Madras High Court
Gita Alias Gita Ravi vs Mary Jenet James Alias M.J. James And ... on 17 November, 1994
Equivalent citations: (1995)1MLJ467
JUDGMENT Srinivasan, J.
1. These appeals are directed against a common order passed in Application Nos. 2635 and 4501 of 1992 revoking the probate granted on 27.4.1992 and restoring T.O.S. No. 28 of 1985 to file.
2. The dispute relates to the will alleged to have been executed by Pauline Manonmani James, who died on 17.3.1985. The appellant in O.S.A Nos. 128 and 129 of 1094 filed O.P. No. 432 of 1985 for grant of probate claiming to be the legatee and executrix under the Will. The Will bears the date 5.10.1984 registered on 15.10.1984. The deceased Pauline Manonmani James had two sisters and two brothers. One of the sisters by name Ellen Jamima died in 1978, bequeathing her properties to Pauline Manonmani. One of the brothers by name P.M James died on 9.2.1984 leaving his wife Mery Therasa and daughter Jenifer. At the time of the death of the testatrix, her legal heirs were her sister Mary Jenet James alias M.J. James, the first respondent in O.S.A. No. 128 of 1994 and her brother Joseph Gnanamuthu James alias J.G. James whose legal representatives are respondents 1 to 3 in O.S.A. No. 129 of 1994. The testatrix was a spinster. Under the will, all the properties of the testatrix are bequeathed to the appellant in O.S.A. Nos. 128 and 129 of 1994. M.J. James had filed Anticipatory Caveat in March, 1985. After the original petition for grant of probate was taken on file, she entered caveat on 9.12.1985. She filed a supporting affidavit on 13.12.1985. Prior to that, the brother of the testatrix viz., J.G. James entered caveat on 26.7.1985. Supporting affidavit was filed by his Power Agent Mr. K. Kumar, the second respondent in O.S. A. No. 128 of 1994 and the fourth respondent in O.S.A. No. 129 of 1994. He is the appellant in O.S.A. Nos. 255 and 256 of 1994. The original petition was converted into a suit and registered as T.O.S. No. 28 of 1985 in December, 1985. On 27.4.1992, an affidavit was filed by K. Kumar stating that he was the Power Agent of M.J. James by virtue of a General Power of Attorney in his favour dated 20.4.1989. He filed another affidavit stating that on a close scrutiny of the entire matter, he found it may not be possible to sustain the defence to the testamentary original suit and in view of the same he prayed for permission to withdraw the caveat. Similarly he filed an affidavit on behalf of J.G. James referring to the General Power of Attorney dated 24.5.1985 and by another affidavit sought permission to withdraw the caveat. On the same day, Mrs. Mary Therasa James and her daughter Jeniffer filed a consent affidavit accepting the genuineness of the will and agreeing for the grant of probate. A learned single Judge of this Court passed an order on that day itself referring to the withdrawal of the caveats and the consent affidavit of Mrs. Mary Therasa James and her daughter and directing the issue of probate in favour of the petitioner in O.P. No. 432 of 1985.
3. J.G. James died on 13.5.1992. In June, 1992, M.J. James filed an application to revoke the said probate and the same was registered as O.A. No. 263 5 of 1992. A similar application was filed in September, 1992 by the legal representatives of J.G. James, which was registered as O.A. No. 4501 of 1992. The appellant in O.S.A. Nos. 128 and 129 of 1994 filed Application Nos. 3708 of 1992 and 5231 of 1992 for impleading K. Kumaras a party to the two original applications referred to above. The applications were ordered on 29.1.1993 and K. Kumar was impleaded as second respondent in both the applications. By a common order dated 1.3.1994, the two Original Application Nos. 2635 and 4501 of 1992 were allowed and the probate granted on 27.4.1992 was revoked. It is against the said order, these four appeals have been filed. While the two earlier appeals O.S.A. Nos. 128 and 129 of 1994 have been filed by the first respondent in those applications viz., Mrs. Geetha alias Geetha Ravi, the two later appeals O.S.A. Nos. 255 and 256 of 1994 have been filed by K. Kumar, the second respondent in the applications.
4. The applications for revocation of probate were filed under Section 263 of the Indian Succession Act. In the application filed by M.J. James it was alleged as follows: The deceased testatrix was owning extensive immovable property of the extent of 8,819 sq. mtres. Her only legal heirs were the applicant and her brother J.G. James. One of the tenants of the testatrix was Mr. P. Ravi, Inspector of Police, Madras. He and his wife Mrs. Geetha Ravi kept the testatrix under lock and key under their own control during her last days and took away all the movables and other properties belonging to her. They did not give her proper treatment when she was ill. They did not allow the applicant or her brother to visit the testatrix at any time though there was no ill-feeling or enmity between them and the testatrix. The said Ravi and his wife fabricated a will, and applied for probate thereof suppressing the material facts. The applicant engaged a counsel and arranged for contesting the grant of probate. Mrs. Geetha Ravi was in no way connected with the testatrix. She was neither related to hernoran employee under her. Herself and her husband took advantage of the old age and ill-health of the testatrix and got up the will. The applicant was under the impression that her counsel would inform her about the development in the case. But to her shock and surprise, during the summer vacation of the court, in May-June, 1992, she came to know through a common friend that probate had been issued in favour of Mrs. Geetha Ravi. She learnt thereafter on enquiry that under an alleged Power of Attorney, Kumar had withdrawn the caveat. The will was a false and fabricated document and it was not executed by the testatrix while in sound disposing state of mind. The said Kumar had obtained certain signatures from the applicant and there was no registered Power of Attorney in his favour. She had not given power to him to withdraw the caveat. The power alleged to have been executed by her was a forged one and no such power of attorney was signed or executed by her, The said Kumar had acted in collusion with Ravi and his wife Geetha Ravi. It was the duty of the counsel to have appraised her when the case came up for hearing so that she could have tendered evidence. The said Kumar was only a stooge and broker of Geetha Ravi. They had obtained probate behind the applicant's back. The probate was obtained suppressing material facts about the existence of heirs' interests in the estate of the testatrix and fraudulently making a false representation that the caveat was withdrawn. The probate is vitiated for the following reasons: (1) The will is fabricated. (2) The next of kin of the deceased were not made parties and no notice was served on them. (3) All the assets of the testatrix were not disclosed. (4) The attesting witnesses were not examined. Hence, the probate has to be revoked.
5. In the other application filed by the legal representatives of J.G. James, it was alleged as follows: N.J. James informed J.G. James about her intention to contest the probate proceeding and they decided to contest the same on the ground that the testatrix had not executed the will while in a sound disposing state of mind and though she was a well read lady, her thumb impression was taken and fraud had been practised in the Registrar's Office. As J.G. James was permanently settled at Jabalpur, he informed his sister, that he will not be able to attend the matter personally. It was suggested to him by his sister that she had decided to appoint one Kumar as Power of Attorney Agent to look after her interests and he had assured her that he would take care of her interests in relation to the probate proceedings. The said Kumar had practised a confidence trick on M.J. James and also J.G. James. The same counsel was engaged on behalf of J.G. James also. The said Kumar played a fraud and connived with Geetha Ravi and had withdrawn the caveat. The fraud had been played on the estate even before the grant of probate. An agreement appears to have been entered into for sale of the property and possession had been given to the builder, who had also put up structures and columns. The will was taken in suspicious circumstances. It was not a genuine will of the deceased testatrix. She was not in her senses at the time when it is alleged to have been executed. Hence, the grant of probate should be revoked.
