N. Saroja vs Sri Vidya Chits and Finance (P) Ltd. and Another

Govardhan, J.—This appeal arises out of the order passed by the learned Principal District Judge, Tiruchi in I. A. No. 44 of 1985 in O.P.

No. 43 of 1979 allowing the same and revoking the Letters of Administration granted in respect of the unregistered Will dated 27.4.1973 said to

have been executed by one Kaliammal.

The averments in the petition are as follows: Respondents 2 and 3 borrowed movies from the petitioner on the foot of an equitable mortgage.

Since they did not pay the money, the petitioner filed O.S. No. 474 of 1975 on the file of the Sub Court, Tiruchirappalli which was later on

transferred to the Sub Court, Karur and numbered as O.S. No. 308 of 1975. In spite of the contest made by the respondents 2 and 3, a

preliminary decree was passed in favour of the petitioner on 27.1.1977. Since the respondents have not paid any money even after the passing of

the preliminary decree, the petitioner filed an application in LA. No. 555 of 1977 and a final decree has been passed on 27.6.1979 for the sale of

the hypotheca. The respondents have borrowed the money representing that the property which originally belonged to their mother Kaliammal has

been bequeathed in their favour by means of aregistered will on 24.4.1973. The petitioner became the mortgagee in respect of the said property

and is a person interested in the property. The title deeds in respect of the property and the registered will have been handed over to the petitioner

by the respondents 2 and 3 at the time of the mortgage. It appears that the respondents 2 and 3 in collusion with the first respondent have filed an

application in O.P. No. 43 of 1979 for the grant of Letters of Administration in respect of the will of Kaliammal alleged to have been executed by

her on 27.4.1973. The documents produced in court purporting to be a will is a rank forgery. Kaliammal did not and could not have executed the

same. She died on 28.4.1973. The first respondent seems to have got the Letters of Administration to the said will. The first respondent is aware

of the fraudulent nature of the document and scheme of the respondents 2 and 3. The petitioner who is entitled to object and who is a person

interested in the property has not been cited as a party to the proceedings. No application has been made. The petitioner has been kept in dark.

The first respondent along with her daughter filed a suit in O.S. No. 7 of 1982 on the file of Sub Court, Karur for declaration that they are entitled

to the suit property exclusively. A reference has been made about the O.P., filed by the first respondent for getting Letters of Administration. The

petitioner is contesting the said suit disputing the validity and genuineness of the will. Since the Letters of Administration have been granted by this

Court in favour of the first respondent, the petitioner has filed this application for revoking the same. The petitioner came to know the grant of

Letters of Administration only recently. Hence the petition.

The first respondent in her counter contends as follows:

The respondents 2 and 3 have no right in the petition-mentioned property and they cannot deal with the same. The first respondent has absolute

right in the property by virtue of the will dated 27.4.1973 executed in her favour by Kaliammal. The allegation that the O.P. has been filed in

collusion and conspiracy between her and the respondents 2 and 3 is false. The will in favour of the first respondent has been executed by

Kaliammal while she was in a sound and disposing state of mind. The petitioner need not be cited as a party to the proceedings since the petitioner

cannot claim any right in the property and could not object the grant of Letters of Administration. In O.S. No. 308 of 1975, the petitioner filed

E.P. No. 287 of 1980 and in that petition, the second respondent has filed a counter stating the O.P.No., and the date of probate granted by the

court in respect of the Will dated 27.4.1973. The petitioner has got knowledge about the proceedings on that date itself. The petitioner has entered

appearance in the proceedings in O.P. No. 44 of 1981 filed by the first respondent as an indigent person. The allegation that the petitioner has got

knowledge about the proceedings only recently is false. The petitioner is estopped from questioning the Letters of Administration. The petitioner

has acquiesced and waived the rights if any. The present application is barred by limitation. The petition is therefore liable to be dismissed.

On the above pleadings, the learned Principal District Judge, Tiruchirappalli has rendered the impugned order holding that the order granting

Letters of Administration in respect of the unregistered will dated 27.4.1973 has to be revoked and that the petitioner has not acquiesced the

proceedings in O.P. No. 43 of 1979 and that the petitioner is not estopped from questioning the same.

Aggrieved over the same, the first respondent has preferred this appeal.

