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G. Shanmugham Chetty and anr. Vs. Chinnammal - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1978)1MLJ405
AppellantG. Shanmugham Chetty and anr.
RespondentChinnammal
Cases ReferredVenkataraman v. Yanamandra Satyavati
Excerpt:
- .....and fraudulent misrepresentation. she concedes that she has questioned the legality of the will in earlier proceedings, but could not prosecute the litigation for want of funds. she is also aggrieved over the form of the petition in that her name was not impleaded as one of the respondents. according to her alagiriswami chetty, the testator, who is her husband, was under medical treatment and that the appellants manipulated to get a will from him to her prejudice and to their advantage. she refers to the prior litigation to which she was a party and to which we shall presently make a reference to and would add that when the counsel for the appellants were contacted for a copy of the original petition by the clerk of the respondent's counsel, it was not even handed over to him. her.....
Judgment:

T. Ramaprasada Rao, J.

1. This is an appeal against the judgment of Mohan, J., who on an application filed by the respondent in this appeal revoked the probate granted in favour of the appellant by Paul, J. This order is dated 14th February, 1974 whereunder he granted letters of administration to the will of one Alagiriswami Chetty. The respondent applicant has briefly stated in the affidavit in support of the Judge's summons for revocation as follows:

2. She was admittedly a person to whom notice was ordered before the grant was made. But according to the respondent such a notice which was served on her on 12th January, 1974 was not accompanied by the copy of the petition filed for the grant and that no publication was made about the date of hearing of the testamentary proceedings and that she sought for inspection of the records as per order of the Master of this Court dated 19th March, 1974 and it was only thereafter she entered caveat. But as by then the letters of administration was ordered on 14th February, 1974, the respondent's allegation is that the grant was obtained on false and fraudulent misrepresentation. She concedes that she has questioned the legality of the will in earlier proceedings, but could not prosecute the litigation for want of funds. She is also aggrieved over the form of the petition in that her name was not impleaded as one of the respondents. According to her Alagiriswami Chetty, the testator, who is her husband, was under medical treatment and that the appellants manipulated to get a will from him to her prejudice and to their advantage. She refers to the prior litigation to which she was a party and to which we shall presently make a reference to and would add that when the counsel for the appellants were contacted for a copy of the original petition by the clerk of the respondent's counsel, it was not even handed over to him. Her further allegation is that in the petition for the issue of the grant, there are two important aspects which have been suppressed, namely, about the place of death of the testator and about the incompleteness of the affidavit of assets. According to her, the will dated 24th November, 1964 was revoked by a further will by the testator himself in his last will and testament dated 17th March, 1966 and that, therefore the grant of such a will which has been subsequently cancelled by the testator ought not to remain on record, Paul, J., granted the letters of administration after following the usual procedure. Mohan, J., however, thought that the allegations made by the respondent in the affidavit for revocation of the grant were sufficient to revoke it and directed a citation to issue to the appellants to lodge the original letters of administration in this Court. The appellants in spite of their opposition to the application for the revocation for the grant could not succeed. Hence, the appeal.

3. We shall now trace the earlier history of this litigation, as it would furnish a sufficient background for the appreciation of the facts and circumstances of the subject-matter.

4. On 12th December, 1959 and 2nd May, 1960, Alagiriswami Chetty executed two deeds of settlement which were questioned by the respondent. The result of it was a suit in this Court in C.S. No. 46 of 1962 for maintenance of the respondent. This suit ended in a compromise whereunder she was awarded a sum of Rs. 500 as and towards her maintenance and thereafter the above suit which was to set aside the settlement deeds ended. Then Alagiriswami Chetty executed the will which was the subject-matter of the grant by Paul, J., on 14th February, 1974, lived for two years and more thereafter and died on 17th March, 1966. Once again the respondent initiated proceedings questioning the settlement deeds and the will. A pauper Application No. 361 of 1967 to that effect was filed. In those proceedings filed in forma pauperis Application No. 509 of 1967 was taken for the appointment of a receiver. One of us dismissed the said application. The Master of this Court who heard the main pauper Application No. 361 of 1967 dismissed the same. A further appeal by the respondent to Palaniswamy, J., sitting on the original side was also unsuccessful. In the pauper application filed by her in 1967 and until it was dismissed by this Court on 6th March, 1970 there was no whisper at all anywhere in the pleadings that the will dated 24th November, 1964 was ever revoked. This allegation made by the respondent looms large in the present proceedings under appeal and in fact, the learned single Judge, who revoked the probate almost accepted this contention. After the challenge against the will dated 24th November, 1964, which is obviously the only will, ended in 1970, the appellants filed for letters of administration of the said will in O.P. No. 287 of 1973. In that petition though co-nomine the respondent was not made a respondent to the said original petition, yet in paragraph 8 to that petition, the appellants have stated that the respondent was the junior widow of Alagiriswami Chetty. They filed for the grant of letters of administration as sole beneficiaries under the will and would say that the delay in seeking for the relief of the grant of letters of administration was not deliberate or wilful and that they were engaged in their business activities and hence could not come up earlier. To this they annexed the affidavit of assets. It is common ground that under directions of the learned Judge sitting in testamentary and intestate jurisdiction, notices were issued amongst others to the respondent about the application of the appellants for the grant of letters of administration with the will annexed of the will dated 21st November, 1964 of V. Alagiriswami Chetty.