6. In both the applications, counter-affidavits were filed by Geetha Ravi. She stated thus: The applications are not maintainable as the legal representatives of the deceased F.M. James who had filed consent affidavit, had not been impleaded. As serious allegations had been made against K. Kumar, in whose favour an irrevocable Power of Attorney had been granted he should have been impleaded. The application is bad for non-joinder of necessary parties. The applications do not fall within the purview of Section 263 of the Indian Succession Act read with Order 25, Rule 62 of O.S. Rules. Inasmuch as fraud and collusion are alleged, the supporting materials should be disclosed as required by Order 6, Rule 4 of the Code of Civil Procedure. None of the ingredients of fraud, collusion and forgery is available in this case. The applicants shall strictly prove their case by getting into the box and subjecting themselves to cross-examination. K. Kumar was an agreement-holder coupled with agency and had a vested interest in the probate proceedings. The testatrix and her brothers and sisters were fighting with each other and they were not on talking terms. During the relevant period, the testatrix was residing in her house and she was looking after her day-to-day needs. She was treated as her foster-daughter. Even during her lifetime, her bank account was made a joint one and Geetha Ravi was a signatory to the same. When she fell sick, she was admitted in Dr. Santhosham Chest Clinic. Her Advocate was Mr. Chinna Vyran. He was called by her and instructed to prepare a will. The will was prepared according to her instructions by the advocate. It was duly executed by her and attested by two eminent Doctors attached to the clinic. One of them was her family doctor. After discharge from the clinic, the will was registered. The testatrix was identified by a Deputy Director of Sydicate Bank and an Assistant Executive Engineer attached to the Housing Board. The Doctor had also given a certificate about her mental state and the reasons for her affixing L.T.I. After receiving the affidavit filed in support of the application, a copy of the same was sent to K. Kumar through her counsel to give his comments in view of the serious allegations made against him and as he alone was competent to meet the same. The said Kumar wrote a letter dated 19.6.1992 enclosing a copy of the letter dated 16.6.1992 wherein he had given in detail the full facts. The said letter is attached as Annexure 'A' to the counter-affidavit for reference regarding his version of the facts and events that transpired between the applicant and her attorney. The applicant had received consideration in pursuance of two agreements for sale and inasmuch as the agreements and the Power of Attorney were coupled with interest, the applicant cannot question the same. The applicant had deliberately, intentionally and maliciously suppressed and not disclosed the two agreements for sale, both dated 28.10.1985. She had suppressed the receipt of three cheques as could be seen from Annexure 'A'. The cheques were received as consideration for withdrawing the caveat. In his letter Kumar had referred to a letter dated 28.5.1992 addressed by him to the applicant referring to an earlier letter dated 4.5.1992 and enclosing a cheque for Rs. 10,000 drawn in favour of Miss. D. Ragina, the helper of the applicant with a request to the applicant to hand over the same to her with the applicant's blessings. The applicant must be directed to produce the original of the said letter dated 28.5.1992. The Central Bank of India, Sembiam Branch has issued a certificate to Kumar to the effect that two of the cheques issued to the applicant and the cheque issued to Mrs. Ragina were encashed. A copy of the said certificate is attached as Annexure 'B' to the counter-affidavit. Another letter dated 22.6.1992 has been received from Kumar enclosing a copy of a further letter sent by him to the applicant. That copy is attached in Annexure 'C'. The averments made in the applicant's affidavit are all false and the applicant has to prove the same. As a matter of fact, the testatrix was looked after by the deponent. She did the funeral services and lowered the coffin into the grave. The regular prayer meeting was held on 16th day under the head of Rev. Father of Egmore Church. On that day, the applicant was not present. Poor Feeding was done in a big manner in memory of the late testatrix. It is being continued on the dates of her death and birth. The applicant has come to Court with unclean hands without disclosing the agreements for sale and receipt of consideration by means of cheques as could be seen from the enclosures. J.G. James had also received various amounts and the last of such payments was made by D.D. payable at Jabalpur. The application for revocation of probate is not maintainable and the only remedy of the applicant is to proceed against her attorney. The applicant having received large amounts from the Power of Attorney-cum agreement-vendee, is estopped from questioning the probate. The power being irrevocable, the agreement-vendee acted within his powers. The applicant cannot resile from her consent for withdrawal of the caveat after receiving consideration and de hors the rights of the Power of Attorney as agreement-vendee.
7. The legal heirs of J.G. James have indulged in this vexatious litigation because Regina, the helper of M.J. James has promised share to them in her alleged illegal expected booty and thereby they had been lured into helping her, being set up as her pawn to strengthen her litigation. Though they are the ostensible applicants, their Power Agent Jacob Appadurai is a dummy of Regina, the helper of M.J. James, who is under the direct control of the said Regina. The Power Agent Kumar had acted within his authority and if anything done by him was disowned, it was a matter between the principal and the agent. The deponent cannot suffer therefor.
8. A reply affidavit was filed by the applicant in O.A. No. 2635 of 1992. The averments in the counter-affidavit were denied emphatically and it was further stated as follows: K. Kumar had totally destroyed the confidence reposed in him and had not performed the obligations required of him under the agreements relied on by him. He was not entitled to claim any right, claim or interest whatsoever in the property. By making misrepresentations, he managed to obtain two agreements of sale on the same day, viz., 28.10.1985. He agreed to help the applicant in all the matters and spend as much fund as was required for the successful conduct of the entire litigation. He wanted the applicant to sell the Schedule 'A' and Schedule 'B' properties only in the event of success in the probate proceedings on a price equivalent to half the market value prevailing at the time of the execution of the sale deed. He undertook to see that the caveat lodged by her was successfully carried through and the will was proved to be false. He had taken the signatures of the applicant making representation that they were required to have the land cleared from the Urban Land Ceiling Authorities. At that time she did not know that she was signing an agreement to sell the property. The recitals in the agreement would clearly show that she was defrauded. She had not given any power in favour or Kumar, authorising him to withdraw the caveat. The testatrix was suffering from Parkinson's disease in the end and was in a Nursing Home where her thumb impressions were obtained in suspicious circumstances. At that time she was speechless in the hospital. She was not taken to her own house from the hospital but she was held under police guard in the outhouse in the same compound where Mr. Ravi was living on a monthly rent of Rs. 100 with his wife. The testatrix was a staunch Christian belonging to the Church of South India. Geetha Ravi was a Hindu and she would not have been treated as her foster daughter by the testatrix. The testatrix was getting help from Pentacoastal Members and staff in the adjoining building. The recital in the will that the testatrix had no near relative could not have been made by her as she was very much conscious that her brother and sister were alive. Obviously, records have been fabricated by Geetha Ravi. The testatrix was in a sedative condition, unconscious and fully under the control of medicines and drugs. If she had been conscious, she would have resisted being taken to the tenant's house, when she had her own house nearby. The fact that the affidavit of the applicant was sent to Kumar by the respondents shows that both Kumar and the respondent are hand-in-glove in the entire transaction and want to knock a very valuable property for a pittance. The property is worth more than Rs. 10,00,000 per ground and it has been deliberately undervalued. The applicant had written number of letters to her lawyer enquiring as to what happened to the T.O.S. proceedings. She was totally kept in the dark. Kumar managed to keep her out of the picture and started instructing her lawyer behind her back without her knowledge and consent.
9. K. Kumar filed counter-affidavits in both the applications after he was impleaded. The averments in the counter-affidavits were almost on the same lines as those found in the counter-affidavits of Geetha Ravi. He claimed to be an agent coupled with interest. He claimed that he had paid huge amounts to both the applicants by way of consideration and withdrew the caveat only thereafter. According to him, he had taken legal advice in the matter and after taking into account the interest of all the persons concerned including himself, he thought it reasonably fit to compromise the matter and allow the probate to be granted. According to him, the applicants were agreeable to that course.
10. During the pendency of the original applications, Geetha Ravi filed an Application No. 3709 of 1992 to cross-examine M.J. James on the averment made by her in her affidavit. M.J. James filed Application No. 5230 of 1992 for appointment of a Commissioner to examine herself at her residence and record evidence on oath. By consent of parties, the court appointed Mrs. P. Lakshmi, Advocate as Commissioner to examine M.J. James and record her evidence. The Commissioner filed a memo stating that she received a letter on 26.3.1993 from the advocates for M.J. James informing her that she was in fragile and delicate health condition and she could not take the risk of undergoing the strain of examination and they had requested the Commissioner to return the warrant. Accordingly, the Commissioner had returned the warrant. Recording the Commissioner's memo, the court closed the Application Nos. 3709 and 5230 of 1993 by order dated 7.4.1993.
11. The court directed the Master to examine witnesses on both sides. The second applicant in O.A. No. 4501 of 1992 by name S.A. James,, son of late J.G. James examined himself as P.W.1. He was cross-examined in detail by Geetha Ravi as well as Kumar. Through him Exs.A-1 to A-30 and B-1 to B-4 were marked. Neither Kumar nor Geetha Ravi chose to let in any evidence contra, though time was being taken repeatedly for adducing evidence. Ultimately, the learned single Judge posted the case for arguments and heard arguments at length. He framed the following two questions in his order for consideration: (a) Whether the will that is put up is ex fade true and validly proved, and (b) is there just cause for revoking the probate granted on 27.4.1992? The learned Judge set out as many as 16 circumstances as having been placed before him to prove that the will was not genuine. He referred to the fact that the Power Agent K. Kumar did not get into the witness box, though his counsel sought for time to examine him. He said that the court was left with no other option except to accept the case of the applicants and that none of the documents on which Kumar places reliance can be looked into and necessary adverse inference has to be drawn. After referring to the terms of the Power of Attorney relied on by Kumar, the learned Judge held that it did not authorise him to withdraw the caveats. Referring to the agreements of sale in favour of Kumar, the learned Judge held that there was nothing to show that they were acted upon. Laying stress on the circumstances that the Power Agent Kumar had not entered witness box, the learned Judge observed:
The fact now remains that no evidence was let in on behalf of the 2nd respondent against whom serious charges of fraud are alleged. Further, he is the person who personally knows about the case and he owes a duty to explain and hence, this Court can draw adverse inference, insofar as he had not let in evidence.
