Bombay High Court
S.A. Modi vs Mrs. T.A. Rana And Ors. on 10 June, 2004
Equivalent citations: AIR2004BOM353, 2004(3)MHLJ821, AIR 2004 BOMBAY 353, (2004) 4 RECCIVR 333, (2004) 2 HINDULR 692, (2004) 3 MAH LJ 821, (2004) 4 CURCC 94, (2004) 4 BOM CR 517, 2004 (4) BOM LR 286, 2004 BOM LR 4 286
Author: R.M. Lodha
Bench: R.M. Lodha, J.P. Devadhar
JUDGMENT R.M. Lodha, J.
1. One Bomanji Dorabji Kumana is said to have executed his last Will and testament on 19th June, 1975. The testator died at Bombay on 11th August, 1978. Rustom D. Kumana and Gool D. Kumana who were the surviving executor and executrix applied for grant of probate before this Court and the probate was granted on 23rd October, 1981. Beneficiaries under the said Will are the present respondents. The present appellant who claims to be one of the legal heirs of the testator and who was not issued the citation of probate proceedings applied for revocation of probate granted on 23rd October, 1981 by filing petition under Section 263 of the Indian Succession Act, 1925 before this Court. Initially, in the petition for revocation of probate, the present appellant only impleaded the first respondent but thereafter under the order of the Court, all the surviving beneficiaries under the Will dated 19th June, 1975 were impleaded. The impleaded beneficiaries contested the petition for revocation of probate filed by the present appellant on diverse grounds. The learned Single Judge of this Court after hearing the parties on the basis of the available material rejected the petition for revocation of probate by order dated 9th February, 1996. Aggrieved thereby, the appeal has been preferred by the present appellant.
2. In the petition for revocation of probate granted on 23rd October, 1981 of the said last Will and testament dated 19th June, 1975 of the late Bomanji Dorabji Kumana, the case was set up by the appellant (hereinafter to be referred to as the petitioner) that he first became aware of the alleged Will/probate of Bomanji Dorabji Kumana only on 12th September, 1992 in connection with the proceedings in suit No. 8 of 1986, The petitioner set up the case that he being one of the legal heirs, it was the bounden duty of the propounder to duly issue citation to each and every legal heir including the petitioner and having not done that which was necessary and required to be done, the probate was liable to be revoked under Section 263 of the Act of 1925. The petitioner submitted that since he became aware of the said Will/probate only on 12-9-1992, the question of delay does not arise. The petitioner set up the case that non-issuance of citation to all the legal heirs of the deceased testator was a deliberate and fraudulent act on the part of the propounders of the Will and on that ground also grant of probate was also liable to be revoked.
3. In opposition to the petition seeking revocation of grant of probate, the first respondent filed reply affidavit. It was submitted that the petitioner knew the testator's death being his uncle in the year 1978 itself and having not taken any steps for a period of 14 years after the testator's demise in connection with his estate, the petition for revocation of grant of probate suffered from gross delay and laches. The first respondent denied that the petitioner came to know of the grant of probate, of the Will of the deceased Bomanji Dorabji Kumana for the first time on 12th September, 1992. It was submitted by the first respondent that the relations between the testator and the petitioner were extremely bad as the petitioner had assaulted the testator leading to a criminal case and that the testator could never have wanted to die intestate as then a part of his estate would go to the petitioner and therefore, it was inconceivable that the petitioner could not know that the testator had executed the Will. The respondent No. 1 also set up the case that due to lapse of time, the executor as well as executrix have died and so also the witnesses of the said Will; the estate of the deceased executor has also been fully administered and, therefore, also it would not be just to revoke the grant of probate. The case was also set up by the first respondent that the petitioner had not challenged the genuineness of the Will. The petitioner is in habit of filing frivolous caveats and proceedings and the present petition for revocation of grant of probate is also intended to harass the respondents.
4. The petitioner filed affidavit in rejoinder and therein he referred to some letters written by him to the Prothonotary and Senior Master of this Court wherein he is said to have alleged that the Will in question was not genuine.
