Karnataka High Court
H Srinivas Rao vs Niranjan Rao on 29 November, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF NOVEMBER, 2024 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
MISCELLANEOUS FIRST APPEAL NO.2317 OF 2018 (ISA)
BETWEEN:
H SRINIVAS RAO
S/O LATE MANJUNATHA RAO
AGED ABOUT 79 YEARS
R/AT NO.908, 4TH CROSS,
BSK STAGE I, 2ND BLOCK,
ASHOK NAGAR,
BENGALURU - 560050.
... APPELLANT
(BY SRI G.BALAKRISHNA SHASTRY, ADVOCATE)
AND:
1. NIRANJAN RAO,
S/O ALTE V. SHRIDHAR RAO,
AGED ABOUT 59 YEARS,
R/AT NO.3-83,
FARM HOUSE, KODANGALU POST,
MOODABIDRI,
MANGALURU TALUK
D.K. DISTRICT - 574154.
2. SMT. PUSHPA N. HALDIPUR,
W/O N.R.HALDIPUR,
AGED ABOUT 58 YEARS,
R/AT NO.4801/A , GOODS SHED ROAD,
SHASHTRI NAGAR,
BELGAUM - 574154.
2
3. DR. AJITH PRAKASH,
S/O LATE V. SHRIDHAR RAO,
AGED ABOUT 56 YEARS,
R/AT 'AYUSHREE CLINIC',
MURATHANGADI,
SANOOR POST,
KARKALA TALUK-574114.
4. NAYAN KUMAR,
S/O LATE V. SHRIDHAR RAO,
AGED ABOUT 55 YEARS,
R/AT NO.792, 1ST FLOOR,
A BLOCK, 14TH MAIN,
19TH CROSS,
OPP: GANESH TEMPLE,
SAHAKARNAGAR,
BENGALURU - 560092. ... RESPONDENTS
(BY SRI K.CHANDRANATH ARIGA, ADVOCATE FOR R1 TO R4)
THIS M.F.A. IS FILED UNDER SECTION 384 OF INDIAN
SUCCESSION ACT, AGAINST THE ORDER DATED 15.12.2017,
PASSED IN MISC.CASE NO.25/2016 ON THE FILE OF THE III
ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU,
ALLOWING THE PETITION FILED UNDER SECTION 263 OF THE
INDIAN SUCCESSION ACT AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 21.11.2024 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV JUDGMENT
This miscellaneous first appeal is filed challenging the order passed by the Trial Court in Misc. Case No.25/2016 dated 15.12.2017 wherein the Trial Court allowed the petition filed under Section 263 of the Indian Succession Act and the probate granted in favour of the respondent in P&Sc No.6/2014 dated 06.06.2015 is revoked and permitted the petitioners to contest the said petition.
2. Heard the learned counsel appearing for the respective parties.
3. The factual matrix of the case of the appellant/petitioner in P&Sc No.6/2014 is that Mulky Annappayya had executed a Will in favour of the appellant on 10.07.1990 and he died on 07.09.1999 and consequent upon the Will, M.R.No.74/1999-2000 was effected and name of the legatee Manohar S Moodabidri was entered in the Records of Rights. The executant of the Will also having two sisters by name Rajivibai and Sundaribai and both of them were died on 4 04.02.1999 and 04.06.2000 respectively. The said Rajivibai pre- deceased by the executant and the other sister Sundaribai died subsequent to the death of Mulky Annappayya. The mother of respondent Nos.1 and 4 - Smt. Prafulla S Rao, who is the daughter of Rajivibai, also died on 02.07.2014. A notice was sent to respondent Nos.1 to 4 by Manohar S Moodabidri stating that Mulky Annappayya executed a Will and in the said Will, a condition was made that heirs of late Sridhar Rao and Smt. Prafulla S Rao shall be provided with an alternative dwelling house and respondents sent a reply dated 19.09.2014 denying the contentions of the notice.
