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H.L. Kumar and anr. Vs. Jayamma - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1450 of 1975
Judge
Reported inAIR1976Kant94; ILR1976KAR143; 1975(2)KarLJ441
ActsSuccession Act, 1925 - Sections 273 and 295
AppellantH.L. Kumar and anr.
RespondentJayamma
Appellant AdvocateG.R. Ethirajulu Naidu, Adv.
Respondent AdvocateS.R. Rajashekara Murthy, Adv.
Excerpt:
.....and granted the probate, it would be well within its jurisdiction to permit her to oppose the grant of probate. it must be remembered that the grant of probate operates, as a judgment in rem, and the court must be satisfied that the will has been duly executed and attested before granting the probate. the court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. the main consideration in a matter like this is that the proceeding should be so conducted that all matters in controversy are fully thrashed and decided, that every party to the proceeding should be given all reasonable latitude to put forth his..........shimoga, in the probate proceedings, whereby he permitted a party who had earlier consented to the grant of probate, to contest the same.2. the matter arises in this way: one lingappa was a leading advocate in the local bar in shimoga city. he died on 26th november, 1972, leaving behind his wife, two sons and three daughters, the sons claimed the entire properties of the deceased on the basis of a will dated 20th november, 1972 said to have been executed by their father in their favor. the sons made a petition under section 276 of the indian succession act (shortly called 'the act') praying for the grant of probate of the said will. on 11th sept. 1973, their mother and two sisters filed a written statement admitting the execution of the will and consenting for the grant of probate as.....
Judgment:
ORDER

1. This revision petition arises out of an order of the District Judge, Shimoga, in the Probate Proceedings, whereby he permitted a party who had earlier consented to the grant of probate, to contest the same.

2. The matter arises in this way: One Lingappa was a leading Advocate in the local Bar in Shimoga City. He died on 26th November, 1972, leaving behind his wife, two sons and three daughters, The sons claimed the entire properties of the deceased on the basis of a will dated 20th November, 1972 said to have been executed by their father in their favor. The sons made a petition under Section 276 of the Indian Succession Act (shortly called 'the Act') praying for the grant of probate of the said Will. On 11th Sept. 1973, their mother and two sisters filed a written statement admitting the execution of the Will and consenting for the grant of probate as prayed for. But the remaining three sisters had a different story to tell. They filed an objection statement denying the execution of the will and opposing the grant of probate. The learned District Judge registered their objection as a suit as per the provisions of Section 295 of the Act read with Rule 10 of the Rules Governing Probate and Succession Matters. He also directed that the consenting sisters and mother also be impleaded as defendants in the suit. The sons who were the applicants for the probate and who have been registered as plaintiffs, felt aggrieved by that portion of the said order. They, therefore, approached this Court in C. R. P. No. 2445 of 1974 with a complaint that the District Judge had no jurisdiction to implead the persons who did not oppose the grant of probate as defendants in the suit and it was contrary to Section 295 of, the Act. The revision petition came up for hearing before Venkataswami, J., on 12th February 1975. The learned Judge accepted the revision petition and set aside that portion of the impugned order. The result was that the mother and two sisters of the plaintiffs were excluded from the suit. In the course of the order, learned Judge referred to a then pending application before the District Judge, filed by the mother for leave to resile from her consent statement and to oppose the grant of probate. The learned Judge observed that it would be for the District Judge to dispose of the said application in accordance with law.

3. The application above referred to was filed under Order VI, Rule 17 of the Civil P. C. read with Section 268 of the Act. After the revision petition was disposed of, the mother pressed her application in which it was stated thus:

'The plaintiffs who are my sons along with their counsel, Sri Vedarnurthy approached me and promised me that they shall protect my interests, see that. I get Rs. 500/- at least every month, give me the house now I am living in, make over the temple and funds thereof to me absolutely and on this promise of theirs, I should refrain from objecting to their getting a probate. They posed as very dutiful and affectionate sons and lured me into putting my signature to a non-objecting statement they also paid me at the rate of Rs, 200/- for some months. But after getting my signature to the consenting statement and to some other papers prepared and brought by Vedamurthy, the plaintiffs, not only stopped payment, but also have begun to tease me and even ill-treat me. At the time of putting my signature, I never enquired into the genuineness of the Will or their right for a probate. But when I realized that the plaintiffs have actually deceived me by false promises. I got a copy of the petition and from that I came to know that the contents thereof do not represent the true state of affairs, that the movables, furniture, library, cash etc, left by Sri H. Lingappa, have been hushed up, transferred and not accounted for by them. I further realized that the signature in the Will propounded by them is not that of late Air. Lingappa as Mr. Lingappa was not in a mental or physical condition to execute any document. It is in my interest and in the interest of the other defendants that the truth should be brought to light and this circumstance needs that I should alter and amend the statement that is filed on my behalf in the miscellaneous case.'