5. The learned Single Judge heard the arguments and as noticed above, rejected the petition seeking revocation of grant of probate by the order dated 9th February, 1996. In her order, the learned Single Judge did not accept the petitioner's case that until 1992, he was not aware or had no knowledge of the subject Will. The learned Single Judge also held that in the petition, the petitioner had not challenged the genuineness of the Will, however he sought distribution of the estate not in specie but to the extent of share and the market value of the property and, in the circumstances, non-issuance of the citation by itself would not justify the revocation of the grant of probate. The learned Single Judge held that in view of the fact that there was a gross delay in filing the petition; the executors were dead; the attesting witnesses also expired; the property has been administered and the fact that the petitioner did not bother to adopt any proceedings in asserting his rights in respect of the properties left by the testator for long years of about 14 years, there was no just cause for revocation of the grant of probate.
6. Mr. Navin Parekh, the learned counsel appearing for the appellant submitted that the fact that the appellant was legal heir of the deceased Bomanji Dorabji Kumana (testator) on intestacy was not in dispute and, therefore, under the law as well as the High Court Rules, the citation was necessarily required to be issued to the petitioner. Had the propounders seeking probate of the said Will mentioned the name of the petitioner as legal heir of the deceased testator, the citation would have been issued to the petitioner but it was not done deliberately. The learned counsel referred to Section 263 of the Act of 1925 and submitted that the citation having not been issued to the petitioner which was necessarily required to be issued, the proceedings to obtain the grant were defective in substance and thus, the just cause is deemed to exist justifying revocation of the grant of probate. The learned counsel also submitted that the just cause for revocation of grant of probate was also made out as the propounders fraudulently or in any case deliberately concealed from the Court the material aspect about the petitioner being legal heir left behind by the deceased testator and as a reason thereof the citation could not be issued to the petitioner. The learned counsel submitted that the propounders having deliberately and knowingly omitted to issue the citation to the petitioner although he was heir on intestacy, the delay cannot be attributed to the petitioner nor can it be fatal. The learned counsel strenuously urged that deliberate and intentional failure on the part of the propounders of the purported Will of the testator to mention the existence of the petitioner in the probate petition and to serve citation on him was a gross defect sufficient itself for revocation of grant of probate. According to the learned counsel, the learned Single Judge on unfounded surmises and conjectures formed the opinion that the petitioner was aware and he know of the said Will and grant of probate much before the year 1992. According to the learned counsel, the defects alleged by the respondents and accepted by the learned Single Judge like delay, death of parties, executors and witnesses and administration of estate could have been avoided if the propounders had made the petitioner party in the probate proceedings. Having not done that, the petitioner cannot be barred from his remedy to seek revocation of the grant where admittedly no citation was issued to the petitioner which was imperative. In support of the submissions, Mr. Navin Parekh, the learned counsel for the petitioner placed reliance upon Banga Chandra v. Menaka Sundari, AIR 1933 Calcutta 74; Pritam Dass v. Nand Ram, ; Hans Raj Mittal v. Khushi Ram Ganga Ram and Ors. AIR 1964 Punjab 485; Mutukdhari Singh v. Smt. Prem Debi and Ors., ; Satrughan Mishra v. Smt. Sulochana Devi, ; George Anthony Harris v. Millicent Spencer, AIR 1933 Bombay 370. Haimabati Mitra v. Kunja Mohan Das ; Digambar Keshav Shotri v. Narayan Vithal Ashteka, 13 BLR 38; Elokeshi Dassi v. Hurry Prosad Soor, VII Calcutta Weekly Notes, 450; Priya Nath Bhattacharji v. Saila Bala Debi, AIR 1929 Patna 385; Sm. Annapurna Kumar v. Subodh Chandra Kumar, and Anil Behari Ghosh v. Smt. Latika Bala Dassi and Ors., .
7. On the other hand, Mr. Madon, the learned counsel for the respondents supported the judgment of the learned Single Judge and also relied upon the judgment of the Supreme Court in the case of Anil Behari Ghosh (cited supra).