4. It is contended that probate was granted in favour of the appellant in P&Sc No.6/2014 on 06.06.2015. The respondents have filed the appeal before the Assistant Commissioner challenging the M.R.No.74/1999-2000 and the same was dismissed and thereafter, respondent Nos.1 to 4 have filed Misc.No.25/2016 under Section 263 of the Indian Succession Act praying for revocation of the letter of administration granted in P&Sc No.6/2014 on 06.06.2015 and 5 the said Misc. Case No.25/2016 was filed on 01.04.2016 in pursuance of P&Sc No.6/2014 and probate granted was revoked. Hence, the present appeal is filed before this Court. In Misc. No.25/2016, respondent Nos.1 to 4 herein have contended that they are the children of late Smt.Prafulla S Rao and Sridhar Rao. The said Prafulla S Rao is the niece of late Mulky Annappayya. The Mulky Annappayya was a bachelor and he was a businessman in Mumbai and further contended that they are the legal heirs of Mulky Annappayya and the appellant is only a distinct relative and set out a ground that the respondents have received a notice and given a reply. It is further contended that Manohar S Moodabidri also filed a suit in O.S.No.433/2015 seeking for the relief of mandatory injunction to hand over possession of the property based on the alleged Will dated 10.07.1990. The respondents herein contended that the said Will is not valid and also not proved and same is not binding and even said Will is not executed voluntarily since the executant was not having sound state of mind and disputed the Will and probate proceedings. It is also further contended that they should have been impleaded as parties to the proceedings of the 6 probate if they are interested and necessary parties. Hence, prayed the Court to set aside the probate and succession certificate granted in P&Sc No.6/2014 and prayed the Court to revoke the same.
5. The counsel for the appellant appeared and filed the objections denying the relationship with the respondents. It is contended that the mother of the respondents when she was alive was aware the factum of the execution of the Will executed by Mulky Annappayya. It is also contended that the name of the legatee came to be mutated based on the Will as per the order of Tahsildar in M.R.No.74/1999-2000. It is also contended that when the said mutation was challenged, the said application was dismissed by the Assistant Commissioner. It is also contended that other sister Sundaribai's son Sathish did not challenge the Will. It is also contended that an extent of 15 cent was measured in the presence of the respondents. It is also contended that Will was valid and the same was executed by the testator when he was having sound state of mind. It is also contended that testator was died on 07.09.1999 and the 7 respondents have not challenged the measurement which was done on 26.10.2005 and conversion order date 17.11.2005. The mutation took place in the revenue office on the strength of the Will. Hence, no cause was made out to revoke the grant of probate.
6. The Trial Court having considered the pleadings of the parties, framed the following points:
1. Whether the petitioners have made out just cause for revocation of grant of Probate in P&Sc No.6/2014?
2. What order?
7. The petitioners in order to prove their contention examined one witness as PW1 and got marked the documents at Ex.P1 to P3. On the other hand, respondent examined himself as RW1. The Trial Court having considered both oral and documentary evidence placed on record in paragraph 16 taken note of the relationship between the parties and particularly taken note of the fact that the fourth entry in Class-II of the schedule refers to brother's son; sister's son; brother's daughter 8 and sister's daughter and having taken note of Section 11 of the Hindu Succession Act, 1956 comes to the conclusion that heirs specified in any one entry are entitled for equal share. The Trial Court also relied upon the judgment reported in 2009 (5) KLJ 588 in the case of C S MUNIYAPPA (SINCE DECEASED) BY PROPOSED L.RS vs THE CORPORATION OF THE CITY OF BANGALORE AND OTHERS and in the said decision, at paragraph 6, this Court held that if at all the persons mentioned in any entry are alive then the property of the deceased shall devolve on all of them in equal share. In paragraph 18, the Trial Court held that the mother of the petitioners namely Smt. Prafulla S Rao was entitled to inherit properties of Mulky Annappayya if he died intestate. The mother of the petitioners died on 02.07.2014 and also an observation is made that undisputedly the mother of the petitioners was in occupation of land in question for quite number of years. As such, it is to be held that the petitioners had caveatable interest in grant of probate in respect of properties of Mulky Annappayya. It is also observed in paragraph 19 that when a person applies for grant of probate or letters of administration, he is duty bound to bring 9 to the notice of concerned Court regarding the persons who prima facie have a claim on interest and failure in this regard amounts to a defect which is sufficient to revoke the probate. It is also observed that without citing the petitioners as parties to the proceedings, the same is obtained. Respondent had taken paper publication in a newspaper "Vartha Bharathi" therein reasonable doubt arises as to the petitioners being aware of proceeding in P&Sc No.6/2014 pursuant to paper publication taken therein and answered point as affirmative and allowed the miscellaneous petition and set aside the order passed in P&Sc No.6/2014 and revoked the grant of probate and given a liberty to the petitioners to contest the said petition. Being aggrieved by the said order, the present appeal is filed.
