Karnataka High Court
Annamma J Vithayathil vs Dr. Joseph Vithayathil @ Jose ... on 31 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
PROBATE CIVIL PETITION NO.21/2014
BETWEEN:
1. ANNAMMA J. VITHAYATHIL,
WIFE OF LATE JOSEPH VITHAYATHIL,
AGED ABOUT 85 YEARS,
RESIDING AT NO.57,
HICKORY BEND DRIVE,
CABOT, ARKANSAS, USA.
SINCE DECEASED AND RESPRESENTED BY
LEGAL REPRESENTATIVE BEING PETITIONER NO.2
AND RESPONDENT.
(AMENDED VIDE COURT ORDER DATED 28.02.2023)
2. MARY VERGHESE EDATTUKARAN, DAUGHTER OF LATE JOSEPH VITHAYATHIL, AGED ABOUT 60 YEARS, RESIDING AT NO.57, HICKORY BEND DRIVE, CABOT ARKANSAS, USA.
... PETITIONERS (BY SRI. ARUN KUMAR K, SENIOR COUNSEL FOR SMT. SANJANA RAO, ADVOCATE) 2 AND:
DR. JOSEPH VITHAYATHIL @ JOSE VITHAYATHIL, SON OF LATE JOSEPH VITHAYATHIL, AGED ABOUT 62 YEARS, R/AT: NO.30, CHURCH STREET, BENGALURU-560 001, INDIA.
PRESENT ADDRESS:
ASSISTANT PROFESSOR, DEPT. MGMT, INFO SYS & ENTREP (MISE), TODD HALL 442, PO BOX 644743, PULLMAN, WA 991644743.
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER DR. PROFESSOR ANTONY JOSEPH VITHAYATHIL.
... RESPONDENT (VIDE ORDER DATED 15.07.2024, NOTICE TO RESPONDENT IS HELD SUFFICIENT) THIS PROBATE CIVIL PETITION IS FILED UNDER SECTION 263 OF THE INDIAN SUCCESSION ACT, 1925 R/W SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO REVOKE AND ANNUL THE PROBATE AND SET ASIDE THE ORDER DATED 12.11.2013 AS PASSED BY THIS HON'BLE COURT IN PROB.C.P.NO.8 OF 2013 PRODUCED HEREWITH AS ANNEXURE-A AND ETC.
THIS PROBATE CIVIL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 23.10.2025, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
Heard the learned counsel for the petitioners. The
respondent though served with notice, did not choose to engage the counsel and hence this Court vide order dated 15.07.2024, held service of notice against the respondent as sufficient.
2. This petition is filed under Section 263 of the Indian Succession Act, 1925 read with Section 151 of CPC, praying this Court to revoke and annul the probate and set aside the order dated 12.11.2013 passed by this Court in Probate C.P.No.8/2013 and grant such other relief as deemed fit in the circumstances of the case.
3. The factual matrix of the case of the petitioners pleaded before this court is that petitioner No.1 is the wife of the testator. Petitioner No.2, the respondent and Dr. Kurian Joseph Vithayathil are the children of late Joseph Vithayathil (testator). The testator expired on 01.01.2008 at Ernakulam leaving behind four heirs, namely, the petitioners and the respondent. In the year 2012, the petitioners came to know of a Will executed by 4 the testator dated 12.05.1995 at Bangalore, bequeathing the properties in the name of the petitioners and the respondent. The copy of the Will is produced as Annexure-B and in terms of the said Will, the testator bequeathed absolutely and unconditionally all properties and assets mentioned in clause 3(a) to (d) and 3(g) along with pension benefits mentioned in 3(e) and (f) to petitioner No.1. It was further stipulated in the said Will that petitioner No.1 would be entitled to all assets and properties arising therefrom. Petitioner No.1 was also given absolute right to dispose immovable properties in the manner she deems fit. The respondent herein was appointed executor under the Will dated 12.05.1995.