In this appeal, the appellant seeks to set aside the order passed by the learned Principal District Judge, Tiruchi in I.A. No. 44 of 1985 in O.P.

No. 43 of 1979 in which the learned District Judge has allowed the application revoking the Letters of Administration granted in favour of the first

respondent herein on 23.6.1979. The case of the petitioner is that the property which has been mortgaged in their favour originally belonged to

Kaliammal mother of respondents 2 and 3 and the respondents 2 and 3 have got a loan sanctioned in their favour by mortgaging the properties in

favour of the plaintiff contending that their mother have bequeathed the property in their favour by means of aregistered will dated 24.4.1973 which

was registered on the 26.4.1973 and by producing the said will as well as the other documents like the transfer of the assessment in respect of the

property, receipts for payment of tax and also rental value certificate issued by the Commissioner. The borrowing under the mortgage has ended in

a preliminary decree followed by a final decree being passed against the respondents 2 and 3 on 27.6.1979. Subsequent to the preliminary decree

dated 27.1.1977 and the final decree application filed in 1977 being ordered, the wife of the second respondent has filed O.P. No. 43 of 1979

and got Letters of Administration in her favour on 23.6.1979. These facts are not disputed.

The petitioner contends that in pursuance of a collusion between the respondents 2 and 3 on the one hand and the first respondent on the other,

this O.P., has been filed collusively for the grant of Letters of Administration and she has got the same ordered in her favour and it is liable to be set

aside on the ground that the petitioner, as the person interested in the property, has not been cited as a respondent in that application and the

application has been filed only to defeat his decree in O.S. No. 308 of 1975 on the file of Sub Court, Karur. The dates and relationship are very

relevant in this appeal. The appellant herein is the wife of the second respondent, and the third respondent is the younger brother of the second

respondent. Second and third respondents are the sons of deceased Kaliammai to whom the property originally belonged. She had executed a will

bequeathing the property in favour of her sons on 24.4.1973 and it has been registered on 26.4.1973. The appellant herein who is the first

respondent in the application claimed that her mother-in-law had executed an unregistered will on 27.4.1973 bequeathing the entire properties

belonging to her in her favour and she had obtained the Letters of Administration on that basis on 23.6.1979. It has to be noted that on 28.4.1973,

Kaliammai breathed her last. When the mother had executed a will bequeathing her properties in favour of her two sons, just four days prior to her

death and registered the same also two days later, there appears to be no necessity for her to bequeath the property in favour of her daughter- in-

law on the next day of the registration of the will. The execution of the alleged will dated 27.4.1973 therefore leads us to a grave suspicion. The

petitioner in the I.A. No.44 of 1985 who is the first respondent herein has, in the meanwhile obtained a preliminary decree on the basis of the

mortgage executed by the respondents 2 and 3. Just two days prior to the passing of the final decree, the first respondent has obtained the Letters

of Administration in her favour. In the meanwhile, in pursuance of the will in their favour, the respondents 2 and 3 have got the assessment

transferred in their name, paid kist, and also obtained a certificate from the Commissioner of Karur Municipality which would show that they have

a right over the property. But, no such transfer of assessment or enjoyment of the property by paying kist etc., is shown in favour of the first

respondent in the LA. No. 44 of 1985 who is the appellant herein. Therefore, the conclusion arrived at by the learned Principal District Judge,

Tiruchi that the execution of the will dated 27.4.1973 by Kaliammai in favour of the appellant herein is in suspicious circumstances and cannot be

said as an incorrect conclusion. The learned Counsel appearing for the appellant would argue that u/s 263 of the Indian Succession Act, where the

grant of probate or Letters of Administration is sought to be revoked, it must be shown that there exists just cause for the same and the section

itself gives a list as to what are all the just causes, which the person seeking to revoke the Letters of Administration can choose to establish.

According to the learned Counsel, none of the five conditions or circumstances which are listed in Section 263 of the Indian Succession Act, has

been shown as existing in the present case to invoke Section 263 of the Indian Succession Act and revoke the Letters of Administration already

granted. But, I wish to state that the expression ""just cause"" explained in Section 263 of the Indian Succession Act, is only illustrative and not

exhaustive. It is not necessary that anyone who seeks to revoke the Letters of Administration or probate granted, should show the existence of any

one of these five circumstances or conditions alone. There may be other causes also which can be incorporated as just cause. In the present case,

in spite of the fact that the petitioner before the learned District Judge, viz., the first respondent herein had an interest over the properties which the

appellant claims, as having been bequeathed in her favour, the petitioner has not been cited in the application. Failure to cite a person who has

interest over the property is also a ground to revoke the probate or Letters of Administration granted. There fore, on merits, the petitioner in LA.