Proceeding further, the learned Judge said:
33. For the foregoing reasons, I am satisfied that the applicants in both the applications have established a case for revoking the probate granted by me by my order dated 27.4.1992. As pointed out above very serious allegations have been made by the applicants against the respondents which should not be overlooked by this Court. The affidavit of the applicants have set out the grounds in detail as to why the probate granted should be revoked. I am thoroughly convinced that there are ample justification, for the reasons set forth above revoking the grant of probate. The maxim is Flat Justice let heaven falls, justice just be done.
34. When serious allegations of fraud have been alleged against the respondents, it is the duty of the respondents to contest the suit and prove their case of no fraud.
I am of the firm view that an opportunity must be given to both sides to prove their case in the main T.O.S. Though several decisions were cited by the learned Counsel appearing for both sides, I do not propose, to deal with those decisions in view of the factual finding arrived at by me in paragraphs supra.
On that basis, the learned Judge allowed the applications for revocation of probate. The learned Judge directed the respondents before him to lodge the probate granted to them immediately in court.
12. After filing the appeals, the grantee of the probate has obtained stay of the operation of the order of the learned Judge and, therefore, the probate has not yet been lodged in court, Geetha Ravi was permitted by a Division Bench of this Court to deal with the property on certain conditions. The order of the Bench was set aside by the Supreme Court, which directed early disposal of the appeals. Consequently, the appeals have been posted for final disposal.
13. The chief argument advanced on behalf of the appellants is that none of the grounds mentioned by the learned Judge in his order is a just cause' within the meaning of Section 263 of the Indian Succession Act. It is also contended that the allegations made in the two applications for revocation of the grant do not make out a 'just cause' as contemplated by the said section. It is the contention of the appellants that Explanation to Section 263 is exhaustive and only if the ground on which revocation is sought falls within the scope of the five clauses in the Explanation, the prayer can be granted and even in a case where 'just cause' is made out, the court has a discretion in the matter and can refuse to revoke the grant. According to the appellant, in the present case, the learned Judge erred in revoking the grant without properly exercising his discretion or considering whether the applicants before him had proved the allegations. It is also argued that the learned Judge has wrongly cast the burden on the appellants and relied upon the circumstance that no evidence was adduced on the side of the appellant, overlooking that the burden of proof was entirely on the applicants before him who were seeking to set aside a judgment in rent.
14. It will be convenient here to discuss the relevant principles of law applicable to revocation of grant. In 'Phillips' Probate and Estate Duty Practice", 6th Edition, at page 421 it is stated that when a grant contains a vital error or whenever a registrar considers that an error should not be corrected by the amendment of the grant, it must be revoked. It is also pointed out that it is not possible to enumerate all the circumstances in which a grant must be revoked. The commonest grounds on which grants are revoked, are set out therein. One of the grounds is when a forged or revoked will has been proved and another ground is when nearer of kin of the deceased are discovered after the issue of a grant of administration to more remote kin. In Halsbury's Laws of England, 4th Edition, at page 406 paragraph 767 reads thus:
Even after a grant of probate the courts have full jurisdiction to decide that the will is a forgery, and where probate has been obtained by a fraud practised upon the next of kin, a court of equity has jurisdiction to declare the wrongdoer a trustee in respect of the probate, but it cannot, on the ground of fraud practised upon the testator, set aside a will which has been admitted to probate, nor ought it to declare a person who has fraudulently obtained a benefit under the will a trustee for the person defrauded.
15. In 'Nrisinhadas Basu's Commentaries on the Indian Succession Act" 3rd Edition, at page 996, the following statement of law is found:
Where there had been full enquiry as to the genuineness of the will, the Judge would probably take, as he would have a right to take, the previous grant of probate as prima facie evidence of the will, and to shift the onus on the objector. But if there had been no previous contention, and the will had only been proved summarily, or in what is called in common form in England, that is, without any opposition, and merely ex pane, to the satisfaction of the Judge who can know nothing of the circumstances of the State of the family then he ought in all ordinary cases to have the will regularly proved afresh so as to give the objector an opportunity of testing the evidence in support of the will before being called upon to produce his own evidence to impeach it. Nmollochun v. Nilrutten, 4 Cal. 360. But before the grantee is asked to prove the will in solemn form, the petitioner must make out a prima facie case on the basis of alleged 'just cause'. Kalicharan v. Ishan Chandra, 31 Cal. 914. See also, Bhagirathi v. Ghisa Singh, 471. C. 174, Sukh Dei v. Kedarnath, 23 All 405, Dintarini v. Doibo Chandra. 8 Cal. 800, Premchand v. Surendra 9 C. W.N. 190, Lachko v. Gopinarain 23 All. 472.
16. In Kunia Lal Chowdhury v. Kailash Chandra Chowdhury and Ors. 14 C. W.N. 1068, it was held that though a probate obtained in common form as the result of a compromise is binding upon the parties to the compromise it is not binding upon those who are not parties to it, even though they have been cognisant of the former proceedings. It is also pointed out that persons who are willing to stand by while a contest is going, are bound by the decision of the court, but they are not compelled to abide by a compromise when no decision in fact has been come to by the court.
17. Section 263 of the present Indian Succession Act XXXIX of 1925 corresponds to Section 234 of the Succession Act of 1865 and Section 50 of the Probate and Administration Act V of 1881. But, a significant change was brought about by the Legislature while enacting Section 263 in the present Act. In the two old acts, the explanation to the section read "just cause is." Thereafter, the four clauses were set out and the 5th clause was introduced by an amendment in the year 1889 by Act VI of 1889 to Act V of 1881. While construing Section 50 of Act V of 1881, the Calcutta High Court held in Annoda Prosad Chatterjee v. Kalikrishna Chatterjee, I.L.R. 24 Cal. 95, that the Explanation was exhaustive and not illustrative. The relevant passage in the judgment reads thus:
No doubt the question may arise whether the words "just cause", as explained in Section 50, are exhaustive or illustrative. If they are illustrative, and not exhaustive, it might be said that the District Judge had jurisdiction to remove the executor on the ground of mismanagement, but certainly not under Clause 4. We think, however, that these words are exhaustive: and this view is supported by the fact that the Legislature thought it necessary to amend Section 50 of Act V of 1881 by Act VI of 1889 by adding to the explanation a fifth clause relating to the wilful omission by an executor to exhibit an inventory or account, and to the exhibiting of a false inventory or account. Had the words "just cause", as explained in Section 50, been merely, illustrative, there would have been no necessity to add to it this fifth clause.
18. That judgment was followed in Bal Gangadhar Tilak v. Sakwarbai, I.L.R. 26 Bom. 792. The Division Bench said:
The law contained in Section 50 of the Act specifically prescribes that a grant of probate may be revoked or annulled for just cause, which process is defined in the explanation which follows in that section.
The Bench cited the judgment of the Calcutta High Court in Annoda Prosad Chatterjee's case I.L.R. 24 Cal. 95, as an authority for the proposition. That Bench also referred to the fact that the fifth paragraph of the Explanation to Section 50 was added by a specific enactment (Act VI of 1889) eight years after the passing of the original Act.
