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Smt. Yuvrani Tank Rajeshwari Devi Vs. Harilal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (First) Appeal No. 79 of 1972
Judge
Reported inAIR1978MP201; 1978MPLJ433
ActsSuccession Act, 1925 - Sections 263 and 283; Evidence Act, 1872 - Sections 101 to 104; Court-fees Act - Sections 19H and 19I
AppellantSmt. Yuvrani Tank Rajeshwari Devi
RespondentHarilal and ors.
Appellant AdvocateRavindra Kumar Verma and ;S.K. Mukerjee and ;O.P. Namdeo, Advs.
Respondent AdvocateT.C. Naik and ;Ku. Jaya Choudhary, Advs. for Respondents Nos. 1, 2 and 5
DispositionAppeal dismissed
Cases ReferredT. J. George v. Mrs. Lucy Kochuvareed
Excerpt:
- - then he stated that he insisted that she as well as he should withdraw from the probate proceedings. 3 had withdrawn from the contest after withdrawing all his contentions and feeling satisfied that the will was genuine. this also shows that the will was a genuine document and that the petitioner, respondents 3 and 4 felt satisfied about the genuineness of the will and their futility to raise any contention of substance. in our case, the petitioner has failed to establish any just cause and the special circumstances of this case are such which will make the court to refuse to exercise its discretion in favour of the petitioner.n.c. dwivedi, j.1. this is an appeal by smt. yuvrani tank rajeshwari devi, the petitioner against the decision of the district judge, bilaspur, in misc. judicial case no. 2 of 1970 decided on 24th dec. 1971 whereby her petition under section 263 of the indian succession act was dismissed.2. late raja bahadur leeladhar singh was the ex-ruler of sakti and left behind him his widow smt. indumati devi respondent no. 2, smt. rajkumari gyanda devi respondent no. 5 is the daughter of late raja bahadur leeladhar singh. yuraj jivendranath bahadur singh was the pre-deceased son of late raja bahadur leeladhar singh. he left behind him his two sons. surendra nath bahadur singh and pushpendra nath bahadur singh, respondents 3 and 4 respectively and the petitioner his widow.3. respondent no. 1 had.....
Judgment:

N.C. Dwivedi, J.

1. This is an appeal by Smt. Yuvrani Tank Rajeshwari Devi, the petitioner against the decision of the District Judge, Bilaspur, in Misc. Judicial Case No. 2 of 1970 decided on 24th Dec. 1971 whereby her petition under Section 263 of the Indian Succession Act was dismissed.

2. Late Raja Bahadur Leeladhar Singh was the ex-ruler of Sakti and left behind him his widow Smt. Indumati Devi respondent No. 2, Smt. Rajkumari Gyanda Devi respondent No. 5 is the daughter of late Raja Bahadur Leeladhar Singh. Yuraj Jivendranath Bahadur Singh was the pre-deceased son of late Raja Bahadur Leeladhar Singh. He left behind him his two sons. Surendra Nath Bahadur Singh and Pushpendra Nath Bahadur Singh, respondents 3 and 4 respectively and the petitioner his widow.

3. Respondent No. 1 had filed a petition in the Court of District Judge, Bilaspur for obtaining a probate in respect of a will executed by late Raja Bahadur Leeladhar Singh. This was registered as Civil Suit No. 3-A of 1965. The grant of probate of the will was opposed by the petitioner and respondents 3 and 4. Respondent No. 3 Surendra Nath Bahadur Singh put in appearance through Shri Godbole, Advocate of Bilaspur and withdrew from the contest. On this, the probate of the will of late Raja Bahadur Leeladhar Singh was granted in favour of respondent No. 1 Harilal.

4. The petitioner's case is this : The petitioner and respondent No. 4 had put respondent No. 3 in charge of the proceedings in Civil Suit No. 3-A of 1965. In Sept. 1966, respondent No. 3 informed the petitioner that respondent No. 1 with the consent of respondent No. 2 Rani Indumati Devi had dropped the probate proceedings and, therefore, there was no necessity for summoning the witnesses for examination. Respondents 2 and 3 looked after the election work for Legislative Assembly in which respondent No. 2 Rani Indumati Devi was a candidate. In the month of Dec. 1969, the petitioner learnt that the name of respondent No. 2 was mutated over the plot numbers given in Schedules A-1, A-2 and A-3 of the petition. She learnt that this was done in pursuance of the probate granted by the District Judge, Bilaspur in Civil Suit No. 3-A of 1965.