8. The learned counsel for the appellant would vehemently contend that the Court below has erred in holding that respondent Nos.1 to 4 are entitled to maintain the petition for revocation of the probate under Section 263 of the Indian Succession Act. It is contended that PW1 has admitted that Sundaribai and Rajivibai are the two sisters of the testator and 10 also admitted that the Sathish who is the son of Sundaribai is alive. PW1 also stated that he has not impleaded Sathish because he was residing in different place and he is not having much contact with him. It is contended that respondent Nos.1 to 4 are the grandchildren of Rajivibai whereas, Sathish is the son of Sundaribai, hence, he is preferential heir to the testator, under clause-IV(1) of schedule to Section 8 of the Indian Succession Act. Brother's son, sister's son, brother's daughter and sister's daughter are the preferential heirs. They exclude other heirs. Thus, so far as Mulky Annappayya is concerned, Sathish is the son of the sister of the Mulky Annappayya and Sathish would exclude the respondent Nos.1 to 4 who claims to be the grandchildren of Rajivibai. The Court below overlooked this aspect. The approach of the Trial Court that respondents can maintain the petition for revocation is erroneous. Thus, Sundaribai is the only heir to Mulky Annappayya by virtue of Clause-II item-II(4) of the Schedule to Section 8 of the Indian Succession Act. Sundaribai excludes either the children or grandchildren of Rajivibai. Rajivibai do not inherit any estate on the death of Mulky Annappayya because she has predeceased 11 the testator. Sundaribai who is the younger sister of testator died on 04.06.2000 but falsely they represented that she had predeceased Annappayya. It is also contended that when the citation was published in the local daily newspaper Vartha Bharathi which has got wide publication, the Trial Court committed an error in coming to the conclusion that it creates the doubt.
9. The learned counsel fro the appellant in support of his arguments relied upon the judgment of the Apex Court reported in LAWS(SC)-2008-3-130 in the case of KRISHNA KUMAR BIRLA vs RAJENDRA SINGH LODHA. The counsel referring this judgment would vehemently contend that a person who is having caveatable interest only can maintain a petition. The counsel brought to notice of this Court that while determining the right, the law governing the intestate, succession must also be kept in mind. The counsel would vehemently contend that under Section 283 of the 1925 Act confers a discretion upon the Court to invite some persons to watch the proceedings. Who are they? They must have an 12 interest in the estate of the deceased. Those who pray for joining the proceeding cannot do so despite saying that they had no interest in the estate of the deceased. They must be persons who have an interest in the estate left by the deceased. A caveatable interest is not created, as such an agreement would be binding both on the executor, if the probate is granted, and on the heirs and legal representatives of the deceased, if the same is refused. The counsel would vehemently contend that in this judgment propositions of law also discussed in a case of this nature (i) to sustain a caveat, a caveatable interest must be shown; (ii) the test required to be applied is: does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right; (iii) it is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The counsel referring this propositions would contend that the Court held that logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by 13 Will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein.