19. In Subroya Cherty v. Bagammal, I.L.R. 28 Mad. 161, a suit was filed for discharging the plaintiff from his recognizance as a surety as regards future transactions on the part of the administratrix of the estate on the ground that she was wasting and mismanaging the estate. The plaintiff was one of the sureties under Section 78 of the Probate and Administration Act. It was held that the plaintiff was not entitled to the relief asked for and that Section 130 of the Indian Contract Act did not apply to the special contract of surety ship entered into by a surety to an administration bond. The case was decided on the original side by Moore, J. The third issue framed by him in the suit was whether the plaintiff had any cause of action against the defendants or any of them. While considering that issue, the learned Judge expressed his opinion that the plaintiff had no cause of action and made a reference to the decision in Raj Narain Mookerjee v. Ful Kumari Debi, I.L.R. 29 Cal. 68 and observed that he was unable to accept the conclusion in the said case as to the powers of a court which had once taken a bond with sureties to take a second bond with fresh sureties, if necessity arises. Then the learned Judge referred to Sections 50 and 51 of the Probate and Administration Act and said that those sections no doubt gave the court which granted the letter of administration power to annul the same for just cause and said that he was prepared to follow the decision of the Calcutta High Court in Annada Prosad Chatterjee's case I.L.R. 24 Cal. 95 to the effect that the explanation of the words ''just cause" as given in Section 50 was not illustrative merely but exhaustive. There was no discussion of the question by the learned Judge. On appeal, the Division Bench confirmed his judgment, but did not deal with the question whether the explanation in Section 50 was exhaustive or illustrative.
20. In Mahomed Bam Meah v. Sabida Khatun, 49 I.C. 128, the Calcutta High Court held that a probate could not be revoked on the ground that the terms of the will were contrary to the provisions of the Mohammadan Law, since it was not one of the just causes set out in the Explanation to Section 50 of the Probate and Administration Act. In Surendra Nath v. Amrita Lal A.I.R. 1920 Cat. 584(2), while referring to Section 50 of the Probate and Administration Act, the Bench said:
As regards the second order, it has been argued that the court was not competent to revoke the probate under Section 50, Probate and Administration Act, even though the executors refused or failed to comply with the order of the court for fresh security. It is further contended that Section 50, Probate and Administration Act, is exhaustive and that the explanation of the expression "just cause" is not merely illustrative: Annoda Prosad Chatterjee v. Kalikrishna Chatterjee, I.L.R. (1897)24 Cal. 96 and Bal Gangadhar Tilak v. Sakwarbai, I.L.R. (1902)26 Bom. 792. This may be conceded: the question thus arises, whether Clause 4 of the explanation is applicable here. That clause authorizes revocation on the ground that the grant has become useless and inoperative through circumstances. No inelastic rule can be formulated to test the applicability of this clause: the matter must be determined with regard to the events which have actually happened in each case.
The Bench also pointed out that the real object which the court must always keep in view is the due and proper administration of the estate and the protection of the interests of the parties beneficially entitled thereto.
21. In George Anthony v. Millicent Spencer A.I.R. 1933 Bom. 370, a single Judge of that court held that the explanation of the term "just cause" in Section 263 of the Succession Act was exhaustive and not merely illustrative, so that the application of the plaintiff must fall in one or more of the said grounds. The learned Judge did not take note of the significant difference in the language between Section 50 of the Probate and Administration Act and Section 263 of the Indian Succession Act. In Gulam Ali v. Rahmatulla Khan A.I.R. 1941 Rang. 259, the court referred to the rulings in Subroya Chetiy's case I.L.R. 28 Mad. 161, Annoda Prosad Chatterjee's case I.L.R. 24 Cal. 95 and Bal Gangadhar Tilak's case I.L.R. 26 Bom. 792 and held that the explanation in Section 263 was exhaustive. That court also failed to take note of the change in the language in the present Act.
22. In the case of T. Amnntgha Mudaliar, In re , a single Judge of this Court merely referred to the above rulings and said that the words 'just cause' as explained in the section were exhaustive and not illustrative merely. There is no discussion whatever of the question. On the facts, however, it was held that the case fell under Clause (e) of the Explanation and the letters of administration were revoked. Thus, the observation made by the learned Judge is really obiter.
23. In Anil Behari v. Latika Bala Dassi , on which considerable reliance was placed by the appellants, the question whether the Explanation in Section 263 is exhaustive or illustrative was not considered. It is seen from the facts of the case that revocation of the grant was sought mainly on the ground that the testator had intended to revoke the will on which probate was granted. Several other grounds were also urged so as to fall within different clauses of the Explanation in Section 263. The Calcutta High Court held that the will was genuine and valid in view of the evidence and on the fact that the genuineness or validity had not been questioned specifically in the pleadings. It was found that there was no intention on the part of the testator to revoke the will. It was also held that non-citation of the close relative did not materially affect the grant of the probate and at any rate, he being fully aware of the grant, stood by and therefore acquiesced in the grant and he did not take any steps at the right time to question the same. Hence, the application for revocation was dismissed. The Supreme Court affirmed the said decision on appeal. While discussing the provisions of Section 263, the court merely set out the explanation and the illustrations relevant to that case. The court had no occasion to consider whether the explanation was exhaustive: It was held in that case that there was no general proposition that the question of genuineness of the will does not arise for consideration till the court has decided that the probate must be revoked on one or more of the grounds specified in Section 263. It was observed that Section 263 also contemplated a case for revocation based on the single ground that the will in respect of which the grant in question was obtained was a forged one and in such a case whether or not a will was a forged one would be the only question to be canvassed before the court before the order of revocation could be made out.
24. In Promode Kumar Roy v. Sephalika Dutta , the court said that it is almost beyond controversy that the enumeration of the clauses in the Explanation in Section 263 was exhaustive and not merely illustrative. The earlier judgments already referred to by us were cited in support. A similar ruling was rendered by Mysore High Court in K.N. Srinivasan v. C. Krishna Iyengar A.I.R. 1987 Mys. 74. The court rejected the contention that the explanation was only illustrative but not exhaustive, by relying upon the judgment of the Calcutta High Court in Annoda Prosad Chatierjee 's case I.L.R. 24 Cal. 95.
25. In Southern Bank Limited v. Kesardeo Ganeriwalla and Ors. , the proposition that the explanation in Section 263 is exhaustive is reiterated and reference is made to Annoda Prosad Chatterjee 's case I.L.R. 24 Cal. 95. In re. Sureman Singh A.I.R. 1969 Pat. 183, a Bench of that court relied upon the judgment in T. Arumugha Mudaliar's case A.I.R. 1985 Mad. 622 and held that the words 'just cause' as explained in Section 263 are exhaustive and not illustrative.
26. In Moonga Devi v. Radha Ballabh A.I.R. 1972 S.C. 1471, on which reliance is placed by learned Counsel for the respondents, the advocate who filed a caveat on behalf of the testator"s widow and daughter, where under execution and genuineness of the will was seriously challenged, admitted due execution of the will and refrained from cross examining the sole attesting witness. Probate was granted after the court compared the disputed signature with the admitted signature of the testator, but without ascertaining the circumstances which led to the admission of the advocate and without affording full opportunity to contest the grant of probate and to cross-examine the attesting witness, it was held by the Supreme Court that there was miscarriage of justice and the grant should be revoked. The court allowed the appeal and set aside the grant directing fresh disposal of the application of probate in accordance with law. It will be advantageous to refer to the following passage in that judgment in order to appreciate how the court should approach the matter when an application for probate is considered.
9. We find a lot of substance in the submissions of Mr. Chhagla. We are wholly unable to comprehend how a matter of granting of probate could be disposed of in the manner in which it was done by the High Court. A narration of facts given in the earlier part of the judgment which has not been disputed on behalf of respondent Radha Ballab fully establishes that the case had some very abnormal features. Here was an Advocate who had himself filed a caveat on behalf of the appellants in which the question of execution "and genuineness of the will had been seriously challenged. In his presence an issue had been framed with regard to that matter. The execution of the will had to be proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925. The letters which had been written by Shri Mishra's clerk contained no mention whatsoever of any instructions having been received from the appellants or of any statement having been made on the previous day conceding the execution of the will in accordance with those instructions. In these circumstances the only and the proper course which the High Court ought to have followed was either to ascertain from Shri Mishra about the exact circumstances in which he made that statement on October 3,1966 and also refrained from cross-examining the attesting witness. In the absence of any satisfactory explanation by him the appellants should have been given a full opportunity to contest the grant of the probate and to cross-examine the sole attesting witness after recalling him. We are completely at a loss to understand how the learned Judge by mere comparison of the signatures on the will of the testator with his admitted signatures could decide the matter.
