no such distinction like common forum and solemn form and only in England common form is in existence. In this connection, the ruling referred to by the learned Counsel throws much light. In the decision reported in Southern Bank Ltd. v. Kesardeo Ganeriwalla and Ors. , it has been held that:
In India there is no system like the English common form procedure. In the English procedure, there is really no judicial determination of the right to the probate, out the probate is issued as a matter of course on certain formalities being complied with. The English common form grant is as a matter of right in the absence of all other parties interested but there in no such right in any applicant for probate anywhere in India. The court may under Section 283, if it so desires, call upon any party interested to appear in the proceedings of the grant and the applicant for probate has no right to object to it. The fact that the court has not in any particular case called upon any party interested to appear in the proceedings cannot render the probate granted in that case one in common form and entitle that party to invoke the English law which would entitle such party to call in the probate and require the will to be proved in solemn form. In the very same decision, the position between the English common form procedure and the Indian procedure have been discussed and they are as follows:
Page 0415 (41) The important distinctions between the English Common form procedure and the Indian Procedure are therefore as follows:
(a) In England the matter never comes before the Court; in India the Court does everything.
(b) In England the Oath of an attesting witness is not necessary unless doubts arise from the will itself about its due execution; in India there has to be declaration by one attesting witness when procurable about the due execution of the Will.
(c) In England there is no right to examine the petitioner in person while in India such a right exists.
(d) Lastly, and this is most important for the present purpose, a Court here may in all cases issue citation calling upon persons interested in the estate to appear and persons may of their own also appear, but in England, unless there is a caveat, no citation can be issued on any one nor can any one appear on his own.
(42) In my view, therefore, there is nothing like the English Common Form procedure in India. In the English procedure there is really no judicial determination of the right to the probate, but the probate is issued as a matter of course on certain formalities being complied with. The English Common Form grant is as a matter of right in the absence of all other parties interested but there is no such right in any applicant for probate anywhere in India. I have earlier stated that the reason behind the English rule is that a common form grant is made in the absence of other parties interested who were entitled to be heard at the time of the grant and the rule puts them in the same position as if they had appeared. This reason does not exist in India. The court may, if it so desires, call upon any party interested to appear in the proceedings of the grant and the applicant for probate has no right to object to it. Whether the Court in any particular case does so or not, can make no particular case does so or not, can make no difference, for the rule must be of general application and the reasons for its existence cannot be the facts of the case but have to be in the procedure itself. In England the rule is there, because of the procedure and not because a certain state of things existed in a certain case.
(43) I therefore come to the conclusion that we have no system in our country like the English Common Form Procedure. The system of grant that we have here does not contain the reason which fortifies the existence of the English rule. The result is that the English rule is not available in our country.
15. Therefore, in the instant case having regard to the law bearing on this point and the citation having been issued at Mangalore and the evidence of PW1 in probate proceedings having been recorded, the procedure followed will have to be held as one that is practiced in our country i.e., 'solemn form' and it cannot be construed as common form procedure. Therefore, the said ground also does not convince me as of having any merit behind it.
16. The third ground urged by the appellant's counsel is that the Will executed by the deceased is to be declared as void because the same has been brought Page 0416 out by the respondent herein and that the same is constituted by fraud or coercion. In this connection, learned Counsel also placed reliance on several decisions and the principles of law laid down therein and the said citations are well known. However, what is required to be seen in the instant case is, whether the appellant has been able to prove the fraud or coercion or undue influence having been played by the respondent herein. The appellant has failed to place any evidence before the trial court with regard to the proof of the additional facts. The mere allegation in the petition filed under Section 263 of the Act will not amount to proof of the allegation of fraud or coercion. Therefore, in the instant case, mere pleading without there being evidence to back it cannot be accepted. In fact, in the course of the order passed on the petition filed under Section 263 of the Act, the trial court has observed that the parties did not lead any evidence, but they only consented for marking of certain documents and as such, without there being any evidence to prove the allegations of fraud, undue influence or coercion, general allegations are insufficient to carry the case of the appellant further. In this connection, the decision of the Apex Court in the case of Bishundeo Narain and Anr. v. Seogeni Rai and Ors. will have to be pressed into service. It has been observed in the said case with regard to the plea of fraud, undue influence and coercion thus:
Though pleas of undue influence & coercion may overlap in part in some cases they are separable categories in law & must be separately pleaded. In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars & the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Court ought to take notice however strong the language in which they are couched may be & the same applies to undue influence & coercion.