4. In 2012-13, the petitioners became aware that the respondent was trying to dispose of certain immovable properties that legally belonged to them under the Will dated 12.05.1995. Despite the best efforts of the petitioners to explain their rights as bonafide heirs under the said Will, the respondent proceeded to deal with some of the immovable properties without the consent of the petitioners. When things stood thus, 5 the petitioners were constrained to initiate criminal proceedings against the respondent under Sections 120B, 404, 405 and 406 of IPC. The said proceedings have been numbered as Crime Nos.1818/2013 and 1809/2013 on the file of the Chief Judicial Magistrate Court, Ernakulam. The copies of FIR dated 02.09.2013 and 03.09.2013 are produced at Annexure 'C' series.
5. In addition, during various discussions Dr. Anthony Vithayathil and the respondent constantly threatened the petitioners and informed them that you would do as they choose with the properties of the testator. Therefore, in order to protect their legitimate rights as heirs, the petitioners instituted proceedings before the Hon'ble High Court of Kerala in Test Case No.1 under Section 301 of the Indian Succession Act, 2025 for the removal of the executor, namely the respondent herein under the Will dated, 12.05.1995. The copies of the petition along with the documents are produced as Annexure 'D' series.
6. During the course of the said proceedings, the respondent entered appearance and filed his objections on 10.09.2014 to the petition through his power of attorney holder 6 one Mr. Anthony Vithayathil, the brother of the testator. To the complete shock and surprise of the petitioners, they were informed that the respondent had instituted proceedings before this Court in Probate C.P.No.8/2013 for probate of the will dated 08.06.2007 allegedly executed by the testator. In terms of the said alleged Will, a substantial portion of the properties of the testator had been bequeathed to the respondent to the exclusion of the petitioners. The copies of the said objections filed before the High Court of Kerala and alleged Will dated 08.06.2007 produced as Annexures-E and F respectively.
7. In terms of the said Will dated 08.06.2007, the respondent herein is said to have been appointed sole executor and has suddenly become entitled to a substantial share of the properties of the testator to the substantial exclusion of the petitioners herein. The Will contains various incorrect statements making it apparent that the Will is a created document at the instance of the respondent and his power of attorney holder. The manner in which the Will has been created and the fact that these proceedings have been done stealthily 7 and without giving any information whatsoever to the petitioners shows that the respondent and his power of attorney holder have colluded to wrest the properties of late Joseph Vithayathil. The surreptitious manner in which the application was filed without making the petitioners a party to the proceedings and without disclosing to the Court the fact that there were substantial disputes between the parties where various serious allegations have been levelled against the respondent and his power of attorney holder of fraud and which are pending before the Criminal Court in Ernakulam shows that the intention was to somehow obtain a probate without any information to the petitioners. If the petitioners had been made parties, the petitioners would have pointed out the fraudulent nature of the Will and the fact that the Will is a concocted document. It is more than apparent that the whole purpose of initiating probate proceedings behind the back of the petitioners is deliberate, malicious and fraudulent. The petitioners were never aware of the existence of the Will or the probate granted by this Court and came to know of its existence only when the respondent filed his objections to Test Case No.1/2014.
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8. The grounds which have been urged before this Court is that, in terms of the provisions of the Indian Succession Act, 1925, any person having interest in the properties belonging to a testator, ought to be given an opportunity of being heard before a probate is granted to an applicant. Failure to do so would amount to grave injustice to the person who has not been arrayed as a party to the proceedings. Failure of the respondent to array the petitioners as parties in Prob. C.P.No.8/2013 is enough to revoke the probate granted in his favour when the petitioners have had serious dispute with the respondent and his power of attorney holder and criminal proceedings has been initiated against the respondent. The respondent and his power of attorney holder were aware of this said fact prior to the date on which probate was granted and without making them as parties to the proceedings in the said probate proceedings, the same is obtained behind the back of the petitioners. The respondent by intentionally not making the petitioners parties to the proceedings has avoided any sort of objection being raised to the grant of probate. The conduct of the respondent clearly 9 demonstrates his malafide intention of excluding the petitioners from realising their rightful shares under the Will of the testator.