10. It appears that according to the learned Judge the appellants could not be permitted to resile from the statement made by the Advocate because he was satisfied that the disputed signatures tallied with the admitted signatures. The first question to be determined was whether the admission had been made by the Advocate on any instructions given by the appellants. No attempt, however, was made to ascertain the true position in that direction which was indeed very unfortunate and regrettable. It is not merely the genuineness of signatures on which the proof of the execution of the will under Section 63 of the Indian Succession Act depends. It has to be proved that the will was attested in accordance with Clause (c) of that section. That could not be done unless the statement of the attesting witness could be taken into consideration. In our judgment it could not be treated as evidence in the circumstances of the present case. It is abundantly clear that the matter in which the proceedings were conducted resulting in the grant of probate was such that there has been a gross miscarriage of justice. Learned counsel for the respondent Radha Ballab has invited our attention to certain observations made in order of the High Court dated November 12, 1968 by which the petition for grant of certificate to appeal to this Court was rejected. It has been observed in that order and that matter was mentioned in the order of Mathur, J. dated July 10, 1967 that the caveat was signed only by Sumitra Devi who had also filed her affidavit in respect thereof on January 4, 1986. Even if the signatures were of Sumitra Devi the application for the caveat was on behalf of both the mother and the daughter and it was wholly immaterial if Moonga Devi had not signed it. It was clearly stated in the affidavit of Sumitra Devi in para 5 that Moonga Devi was entitled to all the properties of Changur Sahu as his sole heir. It has also been emphasised in the above order that the application filed on behalf of the present appellants on February 22,1957 was belated and that counsel Shri Kashi Nath Gupta through who that application had been filed had made a statement that the said application had become in fructuous in view of the order passed by Mathur, J. on March 8,1967. Reference was made to the statement of the attesting witness and the comparison made by Mathur, J. of the signatures. We find it very difficult to comprehend how these matters stated in the order disposing of the application for grant of a certificate can be of any avail or assistance. It was not the function of the court at that stage to re-examine the question on merits. At any rate, these facts were of no material consequence so far as the case of the appellants on the points considered by us was concerned.
27. The above ruling clearly indicate that the court is not fettered by the Explanation in Section 263 while deciding whether there is a just cause for revocation of grant. It is seen that the court has to find out whether at the time of granting the application for probate, the relevant facts have been considered before the court arrived at the conclusion that the will in question was genuine."
28. In R. Sivagnanani v. P.K.S. Mudaliar , the court held that the various clauses of Section 263 and the illustrations provided guidelines for exercising its discretion to revoke the grant of probate. It was observed that since the revocation sets aside an earlier valid judicial order, there should be caution and strict proof of presence of any one of the circumstances stated in the provisions, should be insisted upon. Reliance is placed upon the said observation by learned Counsel for the appellants. It is argued that the Bench has expressed the view that the Explanation in Section 263 is exhaustive. Our attention is drawn to the following passage in the judgment:
The grant of a probate may be revoked for a just cause. 'Just cause' is explained in the body of the section itself. The various clauses which explain the expression 'just cause' provide guidelines for the court, whose assistance is sought for revocation of an improper grant under the Act. As revocation of a grant implies the effacement of the earlier valid judicial order of a court, not only there should be caution in acceding to such a request but strict proof of the existence of one or other of the circumstances enumerated in the Explanation to Section 263 of the Indian Succession Act is necessary before the court could accede to such request.
The court proceeded to observe that the illustrations to the section also provide some material to court as to when it could exercise its discretion to reverse a grant. We are unable to accept the contention that the court held in that case that the explanation is exhaustive. The observations made by the learned Judges should be read in the context of the facts of the case. It was found in that case that a caveat was entered by an interested person, but it was withdrawn unconditionally during the process of the enquiry. But before then, the propounder of the will and one of the attesters of the will were examined as witnesses. The Judge who dealt with the application for probate held that there was enough material on record to grant the same. Referring to the circumstances that two witnesses had been examined and there was sufficient proof of the will available on record, the Bench held that the application for revocation on the ground that the proceedings for obtaining grant was defective in substance had no merit. The ruling does not help the contention of the appellants.
29. Another Division Bench, to which a member of the Division Bench which decided R. Sivagnanam's case , referred to above, was a party, held in G. Shanmugham Chetti and Anr. v. Chinnammal that the expression 'just cause' explained in Section 263 was obviously illustrative and not exhaustive. The Bench said:
There may be cases where a just cause for revocation or annulment is available, even though they may not strictly come within the frame-work of the illustrations given in Explanation to Section 263 of the Act. A mere error in form and procedure but not in substance cannot vitiate an earlier grant. If in a given case fraud is alleged or a material concealment is suggested, such fraud must not only be pleaded, but also be proved at least prima facie to enable the court to react and issue a direction by way of a citation to the primary grantees to lodge the original letters of administration in court. Vague suggestions about concealment which do not go to the root of the matter and which are not material in the case, cannot also be considered as a just cause for revocation. In effect, therefore, there must be abundant material which is acceptable to a reasonable person to come to the conclusion that the court has been misled in making the original grant and that there was a deliberate design and a motive for the making of untrue allegations of facts which are essential in point of law. No doubt, the propounders of the will cannot take shelter by pleading that an untrue allegation of fact which is essential in point of law, was ignorantly or inadvertently made. If an allegation has been proved to be untrue and if that fact formed as it were the basis for the grant in law, then also the statute assumes by way of a fiction that there is just cause for revocation.
30. In Rajeswari Devi v. Harilal , a Division Bench relied upon the judgment of the Supreme Court in Anil Behari Ghosh 's case and held that revocation based on the single ground that the will in respect of which grant was obtained was a forged one, is contemplated by Section 263. However, the Bench proceeded to refer to the judgment of the Calcutta High Court in Promode Kumar Roy's case holding that the Explanation to Section 263 is exhaustive and not merely illustrative. There is no discussion of the question by the Bench in that case.
31. The same learned Judge who has decided applications in the present case held in S. Govindaraj and Anr. v. K.R. Ramamani and Anr. (1991)2 L.W. 380, that the circumstances set out in Explanations A to E to Section 263 do not exhaust the circumstances under which the court can revoke or annul the probate. The relevant passage in the judgment is in the following terms:
5. Section 263 of the Act deals with the circumstances under which a grant of probate or letters of administration may be annulled or revoked. If the section has merely stated that the following are the circumstances under which a grant or probate or letters of administration may be revoked it may be contended that unless the circumstances for revocation come within the categories mentioned in the Explanation to the said section. But it is to be noticed that the section begins saying that the revocation or annulment must be for a just cause.' The words just cause enjoins the necessity for the court to see if there are circumstances other than those categorised as A to E in the Explanation to the said section requiring for annulment or revocation. In my opinion, the circumstances set out under Explanations A to E of Section 263 of the Act do not exhaust the circumstances under which the court can revoke or annul.
10. I do not feel that this Court is fettered by restrictions in the matter of interpretation of what is a just cause. A to E in the Explanation to Section 263 state no more than the circumstances set out therein shall be considered by the Court as those where just cause shall be deemed to exist. The word 'deemed' is by itself indicative that the interpretation of the words 'just cause' shall not be construed as inapplicable to the circumstances set out in A to E of the Explanation. In other words, when the section says that circumstances under A to E of this Explanation point to a finding that just cause shall be deemed to exist, it imports that there may be other circumstances under which a just cause shall not merely be deemed to exist but shall also exist, thereby indicating that section is not exhaustive of the circumstances under which a revocation or annulment may be made of a probate or letters of administration.
We are in agreement with the reasoning of the learned Judge.
32. In S.D. Ponnuswamy Mudaliar v. S.K. Somasundaram (1992)1 L.W. 77, a Division Bench of this Court while considering an application under Section 263 referred to the judgments in R. Sivagnanam's case and Shanmugham Ghent's case and extracted the relevant passages, but did not go into the question whether the explanation is exhaustive or illustrative. In R. Thangarajan v. R. Balasubramanian and Ors. (1994)2 L.W. 326 another Division Bench to which a member of the Bench which decided the above case was a party, made a reference to the provisions of Section 263 and the judgment in Shanmugham's case . The Bench quoted the passage which we have already extracted supra. The Bench, however, did not decide by itself whether the explanation is exhaustive or illustrative.