5. On an enquiry from respondent No. 3, the petitioner learnt that respondent No. 1 Harilal and respondent No. 2 Rani Indumati Devi practised fraud upon him by stating that in the ensuing Assembly election, respondents 1 and 2 have decided to set him up as a Congress candidate in the Sakti Constitutency and that they would give him full support provided he does not contest the probate proceedings. Respondents 1 and 2 further took a word from respondent No. 3 that he would keep the pact concealed from his mother, the petitioner and his brother, respondent No. 4. It was then that the fraud committed by respondents 1 and 2 and respondent No. 3 came to the notice of the petitioner. Thus, there was a conspiracy between respondents 1 and 2 to. get the case proceeded ex parte against the petitioner and respondent No. 4. The petitioner thus alleged that respondent No. 1 practised the heinous type of fraud on respondent No. 3 by giving out false hopes that he will be set up as a candidate in the election to the Legislative Assembly. This assurance was made in spite of knowledge that respondent No. 3 was under-age for 'such candidature. In pursuance of the conspiracy and the fraud behind the back of the petitioner, respondent No. 3, through Advocate Shri Godbole made an application to the Court on 6th October 1966 that he does not wish to oppose the petition and the Court passed an order on the same day.

6. The petitioner alleged that because of this fraud and undue influence, the probate granted was liable to be revoked. She further alleged that late Raja Bahadur Leeladhar Singh, who was holding lands in Bhumiswami rights could not have bequeathed them before 20th October 1961 under the unamended Section 165 of the Madhya Pradesh Land Revenue Code 1959. Late Raja Bahadur Leeladhar Singh was a joint member of the Hindu family and he could not bequeath these properties. Further, respondent No. 3 was recognised as Ruler of Sakti and, therefore, no case could be instituted against him without previous permission of the Central Government. It was further alleged that the citations were not duly published under Section 283 of the Indian Succession Act and the provisions of Sections 19H and 19I of the Court-fees Act have been violated. On account of these defects, the proceedings in civil suit No. 3-A of 1965 were nullity and the probate granted was liable to be revoked.

7. Respondents 1, 2 and 5 in their separate written statements opposed the petitioner's claim. They denied that respondent No. 3 was put in charge of the case. They further denied that respondents 1 and 2 practised fraud or undue influence on respondent No. 3 or these three respondents i. e., respondents 1 to 3 have practised any fraud on the petitioner. They also denied that respondents 1 and 2 gave assurance to respondent 3 or took a word from him that he would conceal the matter from his mother, the petitioner. It is denied that petitioner came to know of the probate in the year 1969. They contended that the property was not joint Hindu family porperty because Raja Bahadur Leeladhar Singh was a Gond and had not adopted Hindu law. Bhumiswami lands are not exempted from the operation of the will. Guest and out-houses stand on the. Nazul land. No permission of the Central Government was necessary for initiating the probate proceedings against respondent No. 3. Respondent No. 3 raised no objection regarding the jurisdiction of the Court or validity of the proceedings. They contended that there was no irregularity in compliance of the provisions of Section 283 of the Indian Succession Act end the provisions of Sections 19H and 19I of the Court-fees Act have no bearing on the validity of the probate proceedings. The respondents are estopped from raising the pleas which they could have taken in the earlier suit. There is thus no valid ground for revocation of the probate granted to respondent No. 1.

8. The other respondents were ex parte,

9. After the scrutiny of evidence, the District Judge, Bilaspur recorded the following findings:--

(i) It is not proved that the petitioner and respondent No. 4 had put respondent No. 3 in-charge of the case on their behalf.

(ii) It is not proved that respondent No. 3 informed the petitioner in Sept. 1966 that respondent No. 1 had dropped the probate proceedings.

(iii) It is not proved that respondents 1 and 2 practised fraud on respondent No. 3 and that there was no assurance given to respondent No. 3 for setting him up as a congress candidate.

(iv) It is not proved that respondent No. 3 withdrew from the contest because of the fraud practised on him by respondents 1 and 2.

