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R. Sivagnanam Vs. P.K. Sadananda Mudaliar - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberO.S. Appeal No. 28 of 1973
Judge
Reported inAIR1978Mad265; (1978)1MLJ164
ActsSuccession Act, 1925 - Sections 263 and 276
AppellantR. Sivagnanam
RespondentP.K. Sadananda Mudaliar
DispositionAppeal dismissed
Cases ReferredIndian Succession Act. In Anil Behari Ghosh v. Latika Bala Dassi
Excerpt:
.....genuineness or truth of will - there was no objection for grant - no defect in procedure to grant probate - grant made after court applied its mind to hypothesis on record - held, there was no just cause for revoking probate - appeal dismissed. - - who, after havingbeen satisfied that a grant could be made in the common form, was about to issue it, when he was interdicted by caveat proceedings. when the court is satisfied that sufficient proof is available on record of the execution of the will and when it is corroborated by the evidence of the available attesting witness, then it has the judicial discretion to grant such probate. the learned judge apparently was satisfied by the affidavits of proof filed by the attestors and the discretion exercised by him judiciously to..........the affidavits of proof filed by the attestors and the discretion exercised by him judiciously to grant probate in the common form cannot lightly be disturbed at this stage. no doubt the normal process initiated for the issuance of a probate in the common form was snapped by the intervention of the caveator who afterwards, withdrew her objections. but this would not, in our view, render the grant in any way defective. the grant should be deemed, in the instant case, to have been made after the court applied its mind to the hypothesis on record and the present hopelessly belated attempt on the part of the appellant to set at naught such a grant twelve years after it was made, is obviously a futile one and courts, whose assistance is sought to revoke such a grant, ought to view the.....
Judgment:
ORDER

Ramaprasada Rao, J.

1. This appeal is directed against the order of N.S. Ramaswami, J. in Application No. 329 of 1972 in T. O. S. No. 2 of 1967. The facts leading to the subject-matter may be succinctly stated thus:

2. One Thangavelu Mudaliar died leaving behind him a will duly executed by him in proper form. He died in Aug. 1956, leaving behind him his daughter Krishnaveni Ammal, Krishnaveni Ammal had two children -- Sadanandam, a son, and Saraswathi Ammal a daughter. It is common ground that Sadanandam was named as the executor under the will and he sought for probate in the usual course and in the common form. Originally the proceedings came up before Ganapatia Pillai, J. who, after havingbeen satisfied that a grant could be made in the common form, was about to issue it, when he was interdicted by caveat proceedings. Krishnaveni Ammal filed a caveat as an interested person, and thereafter the proceedings were converted into a suit, T. O. S. No. 2 of 1957. On a verification of the record, we find that in the course of the proceedings two witnesses were examined. P.W. 1 was Sadanandam, the propounder of the will, and P.W. 2 was Swaminatha Achari, one of the attestors to the will, who also filed, along with the application for the issuance of the probate, the supporting affidavit so as to enable the propounder to obtain a probate after proof of the will in the common form. But, at that juncture, it appears that Krishnaveni Ammal withdrew her caveat. In those circumstances Ganapatia Pillai, J. observed -- both sides agree that the probate asked for could be issued......... He imposed certain conditions for the issuance of the probate. His order is dated 22-1-1960. Nearly 12 years thereafter Saraswathi Ammal's son one Sivagnanam filed the present application for the revocation of the grant in favour of Sadanandam.

According to the applicant, who is the appellant before us, the grant of the probate was defective inasmuch as all the persons interested in the grant were not before the Court. Secondly, he would say that the grantee did not pay the probate duty in time and when he sought the indulgence of the Court for excusing the delay in making payment of such probate duty, he made a false allegation and that averment, which is admittedly false, by itself would enable him to obtain a reversal of the grant under Section 263(c) of the Indian Succession Act. Thirdly, the contention was that the inventory was not filed toy the grantee of the probate as directed by the Court and this inaction on the part of Sadanandam is another matter which ought to be taken into consideration for the revocation of the grant and that this is possible under Section 263(e) of the Indian Succession Act.

3. This application was resisted on the ground that there was no defect in the procedure and that the alleged false allegation was not at a time when the grant of probate was sought for and that the delay in filing of the inventory was excused by this Court by an order of Maharajan, J., and therefore, the three grounds on which revocation of the grantwas sought by the applicant are unsustainable as not being available to him.