9. It is settled law 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. It is contented that the petitioners having substantial interest in the properties of the testator have been denied their right to oppose the grant of probate in favour of the respondent. There are several suspicious circumstances which establish the fact that the Will has been created by the respondent and his power of attorney holder. The manner in which probate has been obtained is nothing but fraud on the Court with an intention to knock off the property. It is contended that the said alleged Will is created and there are various correspondence and other documents executed by the respondent and his power of attorney holder which shows that the Will has been created much later only to benefit the respondent and the power of attorney holder. Keeping in mind 10 the criminal proceedings that were instituted by the petitioners against the respondent for breach of trust and cheating, the respondent has intentionally not arrayed the legal heirs of the testator in order to avoid any sort of objection. The Court can gather the intention.
10. It is contented that the Apex Court has observed that not arraying necessary parties to a proceeding for grant of probate makes the proceedings defective leading to revocation of the probate for a just cause. The petitioners are resident outside India had no knowledge of the present probate proceedings. Issuance of paper publication in Bangalore and Ernakulam makes little difference to the case as none of the legal representatives of late Joseph Vithayathil are made aware of the present proceedings as they reside outside the country and this fact is to the knowledge of the respondent and his power of attorney holder. The grant of probate was obtained fraudulently without disclosing to the Court the fact that there are substantial disputes between the petitioners and the respondent concerning the properties of late Joseph Vithayathil. 11 When the probate is obtained fraudulently, the same requires to be revoked. It is also contented that the respondent not having complied with the provisions of the Indian Succession Act, 1925 relating to citations and public notice, has intentionally kept the petitioners in the dark with regard to the Will dated 08.06.2007 allegedly executed by the testator. It is trite law that any person who approaches the Court with unclean hands is not entitled to any relief as sought. If the probate is revoked, the petitioners will be in a position to demonstrate beyond any shadow of doubt that the Will is a created document at the instance of the respondent and his power of attorney holder.
11. The learned counsel for the petitioners would vehemently contend that the probate is obtained in clear violation of Rule 5(a)(iv) of the Rules Governing Probate and Administration Matters, 1964, ('the said Rules, for short), wherein it is stated that unless the Court otherwise orders, notice of an application for probate or Letters of Administration in Form No.4 shall be posted on the Notice Board of the Court and shall be served by the petitioner on all persons of the same 12 degree of relation as or nearer degree than, the petitioner and send the same under prepaid registered cover to their respective addresses and shall be published in one or more of the principal newspapers of the District in which the deceased was residing at the time of his death and an affidavit proving the said service and publication shall be filed by the petitioner. The learned counsel would vehemently contend that the petitioners were not made as respondents in the proceedings. The learned counsel contend that Section 278 of the Indian Succession Act has not been complied with and the probate is obtained as against the provisions of Section 283. The learned counsel would contend that the deceased was staying in Kerala when he passed away and the present petition is filed in Bengaluru. The properties are not only in Bengaluru, but the properties are also in Kerala. It is the specific contention of the learned counsel that the deceased passed away on 01.01.2008 at Ernakulam and the Will was also executed at Kerala. These petitioners are the class-I heirs of the deceased and the said fact was suppressed and obtained an order creating the Will. The learned counsel would contend that the procedure is not followed and obtained the probate 13 fraudulently with an intention to avoid the objection and personal notice was not given and the citation was also not taken and apart from that, the Will is not a registered Will.