(v) The probate proceedings were not defective because respondent No. 1 did not obtain permission from the Central Government.

(vi) The petition was not barred by time.

(vii) The citations were not sent to the District Judge, Bombay in the previous proceedings and were not affixed in the court houses of Collectors Bilaspur, Nag-pur and Bombay.

(viii) The notices under Section 19H of the Court-fees Act were not sent to the Collectors of the districts where the properties were situated.

(ix) The petitioner is estopped from raising grounds under issues 11 (a) to 11 (d) as they were not raised in the previous proceedings.

(x) The valuation of the property in the set form was not filed in the previous proceedings.

On the aforesaid findings, the District Judge held against the petitioner that the proceedings were neither invalid nor illegal and that no case was made out for revocation of the probate of the will granted in Civil Suit No. 3-A of 1965.

10. The petitioner feeling aggrieved by the aforesaid findings filed this appeal.

11. The questions for decision in this appeal are :

(i) Whether in Civil Suit No. 3-A of 1965 respondents 1 and 2 practised fraud or undue influence on respondent No. 3 and they arrived at a secret pact that respondent No. 3 will not participate in the probate proceedings provided he was set up as a Congress candidate?

(ii) Whether the petitioner learnt of the probate of the will in Dec. 1969?

(iii) Whether respondent No. 3 withdrew from the contest on behalf of him and the petitioner and respondent No. 4 because of the secret pact and the assurance of respondents 1 and 2 ?

(iv) Whether the petitioner has paid the requisite court-fees ?

(v) Whether the citation was sent to the District Judge, Bombay and whether the citations were affixed in the court houses of Collectors, Bilaspur, Nagpur and Bombay ?

(vi) Whether under Section 19H of the Court-fees Act notices were sent to the Collectors of the Districts where the properties were situated ?

(vii) Whether as required by Section 19I of the Court-fees Act the valuation of the property in the set form was filed or not?

(viii) Whether the petitioner is estopped from raising grounds in issues 11 (a) to 11 (d) as they were previously not raised ?

12. We have heard Shri Ravindra Kumar Verma for the petitioner and Shri T. C. Naik for respondents 1, 2 and 5. We are of the view, for the reasons stated hereinafter that the appeal deserves to be dismissed.

13. We will first discuss the question of facts before discussing the questions of law involved in the case. According to the petitioner, respondents 1 and 2 practised fraud on respondent 3 by assuring him the support for his candidature in the election of the Legislative Assembly in case he withdrew from contesting the probate proceedings. According to the petitioner, respondent No. 3 fell an easy prey to the persuation of respondents 1 and 2 and after changing the usual advocate; he engaged Shri Godbole and filed an application before the Probate Court that he did not wish to contest the proceedings. The petitioner further stated that respondent No. 3 kept this pact secret from her and that sha knew of this in Dec. 1969 when the proceedings for mutation were started. We will, therefore, scrutinize the evidence led in this case to find out whether the petitioner's case on this point is substantiated or not.

14. The petitioner as A. W. I stated that she and her two sons were opposing the probate proceedings and had engaged two advocates including Shri Mendhekar, In September 1966, her elder son told her that respondent No. 2 had conveyed to him that they did not want to fight amongst themselves and, therefore, she was withdrawing the probate case. Respondent No. 2 represented to him that after her death respondents 3 and 4 were to get the property and further informed him that they had withdrawn the probate proceedings. Thus, according to para 2 of the petitioner's evidence, the fraud consisted of the representation of respondent No. 2 that she did not want to fight and she was withdrawing from the probate proceedings.