10. The counsel also brought to notice of this Court the discussion made with regard to the caveatable interest. Thus, a person who would have otherwise succeeded to the estate of the testator, would ordinarily have a caveatable interest, any other person much ordinarily show a special interest in the estate. The same would not mean that even if the estate of the deceased is being represented by t he legal heirs, caveat can be entertained at the instance of a person who has not real interest therein or in other words would merely have a contingent interest. It is also brought to notice of this Court a person cannot also be impleaded as a party even on an apprehension that those who have a caveatable interest and to whom citations have been made would not take any interest in the litigation. The counsel also would vehemently contend that a caveatable interest is not synonymous with the word 'contention'. A 'contention' can be raised only by a person who has a caveatable 14 interest. The dictionary meaning of 'contention', therefore, in the aforementioned context cannot have any application in a proceeding under the 1925 Act. While interpreting the provisions of a statute, we must also bear in mind the admitted legal position that a probate proceeding should not be permitted to be converted into a title suit. It should not be permitted to become an unchartered field to be trespassed into by persons even if he is not affected by testamentary disposition. The counsel also brought to notice of this Court discussions made in the judgment with regard to Section 284 of the 1925 Act. Keeping in view the aforementioned legal principles. It does not lay down the qualifications or disqualifications of the caveator. Once a caveat is filed, it is for the Court to determine the question as to whether the caveator has any caveatable interest or not. The counsel referring this judgment would vehemently contend that the Trial Court failed to take note of the caveatable interest of the respondents. In the absence of any caveatable interest, ought to have allowed the petition and committed an error in setting aside the probate granted and hence, it requires interference.
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11. Per contra, the learned counsel appearing for the respondents also relied upon the very same judgment and contend that a caveatable interest is an interest in the deceased testator's estate which may be affected by grant of probate, and would depend upon the fact situation in each case. A person who would have succeeded to the testator's estate in case of interstate succession would ordinarily have a caveatable interest. The counsel would vehemently contend that the probate proceedings was initiated beyond the back of the respondents and contend that citation was not taken and counsel would vehemently contend that Sections 283 and 263 to be read conjointly with the powers vested with the Courts and the grounds on which probate can be invoked. Under Section 263, circumstances are mentioned for revoking the same. The counsel also would vehemently contend that in the judgment referred supra held that a judgment rendered in a probate proceeding is a judgment in rem. But, its application is limited. A judgment rendered in a probate proceeding would not be determinative of the question of title. If a probate has been obtained by fraud or suppression of material fact, the same can 16 be the subject matter of revocation of the grant in terms of Section 263 of the 1925 Act. The counsel also brought to notice of this Court the discussion made in the introduction part wherein it is held that what is a caveatable interest within the meaning of the Indian Succession Act, 1925. The counsel also brought to notice of this Court paragraph 27 wherein it is held that chapter XXXV thereof, Rule 4 provides for "application for probate or letters of administration, or a certificate". Rule 5(a) inserted in the year 1948 provides that in all applications for grant of probate or letters of administration with the will annexed, the names of the members of the family or other relatives upon whom the estate would have devolved in case of an intestacy together with their present place of residence shall be stated. The counsel referring this paragraph contend that no such details were given in the probate proceedings initiated by the appellant.
12. The counsel also would vehemently contend that in paragraph 59 of the judgment, the discussed with regard to the caveatable interest and in paragraph 62, it is discussed that 17 caveate is nothing but a warning or caution; admonition. In paragraph 65, discussed with regard to the caveatable interest. The counsel also brought to notice of this Court where an interest in the estate of the deceased testator which may be affected by grant of probate of the Will of the deceased had been applied for determination of the issue of caveatable interest, the same has been discussed in paragraph 88 and so also in paragraph 89 brought to notice of this Court while determining the said question, the law governing the intestate succession must also be kept in mind. The right of the reversioner or even the doctrine of "spes successonis" will have no application for determining the issue in a case of this nature. The counsel also brought to notice of this Court paragraph 94 of the judgment wherein discussed in detail when, thus, a person who would have otherwise succeeded to the estate of the testator, would ordinarily have a caveatable interest, any other person must ordinarily show a special interest in the estate. The counsel also brought to notice of this Court paragraph 100 wherein a discussion was made that if a probate has been obtained by fraud or suppression of material fact, the same can be the 18 subject matter of revocation of the grant in terms of Section 263 of the 1925 Act. In paragraph 103 also it is held that what would be the caveatable interest would, thus, depend upon the fact situation obtaining in each case. No hard-and-fast rule, as such, can be laid down. The counsel referring this judgment would contend that a detail discussion was made with regard to the caveatable interest.
