R. Thangarajan vs R. Balasubramanian and 3 others

Mishra, J.—By the impugned order in Application No. 3671 of 1991 dated 5.1.1993 a learned single judge of this Court has revoked the

probate of the will of one P.P.M. Dhanushkodi Nadar (deceased who died on 23.12.1983), in favour of the appellant herein at the instance of his

three brothers and a sister. It is not in dispute that the deceased Dhanushkkodi Nadar is the uncle of the appellant as well as the applicants-

respondents, who died issueless, his close heir being the father of the appellant and the respondents. According to the appellant, Dhanushkodi

Nadar left behind a will appointing him as his executor. He accordingly filed a petition along with the affidavit of one of the attesting witnesses, to

probate the Will in the common form. On 22.11.1985 a learned single Judge of this Court recorded as follows:

The deceased has left behind a Will appointing the petitioner as his executor. The testator died as a bachelor and his parents had predeceased him.

The affidavit of the attesting witness has been filed and the Will is proved in the common form. All the formalities are complied with. Issue probate.

It is common case that Dhanushkodi Nadar, before his death, was having business with his brother, that is to say, P.P.N. Rathina Nadar, the

deceased father of the parties. The latter survived his brother Dhanushkodi Nadar and brought in accordance with the Will and wish of his

deceased brother, changes in the constitution of the partnership by bringing in the appellant and his three brothers Balasubramanian, Manoharan

and Rajendra Bose as partners of equal shares besides himself who was a partner along with his deceased brother Dhanushkodi Nadar. In the

application for revocation, however, the applicants-respondents have alleged that Dhanushkodi Nadar was admitted in a private nursing home and

his condition was not at all good, when, it is said, he created the document, that is to say, on 23.12.1983. He died in the hospital, according to the

respondents, intestate leaving behind him his brother Rathina Nadar and his sons who are the appellant and the respondents herein. On

24.12.1983 the appellant wanted the respondents to sign a document and the respondents signed the said document because when they asked him

what was the urgency, he said that the auditor had asked him to get the signature of his brothers and the father, in the document dt. 24.12.1983 as

there could be no interval of time between the dissolution on the death of Dhanushkodi Nadar and the re-constitution of the firm and further that he

did not given any time to them to go through the document, though he promised to give copy of the document to all of them. Their father died on

2.6.1990 at Virudhunagar. According to the applicants-respondents, the appellant did not turn up on the pretext that he had business commitments

at Madras. After, however, funeral ceremonies of their father on 3.6.1990, one of them requested his mother, brothers and sisters to sit together

for partitioning the properties of their father including that of the uncle, (which devolved on their father, according to them), the appellant however,

told him to wait for a month. Sometime later in or about February, 1990 the first applicant respondent came to Madras to meet the appellant But,

the appellant refused to meet him. The first applicant-respondent then got a lawyer''s notice issued to the appellant as well as other brothers calling

upon them to partition the properties mentioned in the notice. That was replied to by the counsel who informed only on 10.5.1991 that

Dhanushkodi Nadar had left behind him a Will appointing the appellant as the executor.

According to the respondents, Dhanushkodi Nadar had not executed any Will and in any event he was not in a sound disposing state of mind at

least for two weeks prior to his death. The Will, according to them, was created to deprive them of their share in the properties of the deceased

Dhanushkodi Nadar. Their further case is that on a perusal of the documents filed in the proceeding in this Court, they had learnt that the appellant

had projected a forged Will and suppressing the material facts maneuvered to obtain probate on the basis of the said concocted document. They

never got any notice; nor any notice was ever given to them of the probate proceedings. They had no knowledge of the proceedings and grant of

probate, until they came to know about it for the first time through the reply notice dated 10.5.1991. According to them, the grant of probate had

affected their right in the estate of Dhanushkodi Nadar, who had died intestate since his estate had devolved on his only surviving legal heir, his

brother Rathina Nadar, that is to say, the father of the appellant and the respondents. They are entitled to succeed along with the appellant and

their mother with equal rights and shares.

Raising certain technical pleas, the respondents also attacked the grant of probate on the filing grounds,

There was no schedule to the Will;

The very paper on which the Will was allegedly executed and attested was suspicious looking;

The Will was subscribed in English language, but not signed by Dhanushkodi Nadar. He had allegedly put only his thumb impression; and

The will had no date and as noticed by the learned single Judge, on the alleged date 23.12.1983 of the execution of the Will, Dhanushkodi

Nadar was in the hospital. But, the attesting witness M. Balasubramaniam in paragraph 2 of the affidavit filed by him in the original petition, would

state that on that date he was present with the other attesting witness A. Rathinasabapathi at the house of the Dhanushhkodi Nadar where allegedly

he attested the Will.