5. With the above background we shall now consider the allegations of the applicant. The first allegation is that though notice of the Original Petition No. 287 of 1973 for the issuance of the grant was sought to be served on her on 12th January, 1974, it was not accompanied by a copy of the petition in support thereof and that notice was not in the prescribed form. According to her she contacted her advocate who wanted her to keep a watch on the daily paper whereunder notice will be published about the date of hearing and she alleges that no such publication was made and that she came to know about the contents of the petition only after she inspected the records under orders of the Master of this Court. Countering this allegation, the appellants would plead that no advocate entered appearance at that stage for her and that a person representing himself to be a clerk of the advocate approached the appellants' advocates and wanted a copy. The person, who approached the advocate was informed that the advocate said to have been engaged by the respondent should have either entered appearance in the High Court or should at least write a letter to him asking for a copy. Thereafter, the matter ended there. The appellants' case is that due notice of the hearing of the petition for the grant was published in the dailies, one in the Madras Mail and the other in Swadesamitran and it is, therefore incorrect to suggest that no such publication was made. The first allegation is without substance. We are of the view that the background of the case already referred to by us and the specific allegation about the publication of the proceedings in the details were not brought before the notice of the learned Judge. He was obviously persuaded by the fact that merely because she entered a caveat, but after some delay the letters of administration granted earlier ought not to stand and that it ought to be revoked. We are unable to share the view. There is nothing on record to show that as to who entered appearance for the respondent at or about the time when she sought for a copy of the petition. The learned Counsel for the respondent appearing before us is unable to satisfy us that there was a genuine request made in writing by a competent or an authorised person seeking for a copy of the petition in support of O.P. No. 287 of 1973. The first objection therefore fails.

6. The second objection on merits is that there has been a suppression of true facts on important aspects. Firstly, it is said that the appellants in their petition incorrectly described the place of death as the Nursing Home, when, in fact, he died in the house and that the affidavit of assets is neither full nor complete. How the assets are incomplete is not elucidated before us: The mere fact that there is a mistake in the petition about the place of death of the testator cannot form the foundation for refusal of a grant or of the revocation of a proper grant made by a competent Court. It is in this context that the earlier history of this case looms large. The respondent was challenging the validity of the will dated 21st November, 1964. We have already made it clear that at no point of time, she referred to the other will and much less to a last will of Alagiriswami Chetty dated 17th March, 1966 said to have been written up by him. It is admitted before us that in the pauper Application No. 361 of 1967, which was filed long after the date of execution of the alleged second will which apparently she was aware of and which was to her benefit was not adverted to till she filed the present application for revocation of the grant in 1974. The merits therefore in the above case which primarily revolve round the above facts are so simple and clinching. They do not prompt us to accede to the request of the respondent to sustain the order of revocation made by Mohan, J. In fact, one of us while dealing with the application for appointment of a receiver in the pauper suit as above expressed that there was no pleading in support of the application that fraud, misrepresentation or undue influence affected the will in question. Regarding the allegation that the affidavit of assets does not disclose the correct state of affairs, no material has been placed before us to show that the contents therein are either untrue or incorrect The exaggerated value given by the respondent that the estate is worth Rs. 20 lakhs remains only as a bare statement. Finding that the merits in this case are so very clear and unambiguous, learned Counsel for the respondent who was asked to sustain the order appealed against based his arguments mostly on alleged legal infirmities in the matter of the grant.