33. We have referred to almost all the rulings on Section 50 of the Probate and Administration Act V of 1881 and Section 263 of the Indian Succession Act, 1925 in view of the fact that in none of the cases there was a detailed discussion on the question whether the explanation in Section 263 is exhaustive or illustrative. It was only in Annoda Prosad Chatterjee's case I.L.R. 24 Cal. 95 there was a reasoning for holding that the Explanation in Section 50 of Act V of 1881 was exhaustive. All the subsequent decisions in which the explanation was held to be exhaustive, simply chose to follow that judgment or other judgments which had followed the same. In Shanmugham Chetti's case , though there was an observation that the explanation was illustrative and not exhaustive, there was not much of discussion. It was only in S. Govindaraj's case (1992)2 L.W. 380, the language of Section 263 was considered at some length. While agreeing with the reasoning found in that judgment, we wish to add that there cannot be any doubt as to the interpretation of the section in that the explanation is only illustrative and not exhaustive. We have already referred to the fact that in Section 234 of Act of 1865 and Section 50 of Act V of 1881, the explanation read in such a way that the words "just cause" were defined in the five clauses which followed the same. Explanations in Section 234 of Act X of 1865 and Section 50 of Act V of 1881 were identical in terms. They read as follows:
Just cause is 1st, that the proceedings to obtain a grant were defective in substance:
2nd, that the grant was obtained fraudulently by making a false suggestion, or by concealing from the court something material to the case:
3rd, that 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:
4th, that the grant has become useless and inoperative through circumstances.
It was in 1889 the 5th clause was added in Section 50 of the later Act. In fact, some of the decisions under the old Act referred to the explanation as the definition of the expression 'just cause'. See: In the matter of the petition of Bhobosoonduri Daber Nobeen Chunder Sil and Ors. v. Bhobo Soonduri Daber I.L.R. 6 Cal. 460 and Bal Gangadhar Tilak's case I.L.R. 26Bom. 792. But, when Section 263 was enacted, the Legislature thought fit to introduce a change in the language, which itself proves that the legislature did not intend the explanation to be exhaustive. The words "just cause shall be deemed to exist where" would only mean that in cases where one of the circumstances set out in Clauses (a) to (e) is present, a legal fiction comes into existence to the effect that in such cases, there is just cause for revocation. If there are circumstances which do not fall within the ambit of Clauses (a) to (e) but which warrant or necessitate the revocation of the grant, the court is entitled to revoke the grant or annul the same even though there is no legal fiction. The discretion granted in the main section to the court is in no way controlled by the explanation as it reads in the present section. It can also be said that the definition in the two old Acts was exhaustive while the definition in the present Act is only inclusive. The view expressed by the Calcutta High Court in Annoda Prosad Chatterjee 's cases, I.L.R. 24 Cal 95, that the fact that the legislature added Clause (e) in 1889 i.e., eight years after the passing of the original Act, indicated that the legislature did not consider the explanation to be merely illustrative, as otherwise, there would have been no necessity to add Clause (e) may be correct. But, once the legislature has chosen to change the wording of the explanation and introduce a legal fiction, it goes without saying that the Legislature intended to alter the law that prevailed previously. Hence, under Section 263 of the present Act, the explanation is only illustrative providing for a legal fiction in the cases set out in Clauses (a) to (e) and not exhaustive of the circumstances in which the grant may be revoked or annulled for just cause. Hence, we reject the main contention of the appellants that the respondents are bound to establish any one of the circumstances set out in Clauses (a) to (e) of the Explanation in Section 263 before seeking the revocation of the probate.
34. Learned Counsel for the respondents contend that the case is governed by Clauses (b) and (c) of Section 263 and only in the alternative it is argued that even if none of the clauses in the explanation is applicable, there is just cause in the present case for revoking the grant. It is in this connection, strong reliance is placed on the ruling of the Supreme Court in Moonga Devi's case . It is submitted that the facts are similar and that in the said case, it was the advocate who conceded the genuineness of the will after having filed a caveat, whereas in the present case it is the Power Agent, who is said to have conceded the same. The Supreme Court has, in that case, held that the execution of the will has to be proved in accordance with the provisions of Section 63 of the Indian Succession Act and when the Advocate conceded the execution of the will, the court ought to have ascertained the circumstances under which such a concession was made. It was also held that the Court ought to have determined whether the admission made by the advocate was on any instructions given by the party. Applying the test prescribed in that decision, to the facts of this case, there is no doubt that the court did not follow the correct procedure at the time of granting the probate.
35. In this case, the caveats were filed by the parties themselves through their counsel. When Ms. M.J. James filed the caveat and also an affidavit in support of the same, K. Kumar was not her Agent. She was represented only by her counsel and not by any Agent. Similarly, Dr. J.G. James filed the caveat through his counsel. The vakalat was signed only by him and not by his Power Agent. The cause title also shows only his name. He is not shown to be represented in the cause title by his Power Agent. It is not in dispute that K. Kumar did not give vakalat 10 the counsel who appeared for J.G. James in the original proceeding. No doubt, Kumar filed the affidavit in support of the caveat on behalf of J.G. James. On 27.4.1992, Kumar filed four affidavits to which we have already made a reference. In both the affidavits filed for permission to withdraw the caveat, the following recital is found in paragraph 3 of each of them:
I state on a close scrutiny of the entire matter, I find it may not be possible to sustain the defence.
There is no averment in any of the affidavits that the decision to withdraw the caveat was taken by the caveators or that the deponent of the affidavits had informed the caveators about his conclusion that it may not be possible to sustain the defence of the caveators. There is no averment that the caveators consented to withdraw the caveats.
36. The said affidavits were presented in open court when the case was called and immediately the court passed an order straightway in the original petition, even though the matter pending before the court was the suit T.O.S. No. 28 of 1985. The original petition had already been converted into a suit and just because the caveat was withdrawn the proceedings will not revert back to the earlier status of original petition. The grant of probate could only have been in the T.O.S. and not in the original petition. Hence, the learned Judge ought to have ascertained at least whether the caveators were agreeable for withdrawal of the caveat, particularly when the affidavits filed by Kumar did not say so. The learned Judge should also have decided whether the will was proved in accordance with Section 63 of the Indian Succession Act as has been held by the Supreme Court in the above case. In the absence of such an enquiry by the learned Judge, the grant of probate immediately on the filing of the affidavits for withdrawal of caveats was unsustainable. Thus, there is just cause for revoking such a grant.
37. Secondly, the affidavits filed by K. Kumar on 27.4.1992 did not make any reference whatever to any compromise between him as Power Agent of both the caveators on the one hand and the propounder of the will on the other. For the first time, such a compromise is referred to by the appellants only in their counter-affidavits filed in the applications for revocation of grant. Even at that stage, the appellants have not chosen to take the court into confidence and disclose the terms of the alleged compromise. In the counter-affidavit filed by the propounder of the will, it is stated that she sent the affidavits of the respondents to Kumar to give his comments in view of the serious allegations made against him. She has referred to the reply received by her from the said Kumar. Thereafter, she proceeds to set out the case as pleaded by Kumar. She has not chosen to disclose what transpired between her and Kumar before the caveats were withdrawn. The following passages in the said counter-affidavit are very significant and telltale:
Since amounts have already been paid through Mr. Kumar to the applicant, who had no right in the property, in order to buy peace, I did not pursue the matter further.
... ... ...
The applicant has received large amounts from the power of attorney cum agreement vendee and she is estopped from questioning the Probate. As an agreement vendee, the power in his favour is irrevocable and he acted within the ambit of his power. The applicant has received money as a consenting party to withdrawing the caveat and this cannot be gainsaid.
... ... ...
The petitioner cannot resile from her consent for withdrawal of the caveat after receiving consideration and de hors the rights of the power of attorney, as agreement vendee.
The above passages occur in the counter-affidavit filed in Application No. 2635 of 1992. Similar passages are found in the counter-affidavit filed in Application No. 4501 of 1992 also. But, the point to be noted is that she is pleading the case of Kumar and not any case of her own in support of the alleged compromise.
38. When Kumar came in the scene, having been impleaded as a party, he filed a counter-affidavit. One has to search in vain through the entire counter-affidvit to find out the terms of the compromise between him and the other appellant. His pleas are almost the same as those found in the counter-affidavit of the other appellant. In paragraph 17 of his counter-affidavit in Application No. 2635 of 1992, it is stated that was only with the applicant's consent and on her advice the caveat was withdrawn. That averment does not support the version that there was a compromise between the two appellants before the withdrawal of the caveats. Again in paragraph 22 of the said counter-affidavit, it is averred as follows:
I state that I have taken legal advice in the matter, and I was advised for taking all relevant consideration, including the interest shown by the applicant as well as her brother at Jabalpur, and also mine which is coupled with interest and also due to the fact that I have spent large sums of monies in this, and also the fact that the Will is a registered one, I thought it reasonably fit to compromise it and allow the probate to be granted and the applicant was agreeable to that course.