12. The learned counsel for the petitioners in support of his arguments relied upon the judgment of the Rajasthan High Court (Jaipur Bench) in the case of RAM GOPAL v. SMT. NARAINI BAI reported in AIR 2005 Rajasthan 264, wherein it is held that settled proposition of law is that probate granted on basis of Will could only be revoked on grounds enumerated in Section 263 of the Act. Revocation for just cause should be deemed to exist. The Court stated that grant of probate could be revoked in instant case as Court by which grant was made and no jurisdiction and apart from that, grant was made without citing parties who ought to have been cited. The Will of which probate was obtained was forged or revoked. Grant could be revoked on ground that citation had not been issued to person who should have been apprised of probate proceedings as it had been enumerated as just cause for revocation. Thus, person was necessary party to whom special citation should have been 14 issued but knowingly and even after receipt of notice, appellant did not implead as party nor informed by sending reply of notice that there was testament in favour created by deceased. Prima facie reasons existed to believe that it was necessary to have Will proved afresh in presence of interested parties. Accordingly, procedure required under Section 295 of Act need not be adopted for disposal of application filed under Section 263 of the Act for revocation of probate. The revocation of probate on ground of non-citation of person was confirmed and the matter was remitted back to the District Judge to decide the probate application afresh after giving opportunity to the parties including objector to lead evidence. The learned counsel also brought to the notice of this Court the discussion made in paragraph No.8 of the said judgment.
13. The learned counsel also relied upon the judgment of the Hon'ble Apex Court in the case of BASANTI DEVI v. RAVIPRAKASH RAMPRASAD JAISWAL reported in AIR 2008 SC 295. The Apex Court in this judgment discussed the scope of Sections 263 and 283(3) of the Act. It is held that a 15 judgment in probate proceedings is judgment in rem. Person aggrieved thereby and having no knowledge of proceedings and proper citations not having been made, entitled to file an application for revocation of probate on such grounds as may be available to him. Application for revocation should have been entertained and setting aside the same remitted the matter to the Single Judge. The learned counsel also brought to the notice of this Court paragraph No.17, wherein discussion was made that the provisions contained in sub-section (3) of Section 283 are mandatory in nature. Once the statutory requirements are found to have not been complied with, an application for revocation of the grant of probate would be maintainable in terms of Section 263 of the Act, apart from the fact that non- publication of citation could be one of the ground to revoke the grant of probate.
14. The learned counsel also brought to the notice of this Court the discussion made in paragraph No.22, wherein also discussion was made that a probate when granted not only binds all the parties before the Court but also binds all other persons in 16 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.
15. Having heard the learned counsel for the petitioners and considering the principles laid down in the judgments referred supra and the grounds which have been urged in the petition as well as during the course of argument, the points that would arise for the consideration of this Court are:
(i) Whether the petitioners have made out the ground to invoke Section 263 of the Act to revoke and annul the probate as granted by this Court in terms of Annexure-A?
(ii) What order?
Point No.(i):
16. Having heard the learned counsel for the petitioners and also on perusal of the grounds which have been urged, it is 17 the specific case of the petitioners that petitioner No.1 is the wife of the testator. The petitioner No.2, the respondent and Dr. Kurian Joseph Vithayathil are the children of late Joseph Vithayathil (testator). It is not in dispute that the testator expired on 01.01.2008 at Ernakulam leaving behind four heirs, namely, the petitioners, the respondent and Dr. Kurian Joseph Vithayathil. It is pleaded in the petition that in the year 2012, the petitioners came to know of a Will executed by the testator dated 12.05.1995 and it is specifically pleaded that the properties belongs to the testator. A right is created in favour of petitioner No.1 and the same is an absolute right. It is stated that in the year 2012-13, when the petitioners came to know that the respondent who has been appointed as executor is making all his efforts to dispose of the property, immediately they filed the criminal case, which are numbered as Crime Nos.1818/2013 and 1809/2013 on the file of the Chief Judicial Magistrate Court, Ernakulam and FIR is also issued on 02.09.2013 and 03.09.2013. It is also stated that they have filed a petition before the High Court of Kerala for removal of executor i.e., the respondent in terms of the Will dated 18 12.05.1995. The copy of the FIRs as well as filing of petition before the High Court is mentioned as Annexure 'C' series and Annexure 'D' series and also produced Annexures-'E' and 'F' copies of objections filed before the High Court of Kerala and also the Will allegedly executed on 08.06.2007 based on which the respondent herein had obtained the probate.