17. Therefore, in the instant case in the absence of any iota of evidence being placed by the appellant in support of the allegations made in the petition filed, I do not find any merit in this contention.
18. The 4th ground urged in the appeal is that the cause of action arose on 5.9.1995 when the respondent herein mentioned in the written statement of O.S. No. 152/95 that the Will of the deceased was not prepared or written by her. In other words, it is the case of the appellant that she became aware of the probate proceedings only when the written statement was filed in the above mentioned suit by the respondent. But the said stand taken by the appellant goes against her own statement made in the very same suit O.S. No. 152/95. In the plaint filed in the said suit at paragraphs No. 8, the appellant has stated that she was married on 27.10.1965 and at the time of her marriage, subsequently it became known in the circles that the appellant is one of the beneficiaries under the will executed by Arthur D'Souza and Mrs. Pressy D'Souza as well as her father Richard P. Mathias. This particular averment at para 8 of the plaint filed in the aforesaid suit goes to indicate that the appellant was aware of the Will executed by her Page 0417 father at the time of her marriage i.e., in the year 1965 itself. Therefore, it does not now lie in the mouth of the appellant to say that she became aware of the probate proceedings only when the respondent filed her written statement in the aforesaid O.S. No. 152/1995. The said contention, therefore, will have to be rejected in the face of the very admission made by the appellant in para 8 of the suit mentioned above.
19. The last, but, in my view, the most important ground is one concerning the ground of limitation. Learned Senior counsel Sri. Tarakaram for the appellant strenuously contended that Article 137 of the Limitation Act has no application to a proceeding under Section 263 of the Act. In support of the above contention, he placed reliance on the decision reported in the case of Balwant Singh and Ors. v. Gurhachan Singh and Ors. and a Division Bench ruling of this Court reported in the case of B. Manjunatha Prabhu and Ors. v. C.G. Srinivas and Ors. , Referring to various sections of the Act and to the above mentioned decisions it was contended that limitation does not apply to the case on hand and Article 137 has no application to the instant case. Since no period of limitation is prescribed under the Indian Succession Act for grant of probate or letters of administration, it implies that no such limitation can be read into a petition under Section 263 of the Act as well. It is his submission that a division bench of this Court in the case of B. Manjunatha Prabhu and Ors. v. CG. Srinivas and Ors. has laid down the law that an application was filed for issue of probate does not fall within Article 137 of the Limitation Act and therefore, the probate petition is maintainable. Hence, placing reliance on the aforesaid decision and also the decision he contended that Article 137 of the Limitation Act has no application to the case on hand.
20. On the other hand, learned Senior Counsel Sri. Udaya Holla for the respondents contended that the petition filed under Section 263 of the Act is the one seeking revocation of the order granting probate and therefore, the decision of this Court in the aforesaid rulings referred to by the appellant's counsel has no bearing on the case on hand. It is submitted that where no period of limitation is prescribed under law, then Article 137 squarely applies and the time limit of three years will have to be applied in such cases. In this connection, my attention was drawn to the decision of the Apex Court reported in AIR 1977 SC 282 to contend that the words "any other application" under Article 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. Therefore, it is contended that the application filed under Section 263 of the Act is an application to which Article 137 applies. Further, learned Counsel placed reliance on the rulings of this Court reported in ILR 1987 Karnataka 2552 to submit that laws of limitation are laws of repose and peace and are founded on public-policy intended to eliminate the Page 0418 unsettling influence of perpetual threats of litigation. When a plea of limitation is taken, it is the duty of the court to adjudicate upon its merits. Another decision referred to in this regard is the one reported in ILR 1996 Karnataka 1639. A Division Bench of this Court in the case of The Special Land Acquisition Officer, UKP, Bangalore v. Malakajayya Mallayya has observed that:
It is the duty of the court to consider as to whether reference is time barred and, therefore, invalid; From Section 3(1) of the Limitation Act also, it is clear that it is the duty of the court to decide whether the proceeding instituted before it was barred by time, even if the plea of limitation is not taken by the opposite party.