7. Strong reliance was placed upon Section 263 of the Indian Succession 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 detective in substance; or

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

(c) 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; 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 discretion vested in the probate Court either to revoke or annul the earlier grant has to be judiciously exercised. It is not every non-conformity with procedural irregularities which were not made an issue at the time of the grant, nor such infirmities which do not shake the foundation of the grant would fever be the cause for revocation or annulment of an earlier grant. The expression 'just cause' explained in Section 263 of the Indian Succession Act is obviously illustrative and not exhaustime. There may be cases where a just cause for revocation or annulment is available, even though they may not strictly come pithin the framework of the illustrations given in the Explanation to Section 263 of the Act. A mere error in form and procedure but not in substance cannot vitiate as 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 re-act 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 into the root of the matter and which is not material to 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. The other illustrative cases in the Explanation to Section 263 of the Act which would enable the Court to revoke an earlier grant are where the grant has become useless or inoperative and where the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account or exhibited, one which is untrue in material particulars. The argument of the learned Counsel for the respondent is that the proceedings were detective in substance and the grant was obtained fraudulently by making false allegations and that there has been a wilful omission to disclose a true inventory. As regards the latter two objections there is no proof of such fraud or concealment of material particulars. What is argued is that the time of the death of the testator was not mentioned in the application for letters of administration and even so the place where he died has been incorrectly stated.

8. Another contention is that the alleged last will of Alagiriswami Chetty said to have been executed by him in 1966 has been wantonly suppressed. These objections could easily be answered. It is not in dispute that Alagiriswami Chetty executed an enforceable and a valid will on 21st November, 1964. It was this will which was the subject-matter of the earlier proceedings in Pauper Application No. 361 of 1967. The respondent did not pursue the matter proceedings in forma pauperis. Even after she was not enabled to prosecute her at that time there was no whisper that there was a second will of Alagiriswami Chetty said to have been executed on 17th March, 1966. The allegation is that Alagiriswami Chetty made out a will but could not register it. This fact is only pleaded in the present application for revocation. It was not even touched upon or referred to in the earlier proceedings. If once it is conceded by the respondent that there was a will dated 21st November, 1964 a mistake in the application for the grant relating to the place of death of the testator or the non-mention of the time of death are not substantial matters which would come within Clause (1) to the Explanation to Section 263 of the Indian Succession Act. Nor could it be said that within the meaning of Clause (b) or (c) there was a fraudulant suppression of true materials and the projection of false particulars or facts essential in point of law to justify the grant.

9. One other factor pressed into service under this clause of defective issue of the grant is that the respondent was not made co-nomine a party to the Original Petition and that citation was issued to her only by Court after the scrutiny of the application for the grant of letters of administration. The fact that a person is not made a party to a proceeding cannot always and necessarily be understood as a proceeding which is defective in substance. When the person interested to enter a caveat has been notified either by a special notice through Court or by general publication in the dailies as is contemplated under Rule 30 and Rule 32 of the Original Side Rules obtaining in the High Court of Judicature at Madras, then it cannot be said that the proceedings to obtain the grant were defective in substance. Though a vague allegation was made that no publications were made, it is now proved beyond doubt that such publications were made and a citation was also issued to the respondent about the pendency of the proceeding to obtain the grant. The respondent attempted to contact the counsel appearing for the propounders of the twill through a clerk who did not have the requisite authority to obtain a copy of the affidavit and the petition for the grant. The appellants' case is that 'somebody came with a request for a copy of the petition and he was asked to obtain the requisite authority from a duly appointed counsel so that they could give a copy of such petition and affidavit.' It is not the case of the respondent that on the date when a request was made for a copy of the affidavit and the petition, her counsel entered appearance. It is not even suggested that the clerk who approached the counsel for the appellants was authorised to get the copy of the petition and the affidavit. In those circumstances, we are unable to infer any fraud, false suggestion or untrue allegation of a fact essential in point of law not to justify the grant.

10. The history of this litigation which started in 1959 clearly establishes that the respondent had knowledge of the will executed by Alagiriswami Chetty on 21st November, 1964. She attempted to challenge its validity in a civil proceeding. She could not successfully do it. Her own case is that she was alerted by her lawyer to keep a watch on the daily papers wherein a notice will be published about the testamentary proceedings. She was admittedly served with, notice on 12th January, 1974. Excepting for the bare pleading which now appears to be incorrect that there was no publication, the conduct of the respondent is neither clear nor bona fide in not having appeared in Court and made the proceedings a contentious one.

11. The allegations of fraud or the averment as to the so-called untrue allegations must be real and should not stand as bare imputations. This is a case; which a citation has been issued to the respondent. No factual material has been placed before us so as to compel the exercise of our judicial discretion to revoke the grant and we are not provoked to come to the conclusion that it is necessary to have the will proved afresh. Even in a case where there was an omission as to citation, the Supreme Court in Anil Behari Gosh v. Latika Bala Dassi : [1955]2SCR270 stated thus:

The omission to issue citations to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant. But this is not an absolute right irrespective of other considerations arising from the proved facts of a case.

A fortiori therefore, if an opportunity to convert a petition into a contentious suit was given to the respondent and if the respondent, as is seen from her earlier conduct, did not pursue her challenge against the will, which she initiated in 1967, it cannot be said a citation issued to her without making her a party to the original proceedings, is sufficient for the revocation of the original grant.

