Madras High Court
Aruna Jagadeesan vs Latika Bala Dassi [1955-2-Scr-270] ...
A.No.6377/07 in OP.No.560/1996 and A.No.2070/08 in CS.No.157/1999 ARUNA JAGADEESAN, J.
A.No.6377/2007 is filed by one J.Malarvizhi and A.No.2070/2008 is filed by one G.Gnanasundari, daughter and the 2nd wife of the testator V.Devaraj respectively to revoke the letters of administration granted on 20.8.1998 in respect of the Will dated 17.6.1987 left by V.Devarajan. The said Devarjan had two wives namely Krishnaveni Ammal, the first wife who had no issues and the 2nd wife is namely Gnansundari, the applicant in A.NO.2070/2008 through whom he had three sons namely D.Raju, D.Ramu (both since deceased) and D.Shankar, the 1st Petitioner in OP.No.560/1996 and two daughters namely J.Malarvizhi daughter/3rd petitioner in the OP, the applicant in A.No.6377/2007 and K.Suguna.
2. The said Devarajan is said to have been doing number of businesses and have number of properties in Chennai and was the only earning member in the family. He executed a Will dated 17.6.1987 bequeathing the various properties to the family members as mentioned in the Will. It is claimed that he had purchased various other properties even after the execution of the Will. According to the applicant Gnanasundari, the property bequeathed in favour of K.Suguna was sold by Devarajan himself and on he being appraised that she had no other property, he is said to have executed another Will superseding the earlier Will in December 1992 making fair and equitable distribution of his properties to all the family members including his daughter K.Suguna. The applicant Gnanasundari alleged that her son D.Shankar had destroyed the said Will under the pretext of destroying unwanted documents. She has further alleged that after the demise of Devarajan, Shankar had taken Krishnavveni Ammal along with him and converted all her properties as his properties without the knowledge and consent of other family members.
3. She has stated that she was not aware of the letters of administration granted in OP.No.560/1996 as she was not a party to the said proceedings and came to know of the proceedings only recently. She has further averred that on verification of the records in OP.No.560/1996, she had found that her son Shankar had forged her signature and that of Krishnaveni Ammal and others and misled the court and obtained the letters of administration.
4. The applicant in A.No.6377/2007 besides reiterating the submissions made by the applicant Gnanasundari, challenged the grant of letters of Administration on the ground that her brother Shankar had played fraud on the court by filing the fabricated and forged consent affidavits of her sister Suguna and her mother Gnanasundari.
5. In the counter filed by the 1st Respondent/Shankar, he denied the allegations and submitted inter alia that the petition for grant of letters of administration was filed jointly by himself, Malarvizhi, the applicant in A.O.6377/2007 and Ramu and the applicant had acted upon and dealt with the properties bequeathed in her favour under the Will dated 17.6.1987. He denied having forged the signatures of the applicant and other family members and submitted that there is no bona fide in the application filed by her for revocation of the letters of Administration.
6. I have carefully gone through the grounds stated by the applicants in both the applications and the counter statements made by the Respondents and heard the submissions made by the learned counsel on either side.
7. An applicant in order to succeed in revoking the letters of Administration granted by the court must establish just cause within the meaning of Section 263 of the Indian Succession Act, as laid down in clauses (a) and (e) thereof. It is relevant to point out to the observation made by the Honourable Supreme Court rendered in the case of Anil Behari Ghosh Vs. Latika Bala Dassi [1955-2-SCR-270] that annulment of the grant of probate is a matter of substance and not a mere form and the court may still 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. Bearing in mind the said observations made by the Honourable Supreme Court, admittedly in the present case, the validity or genuineness of the Will has not been challenged. Neither in the pleadings nor in the submissions made before the court, the question of genuineness has arisen for consideration and the only submission made for consideration is as to whether the applicants have made out a just cause for revocation of the letters of Administration.
8. The enumeration of circumstances in the explanation to Section 263 of the Act is exhaustive and not merely illustrative. The circumstances under which a grant can be revoked under this Section may be classified under the following heads for easy reference:-
(i)When there is substantial defect in the proceedings to obtain the grant.
(ii)When the grant is obtained under false suggestion.
(iii)When a subsequent Will or codicil is discovered; illus (vi) and (viii)
(iv)When required for the better Administration of the estate; illustn (viii)
(v)When the person to whom the grant was made willfully neglects to file an inventory and accounts.
9. It would appear on going through the averments and the allegations made by the applicants that they seek to challenge the grant on three grounds viz. (1) no notice of petition for grant of letters of Administration was served on the petitioners who are also the beneficiaries in the Will, thus the proceedings in obtaining the grant is defective in substance, (2) The grant was obtained fraudulently and (3) there was no filing of accounts.