17. Having perused the records, the probate granted by this Court is dated 12.11.2013. The records clearly discloses that a criminal proceedings is initiated against the respondent and FIR was issued on 02.09.2013 and 03.09.2013. It is also not in dispute that the testator executed the Will at Ernakulam and he passed away at Ernakulam. Having taken note of the Will, which the petitioners relies upon of the year 1995, it discloses that the provision is made in favour of his wife giving an absolute right for disposal of the properties. It is the case of the respondent before this Court that a Will was executed on 08.06.2007 and the respondent was named as executor in the said Will and the respondent appointed his uncle as the general power of attorney holder to represent him. It is the specific case 19 of the petitioners that at the time of obtaining this probate, they were not residents of either in Bangalore or Kerala and they were in abroad. It is also not in dispute that these two petitioners are the wife and daughter of the testator and hence it is clear that they are class-I heirs of the testator. There are two Wills; one is of the year 1995 and another proposed by the respondent is of the year 2007. The main contention of the petitioners before this Court is that when the persons belonging to the family of the testator are alive and they belong to the same degree of relation as or nearer degree, ought to have issued the notice of probate or letters of administration in Form No.4 and ought to have posted on the notice board of the Court and served by the petitioner on all persons of the same degree of relation as or nearer degree and no such personal citation was taken.
18. The learned counsel also relied upon Rules Governing Probate And Administration Matters, 1964. This Court would like to rely upon Rule 5(a)(iv) of the said Rules, which reads as follows:
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"5. (a) Application for Probate or Letters of Administrations.- (1) xxxxxxxxx
(ii) xxxxxxxxxxxxxx
(iii) xxxxxxxxxxxxx
(iv) Unless the Court otherwise orders, notice of an application for probate or Letters of Administration in Form No.4 shall be posted on the Notice Board of the Court and shall be served by the petitioner on all persons of the same degree of relation as or nearer degree than, the petitioner and send the same under prepaid registered cover to their respective addresses and shall be published in one or more of the principal newspapers of the District in which the deceased was residing at the time of his death and an affidavit proving the said service and publication shall be filed by the petitioner."
19. Having read this proviso, it is very clear that unless the Court otherwise orders, notice of an application for probate or letters of administration in Form No.4 shall be posted on the notice board of the Court. The word used is "shall be" posted on the notice board of the Court. The further proviso says that shall be served by the petitioner on all persons of the same 21 degree of relation as or nearer degree than, the petitioner and send the same under prepaid registered cover to their respective addresses and shall be published in one or more of the principal newspapers of the district in which the deceased was residing at the time of his death and an affidavit proving the said service and publication shall be filed by the petitioner.
20. In the case on hand, no doubt, the citation was taken in the Bangalore newspaper as well as in Kerala newspaper and the same is narrated in paragraph No.4 of the order of this Court and no one filed any objections. But the petitioners pleaded before this Court that they are not residing either at Bangalore or at Kerala and they were residing abroad and the same is not objected by the respondent. It is important to note that the petitioners are the mother and sister of the respondent and they have not been notified in terms of the said Rules, particularly Rule 5(a)(iv) of the said Rules and they have not been made as parties to the probate proceedings. The respondent ought to have notified the petitioners by sending the same under prepaid registered cover to their respective 22 addresses and the respondent was having the knowledge that the mother and sister are residing abroad. The very plea of the petitioners before this Court is that earlier there was a Will, wherein the respondent was appointed as an executor. It has to be noted that the petitioners have initiated criminal proceedings against the respondent when they came to know that the respondent is acting against the terms of the Will of the year 1995 and even sought for removal of the executor in terms of the earlier Will of the year 1995 before the High Court of Kerala. The material discloses that FIR was registered against the respondent on 02.09.2013 and 03.09.2013 and the present probate is obtained in the month of November 2013. It is also important to note that paragraph No.4 of the order of this Court discloses that publication was made on 09.10.2013 i.e., subsequent to the registration of the case against the respondent on 02.09.2013 and 03.09.2013. There was a dispute between the petitioners and the respondent with regard to the disposal of the property. There are two Wills before the Court and dispute between the parties is with regard to the very 23 execution of the Will and the petitioners have pleaded before the Court that the respondent has fraudulently obtained the probate.