The plaintiffs opposed the said application. They said that the mother has no right to be impleaded as a party to the suit since she had already consented to the grant of probate They also said that she should not be permitted to amend her written statement to take up a stand diametrically opposed to her previous consent The learned District Judge while repelling these contentions, has allowed the application of the mother by an order dated 13th June. 1975 the validity of which is called into question by the sons in this revision petition.

4. Mr. Ethirajulu Naidu learned counsel for the petitioners submitted that under the scheme of the Act, a person who files a consent statement for the grant of probate, goes out of the probate proceedings, and he cannot thereafter turn round and say that he wants to oppose the grant of probate. He said that the order of the Court below was without jurisdiction. In support of the contention, he also relied upon the order of this Court, in C. R. P. No. 2445 of 1974 (Kant) in which the mother was held to have no right to be impleaded as defendant in the suit.

5. The order of this Court in C. R. P. No. 2445 of 1974 (Kant), did not determine the question before me. In the said case, this Court did not deal with the power of the Court to permit a person to resile from his consent so as to oppose the grant of probate. This Court just dealt with the scope of Section 295 of the Act. The mother then was agitating her right to oppose the grant of probate before the District Judge. Her application for the purpose was then pending to which a reference was made by this Court while disposing of the said revision.

6. The real question involved in the present revision is, whether the Court has jurisdiction to permit a person who had expressly assented to the grant of probate, to come forward to oppose the grant. I will presently show that there is no such inhibition under the Act,

7. The broad outline of the scheme for the grant of probate is this. Section 276 provides for filing application for probate or letters of administration. Section 283 provides for issuing citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration. The citation shall be fixed up in some conspicuous part of the Courthouse, and also in the Office of the Collector of the District and otherwise published or made known in such manner as the District Judge may direct. Section 284 provides for lodging of caveats against the grant of probate or letters of administration. A caveat can be entered by any person denying or asserting an interest in the estate of the deceased person. As held by this Court in Sushila v. Bhimappa Rayappa Karigar, (1972) 1 Mys LJ 504 the caveat is no more than a caution or warning given by the person denying or asserting any interest in the estate of the diseased against the Court issuing any probate without notice to the caveator. It should be in the form prescribed In Schedule V of the Act. It can be filed before or after the application for the grant of probate. Section 285 provides that no proceedings shall be taken a petition for probate without notice to the caveator. The persons who am denying an interest or asserting any interest in the estate of the deceased may oppose the proceedings for the grant of probate. They may together file one objection or separate objections at different intervals. The matter then becomes contentious. The contentious matter should be adjudicated in the manner provided by Section 295. It states that the proceedings in such a case shall take the form of a regular suit, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. Each objection thus takes the form of a suit. We call this suit as testamentary suit for the grant of probate. After the probate is granted, the aggrieved party may take recourse to the procedure for the revocation of probate on what is called 'Just cause' set out under Section 263 of the Act.

In Maneklal V. Shah v. Jagdish C. Shah, (1970) 72 Bom LR 719, Vimadalal, J., while taking the same view, observed at page 722:

'That once the machinery is triggered off by the filing of an affidavit in support of the caveat, the issue of a notice, and the service of a writ of summons, the proceeding initiated by the filing of a caveat must, in each case, automatically, 'take the form of a suit' and 'be numbered' accordingly. That process cannot be prevented or brought to a halt by joining the subsequent caveator as party defendant to the testamentary suit of the earlier caveator. Even if such an order is made, the independent suit of the subsequent caveator still survives and will have to be disposed of though, no doubt, certain points might be concluded by the decision in the suit of the earlier caveator to which the subsequent caveator was made a party defendant.'

The learned Judge continued:

'It is well settled that the Court has inherent power to make an order for consolidation as long as it does not conflict with an enactment like Court Fees Act, and the Court may do so even without the consent of the parties.'