No. 44 of 1985 has got a very good case to have the Letters of Administration granted in favour of the first respondent revoked. The learned

District Judge, has therefore allowed the application and I am of opinion that it cannot be interfered with by this Court.

The learned Senior counsel Mr. Gandhi would argue that the petition filed by the first respondent herein is barred by limitation since any

application to revoke the Letters of Administration should have been filed within three years from the date of knowledge and that in the counter in

the Execution Petition filed by the second respondent, he has specifically stated that he has no interest over the properties and as also mentioned

about the grant of Letters of Administration in the O.P. No. 43 of 1979 and therefore, it must be held that the petitioner in I. A. No. 44 of 1985

had knowledge even when the counter in the execution petition has been filed and yet, the application has been filed only in the year 1985 long

after the expiry of three years and therefore, it may be held that the application is barred by limitation. In support of his above contention, the

learned Counsel also relies upon the decision reported in Hari Narain and Others Vs. Subhash Chander and Others, , wherein it has been held that

an application for revocation of probate could be filed only within three years from date when the right to apply accrues and Article 137 of the

Limitation Act applies in all force. The learned Counsel appearing for the respondent would on the other hand refer to a decision of our High Court

reported In the matter of last will of Smt. Jayalakshmi - S. Krishnaswami (1990) 1 L.W. 337, wherein it has been held that Article 137 of the

Limitation Act will not apply to proceedings filed for grant of Probate or Letters of Administration with or without the will annexed. In view of the

decisions of our High Court regarding the applicability of Article 137 of the Limitation Act to an application for grant of Probate, I am of opinion

that the argument of the learned Counsel that the application for revoking the Letters of Administration ought to have been filed within three years

from the date of his knowledge, is not tenable.

The next question that has to be considered is whether there is any justifiable reason for the delay even if Article 137 of the Limitation Act is not

applicable, since it has been held in the decision reported In the matter of last will of Smt. Jayalakshmi - S. Krishnaswami (1990) 1 LW. 337, that

though the proceedings filed for grant of probate or Letters of Administration may not come within the mischief of Article 137 of the Limitation

Act, yet the delay aspect is relevant to treat the genuineness of the will propounded and that delay in taking steps gives rise to suspicion and the

longer the delay the stronger the suspicion. It is to be noted that the learned Counsel appearing for the appellant contends that the application is

barred by limitation since the petitioner had knowledge when the second respondent has filed his counter in the Execution Petition. The second

respondent was a judgment- debtor against whom a preliminary decree has been passed. In the final decree proceedings, the second respondent

has not stated that his wife has filed O.P. No. 43 of 1979 and has obtained Letters of Administration on 23.6.1979. It cannot be stated that he

was not aware of the grant of Letters of Administration when the final decree proceedings were pending from 1977. The final decree has been

passed only on 27.6.1979 after the grant of Letters of Administration. Therefore, he had sufficient time to raise this plea before the final decree

could be passed against him three days after the grant of Letters of Administration in favour of his wife. It cannot be stated that he was not aware

of the alleged will in favour of his wife till the final decree is passed. In the above circumstances, the failure of the second respondent to say that his

mother had executed an unregistered will in favour of his wife and she is taking steps to get the Letters of Administration and had obtained Letters

of Administration and has obtained Letters of Administration on 23.6.1979 are all to be noted. The petitioner, who has filed the execution petition,

therefore, might not have taken the objection raised by the second respondent in the execution petition, that Letters of Administration has been

granted in favour of his wife, seriously on acknowledgement of his failure to taken such a stand during the final decree proceedings. Therefore, it

carnot be stated that the petitioner had knowledge of the Letters of Administration being granted and he has committed delay in filing the

application to revoke the Letters of Administration. Thus viewing from any manner, it is thus seen that the order passed by the Principal District

Judge, Tiruchi revoking the Letters of Administration is well-founded and does not call for any interference by this Court and the appeal is liable to

be dismissed as no merits.

In the result, the appeal is dismissed. No costs.