15. The petitioner then stated in para 6 of her deposition that in Dec. 1969 through her advocate Shri Shrivastava, she learnt that the name of respondent No. 2 was being mutated over certain lands. Then she called her elder son, respondent No. 3 and questioned him that he had wrongly informed her about the rejection of the probate proceedings though she was now informed that probate was granted. On this, respondent No. 3 told her that respondents 1 and 2 had practised fraud on him by saying that they will make him a M.L.A. and will spend to the tune of Rs. 40,000 to 50,000 in case he did not contest the proceedings. The petitioner added that respondent No. 3 told her that he had in then this matter because of shame. This necessitated the filing of the present petition. In para 7 (cross-examination), she stated that she entrusted the task of contesting the probate proceedings to her elder son. There is no proof that the petitioner has entrusted the task of contesting the proceedings to her elder son because in the probate proceedings, there is an affidavit of the petitioner herself. She was the sitting member of the Legislative Assembly and it is improbable that she will entrust the task of costesting the probate proceedings, which was definitely important proceedings to her son who was hardly aged 20 to 22 years. It is equally surprising that after the proceedings ended, she will not enquire about the progress of the proceedings. All these facts, negative the petitioner's contention that she had entrusted the task of contesting probate proceedings to respondent No. 3,

16. In para 10, the petitioner stated that she did not know that the witnesses were examined on commission at Chhindwara. Though the petitioner alleged that the deceased Raja Bahadur Leeladhar Singh was taken to Chhindwara where the will was executed and that he was not in a fit mental condition to execute the will, the petitioner herself has led no evidence to establish that Raja Bahadur Leeladhar Singh was not mentally fit to execute the will or that any kind of pressure or undue influence was exercised on him. Then in para 11, she stated that none was present when her son told her that respondent No. 2 had withdrawn the pro'bate proceedings. She did not contact respondent No. 2 to ascertain this fact. She did not even contact her advocates to know the real position. She even denied that she learnt of the mutation proceedings in the year 1967. In para 12, she admitted that her elder son did not tell her that in the Nai Duniya of 26th April, 1968, respondent No. 2 had published a' notice in respect of probate proceedings. She even disowned that Shri Mendhekar advocate had appeared for her in the mutation proceedings or that the proceedings had reached the Court of Commissioner or the Board of Revenue. It is apparent that after the probate was granted, steps were taken by respondents 1 and 2 for mutation of their names and the petitioner must have knowledge about the same which she now suppresses. She admitted that respondent No. 3 could not have contested the Assembly election because he was not of required age. Therefore, there was no question of any assurance to respondent No, 3 that respondents 1 and 2 would support him if he contested the Assembly election and on that ground to secure his withdrawal from contesting the probate proceedings.

17. The petitioner in para 17 stated that from 1966 to 1969, she had no talks with her son in respect of the probate proceedings or other Court proceedings. She even stated that respondent No. 3 did not talk about the probate proceedings at the time of election. It is, therefore, in only improbable that the petitioner who had instructed her son to contest the probate proceedings would not have enquired about the progress of the probate proceedings or about other Court proceedings. The petitioner's evidence, therefore, does not establish that any fraud or undue influence was practised on late Raja Bahadure Leeladhar Singh to execute the will or that respondents 1 and 2 practised any fraud or undue influence or gave any assurance to respondent No. 3 for inducing him to withdraw from the contest of probate proceedings. The petitioner's evidence also falls short of proof that she had placed respondent No. 3 in charge of the probate proceedings. A reading of her deposition shows that respondent No. 3 being her eldest son could not have done anything behind her back and would not have kept her in dark about his move of engaging Shri Godbole advocate and through him withdrawing from the contest to the probate proceedings.

18. Surendra Nath Bahadursingh, son of the petitioner as A. W. 2 stated that he was contesting the probate proceedings. Then he stated that respondent No. 1 had taken him to Bilaspur and some talk took place at the house of Ramgopal Tiwari who has not been examined. Respondent No. 2 told him to withdraw from the contest of probate proceedings. Then he stated that he insisted that she as well as he should withdraw from the probate proceedings. On this point, there was an agreement that both respondents 2 and 3 will withdraw from the probate proceedings. Surendra Nath Bahadursingh further stated that two or four days after this talk, respondent No. 1 met him in the Pila Mahal and asked him to sign two or three blank papers and blank Vakalatnamas. He admitted his signature on the Vakalatnama (Ex. N. A. 3-1). Then he stated that he does not know what respondent No. 1 did with these papers because he did not go to the Court. He further admitted that he had withdrawn the case from Shri Mendhekar. It is surprising that he will not apprise his advocate about the settlement with respondents 1 and 2. It would have been his natural conduct to inform his advocate that he was withdrawing from the contest of probate proceedings,