4. N.S. Ramaswami, J. rejected the application for the revocation of the grant holding that there was no defect in the procedure and that even if the grantee Sadanandam made a false allegation while seeking for an order for excusing the delay in the payment of the probate duty, it would not vitiate the grant as such an allegation was not made in the course of the proceedings resulting in such grant. And lastly, in view of the order of Maharajan, J., who excused the delay in filing the inventory by the executor, the third ground also was not open to the applicant. He dismissed the application. Hence the appeal.

5. The three grounds pressed before the learned Judge are repeated before us. Mr. Krishan, learned counsel for the appellant, would contend that there is a defect in the procedure since the order of Ganapatia Pillai, J., which is speaking, would say that the grant was by consent and as such a grant cannot be made by consent of parties, this itself is sufficient to vitiate the proceedings. Secondly he would say that the false allegation made at a time when seeking for an order to excuse the delay in the payment of the probate duty, is an allegation which should be deemed to have been made in the course of the proceedings relatable to the grant, and that therefore, the grant is vitiated and it ought to be revoked,

6. Probate being a document issued under the seal of Court and is demonstrative evidence of the executor's authority to act, is a solemn document. There are two modes by which probate can be granted. It could be proved in the common form or in the solemn form. When the Court is satisfied that sufficient proof is available on record of the execution of the will and when it is corroborated by the evidence of the available attesting witness, then it has the judicial discretion to grant such probate. But when its conscience provokes it to have the will proved in the solemn form which requires proof of execution of the will or its genuineness in the presence of interested parties, it should demand such proof from the propounder of the will. In the instant case, Sadanandam, son of Krishnaveni Ammal, as executor sought, for such a probate in the common form. N.S. Ramaswami, J. in his judgment specifically referred to the factthat proof affidavits from the attestors of the will had been filed along with the petition for probate. There was therefore, enough material before the Court to issue a fiat and thus order probate of the will. But due to the intervention of Krishnaveni Ammal, who entered a caveat, the proceedings were registered as a suit --T.O.S. No. 2 of 1957. We have already referred to the fact that two witnesses were examined, which included the propounder of the will and an attesting witness. An attempt was made to summon the advocate who drafted the will. It was only at that stage that the caveator withdrew her objections for the grant. It is in the light of such events which transpired before him Ganapatia Pillai, J. said that there was no objection for the grant. We have already referred to the alternative mode by which a probate could be granted. The learned Judge apparently was satisfied by the affidavits of proof filed by the attestors and the discretion exercised by him judiciously to grant probate in the common form cannot lightly be disturbed at this stage. No doubt the normal process initiated for the issuance of a probate in the common form was snapped by the intervention of the caveator who afterwards, withdrew her objections. But this would not, in our view, render the grant in any way defective. The grant should be deemed, in the instant case, to have been made after the Court applied its mind to the hypothesis on record and the present hopelessly belated attempt on the part of the appellant to set at naught such a grant twelve years after it was made, is obviously a futile one and Courts, whose assistance is sought to revoke such a grant, ought to view the circum-stances with strict caution.

7. The principles governing the revocation of the grant are specifically enumerated in Section 263 of the Indian Sucession Act, which reads as follows:--

'263. The grant of probate or letters of administration may be revoked or annulled for just cause.

Explanation: Just cause shall be deemed to exist where :--

(a) the proceedings to obtain the grant were defective in substance; or

(b) The grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or

(c) the grant was obtained by means of an untrue allegation of fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or

(d) the grant has become useless and inoperative through circumstances; or

(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.'

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 en-numerated in the explanation to Section 263 of the Indian Succession Act is necessary before the Court could accede to such request.

8. Revocation should be for a just cause. The illustrations to the Section also provide some material to Court as to when it could exercise its discretion to reverse a grant. Illustration (ii) to Section 263 probably is the only material illustration which has an impact on the facts and circumstances of this case. Illustration (ii) runs as follows:--

'The grant was made without citing parties who ought to have been cited.'