12. A Bench of the Patna High Court in Sheopati Kuer v. Ramakant Dikshit : AIR1947Pat434 , held the view that a defect arising out of the absence of citation on the proper person is not a defect of substance and therefore, not a just cause.

13. A case more less in pari materia with the case before us arose in our Court which was decided by a division Bench in Venkataraman v. Yanamandra Satyavati : (1924)46MLJ383 . The question which arose therein was not doubt under Section 50 of the Probate and Administration Act. It is common ground that the expression 'just cause' appearing in Section 50 of the above Act is similar to the present provision in Section 263 of the Indian Succession Act. The learned Judges invoked the principles of res judicata and refused to revoke also a grant merely on the ground of an irregular citation in the proceedings. Following an earlier decision of the Calcutta High Court, the learned Judges agreed with the view that the mere absence of a special citation in proceedings in which probate of a will is granted is not, where the person to whom a citation has not been issued is otherwise aware of the proceedings, a 'just cause' for revocation. In that case the will was the subject-matter of an earlier litigation and when an occasion arose for the Judges to consider whether such an earlier grant could be revoked, they observed that even on the principle of res judicata the application for revocation is not maintainable. They finally said that it is an elementary principle that where the party had an opportunity to put forward a particular just cause and had not chosen to put it forward, he cannot be heard to agitate the same cause later and no Court would, in their opinion allow a 'just cause' already agitated and decided upon before the grant of probate to be again made the subject of an application to revoke that grant, and it saw no difference in principle between disallowing such an application on the ground of res judicata and disallowing it on the ground that the party already had a full opportunity of putting forward his just cause and omitted to do so. In the instant case the knowledge of the respondent about the existence of the will and the attempts made by her to challenge the same in a civil Court in which she failed, are all important factors to be taken into consideration while adjudicating upon the fact whether there is a just cause for revocation. The respondent had the full opportunity of putting forward her just cause even at the time when she was served with the citation. She did not do so for reasons known to her. She cannot, therefore, be permitted to invoke the just and equitable rule in Section 263 of the Indian Succession Act and ask the Court to revoke the original grant. Moreover the respondent has not given any details about the second will also, which she claims she has full knowledge of. The learned Judge who revoked the grant was satisfied that there was another will dated 17th March, 1966. But it should be noted that this was not the case of the respondent in the earlier litigation. This appears to be an afterthought.

14. The second ground on which the learned Judge was apparently satisfied that there is just cause for revocation is based upon the fact that the respondent took earnest efforts to enter a caveat. No doubt, there is no inordinate delay in this case. But the circumstance to be noted is that after citation and after publication which was both to her knowledge, she did not enter caveat and challenge, the grant. What she ought to have done she did not do. She cannot, therefore, in a circuitous manner and after having pretended to have inspected the records in March, 1974 and obtained information about the grant of the probate seek for revocation of the grant. We are unable to share the view that the conduct of the respondent in the earlier litigation is not sufficient in this case to hold that there is no just cause at all for such revocation.

15. One other ground which was pressed into service anew by the learned Counsel was based on Section 57 of the Indian Succession Act read with the provisions of the Hindu Succession Act of 1956. Under Section 30 of the Hindu Succession Act any Hindu may dispose of by will or other testamentary disposition which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force applicable to Hindus. The other portions of the section are not necessary to be noticed. We are unable to understand the implication of the argument as to how the grant is hit by the provisions of Section 30 of the Hindu Succession Act. The respondent's case is that Alagiriswami Chetty could dispose of his property under a will and this is what he did.

16. We have already referred to the fact that there has not been a substantiation of the allegation that the appellants to whom the grant was made originally have wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of the Succession Act or that they have exhibited an inventory or account which is untrue in material respects. Excepting for the bare ipse dixit and unproved allegations in the pleadings that the estate is worth much more, there is nothing to indicate that the inventory filed or account rendered by the appellants was in any way untrue nor were material particulars omitted without reasonable cause.

17. Since the respondent should be deemed to have had full knowledge of the proceedings initiated by the appellants in Court in O.P. No. 287 of 1973 and since she failed to take any effort much less earnest effort to enter a caveat and as in the background of events she should be deemed to have avoided a contentious proceeding, since she could not substantiate it in her earlier litigation and since she failed to act at a time when she should have and for the reasons that there was no proof that there was a will dated 17th March, 1966 and for all the reasons above stated, we allow this appeal and set aside the judgment of Mohan, J., who revoked the order for the issuance of the letters of administration made by Paul, J., on 14th February, 1974.

18. The Original Side Appeal is allowed, but there will be no order as to costs.


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