19. In paragraph 4, Shri Surendra Nath Bahadursingh (A. W. 2) stated that he had not informed his mother because respondent No. 2 had forbidden him to do so. Then he stated that after the elections were over, in Jan. 1970 when the name of respondent No 2, was mutated over the property at Sakti, he told his mother that he was defrauded and that he had kept quiet because of shame. In para 7, he admitted that he had informed his advocates M/s. Kuldeep Sahai and Mendhekar that he had withdrawn from the contest and there was no need to examine witnesses and to contest the proceedings. As stated above, it would have been natural for him to inform the two advocates the circumstances why he was withdrawing from the contest. In para 8, he stated that he had not told to his mother about the withdrawal of the probate proceedings. This contradicted his mother's statement that in Sept. 1966, her son had told that both he and respondent 2 had withdrawn from the probate proceedings. Then he stated that respondent No. 1 committed fraud on him by assuring him that both of them will withdraw from the probate proceedings but he did not withdraw. If there was an agreement that both will withdraw simultaneously, there is no explanation as to 'why respondent No. 3 alone made an application to withdraw from the proceedings and did not insist on respondent No. 1 to make an application simultaneously for withdrawal from the proceedings. Surendranath Bahadursingh admitted that the assurance was based on respondents 1 and 2's assisting him in the election. In para 11, he admitted that though in 1967 he was to contest the election, he did not desire a Congress ticket. His own mother was M. L. A. on the Congress ticket. He admitted that he was not of required age to contest the election and even he admitted that he had filed a dummy nomination paper. The moment it is established that respondent No. 3 could not have contested the Assembly election, there could be no basis for his accepting any kind of assurance of help from respondents 1 and 2 in the election.

20. In para 13, Surendra Nath Bahadursingh stated that he had not contested the revocation proceedings. In para 14, he stated that on 3-11-1967 he knew about the probate and the fraud practised on him from the notice of Rani Indumati Devi and Harilal, but it is surprising that he did not bring this fact to the notice of the petitioner. He admitted of the revenue proceedings and the orders of the Revenue Court. He could not assign any reason as to why he took no steps when he learnt that the fraud was practised on him. In para 23, he stated that Harilal had met him in the year 1967 in presence of B. P. Sharma who was not examined.

21. The above evidence conclusively established that respondent No. 3 had received no assurance from respondent No. 1 and had withdrawn from the contest of the probate proceedings out of his free will. His evidence also established that the petitioner also must have known about the grant of probate and the sequent revenue cases.

22. The petitioner examined Balbhadra prasad (A. W. 4) in support of the as eurance extended to respondent No. 3 by respondent No. 1. A perusal of his evidence will show that he is in ghly interested and will go to any length to support the petitioner. It will suffice to mention that he is not a truthful witness. His evidence has been rejected for the valid reasons by the Court below. A particular reference to paragraphs 5 and 9 of his deposition will disclose his interest in the petitioner. We reject his evidence from consideration.

23. Respondents 1 and 2 have entered witness-box and have denied that they had extended any assurance to respondent No. 3. Their evidence is consistent and totally negatives the petitioner's case that respondent No. 3 was either defrauded or was given any kind of assurance to withdraw from the contest.

24. A reference to the proceedings in Civil Suit No. 3-A of 1965 will show that respondent No. 3 himself had filed an application admitting the genuineness of the will executed by Late Raja Bahadur Leeladhar Singh and his readiness to withdraw all contentions. This application is signed by respondent No. 3 and also by his counsel Shri Godbole and a copy of the same was given to counsel of the other side. There is a power in favour of Shri Godbole advocate signed by respondents 3 and 4. The proceedings disclosed that respondent No. 3 had withdrawn from the contest after withdrawing all his contentions and feeling satisfied that the will was genuine. This also shows that the will was a genuine document and that the petitioner, respondents 3 and 4 felt satisfied about the genuineness of the will and their futility to raise any contention of substance. The lower Court, therefore, rightly negatived the petitioner's contentions that respondent No. 3 was either defrauded or that any kind of assurance was extended to him for withdrawing from the contest to the probate proceedings.