21. This Court has to take note of the principles laid down in the judgments, which have been referred supra. The learned counsel for the petitioners relies upon the judgment of the Rajasthan High Court in the case of Ram Gopal (supra), wherein discussion was made with regard to Sections 263 and 295 of the Indian Succession Act. It is also discussed that the grant was made without citing parties who ought to have been cited. Will of which probate was obtained was forged or revoked It is further observed that grant could be revoked on ground that citation had not been issued to person who should have been apprised of probate proceedings as it had been enumerated as just cause for revocation. In the case on hand, there is no compliance of Rule 5(a)(iv) of the said Rules and they are close relatives. Petitioner No.1 is the mother and petitioner No.2 is the sister of the respondent and both of them were residing abroad at the time of obtaining the probate and no such notice was given and notified the mother and sister. Hence, the 24 principles laid down in the said judgment is aptly applicable to the facts of the case on hand.
22. The learned counsel for the petitioners also relied upon the judgment of the Apex Court in the case of Basanti Devi (supra), wherein discussion was made with regard to Sections 263 and 283 of the Indian Succession Act. The scope of probate is also discussed in the judgment that judgment in probate proceedings is judgment in rem. The person aggrieved thereby and having no knowledge of proceedings and proper citations not having been made is entitled to file an application of revocation of probate on such grounds as may be available to him. In the case on hand, the petitioners have categorically pleaded that they were not having any knowledge about the obtaining of the probate. The material is very clear that the probate is obtained and the same is a judgment in rem and without notifying the mere relatives probate is obtained. Paragraph No.17 of the said judgment is very clear that the provisions contained in sub-section (3) of Section 283 are mandatory in nature. Once the statutory requirements are 25 found to have not been complied with, an application for revocation of the grant of probate would be maintainable in terms of Section 263 of the Act, apart from the fact that non- publication of citation could be one of the ground to revoke the grant of probate. In the case on hand, no doubt, citation was taken, but persons who are interested and having substantial right in respect of the property of a testator i.e., wife and daughter were not notified.
23. A discussion is made in paragraph No.22 of the judgment of the Apex Court 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. This principle is aptly applicable to the case on hand, since the Will is not a registered 26 Will and there are two Wills and both the Wills are also not registered. Earlier there was a Will of the year 1995 and subsequent Will relied upon by the respondent is of the year 2007 and the same is disputed. The mother and sister of the respondent, who are the legal heirs of the testator, were not made as parties and they have not been notified and proper citation was also not taken personally intimating them, who are the same degree of relatives of the respondent and the citation is also in violation of Rule 5(a)(iv) of the said Rules. Hence, the petitioners have made out the ground and hence I answer point No.(i) in the affirmative.
Point No.(ii):
24. In view of the discussions made above, I pass the following:
ORDER.
(i) The petition is allowed.
(ii) The probate granted earlier is revoked and annulled, as sought.27
The matter requires reconsideration treating the same as contentious proceedings, since both the parties plead that there is a separate Will in their favour.
The Registry is directed to convert this petition as TOS and assign appropriate number.
List the matter on 28.11.2025.
Sd/-
(H.P. SANDESH) JUDGE MD