13. The counsel also relied upon the judgment reported in ILR 2009 KAR 4570 in the case of SRI C S MUNIYAPPA, SINCE DECEASED BY LEGAL REPRESENTATIVE'S vs THE CORPORATION OF THE CITY OF BANGALORE REP. BY ITS COMMISSIONER AND OTHERS and brought to notice of this Court wherein discussion was made with regard to Section 8 of the Hindu Succession Act, 1956 general Rules of succession in the case of males wherein also discussed with regard to the firstly devolve on the relatives specified in Clause I of the Schedule, secondly on Clause II and thirdly upon the agnates of the deceased and lastly on the cognates of the deceased. 19
14. The counsel also relied upon the judgment of this Court passed in M.F.A.No.200373/2016 decided on 03.02.2020 in the case of JAGJEEVAN PRASAD vs SMT.PARVATI BAI AND OTHERS wherein this Court in detail discussed locus standi of respondents to seek revocation/annulment. In the said judgment, this Court relied upon the judgment of the Apex Court in the case of BASANTI DEVI vs RAVI PRAKASH RAM PRASAD JAISWAL reported in (2008) 1 SCC 267 and in that judgment also Section 263 of the 1925 Act also discussed in detail and also contended that Section 283(1)(c), it was necessary for the Trial Court to issue citations calling upon all persons claiming to have any interest in the estate of the deceased has been discussed in detail. The counsel would vehemently contend that without making a proper citation in the proceedings, same has been obtained and the same has been noticed by the Trial Court and rightly revoked the same setting out the reasons in the order and hence, it does not requires any interference of this Court.
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15. Having heard the learned counsel appearing for the respective parties and also the principles laid down in the judgments referred supra and also having taken note of the contentions urged by both the counsel and also the relevant provisions, the points that would arise for the consideration of this Court are:
1. Whether the Trial Court committed an error in invoking Section 263 of the Indian Succession Act 1925 for revocation of the probate and whether it requires interference of this Court?
2. What order?
Point No.1:
16. Before considering the material available on record, this Court would like to extract Section 263 of the Indian Succession Act, 1925 which 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. 21
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."
17. It is not in dispute that Section 263 of the Indian Succession Act was invoked by the respondents herein before the Trial Court. The main contention for invoking the said 22 provision of the respondents/petitioners before the Trial Court that appellant herein has obtained probate beyond their back without impleading them in the proceedings and they also disputed alleged Will of Mulky Annappayya dated 10.07.1990 and contended that he is not in capable of executing the Will as he was not having sound state of mind. It is also not in dispute that respondents appeared and filed objections contending that the said Mulky Annappayya did not have any legal obligation to provide the property to the petitioners and petition is also filed belatedly and the property was transferred based on the said Will long back and petitioners have not made out any case just because revocation of probate granted.
18. This Court, firstly, would like to see the reasons assigned by the Trial Court for revoking the probate. In paragraph 16, it is discussed that the fourth entry in Class-II of the Schedule and also invoked Section 11 of the Hindu Succession Act, 1956 the heirs specified in any one entry are entitled for equal share and comes to the conclusion that the respondents in this appeal comes within the fourth entry in Class 23 II of the Schedule and also comes to the conclusion that the sister's daughter Prafulla S Rao was entitled to inherent properties of Mulky Annappayya if he died intestate. Hence, comes to the conclusion that the respondents are children of said Smt. Prafulla S Rao who had caveatable interest in grant of probate. The Trial Court also taken note of the fact that citation was made in Vartha Bharathi and also with regard to citation is concerned, it is held that it is the duty bound to bring to the notice of concerned Court regarding the persons who prima facie have a claim on interest and failure in this regard amounts to a defect which is sufficient to revoke the probate.
19. Having considered the reasons assigned by the Trial Court and also the principles laid down in the judgments referred supra since both of them mainly relies upon the judgment of KRISHNA KUMAR BIRLA with regard to the caveatable interest is concerned, wherein it is held that caveatable interest is an interest in the deceased testator estate which may be affected by grant of probate, it would depend upon the fact situation in each case as observed in the judgment a person who would have 24 otherwise succeeded to the estate of the testator, would ordinarily have a caveatable interest, in keeping this principle also this Court also take note of the factual aspect of the case.