8. What we have to pertinently note in these provisions is that the Act does not prescribe any time limit for filing objections. It also does not require any person to file a consent written statement. It does not envisage two proceedings; one against the consenting parties and another against those who oppose the grant. The entire procedure for the grant of probate is one and cannot be compartmentalized as contended for the petitioners. In case there is no contest, the Court, on the proof of the execution of the Will, may grant the probate. But where contention is raised, the matter must be tried as nearly as may be, as a suit.

9. Let me now recall what has happened in the inst4nt case. The mother who was not under law required to file a consent written statement, filed one. After some time, her three daughters, that is respondents 3, 5 and 6 filed their objections opposing the grant of probate and their statement of objections has been registered as a suit as required under Rule 10 of the Rules framed by the High Court Governing Probate and Succession Matters. The mother now states that she was misled by her sons who obtained her consent by inducement and she further states that she has since discovered that her deceased husband did not execute the Will and she wants, therefore, to oppose the grant of probate. The Court cannot say, 'You have once filed your consent statement. I am not concerned whether that consent was voluntary or obtained by inducement. I will grant the probate, and you have to get out of the proceedings.' This would be the result if I accept the contention of Mr. Ethirajulu Naidu. If the Court adopts such an attitude, genuine oppositions or claims may be defeated by technicalities. So long as the Court has not acted upon the consent of the mother and granted the probate, it would be well within its jurisdiction to permit her to oppose the grant of probate.) The Act and the Rules do not provide, to the contrary.

It must be remembered that the grant of probate operates, as a judgment in rem, and the Court must be satisfied that the Will has been duly executed and attested before granting the probate. For the purpose of finding out the genuineness and execution of a Will, the Court may welcome any relevant evidence. In my view, it is essential that the Courts should retain the maximum flexibility to deal with the probate applications. The forms and technicalities should be kept to a bare minimum. The Court should preserve its full discretion to grant leave to amend according to the merits of the individual request. All rules of procedure should be tempered and applied to achieve the above purpose and to meet the ends of Justice. In Jai Jai' Ram Manohar Lal v. National Building Material' Supply, Gurgaon : [1970]1SCR22 the Supreme Court observed at p. 1269:

'Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the rules of procedure. The Court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by blunder, he had caused injury to his opponent which may not be compensated for by an order of costs.'

10. In the present case, learned District Judge has correctly followed the above principles. He has referred to the strained relationship between the sons and the mother. He has carefully analyzed the circumstances, which compelled the mother to come forward to oppose the grant of probate. He has taken pains to go deep into the background of the dispute between the parties. Finally he concluded:

'The main consideration in a matter like this is that the proceeding should be so conducted that all matters in controversy are fully thrashed and decided, that every party to the proceeding should be given all reasonable latitude to put forth his or her case and that where the interest of justice requires the party should be permitted to amend in such a way even as to resile from the earlier statement. In the light of the particular facts of this case as discussed above, I find this is a fit case where I should permit the 1st defendant to amend her written statement in such a way as to enable her to oppose the prayer for the grant of probate and to contest the allegations made by the plaintiffs.

I entirely agree with the above approach, and the discretion exercised by the learned Judge. It falls within his jurisdiction and does not call for interference.

11. This takes me to the last contention relating to the charge of mala fides against the mother. It was urged that the action of the mother was actuated with mala fides and she should not be permitted to oppose the grant of probate. It was stated that from the date of the application for probate, there were as many as 26 hearings, before the mother came forward with her statement of objections. It was also said that even before filing the application for probate, the sons had issued a notice to their mother setting out the terms in the Will providing for her maintenance and she had not then denied the execution of the Will by replying to the Said notice. According to learned counsel, these circumstances are enough to come to the conclusion that the action of the mother was mala fide.

12. I am unable to accept the contention. Mere delay in filing the objections is no ground to hold that the action was mala fide. Even according to the sons, the mother is a rustic and uneducated woman. No wonder, then she opened her eyes only when some of her daughters filed their objections, against the grant of probate. Even otherwise, it seems to me that the enquiry on the above allegations is beyond the scope of this revision petition. I am concerned only with the jurisdiction of the District Judge to make the impugned order, which in my view, does not suffer from any error of jurisdiction.

13. In the result, this revision petition fails and is dismissed.

14. As the parties are closely related, I make no order as to costs.

15. Petition dismissed.


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