10. It has been urged by Mr.V.K.sathiamurthy and Mr.S.J.Jagadev, the learned counsel for the applicants that the grant has been obtained fraudulently by making a false suggestion and by concealing the material fact from the court. This, in fact according to them, is the main grievance.
11. On the other hand, Mr.R.Krishnaswamy, the learned senior counsel for the Respondent submitted that the absence of citations does not itself invalidate a grant and contended that no ground was made out by the applicants entitling them to ask for revocation of the grant.
12. As far as the first ground is concerned, the defective in substance as set out in clause (a) of Section 263 of the Act is concerned, it must be of such a character as to substantially affect the regularity and correctness of the proceedings. Absence of service of special citation on a person, who ought to be served, is a just cause, but if the non cited party had knowledge of grant of letters of Administration or if he or she is not prejudicially affected thereby the grant need not be revoked. Absence or non service of special citation to the persons, who ought to be cited is no doubt a good ground for revocation, but however, it is not an absolute right and other circumstances has to be taken into consideration before looking into the said aspect.
13. The learned counsel for the applicants submitted that though the petition for grant of letters of Administration was filed on 22.3.1994, it was numbered only in the year 1996 and the consent affidavits of the other beneficiaries who were not shown as parties in the petition in OP.No.560/1996 were available with the Petitioners as those affidavits were alleged to have been sworn on 25.1.1994 and 26.2.1994 respectively, but they were not filed in the main petition along with the Will.
14. They would submit that after it was pointed out by this court that the other heirs were not shown as parties in the cause title of the main OP, an application was filed by the Respondent to amend the cause title by adding the names of the parties namely Krishnaveni Ammal, Gnanasundari Ammal and Suguna, but subsequently the said application was withdrawn stating that the consent affidavits of those persons are available. They would submit that this court was made to pass an order dispensing with the notice to those persons based on the consent affidavits given by those parties. It was vehemently urged that the signatures have been forged and the said consent affidavits were fabricated by the Respondent and pressed into service in order to avoid service of notice to them. The learned counsel submitted that if notice had been served on those persons, they would have had an opportunity to state their objections to the grant of letter of Administration to the Petitioners therein. The learned counsel pointed out to the variation in the signatures of Gnanasundari Ammal when compared with the signature found in the lease deed executed by her.
15. At the out set, it is pertinent to point out that the applicant in A.No.6377/07 namely Malarvizhi already is a party to the said proceedings in OP.No.560/1996 and she is the third Petitioner. There is nothing to indicate that she had no knowledge of the petition or she subscribed her signature without knowing the fact that the said petition was filed for the grant of letters of Administration. It appears that she has consciously fled the said petition along with the other two petitioners. The grounds set out by her in the revocation application only show that she chose to file the present application, as she had come to know that her sister Suguna and mother Gnanasundari have not given their consent for the grant of the letters of administration in favour of her brother. But, she has never denied knowledge about the petition. Though the grant of letters of Administration was made as early as on 20.8.1998, she has not chosen to challenge the same for more than 9 years, more so, when it has been granted in her favour also along with the Petitioners 1 and 4 therein. She cannot now plead that she was not aware of the grant of letters of Administration and no plausible reason is given for belated filing of the application to revoke the grant.
16. According to Section 275 of the Act, the statements made in the petition for grant are conclusive and in the absence of any material to come to a different conclusion, it is presumed that the grant is made on a petition duly verified, the contents of the petition being accepted as correct and the essential contents are known to the Petitioners. It is not the case of the applicant that the said petition contains false statements or false evidence was adduced before the order of grant.
17. Though there is some variance in the signatures of the applicant Gnanasundari, unless it is proved by clear evidence that the signature found in the consent affidavit was forged or the affidavit was fabricated, no presumption could be drawn that the consent affidavits of those persons including Gnanasundari are fabricated. It is not their case that the Will is not a genuine one or not executed as propounded by the Petitioners. They have questioned only the preferential right of Administration given to the Petitioners. In fact, all the legal heirs have been shown in the body of the petition and it is specifically averred that the other beneficiaries were not inclined to join the petitioner or obtain grant of letters of Administration.
18. That apart, the beneficiaries under the Will had dealt with their share and the applicant Gnanasundari has executed a lease deed dated 27.8.1996 in favour of her son Raju. It appears that general citation has been sent to and published in the local Newspaper. There is no material to show that they were not aware of the proceedings. The applicant Malarvizhi, a party to the said proceedings. The other applicant Gnanasundari mother of the Petitioners in OP is living in the same house and therefore, they cannot plead that they were not aware of the proceedings. In fact, they were entering into transactions in respect of the testator's property and dealing with the same. The facts and circumstances in this case do not leave any room for doubt as to the lack of knowledge about the proceedings. It is true that the Respondent has not been able to impute direct knowledge to Gnanasundari Ammal, but she is the mother of the Respondent and other beneficiaries and therefore knowledge could be safely inferred.