20. The Apex Court in the case of KRISHNA KUMAR BIRLA referred supra, in paragraph 27, it is held that that chapter XXXV thereof, Rule 4 provides for "application for probate or letters of administration, or a certificate". Rule 5(a) inserted in the year 1948 provides that in all applications for grant of probate or letters of administration with the will annexed, the names of the members of the family or other relatives upon whom the estate would have devolved in case of an intestacy together with their present place of residence shall be stated. Rule 24 provides for filing of caveat on the same terms as contained in Section 284 of the 1925 Act and Rule 25 provides for "affidavit in support of caveat" where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, the affidavit or affidavits in support shall be filed within eight days of the caveat being lodged, notwithstanding the long 25 vacation. Such affidavit shall state the right and interest of caveator, and the grounds of the objections to the application. Rule 26 provides for notice to caveator to file affidavit and the same is extracted and so also Rule 27 provides for "consequence of not filing the affidavit". Rule 28 provides that upon the affidavit being filed in support of the caveat notice whereof shall immediately be given by the caveator to the petitioner the proceedings shall, by order of the Judge upon application by summons be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff and the caveator shall be the defendant, the petition for probate or letters of administration being registered and deemed as s plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. Rule 29 and 30 provides for notice to prove Will in solemn form and for trial of preliminary issue.
21. It is very clear that no dispute with regard to the relationship between the parties. The appellant along with the petition produced the genealogical tree of the family of Mr. and 26 Mrs. Subbannayya who died before 1965 who has having three children namely Mulky Annappayya - who is the testator and two sisters - Rajivibai and Sundaribai. No doubt, Rajivibai predeceased the testator i.e., on 04.02.1999 and other sister i.e., Sunaribai died subsequent to the death of the testator and testator died on 07.09.1999 and said Sundaribai died on 04.06.2000. But the fact that said Sundaribai had two children namely, Vasant Kumar and Sathish. No doubt, said Vasant Kumar died in the year 2012 itself but the other son Sathish is alive and the same is not in dispute. While initiating the probate proceedings, it has to be seen that testator's sister's son i.e., Sathish was alive and the testator died on 07.09.1999 and the petition was also filed subsequently. Thus, ought to have brought to notice of the Court that testator's sister's son is alive and the same has not been done.
22. The counsel also would vehemently contend that the said Sathish is not challenging the execution of the Will executed by Mulky Annappayya. Whether he is going to challenge or not is immaterial but ought to have brought to notice of the Court the 27 said fact. Whether he has got caveatable interest or not also has not been stated. Apart from that respondents are claiming that they are the children of daughter of Rajivibai. The fact that Rajivibai predeceased to the testator but alive at the time of execution of the Will which is last Will. But the fact that the daughter of Rajivibai who died on 02.04.2014, as on the date of execution of the Will in the year 1990, she was alive and even as on the date of death of Mulky Annappayya also, she was alive and she expired in the year 2014. Whether the respondents are having caveatable interest or not, ought to have been discussed in detail only on restoration of probate proceedings. Admittedly the Sathish was having caveatable interest as he is the son of one of the sister of the executant and he was not made as party in the probate proceedings. The Trial Court taken note of the fact that citation was given. The Trial Court also taken note of the fact that the respondents comes within the fourth entry in Class
-II of the Schedule wherein a clear discussion was made that brother's son and daughter, sister's son and daughter comes within the said Schedule. But, the main contention of the counsel that grand daughters are not coming within the purview of 28 Class-II heirs. But the fact is that I have already pointed out that as on the date of execution of the Will, the Rajivibai and her daughter - Prafulla S Rao were alive. The Court has to take note of the fact that the said Mulky Annappayya had executed a Will in favour of the appellant on 10.07.1990 and as on that day, both Rajivibai as well as her daughter Prafulla were also alive. When such being the case, the very contention of the respondents counsel that appellant is not having any caveatable interest cannot be accepted.