25. On behalf of the petitioner, two contentions were pressed with considerable force -- (i) that citations were not issued to the respective Collectors and (ii) that there was non-compliance of the provisions of Sections 19H and 19I of the Court-fees Act. On behalf of the parties, a number of rulings were cited and some of which are: Moonga Devi v Radha Bal-labh. AIR 1972 SC 1471; Smt, Kamla Devi v. Kishori Lal Labhu Ram, AIR 1962 Punj 196; Banwarilal Shriniwas v. Kumari Kusum Bai, AIR 1973 Madh Pra 69; Swatantranandji v. Lunidaram Jangaldas, AIR 1937 Bom 397. In the matter of the will of R. Santhana Mudaly; AIR 1955 Mad 576; Mundrika Prasad Singh v. Mst. Kachnar Kuer, AIR 1955 Pat 362 O. V. Forbes v. V. G. Paterson AIR 1942 Cal 283 and Mainabai v. Motidas Misc. Appeal No. 83 of 1958 (Indore Bench) D/-15-12-1960: 1962 Jab LJ (SN) 325. We have gone through these rulings. We find that the probate proceedings are not invalid on the ground of absence of citations to the persons concerned because all the interested parties were before the Court, had knowledge of the probate proceedings and had put in contest therein. Thus, there was no prejudice either to the respondents 3 and 4 or to the petitioner because they were cognisant of the probate proceedings and had an opportunity to contest them.

26. Regarding the citations to the Collectors, the finding of the District Judge is in favour of the petitioner. But the persual of the order-sheet (Civil suit No. 3-A of 65) would show that due citations were ordered by the Court. Order' sheet dated 5-7-1965 shows that the property in Sambalpur district (Orissa State) was not the subject-matter of the proceedings. So no citation was necessary in respect to that property. Regarding the valuation of the property covered by the probate proceedings, the order-sheet dated 5-7-1965 shows that the Court did not insist on the valuation of the property in Sambalpur district and the other property wag already valued in Schedule A to the petition. The property situate in Nagpur District (Maharashtra) was valued at Rs. 20,000. Thus, the petition for probate was not defective because the valuation of the property was given as is clear from the order-sheet dated 5-7-1965,

27. Regarding citations, the order-sheet dated 7-4-1965 shows that under Section 283(3) of Succession Act, copies of citations were ordered to be sent to other District Judges for publication and certifying such publication to the Court. The order-sheet dated 7-4-1965 also shows that process fee for citation was ordered to be paid within three days. The order-sheet dated 16-6-1965 shows that citations were not back. The order-sheet dated 3-8-1965 shows that the citations were already addressed to the District Judge, Nagpur for hearing on 16-6-1965 and they have come back with a report that they were published on 6-5-1965. In view of this, the Court ordered that no fresh citations were necessary. Thus, the citations by the District Judge, Nagpur were already published. In view of these facts, the probate proceedings could not be held to be invalid for want of proper citations.

28. In Eusoof Ahmed Seema v. Ismail Ahmed Seema, AIR 1938 Rang 261 (FB) it is held that person claiming issue of citation and its service must show prima facie case for revocation. The absence of citations in a case in which they are ordered but did not issue does not by itself constitute just cause for revocation of probate. In cases where citation had not been ordered, the party impugning the will on the ground of his non-citation must first show that he ought to have been cited, before the burden of proof is shifted to the executor to show that the defect in the proceedings was not one of substance and that no just cause for revocation exists. In our case, the interested parties duly appeared and contested the probate proceedings and citations to the District Judge Nagpur were sent and published by him. There was thus no defect in the proceedings and no just cause for revocation.

29. In Dinabandhu Roy Brajaraj Saha, Firm v. Sarala Sundari, AIR 1940 Cal 296 it has been held that non-service of citation is not defect of substance so as to constitute just cause under Section 263 of the. Succession Act where non-cited party has knowledge of probate proceedings or where he is not prejudicially affected thereby.

30. In Anil Behari Ghosh v. Smt. Latika Bala Dassi, AIR 1955 SC 566 it is held that 'defective in substance' in Clause (a) of the Explanation to Section 263 of the Succession Act must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. It is further held that it cannot be laid down as a general proposition that no question of the genuineness of the will arises for consideration till the Court has decided that the probate must be revoked on one or more of the grounds specified in Section 263. Section 263 contemplates 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. In such a case, whether or not the 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. In our case, there is no proof that the will was a forged one and therefore, there will be no question of revocation of the probate unless there was defect of substance in the petition.