The case of the appellant, however, is simple. Dhanushkodi Nadar had executed the Will under which he had bequeathed all his properties upon

the appellant, except the partnership business in which besides the appellant, his other brothers were also given a share. The only person entitled to

the inheritance, which the respondents also concede, on the death of Dhanushkodi Nadar was Rathina Nadar who alone brought the necessary

changes in the partnership in accordance with the Will of his brother Dhanushkodi Nadar. The respondents were not entitled to any citation as they

were not persons having any interest in the estate of the deceased Dhanushkodi Nadar on his death. They knew, if not at an earlier date, at least on

24.12.1983, when the new partnership document was prepared and they duly signed the said document about the Will. Their belated claim of a

share in the estate of Dhanushkodi Nadar is an attempt to take away from the appellant the rightful share as vested in him including the

developments in the business and the properties after me probate and the Will coming in the hands of the appellant as the executor.

The learned Single Judge had, however, said that since the applicants-respondents have alleged that the Will was not a genuine Will, they should

be given an opportunity of showing that it was not a genuine Will. The learned Judge has further said:

In the instant case, several suspicious circumstances have been mentioned in the affidavit. One such suspicious circumstance is the place of

execution of the Will. The attestation witness M. Balasubramaniam in paragraph 2 of his affidavit would state that on 20.12.1983 he was present

with Dr. Rathinasabapathy at the house of Dhanushkodi Nadar, whereas the death certificate shows that Dhanushkodi Nadar died at Bones and

Joint Clinic, AA-15, Anna Nagar, Madras-40. Therefore, what the attesting witness has staled in the affidavit is false, as rightly contended by Mr.

K. Ramamurthy.

He has rejected the explanation in this behalf by the appellant saying as follows:

It is explained by the respondent in the counter and argued by Mr. T.R. Rajagopalan, that Dhanushkodi Nadar always had legal opinion, in all his

business and personal matters and his Will was also prepared as per his directions by his lawyer. T. Karuppiah. The Will was attested by Mr.

Balasubramaniam, who was Dhanushkodi Nadar''s auditor and by Mr. Ratnasabapathi, who was treating and attending on Dhanushkodi Nadar

and at the time when the Will was executed, Dhanushkudi Nadar was not in position to sign and therefore, his thumb impression was obtained in

the Will. It is further urged that the petition is in the standard format prescribed under the Original Side Rules.

Similarly, the affidavit of attesting witness was also in the standard format prescribed under the Original Side Rules. The Will was typed through the

advocate of Dhanushkodi Nadar and duly attested. As per law, it is sufficient the affidavit of one of the attesting witnesses is filed and therefore, the

non-filing of the affidavit of the other attestor cannot vitiate the proceedings. It is further stated by Mr. T.R. Rajagopalan, that the place of

execution mentioned in the affidavit of the attesting witness was only an inadvertent error made by the advocate at the time of preparing the

affidavit and the affidavit was prepared as per the format under the Original Side Rules. However, the averments in the petition and the death

certificate produced clearly show that the place of death and the place of execution of the Will is made clear to the Court and mere was no

suppression of any material fact.

I am unable to accept the above explanation of Mr. T.R. Rajgopalan. The fact remains that there is discrepancy with regard to the place of

execution, which according to the applicants, is a suspicious circumstance. However, it is not for me to express any opinion in regard to the said

suspicious circumstance and also to say whether such suspicious circumstance has been proved or not. It is for the trial Judge to give a finding on

the basis of the evidence that may be adduced at the time of hearing.

The learned single Judge, however, has proceeded to say that a person applying for probate should issue notice to all persons interested and,

When the senior paternal uncle of the applicants died as a bachelor and when the respondent applied for probate as executor, he ought to have

mentioned in the petition the names of the applicants therein inviting this Court to issue notice to all of them. The grant made by this Court without

citing the parties who ought to have been cited would also vitiate the grant and consequently, the order granting probate is liable to be revoked. If

the respondent had issued notice to the applicants, they would have opposed the grant and this Court would have decided the matter on a full trial.

It is not known how in the absence of (sic) evidence (sic.) However, it is recorded by the learned single Judge as follows:

The respondent was also keeping it as a secret and (sic) not even inform to his father as alleged by the applicants and to them even though he had

been corresponding with his father about the business. The applicants also had become partners of P.P.M. Dhanushkodi Nadar firm on the death

of their senior paternal uncle, who, according to the applicants, died intestate. It is also the case of the applicants that the respondent did not inform

them that by virtue of the will executed by their senior paternal uncle they had become partners in the firm and their senior paternal uncle had

bequeathed his properties to the respondent. It is also their case that only after they sent notice through their counsel, the respondent had

mentioned about the will and probate in his reply notice dated 10.5.1991.

Mr. T.R. Rajagopalan asserts that Dhanushkodi Nadar died on 23.12.1983 and that the applicants were informed about the death of Dhanushkodi

Nadar, who attended the funeral at Madras, and after the funeral was over, on the night of 2.12.1983 they signed the reconstituted partnership

deed voluntarily on the death of their senior paternal uncle and hence Mr. T.R. Rajagopalan submits that the applicants are very well aware of the

will executed by Dhanushkodi Nadar on the very next day after the death of Dhanushkodi Nadar and as such, the grievance now expressed by

them in the application for revocation is not true and genuine. But, it is seen from the affidavit filed in support of the revocation petition that the

applicants have explained under what circumstances they were asked to sign the reconstituted partnership deed Viz., they were not given time to

go through the document and even though the respondent has promised to give them a copy of what is called their constitution of the partnership

deed, the same was not given. Whatever may be the truth of the allegations made by either party, in my opinion, the said circumstance can also be

considered as a suspicious circumstance and required oral evidence.