23. This Court also would like to mention that even as on the date of the execution of the Will, the sister of the executant i.e., Sundaribai was alive and also the fact that both her sons were also alive as on the date of the execution of the Will while disposing the property through Will. The Court has to take note of the nearest relatives who have been excluded while executing the Will and disinheriting nearest relatives. Though, the testator died in the year 1999, but disposition of the property is in terms of the execution of the Will dated 10.07.1990. The said fact also material for consideration. Apart from that the Trial Court 29 also while considering the same taken note of the fact that undisputedly the mother of the respondents herein was in occupation of the land in question for quite number of years. Same is noted in paragraph 18 of the order and comes to the conclusion that the respondents herein have caveatable interest in grant of probate in respect of the properties of Mulky Annappayya.
24. It is also important to note that admittedly, even though the respondents are remotely related to the executant. But the fact that sons of other sister i.e., Sundaribai was also alive is not taken note of while disposing of the property. It is also important to note that the appellant is also remotely a distant relative and not the close relative of the executant and beneficiaries also not the nearest relatives of the executant. All these aspects have to be considered while considering the matter and unless the probate granted was revoked, the question of considering the said issue does not arise.
25. It is also held in the judgment of the Apex Court in the case of KRISHNA KUMAR BIRLA referred supra in 30 paragraph 94 that a person who would have otherwise succeeded to the estate of the testator, would ordinarily have a caveatable interest, any other person must ordinarily show a special interest in the estate. Also in paragraph 100,it is held that a judgment rendered in a probate proceeding is a judgment in rem. But, its application is limited. A judgment rendered in a probate proceeding would not be determinative of the question of title. If a probate has been obtained by fraud or suppression of material fact, the same can be the subject matter of revocation of the grant in terms of Section 263 of the 1925 Act. This Court would like to extract paragraph 24 of the judgment reported in BASANTI DEVI's case referred supra, reads thus:
"24. 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 as may be available to him."31
26. The Apex Court in paragraph 103 of the said judgment held that what would be the caveatable interest would, thus, depend upon the fact situation obtaining in each case. No hard-and-fast rule, as such, can be laid down. We have merely made attempts to lay down certain broad legal principles.
27. The learned counsel for the appellant also in his reply would contend that the very contention of the respondents that no citation was taken cannot be accepted and there is a force in the contention of the appellant counsel that citation was taken in the Vartha Bharathi and the same is also taken note of by the Trial Court while considering the matter in paragraph 18. But the Trial Court observed that there is a reasonable doubt arises as to the petitioner being aware of the proceedings in P&Sc No.6/2014 but the fact is that citation is taken is not in dispute. The counsel for the appellant also would vehemently contend that Sundaribai who is the class-II heir and her son who is alive is not made as party in Misc. No.25/2016 while seeking the revocation of the probate granted. But the fact is that in the original probate proceedings he was not made as a party. When 32 such being the case, making the said Sathish who is the son of Sundaribai also does not arise since he was not a party in the probate proceedings and only while revoking the probate under Section 263 of the Indian Succession Act, parties who are in the said proceedings could be made as parties to the proceedings.
28. The main contention of the appellant's counsel that the Court has to see whether the respondents are having caveatable interest and contend that they are the remote distant relative even to come within the Class-II in the Schedule. The Apex Court in the judgment of KRISHNA KUMAR BIRLA referred supra in detail discussed the meaning of caveat and categorically held that the caveatable interest would depend upon the fact situation obtaining in each case. Further observed that no hard-and-fast rule, as such, can be laid down and also held that they made attempts to lay down certain broad legal principles. In the case of BASANTI DEVI referred supra in paragraph 22, it is held that it is now well settled that an application for grant of probate is a proceeding in rem. It is also further held that a probate when granted not only binds all the 33 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 as may be available to him.
29. Having considered the said principle and also the provision under Section 263 of the 1925 Act, it has categorically held that grant of probate may be revoked or annulled when the just cause is shown. In the case on hand, not specifically stated in the petition with regard to the relationship between the parties, particularly, the testator and on the date of the execution of the Will having his own two sisters and essential fact was not made as observed in paragraph 27 of the judgment of KRISHNA KUMAR BIRLA referred supra. Particularly, Rule 4 and Rule 5(a), the names of the members of the family or other relatives upon whom the estate would have devolved in case of an intestacy together with their present place of residence shall 34 be stated and the same has not been stated. This Court also pointed out that as on the date of execution of the Will, the direct sisters of the testator were alive and only on the date of death of the testator, one of the sister i.e., Rajivibai was predeceased but another sister i.e., Sundaribai died subsequently after the death of the testator and the appellant concealed the very relationship between the parties and also while seeking the relief of probate, there must be a specific pleading with regard to while annexing the Will, specific details has to be given as stated in Section 276 of the 1925 Act. The proviso of Section 263 also clear that it can be revoked if the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case and if it is defective one.