8. Though the large number of judgments were cited by the learned counsel for the appellant, in our considered view, it is not necessary to refer to all these judgments and reference to the judgment of the Supreme Court in the case of Anil Behari Ghosh shall suffice. The Supreme Court in the case of Anil Behari Ghosh with reference to Section 263 of the Act of 1925 held thus --
"16. It was further argued on behalf of the appellant that the appeal should be allowed and the grant revoked on the simple ground, apart from any other considerations, that there had been no citation issued to Girish. In our opinion, this proposition also is much too widely stated. Section 263 of the Act vests a judicial discretion in the Court to revoke or annul a grant for just cause. The explanation has indicated the circumstances in which the Court can come to the conclusion that "just cause" had been made out. In this connection the appellant relied upon Clause (a) quoted above which requires that the proceedings resulting in the grant sought to be revoked should have been "defective in substance".
We are not inclined to hold that they were "defective in substance". "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". 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 it 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. But in the present case we are not satisfied in all the circumstances of the 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.
17. Learned counsel for the appellant made pointed reference to the decision of their Lordships of the Judicial Committee of the Privy Council in 'Ramanand Kuer v. Kalawati Kuer' AIR 1928 PC 2 (D). But that case is an authority for the proposition that where two grounds are taken for revocation of a grant, viz., (1) that persons who ought to have been cited were not cited, and (2) that the Will was a forgery, if the first ground is established, the onus is upon the opponents to prove that the Will is genuine. That case is no authority for the proposition that in every case where there is a defect in citation, the Court must order a revocation or annulment of the grant.
The annulment is a matter of substance and not of mere form. 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. 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."
9. The ordinary rule is that the omission to issue citations to the persons who ought to have been apprised of the probate proceedings may provide for a ground by itself for revocation of the grant of probate. The existence of special circumstances, however, may justify departure from the ordinary rule. As held by the Supreme Court, revocation of the grant on the ground of the omission to issue citations to persons should have been apprised for the probate proceedings is not the absolute right. The special circumstances obtaining in a given case may justify refusal to revoke the grant of probate even where there is omission to issue citation to the necessary party. Whether the special circumstances justifying denial of revocation of grant exist or not would depend on the facts of each case. In the present case, the learned Single Judge rejected the petition for revocation of the grant of probate because (i) there was gross delay in filing the petition, (ii) the attesting witnesses to the Will were dead and so also the executors, (iii) the estate of the deceased testator stood administered and (iv) no steps were taken by the petitioner for the period from 1978 to 1992 in adopting the proceedings or asserting his right concerning the properties left by the deceased testator.
10. The question before us is whether the judgment of the learned Single Judge rejecting the petition for revocation of the grant of probate suffers from any error warranting interference in the appeal.
11. We have already noticed that the petitioner is the heir of the deceased Bomanji Dorabji Kumana (testator) on intestacy is not in dispute. The testator was unmarried and being Parsi as per Section 55 of the Indian Succession Act, the division of his property should be made in accordance with Section 55 had he died intestate. Part II of Schedule II appended to the Indian Succession Act sets forth the order in which the Parsi's next of kin would be entitled to succeed to the property. As per Item 2 of Part II of Schedule II appended to the Indian Succession Act, the petitioner being lineal descendant of the deceased Bomanji Dorabji Kumana would be one of the successors succeeding his estate, had the testator died intestate. By not issuing citation to the petitioner who should have been apprised of the probate proceedings, there was surely an omission on the part of the propounders. Having not done that in the normal case, it would be a ground itself for revocation of grant of probate. However, few facts and circumstances are eloquent justifying departure. The deceased testator died on 11th August, 1978. The probate of the Will and testament dated 19th June, 1975 was granted on 23rd October, 1981. The petition for revocation of grant was made on 12th October, 1992. Thus, admittedly, the petition for revocation of grant has been made almost after 14 years of the death of the testator and 11 years of the grant of probate. The case of the petitioner is that he came to know of the Will/probate only on 12th September, 1992. This statement of the petitioner is inherently unacceptable for more than one reason. From the available material, it is clear that in the proceedings relating to the Will said to have been executed by one of the executrix and legatees of the subject Will, way back in the year 