39. The above passage clearly shows that there was no consultation by him with M.J. James before the withdrawal of the caveat. The assertions in the affidavit are to the effect that the decision was taken by Kumar himself. Similarly in the counter-affidavit filed in Application No. 4501 of 1992 there is no specific averment as to when J.G. James agreed for the withdrawal of the caveat on receipt of a particular sum of money. The relevant passage in the affidavit reads thus:
I submit that after getting complete clearances from Miss. M.J. James during the last week of February, 1992 in person, I sent a letter dated 14.3.1992 to late Mr. Joseph G. James enclosing his Demand Drafts. I further state that on 28th March, 19921 sent a letter with a further demand draft for Rs. 25,000 and also stated therein that my Manager Mr. Murugesan will visit him shortly and settle all outstanding matters and the late Mr. Joseph G. James acknowledged the same by his letter dated 3.4.1992 addressed to me. I respectfully state, that on that day i.e., on 3.4.1993 my representatives were on their way to Jabalpur, and they met Mr. Joseph G. James on 4.4.1992 and the balance amount payable out of the total amount payable of Rs. Lakhs was paid, and the said Mr. Joseph G. James gave a full quittance receipt. A perusal of this receipt will show, that the amount paid on 4.4.1992 was in full and final settlement of all his claims in respect to Burrach Road property of his sister Miss. P.M. James. The matter was fully considered and discussed in the light of the legal advice and it was decided by the principals to withdraw the caveats so that they could receive the amounts agreed upon, in full quits. I further state on even date i.e., on 4.4.1992, Mr. Joseph, G. James, signed an affidavit confirming all the actions taken by me will bind him and undertaking to ratify the same.
The deponent has used the expressions ''principals" and "caveats". On the face of it, the said averment cannot be true as the affidavit is narrating the events which took place, according to the dependent, on 4.4.1992 at Jabalpur. It is nobody's case that M.J. James was at Jabalpur at that time. There could not have been any discussion at that time and the decision by the "principals" as such. It is not the case of the appellant that the decision at Jabalpur was taken only by J.G. James. In the said counter-affidavit it is not stated anywhere as to when it was agreed by J.G. James that he would receive a sum of Rs. 4,00,000 in full quit of his claim.
40. In the affidavit of the propounder of the will in Application No. 3 708 of 1992, she has stated that she settled the matter with the caveators through their Power Agent K. Kumar and understood that pursuant to the said settlement Kumar had paid considerable amounts to the caveators. That affidavit was filed in August, 1992. In the counter-affidavit filed by Kumar in that application in December, 1992, he has stated that he compromised the matter in pursuance of the Power of Attorney which was coupled with interest and that was done on behalf of M.J. James. It was reiterated again in another paragraph. In the affidavit filed by the propounder of the will in Application No. 5231 of 1992, she alleged that as Kumar proposed to settle the matter on behalf of both the principals, she agreed. She has stated categorically in paragraph 5 of the affidavit that she had no direct dealing with the principals of Kumar viz., J.G. James and M. James. Thus, the present case of the appellants that there was a compromise between the propounder of the will and the Power Agent of the caveators, was not disclosed to the court at the time of the grant of probate. No doubt the parties could not have invited the court to pass a decree in terms of the compromise in the T.O.S. But the non-disclosure of the factum of compromise shows that the appellants obtained the grant fraudulently by concealing from the court the material fact and also by means of an untrue allegation of an essential fact. If the court had been apprised of the factum of compromise, it would have ascertained whether the caveators were parties to the compromise. The representation to the court was as if caveats were withdrawn unilaterally by the caveators through their Power Agent on a conclusion that the challenge of the will would not be successful.
41. In any event, the burden of proving that there was a compromise to which the caveators were parties, either directly or through their Power Agent, is on the appellants. According to the propounder of the will, she had no dealing with the caveators and she dealt with only the Agent. Insofar as the Agent is concerned, his case is two-fold. One, he was authorised by the Power of Attorney, to settle the matter. Two, he had the express consent of his principals for the particular compromise and pursuant thereto, he had paid huge amounts to the principals. The agent has not chosen to prove either of the cases. It was his duty to have examined himself and proved his version.
42. It is argued by learned Counsel for the appellant in O.S.A. Nos. 255 and 256 of 1994 that though he was ready to let in evidence and establish his case, the learned Judge did not give him an opportunity to do so. According to him, he was under the impression that the caveators would give evidence and an Advocate- Commissioner was appointed for recording the evidence of M.J. James. It is also argued that the learned Judge abruptly closed the case on 15.7.1993 and reserved orders on 2.8.1993. There is no merit in the contention because the judgment was delivered by the learned Judge only on 1.3.1994. There was a gap of nearly eight months. If the appellant was desirous of adducing evidence, he would have well taken appropriate proceeding either by an application or by an oral request to the learned Judge and got the matter pointed for evidence. We are not inclined to grant the oral request now made by counsel that his client will give evidence, if the matter is remanded for fresh disposal for two reasons: (1) There is no justification for giving a second opportunity to him to lead evidence in the absence of a satisfactory explanation for the failure to do so earlier, particularly when the probate proceeding is nine years old: (2) The main proceeding is for probate of a Will said to have been executed by Pauline Manonmani James and it cannot be converted into a suit between the caveators and their Agent. The only question to be considered is whether there is just cause to revoke the probate granted.
43. We have already referred to the fact that as many as 30 exhibits have been marked on the side of the caveators. The second applicant in Application No. 4501 of 1992 has given evidence as P. W. 1. He is the son of the deceased J.G. James. He has referred to all the 30 exhibits Exs.A-1 to A-30 in his evidence. In the cross-examination, five documents were marked as Exs.B-1 to B-5 by the counsel for K. Kumar. Ex.B-1 is a letter dated 3.4.1992 written by J.G. James to Kumar. It is in acknowledgement of a letter dated 28.3.1992 written by Kumar. It is stated that the contents of the said letter would be followed. The letter dated 28.3.1992 is marked as Ex.A-30. Paragraphs 1 to 3 of that letter read as follows:
I am hereby enclosing D.D. for Rs. 25,000 (Rupees twenty five thousand only). Our matter is going smoothly and will any way settling shortly.
By God's grace, I hope and believe that you are alright by this time. I will send Mr. Murugesan shortly to meet you and by that time, we will settle all outstanding matters.
Myself and Mr. Gurupadam's efforts, the lost property has been regained. After lot of amount spent, this has been achieved. Otherwise, everything might have gone waste. In any way God is with us.
44. The letter does not disclose the terms of the settlement. Nor does it say that a settlement was already effected. As per the letter, the terms of the settlement have to be determined only thereafter. Significantly, it is stated that the property has been regained. It would only mean in the context that the property has been recovered from the propounder of the will. We have been taken through Exs.A-1 to A-29. It is during the period from April, 1985 to August, 1989. Those letters do not in any way support the case of the appellants that there was a compromise or that J.G. James wanted the dispute between him and the propounder of the will to be settled. The letters do not also show that there was any agreement between J.G. James and Kumar for payment of any money to the caveator for withdrawing the caveat. There is no letter between 3.8.1989 and 28.3.1992. It is a matter of admission that J.G. James was throughout in Jabalpur. If any agreement had come into existence between Kumar and James or James and Geetha Ravi, it could have been only by correspondence. It is only in the letter dated 28.3.1992 Kumar has stated that he would send one Murugesan to meet J.G. James. It is the case of Kumar that the said Murugesan went to Jabalpur and the matter was settled after a discussion and after James obtained legal advice. However, there is absolutely no evidence to support the said case. Exs.B-1 to B-5 do not prove the same. We have already referred to the contents of Ex.B-1. Ex.B-2 is the signature of J.G. James in a letter dated 11.3.1992. P.W.1 has stated categorically that the handwriting in that letter is not that of his father. Hence, the signature has alone been marked as Ex.B-2. That does not help the appellants in any manner. Ex.B-3 comprises the signature of J.G. James and two lines written by him at the bottom of a letter dated 5.3.1992. The remaining part of the letter having been denied by P.W.1, has not been marked as exhibit. Below the signature which is admitted to be that of J.G. James the following is written.
Please help me financially. I pray once again at this crucial time of my a life.