30. Having discussed the same and also taking into note of the date of execution of the Will, and as on the date of the execution of the Will, direct sisters of the testator were alive and also on the date of death of the testator, one of the sister was alive and one of the sister was predeceased and though the 35 respondents are the grandchildren of one of the sister of the testator, relationship is remote and in detail discussed regarding disinheriting the two sisters who were alive as on the date of the execution of the Will also to be taken note of. In order to consider the said aspect, the Court has to take note of caveatable interest depend upon the facts situation obtaining in each case as observed in the judgment referred supra wherein it is held that no hard and fast rule and a person who would have otherwise succeeded to the estate of the testator, would ordinarily have caveatable interest and also it is clear that any other person must ordinarily show a special interest in the estate.
31. The respondents herein have made out a case for revoking the grant of probate invoking Section 263 of the 1925 Act. The Trial Court also while considering the material available on record, in paragraphs 16 to 18, having taken note of the relationship between the parties and also invoking Section 11 of the Hindu Succession Act, 1956, held that the heir specified in any one entry are entitled for equal share considering the fourth 36 entry in Class II of the schedule refers to children of sisters son. Here is a case that one of the sisters' son is alive that is son of Sundaribai. The Trial Court taken note of the decision of this Court in the case of C S MUNIYAPPA referred supra and taken note of paragraph 6 of the said judgment wherein it is held that all the persons mentioned in any entry are alive, then the property of the deceased shall devolve on all of them in equal share. In the said judgment it is also held that in a case of male died Section 8 applies i.e., general rules of succession and Section 9 of the Act specifies that order of succession and also held that relation in the first entry in class-II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third; so in succession and the same has been discussed in paragraph 6 of the judgment which is referred supra and the testator left his property and there is a dispute with regard to execution of the Will.
32. In the judgment reported in ILR 2005 KAR 1138 in the case of M A SREENIVASAN vs H V GOWTHAMA AND ANOTHER referring Section 263 held that for revocation of 37 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 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 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.
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33. As held by the Apex Court and this Court, 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 probate. It is further held that the Trial Court while dealing with the petition for revocation or 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 relatives of the testator for the limited purpose of ascertaining the lucus standi and they have to prima facie established their relationship and if relationship is established then whether they have a right to oppose the probate having right in the property which was bequeathed is to be decided after revocation of the probate.
34. In the case on hand, having considered the material available on record, it is clear that the respondents herein have made out a ground to invoke Section 263 of the 1925 Act and the same has been taken note of by the Trial Court having discussed the same in paragraph 16 and comes to the conclusion 39 that they have made out the case. Hence, I do not find any force in the contention of the counsel for the appellant that there is no any caveatabel interest to the respondents. The plain reading of Section 263 (b) of the Act will indicate that it is based on the Maxim "suppression veri and suggestion false", means the probate can be revoked or annulled if the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case. In the case on hand, all material facts are suppressed while getting the order of probate in not disclosing the relationship between the parties as discussed above. Hence, I do not find any ground to set aside the order of the Trial Court. Thus, I answer the above point as negative.
35. In view of the discussions made above, I pass the following:
ORDER The miscellaneous first appeal is dismissed. The order passed by the Trial Court in Misc. No.25/2016 dated 15.12.2017 is confirmed. 40 The contentions of the respective parties are kept open. In view of the observation, the appellant is also given liberty to make Sathish, son of Sundaribai who is alive as a party for effective adjudication in the said probate proceedings apart from the respondents.
The Trial Court is also directed to give sufficient opportunity to the respective parties to contest the proceedings in accordance with law.
Sd/-
(H.P. SANDESH) JUDGE SN