1986 reference to the Will executed by the testator Bomanji Dorabji Kumana was made. The said proceedings, to be specific suit No.8 of 1986, wherein by filing the caveat, the present petitioner had challenged the grant of last Will and codicil of Gool Dorabji Kumana (one of the executrix and legatee of the Will executed by Bomanji Dorabji Kumana) in favour of the present respondent No. 1 but despite that the petitioner did not take any steps either in finding out the Will or whether in relation thereto any probate has been obtained. Mr. Navin Parekh, the learned counsel for the petitioner contended that even if it be assumed that the petitioner came to know of the Will executed by Bomanji Dorabji Kumana somewhere in the year 1986 as is sought to be suggested by relying upon the proceedings in suit No. 8 of 1986, it cannot be said nor it can be attributed that the petitioner came to know that probate has been granted of the said Will. Mr. Parekh also contended that if in fact, the petitioner had come to know of the Will executed by Bomanji Dorabji Kumana in the year 1986, he would not have kept quiet for six years and rather immediately filed petition for revocation. We are not impressed by the submission of the learned counsel for the petitioner. It is clear from the record that the reference of the subject Will finds place in the last Will and codicil of Gool Dorabji Kumana and the petitioner had in fact filed a caveat way back in the year 1986 challenging the grant of last Will and codicil of Gool Dorabji Kumana. It is, thus, clear that the petitioner did come to know of the Will executed by Bomanji Dorabji Kumana in any case in the year 1986. Despite that knowledge if the petitioner did not make efforts in finding out whether the probate has been granted concerning the said Will, it is only the petitioner who is to be blamed and he cannot take advantage of his inaction by setting up a false case that he came to know of the Will executed by Bomanji Dorabji Kumana only on 12th September, 1992. Moreover, it cannot be overlooked that the testator Bomanji Dorabji Kumana died in the year 1978. The petitioner admittedly is one of the legal heirs left behind by him. If he did not know about the Will executed by Bomanji Dorabji Kumana, the least expected of him was to apply for letters of administration for administering the property left behind by Bomanji Dorabji Kumana but that was not done. Because of inordinate delay few intervening circumstances have crept in. The witnesses of the Will have died. The executor and the executrix of the Will were also no more. The estate of the deceased has been fully administered. Yet another important aspect is that the genuineness of the Will has not been specifically challenged in the petition but later on in the rejoinder, some vague plea in that connection has been set up relying upon some letter written by the petitioner to the Prothonotary and Senior Master. The learned counsel for the petitioner relied upon the judgment of the Calcutta High Court in Banga Chandra De (supra) wherein the judgment of the Privy Council in Ramananda Kuer v. Kalawan Kuer was relied upon and it was held that as against the difficulties in the defendant's way by reason of lapse of time, death of parties and witnesses and destruction of records it has to be remembered that much of it might have been avoided by prudent action on the part of the propounder by taking proper and necessary steps to have the Will proved.
12. The judgment of the Privy Council in Ramananda Kuer v. Kalawati Kuer (supra) has been considered by the Apex Court in Anil Behari wherein it has been held that Ramananda Kuer is not an authority for the proposition that in every case where there is defect in citation, the Court must order a revocation or annulment of the grant. The Apex Court held that 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. In the light of the legal position laid down by the Supreme Court, the refusal to revoke the grant may be justified in the case where though there is omission to issue citation to necessary party but there is no possibility of proof being offered due to the death of witnesses and executors and there is no challenge to the genuineness of the Will. In the present case there is no specific challenge to the genuineness of Will in the petition. Even if it be assumed that there is challenge to the genuineness of the Will by the petitioner on the basis of letters written by him to the Prothonotary and Senior Master, the fact remains that on the date the petition for revocation of the grant was made by the petitioner, the witnesses to the Will had died and thus, there was no likelihood of the proof being offered by the respondents that the Will of which the probate has been granted was genuine and validly executed.
13. There is substance in the submission of the learned counsel for the respondents that even otherwise at this point of time when the entire estate of the deceased testator has been administered, it would be impossible to retrieve the said estate either as it is or in a monitory terms and, therefore, it would not be just and proper under Section 263 for revocation of the grant of probate.
14. All in all, we find that the consideration of the matter by the learned Single Judge in rejecting the petition for revocation of grant of probate dated 23rd October, 1981 does not call for any interference.
15. We, accordingly, dismiss the appeal but with no order as to costs.
The parties may be provided ordinary copy of this judgment duly authenticated by Court Associate on payment of usual copying charges.