31. In Promode Kumar Roy v. Sephalika Dutta, AIR 1957 Cal 631 it is held that the enumeration of circumstances, in the explanation to Section 263, which would make out a just cause under the Section is exhaustive and not merely illustrative. An applicant for revocation must, in order to succeed, establish just cause within the meaning of Section 263, that is, as laid down in Clauses (a) to (e) thereof, but even if just cause be established, revocation may still be refused by the Court in the exercise of its discretion under that Section if the facts and circumstances of the particular case would warrant such refusal. In our case, the petitioner has failed to establish any just cause and the special circumstances of this case are such which will make the Court to refuse to exercise its discretion in favour of the petitioner. The probate proceedings were started on 17-1-1964. The petitioner and respondents 3 and 4 had put in appearance through Shri S.M. Mendhekar advocate and filed their written statement. The witnesses were examined on commission and thereafter, respondent No. 3, through his advocate, withdrew from the contest accepting that the will was genuine. The petitioner thus had full opportunity to contest and raise pleas in those proceedings which she is now raising. She did not do so. There is no reasonable explanation for this conduct of the petitioner and in the facts and circumstances of this particular case, we would be justified in refusing to exercise our discretion in favour of the petitioner.

32. Regarding non-compliance with the provisions of Sections 19H and 19I of the Court-fees Act, such pleas were not raised by the petitioner and respondents 3 and 4 in the previous proceedings for which there is no reasonable explanation. The question of Court-fee is a matter between the State, and the party. Moreover, this objection could not be raised in these proceedings. In Mathuradas v. Chandrakantabai, M. A. No. 133/70 decided on the 16th February 1973 (Indore) : 1973 M P LJ (SN) 71 it is held that though where the mandatory provisions of Section 19 of the Court-fees Act were not complied with, no order entitling the petitioner to grant of probate could be made, in the present case, an order directing the grant of probate having been made long back no question arose as to whether the respondent was entitled to the grant of probate for want of payment of proper Court-fees or for not stating proper valuation of the property or whether proper notice was given to the Collector or not. We have held that the valuation of the property was duly made and the citations were issued to the Collector, Nagpur. Even if, citations were not issued, the grant of probate could not be questioned on that count.

33. Regarding the application under proviso to Section 273 of the Succession Act, a reference may be made to T. J. George v. Mrs. Lucy Kochuvareed, AIR 1963 Ker 188 wherein it is held that a District Court does not lose its jurisdiction to grant a probate merely because properties worth more than Rs. 10,000/-, belonging to the estate of the deceased are situate outside the State in which it exercises jurisdiction ......... Thus, even if the properties worth more than Ra 10,000/- are situate outside the State that will not invalidate the probate proceedings.

34. We have examined the variuos contentions raised before us. The question whether the deceased would have willed away Bhumiswami land or that the property constituted is of joint Hindu family was not seriously pressed before us. The list of the property to the probate proceedings would show that most of the property wag nazul plots and there is no proof that there was a joint Hindu family. The District Judge has referred to these questions in para 59 of his order and has decided against the petitioner. We find no reason to take a contrary view.

35. In view of the above, we are definitely of the view that respondent No. 3 had withdrawn from the contest willingly and without any fraud or undue influence being exercised on him. The petitioner must have known from her son about the outcome of the proceedings, more so when the revenue proceedings in pursuance of the grant of probate had been started about which her son was in full know of. The valuation of the property was given and the citations were duly published. There was no proof given by the petitioner that the will was a forged one, and the admission of respondent No. 3 was that the will was a genuine document executed by late Raja Bahadur Leeladhar Singh. We find no defect of substance in the probate proceedings. No case is made out for revocation of the probate granted to respondent No. 1. In view of the above, the District Judge was justified in rejecting the petitioner's claim under Section 263 of the Indian Succession Act.

36. In the result, the appeal fails and is hereby dismissed. The order of the District Judge, Bilaspur, dismissing the petition under Section 263 of the Indian Succession Act is hereby confirmed. The costs of this appeal shall be paid by the petitioner. Counsel's fee Rs. 400/-, if certified. The costs of the Court below shall be borne as ordered by that Court.


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