19. In the case of Brinda Chowdhrani Vs. Radhica Chowdrani [ILR-11-Cal-492], the High Court of Calcutta observed as below:-
"If it appeared that the applicant had had notice or had been aware of the former proceedings before the grant of probate issued and had abstained then from coming forward, this would constitute a ground for refusing to allow her to intervene."
20. In the case of Re Pitambar Giridhar [ILR-5-Bombay-638], it was observed that unless perhaps it was made out that the circumstances leading her to believe that the Will was not genuine and that had not come to her knowledge until after the grant of probate, the issue of special citation is not held to be imperative.
21. In the case of Dinabandhu Roy Brajaraj Saha Vs. Sarala Sundari Dassya [Air-1940-Calcutta-296], it is held as follows:-
"There is no difference in principle between a special and a general citation issued under Section 283 (1)(c). The object of both is to give notice to persons interested in the estate of the deceased of the proceedings for grant. When the discretion is exercised and a general citation is issued it is necessary that it should be published as required by Section 283(2) and (3). Absence or non service of special citation on a person who ought to be cited is itself a good ground for revocation at his instance in the absence of other circumstances on which the Court may refuse revocation on account of the discretion vested in it by S.263. It would be a defect, but the defect would not be of substance so as to constitute "just cause" within the meaning of S.263 if the non cited party had knowledge of the probate proceedings or if he is not prejudicially affected thereby."
22. In the case of Hans Raj Mittal Vs. Khushi Ram Ganga Ram and others [AIR-1964-Punjab-485], the learned Single Judge after referring to the decision of Honourable Supreme Court, held thus:-
"12.... The matter appears to have been settled by their Lordships of the Supreme Court in Anil Behari Ghose Vs. Latika Bala dassi (S) AIR-1955-SC-566, where their Lordships have observed that the omission to issue citations to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant. This, they observed, is not an absolute right irrespective of other considerations arising from the proved facts. 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."
23. The Honourable Supreme Court in the decision cited supra [1955-2-SCR-270] has observed as below:-
"The court may refuse the 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. But, as rightly pointed out by the lower Appellate Court in the present case where the validity or genuineness of the Will has not been challenged, it would serve no useful purpose to revoke the grant and to make the parties go through the mere formality of proving the will over again. In our opinion, therefore, the omission of citation has had no effect on the regularity of the proceedings resulting in the grant of 1921."
24. Therefore, the settled position of law is that the law has vested a judicial discretion in the court to revoke a grant, when the court feels that there are prima facie reasons to believe that it is necessary to have the will proved afresh in the presence of interested parties. But, in the present case, there is no such warranting circumstances, as the genuineness of the Will has not been questioned and there is no likelihood of proof being adduced that the Will admitted has not been validly executed. There is nothing to suggest that the Will is not genuine or validly executed. The allegation that the testator has left the Will in the year 1992 as his last Will is not substantiated. A registered Will has been executed by the testator on 17.6.1987 and he had died only on 17.2.1993 i.e. after about 6 years after the execution of the Will and there is no material even to suggest that he has revoked the earlier Will. In such circumstances, it is not enough to allege that the testator had at one time entertained the intention of doing so or the Respondent has destroyed the subsequent Will without any basis.
25. Lastly, the learned senior counsel for the Respondents contended with some amount of force that Article 137 of the Limitation Act, 1963 clearly covers the facts of the instant case and in the light of the period prescribed therein, the application ought to have been filed by the applicants at the most within 3 years from the date when the right to apply for setting aside of the grant grant made and placed reliance on the decision of the Honourable Supreme Court rendered in the case of Kunvarjeet Singh Khandpur Vs. Kirandeep Kaur and others [2008-2-CTC-850]. Though it related to the filing of application of letter of Administration/probate, the learned counsel would point out that the right to apply referred to is the date of accrual and that is the starting point of limitation as per the view expressed by the Honourable Supreme Court.
26. The position is made clear by the Honourable Supreme Court in the decision cited supra that Article 137 of the Act clearly governs the situation and the applicants could file application within three years from the date when the right to apply for setting aside of the probate or letters of Administration accrued to them. This right obviously accrued to them right from the time the letters of Administration was granted in favour of the Respondent and hence, these applications filed in the year 2007 and 2008 respectively were apparently barred by limitation.
27. In the light of the discussions made above, I am unable to find any reason to revoke the letters of administration granted by order dated 20/8/1998 and hence, these applications are dismissed.
18.01.2010 Index:Yes/No Web:Yes/No Srcm ARUNA JAGADEESAN, J.
Srcm Pre Delivery Order in A.No.6377/07 in OP.No.560/1996 and A.No.2070/08 in CS.No.157/1999 18.01.2010