21. Having regard to the rulings cited by both sides on this ground is concerned, the facts which are not in dispute have already been stated and in respect of grant of probate made in the year 1960, the present petition for revocation was filed in the year 1996, and almost 36 years have elapsed in between and it is a very long period. The appellant attained majority on 19.9.1965 and even from that date till the date of filing of the present petition, there is a long delay of 31 years.
The petition filed under Section 263 of the Act is for revocation of the grant of probate made in favour of the respondent. It is not an application filed for grant of probate and therefore, it is not a case of the party seeking the court for recognition from the court to perform a duty. But on the other hand, it is the case of a party making an application to the court seeking revocation of the grant already made in favour of the respondent. Therefore, it is not a case of a party not asserting a right or making a claim so as to bring it within the ambit of an application filed for seeking grant of probate or letter of administration. The division bench of this Court in the ruling referred to by the appellant's counsel has observed at para 19 of the judgment in B. Manjunath Prabhu's case supra, thus:
Since we have taken the view that in a proceeding or application filed for grant of probate or letters of administration no right is asserted or claimed by an applicant and the applicant only seeks recognition of the court to perform duty, the application filed for issue of probate does not fall within Article 137 of the Limitation Act. The above observation, therefore, makes it clear that only in respect of the application filed for grant of probate, Article 137 of the Limitation Act, had been made inapplicable. In the case on hand, the appellant has not only asserted her right, but she wants the probate to be revoked. As such, the above decision referred to by the appellant in my considered opinion does not apply to the facts and circumstances of the case on hand.
22. At the same time, it is also necessary to refer to a decision in the case of Hari Narain (deceased) by L.Rs. Lalit Kumar Sharma and Ors. v. Subhash Chander and Ors. wherein a division of Page 0419 the said court has observed that in respect of an application filed for revocation of probate under Succession Act, the provisions of Limitation Act do not get automatically excused. In other words, the court was of the view that Article 137 squarely applies to an application filed seeking revocation of the probate. In laying down the above principles of law, the learned Counsel also placed reliance on the decision of the Apex Court in the case of Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma AIR 1997 SC 282. The Apex Court has laid down the law that the time limit of three years prescribed under Article 137 of the Limitation Act applies to any application filed under any Act. Therefore, in the light of the categorical statement of law made by the Apex Court as mentioned above, Article 137 applies to the case on hand. There is no escape from the said Article because the application filed under Section 263 of the Act is an application seeking revocation of grant of probate. Therefore, the application filed is barred by time and the trial court in my view rightly arrived at the same conclusion.
23. I have thus examined in detail all the grounds urged by the appellant's counsel and answered them as above and as a consequence of the conclusion reached in respect of each of the grounds urged by the appellant's counsel, I am of the considered opinion that the appeal fails and none of the grounds mentioned under Section 263 of the Act have been made out so as to bring the case within the ambit of the expression "just cause". Since the appellant has failed to make out the just cause for revocation of the order of grant of probate, the dismissal of the application filed is just and proper. So far as the Will is concerned, the appellant has not questioned the signature of the deceased on the Will nor is there any evidence placed to the contrary.
24. In the result, the appeal stands dismissed.