Then it would be a just cause which would enable the Court to revoke the grant. No doubt it is fundamental that a judgment of a Court of Probate being a judgment in rem, should be pronounced in the presence of all parties interested, however slight such interest may be. But, this is not axiomatic. Each case has to be decided on its own merit. Absence of just cause cannot be presumed on an a priori consideration. In the case before us, Krishnaveni Ammal entered her caveat as an interested person, but withdrew it unconditionally during the process of the enquiry. N.S. Ramaswami, J. was right when he said that there was enough material on record to grant a probate of the will in the com-mon form. If, therefore, in a given situation when the Court found that the interested person has withdrawn the caveat, then it should reasonably follow that he had requisite judicial discretion to grant the probate provided the common form proof is made available by the propounder. There were no prima facie grounds for withholding such a grant under such circumstances. The only technical objection before us is that Ganapatia Pillai, J. observed that the probate was being granted by consent. Obviously this expression was used in a very wide sense by the learned Judge. Certainly we can assume that the learned Judge did never mean that the probate of the will can be granted by consent of parties. What obviously he meant was that at the particular time when the caveator withdrew from the proceedings, there was no objection for the grant otherwise, for there was material before him to issue the grant after having been satisfied that the normal method of proof of the will was available on record. We have already seen that two witnesses were also examined one the propounder and the other the attesting witness. In the circumstances, therefore, we are inclined to think that when Ganapatia Pillai, J. said that by consent the grant was being made, it only means that he was granting the probate because there could be no possible objection to the grant of probate of a will which has been proved in the common form. It should not, however, also be forgotten that when the caveator did not pursue the objection, by necessary implication the person interested did not question the genuineness or truth of the will. The present application for revocation on the ground that the proceedings for obtaining the grant was defective in substance has no merit, because in the circumstances of the case the Court should be deemed to have been satisfied about the common form proof of the will. Neither before N.S. Ramaswami, J. nor before us any attempt was made attacking the genuineness or truth of the will. It is in these circumstances we are unable to conclude that there was a defect in the procedure, as contended by the learned counsel for the appellant, within the meaning of Clause (a) of the Explanation to Section 263 which would in any manner vitiate the grant.

The Supreme Court had occasion to consider the meaning of the expression 'defective in substance' appearing inExplanation (a) to Section 263 of the Indian Succession Act. In Anil Behari Ghosh v. Latika Bala Dassi, : [1955]2SCR270 the Supreme Court said that defective in substance means that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. Therefore, to assert that in a proceeding which involves the grant of a probate or letters of administration, a defect in substance appears, the person challenging such a grant should be in a position to establish beyond reasonable doubt that the very foundation of the proceedings and the basis on which the proceedings started and proceeded, were irregular and defective. It is such a defect which goes to the root of the matter that is contemplated in Explanation (a) to Section 263. The use of the expression by Ganapatia Pillai, J. that probate is granted by consent, which, as we stated earlier, was very broadly used by the learned Judge, cannot be taken undue advantage of by the counsel to make out a case of substantial defect in the proceedings. It was only the language used by the Court that was sought to be pressed into service. We do not find any irregularity which would shake the foundation of the proceedings resulting in the grant of the probate by the learned Judge. We are, therefore unable to accept the first contention.

9. The second contention of the learned counsel for the appellant is that a false allegation was made at a time when the grantee sought for a favour from the Court to excuse the delay in the payment of the probate duty. It is no doubt true as it transpired in this case, that in the affidavit in support of the application for excusing the delay in the payment of the probate duty, the grantee Sadanandan made a false allegation regarding his status. This is taken advantage of and placing reliance on explanation (c) of Section 263, Mr. Krishnan urges that the grant has to be revoked on the ground that it was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant. There is a fallacy in this contention. The proceedings to obtain the grant terminates with the grant. The other, ancillary matters relatable to the grant cannot be said to be proceedings to obtain the grant. After obtaining the grant the question of payment of probate duty comes in. In the instant case it was not paid in time. The grantee sought forexcusing the delay in the payment of such fee. In the affidavit filed by him in support of such a request he made an allegation, which is untrue, and which related to his status. It cannot be said that such an allegation, even if untrue, relates to a fact essential in point of law to justify the grant. This is an event which is posterior to the grant. The person who made the untrue allegation has already obtained the grant. What is contemplated in Explanation (c) is that the grant itself should have been obtained by means of an untrue allegation of an essential fact. Therefore, we are of the view that the allegation in the affidavit in question cannot be said to be one which would come within the mischief of Explanation (c) of Section 263, for, it is not one which was made for obtaining the grant but obviously it was one made after obtaining the grant. Section 263(c) has no application at all and we do not agree with the second contention.

10. As regards the third contention, we have already observed that Maharajan, J. excused the delay in filing the inventory. Explanation (e) is pressed into service. Explanation (e) relates to a case where the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory, etc. When a learned Judge of this Court excuses such a delay in the exhibition of such an inventory which should follow up the grant, then it obviously means that the delay was neither wilful nor without reasonable cause. In any event, this objection is not open to the appellant after the delay in filing the inventory has been excused by an order of this court.

11. All the three contentions raised fail. The appeal is dismissed. No costs.


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