Nothing can be made out by the same in the absence of any evidence explaining what exactly was meant by it. Ex.B-4 is only a signature of P. W. 1 's mother as a witness to the document. The original of the document has not been filed in court. What is filed is only a xerox copy of an affidavit purporting to have been sworn at Jabalpur on 4th April, 1992. The said copy is marked as Ex.B-5. It is the case of the appellants that the affidavit was signed by J.G. James and attested by his wife and Murugesan. The date below her signature was written as 4.3.1992. Later, the figure '3' is corrected as 4. Similarly, the date below the signature of Murugesan is corrected as 4.4.1992 after it was written originally as 4.3.1992. It purports to have been attested by one K.S. Duraipandi, Notary. There again, the date was written as 4.3.1992 below his signature and correct as 4.4.1992. The addresses given for Murugesan and Notary show that they were camping at Room No. 203, in Hotel Kalchari, Jabalpur, M.P. the document was obviously typed at Madras. The typed word 'MADRAS' has been struck off and the word 'Jabalpur' is written in ink. The signature in the document is not admitted to be that of J.G James. The appellant has not taken any steps to get the document proved. As stated already, even the original affidavit has not been filed in court. A perusal of the document creates a strong suspicion that it was fabricated for the case. However, it is unnecessary for us to give such a finding.
45. Thus, the appellants have failed to prove as a fact that there was a compromise between the propounder of the will on the one hand and the caveators on the other, either directly or through their Power Agent, before the caveat was withdrawn.
46. It is the argument of the appellants that Kumar being the Power Agent, had the authority to settle the dispute and he was entitled to enter into a compromise with the propounder of the will. Though the execution of the Power of Attorney was disputed by M.J. James in the pleadings, learned Counsel for her represented before us that he would argue on the footing that she had executed a power of attorney in favour of Kumar. The appellant in O.S.A. No. 128 of 1994 has filed C.M.P. No. 15017 of 1994 for receiving a xerox copy of the certified copy of the Power of Attorney dated 9.6.1994 registered as Document No. 290/94 as additional evidence in the appeal. That application was not opposed and it was ordered by us on 24.10.1994. The said Power of Attorney dated 9.6.1994 was executed by M.J. James in favour of one Hemachalam. In that document there is a reference to the Power of Attorney executed by M.J. James in faour of Kumar, the appellant in O.S.A. Nos. 255 and 256 of 1994.
47. It is argued by the appellants that under the said power, Kumar had the authority to settle the dispute in T.O.S. No. 28 of 1985 and the finding of the learned Judge that the terms of the Power of Attorney did not authorise him to withdraw the caveat is erroneous. A perusal of the Power of Attorney in favour of Kumar shows that he was appointed in order to continue the proceedings already initiated by M.J. James challenging the genuineness of the will propounded by Geetha Ravi. Reliance is placed on Clause 5, which reads thus:
To adjust, settle, abandon, compound, or enter into compromise and submit to arbitration all actions, suits, appeals, claims, disputes and matters which arise between me and any person or persons regarding the aforesaid property.
We agree with the view taken by the learned Judge that the said clause does not refer to the probate proceedings. In the context it applies only to proceedings which may arise thereafter between the principal and third parties, particularly in view of the categoric assertion in the preamble thereto that the will was a fabricated one. We hold that the Power of Attorney did not authorise Kumar to enter into a compromise in the T.O.S.
48. It is argued that even if there is no express authority under the power, the relevant provisions of the Contract Act empower Kumar to enter into a compromise. Reliance is placed on Section 188 of the Contract Act, under which an agent, having an authority to do an act, has authority to do every lawful thing which is necessary in order to do such act. Our attention is also drawn to Section 189, which provides that an agent has authority, in an emergency, to do all such acts for the purpose of protecting his principal from loss as would be done by a person of ordinary prudence in his own case, under similar circumstances. It is further argued that the agency in favour of Kumar is coupled with interest, inasmuch as there were two agreements for sale in his favour by M.J. James under which she had agreed to sell the subject matter of the proceedings to him. Section 202 of the Contract Act reads that, 'where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.'
49. Learned Counsel for the appellants has placed reliance on the judgment of the Privy Council in Bank of Bengal v. Ramanathan A.I.R. 1915 P.C. 121. It was held therein that the authority to borrow implied an authority to pledge the credit of the principal for the purpose of obtaining or securing advances from others to constituents. But, it has been clearly pointed out that where an act purporting to be done under a power of attorney is challenged as being in excess of the authority conferred by the power, it is necessary to show that on a fair construction of the whole instrument, the authority in question is to be found within the four corners of the instrument, either in express terms or by necessary implication. In fact, the Judicial Committee has quoted that passage from the judgment in Biyant., Powis and Brynnt. ld. v. La Banque dit peuple 1893 A.C. 170.
50. In Paboodan Goolabchand v. Miller A.I.R. 1938 Mad. 966, a Division Bench of this Court reiterated the above proposition and observed that the limits of "necessary implication" are indicated by Section 188.
51. In Syed Abdul Khader v. Kami Reddy , it was held that a power of attorney has to be strictly construed and what it authorises depends on its terms and the purpose for which it is executed. The above rulings are in no way helpful to the appellants. If the terms of the Power of Attorney in the present case are construed in the light of the purpose for which it was executed, there can be no doubt whatever that the deed did not authorise the Agent to enter into a compromise with the propounder of the will.
52. Section 214 of the Contract Act enjoins a duty on the agent in cases of difficulty, to use all reasonable diligence in communicating with his principal, and in seeking to obtain his instructions. There is no evidence before us to show that the agent Kumar communicated with his principals and got their consent before entering into a compromise with the propounder of the will.
53. Further, there is one other crucial factor which will negative the plea of the appellants that the withdrawal of the caveat was binding on the caveators, as it was done by their agent. Admittedly, Kumar is claiming as an agent coupled with interest. When he entered into a compromise with Geetha Ravi, it was not as an agent of his principals only. Admittedly, the compromise was on his behalf also. We have already adverted to paragraph 22 of his counter-affidavit in Application No. 2635 of 1992. When the compromise is not entirely on behalf of the principals but also on behalf of the agent himself, he ought to have informed the principals of the terms of the compromise and obtained their express consent. As noticed already, the caveats were filed by the principals themselves and they had engaged a lawyer by giving vakalats to him. The agent, who came on the scene later and who was not on record as their agent, had no authority to withdraw the caveats filed by the principals unless he was expressly permitted to do so.
54. Hence, the withdrawal of caveats by Kumar on 27.4.1992 was not valid or binding on the caveators. Consequently, the grant of probate in O.P. No. 432 of 1985 requires to be revoked and it has been rightly revoked by the judgment under appeal.
55. In the view we have taken, it is wholly unnecessary to refer to the suspicious circumstances surrounding the execution of the will as set out by the learned Judge in paragraph 18 of his judgment and relied upon by learned Counsel for the respondents before us. The genuineness of the will has to be decided in T.O.S. No. 28 of 1985 which is now restored to file.
56. Learned Counsel for the appellants contended that the pleadings in Application Nos. 263 5 and 4501 of 1992 suffer from failure to give full particulars of the alleged fraud or collusion. It is argued that unless fraud or collusion on the part of the appellants is clearly established, the probate cannot be revoked. There is no merit in this contention. However, it is unnecessary for us to consider the same. We have found that there is just cause, in the facts and circumstances of the case, for revoking the grant.
57. It is next contended that the court being one of equity should not exercise its discretion in favour of the caveators, who have come to court with unclean hands inasmuch as they have chosen to make certain false allegations including the denial of the execution of the Power of Attorney and receipt of huge amounts as consideration for withdrawal of caveats. This contention cannot be countenanced as there is absolutely no evidence to prove that the caveators received money for withdrawing the caveat or that they were parties to a compromise with the propounder of the will.
58. A contention is urged that after Kumar filed counter-affidavits setting out his case in detail, the caveators did not file any reply affidavit debying its contents. It is argued that an adverse inference should be drawn against the caveators from the failure to file a reply affidavit. There is no merit in this contention. A Division Bench of this Court has held in Veerasekhara Varmaravar v. Amirthavalliammal and Ors. , that the law does not compel a plaintiff to file a rejoinder challenging the allegations made in the written statement and the failure to file a rejoinder cannot be treated as an admission of the plea in the written statement. The principle laid down therein will squarely apply to the facts of this case. There is no law requiring that a reply affidavit should be filed by the caveators after counter-affidavits have been filed in their applications for revocation of the grant.
59. In the result, we hold that there is no merit whatever in these appeals and they are hereby dismissed. There will be no order as to costs.
60. The learned Judge in the judgment under appeal directed the immediate lodging of the probate in the court. We have already referred to the fact that the appellant had obtained an order of stay of the operation of the judgment. Hence, they have not yet lodged the probate in court. The appellants are directed hereby to lodge the probate in this Court on or before 23.11.1994.