S. 276 of the Indian Succession Act prescribes that application for probate or for Letters of Administration, with the Will annexed, shall be

made by a petition with the particulars mentioned therein, S. 280 of the said Act provides that the petition for probate or Letters of Administration

shall, in all cases be subscribed by the petitioner and his pleader, if any and shall be verified by the petitioner in the manner stated therein. S. 281

states, however,

Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the Will (When procurable) in the manner

or to the effect following, namely:

I (C.D.), one of the witnesses to the last Will and testament of the testator mentioned in the above petition, declare that I was present and saw the

said testator affix his signature (or mark) thereto (or that the said testator acknowledge the writing annexed to the above petition to be his last will

and testament in my presence.

Section 283, provides that the Court if it thinks proper, may examine the petitioner in person, upon other require further evidence of the due

execution of the Will or the right of the petitioner to the Letters of Administration, as the case may be, issue citations calling upon all persons

claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of Administration

and (1) the citation shall be fixed of conspicuous part of the Court house and also in the office of the Collector of the District and (2) where any

portion of the assets has been staled to be of the petitioner situate within the jurisdiction of another Court in another State, the Court issuing the

same shall cause a copy of the citation to be sent to the other Court which shall publish the same in the same manner as if it were a citation issued

by itself. There are provisions as to caveats against grants of probate or administration, the procedure to be followed in doubtful cases, the

procedure where there is contention and about the procedure to be followed in granting the probate or letters of administration non-contentious

cases as well as contentious cases.

The application for probate or Letters of Administration when presented in this Court, however, is required to be accompanied by any affidavit

of one of the attesting witnesses if procurable in Form No. 56 which is statutory form and which reads as follows:

I...Make Oath (Solemnly affirm) and say as follows:

That I knew and was well acquainted with the deceased above named.

That on the... day of I was present together with at the house of end we did then and there see the said deceased set and subscribe his name at

fool of the testamentary paper in the language and character hereunto annexed and marked with the latter and declare and publish the same as and

for his last will and testament.

That thereupon I this deponent and the said did at the request of the said deceased and in his presence and in the presence of each other all

being present at the time set and subscribe our respective names and signatures at the foot of the testamentary paper as witnesses thereto.

That the name and signature subscribed at the foot of the testamentary paper as of the party executing the same in the proper handwriting of the

said deceased and the name, signature and additions...

also subscribed and written at the foot of the said testamentary paper as of the parties attesting execution of the same are in the proper and

respective handwritings of the said... and of me this deponent respectively.

That at the time the said deceased so subscribed his name and signature to the said Will as aforesaid was of sound and disposing mind, memory

and under standing and to the best of my belief made.... and publish the same of his free will and pleasure.

Solemnly affirmed (or sworn) at aforesaid this day of before me... Commissioner.

It is not in disputes that the petitioner appellant presented the application for probate and as required by S. 276 of the Indian Succession Act

and the Rules framed in this behalf by this Court, presented the affidavit of one of the attesting witnesses in Form No. 56. At the relevant time the

respondents had no such interest in the properties of the deceased Dhanushkodi Nadar and thus if they were not cited as parties in the

proceedings, there cannot be any infirmity attached to the application for probate. There is, however, an allegation that there is lapse and how far

the lapse will affect and make the claim of the appellant doubtful is relevant. The affidavit accompanying the petition for probate mentioned on that

on 20.12.1983 the witness (M. Balasubramanian) was present with the other attesting witness, A. Rathinasabapathy, at the house of the testator,

that is to say Dhanushkodi Nadar, and that the latter set and subscribed his name at the foot of the testamentary paper in English language and

character and declared and publish the same as and for his last Will and testament then and there, after which attesting witnesses subscribed their

respective names and signatures at the foot of the testamentary paper as witnesses thereto. This, it is alleged, is obviously an incorrect assertion, as

on the alleged date of the execution of the Will, Dhanushkodi Nadar was in the hospital in respect of which the respondents have filed an affidavit

and produced the alleged certificate of death issued under Ss. 12 and 17 of the Registration of Births and Deaths Act, 1969. It is conceded that

the partnership was re-constituted and but for the Will neither the appellant nor any of the respondents could have been made partners as the legal

representatives of the deceased Dhanushkodi Nadar. The respondents, however have come forward with a case that on 24.12.1983, the appellant

made them to sign a document without disclosing the contents thereof and if there was any mention of the Will and the appellant/or any of the

respondents succeeding to the estate of Dhanushkodi Nadar in the partnership after the constitution, in the said document dated 24.12.1983 they

were unaware of it throughout until after the death of their father on 2.6.1990 at Virudhunagar and the lawyer''s notice after which alone they came

to know about the alleged Will and the appellant being the executor of the Will. There is no time limit in moving the Court for any alteration and

revocation or annulment of the grant of Probate or Letters of Administration for a just cause. ''Just cause'' Section 263 of the Indian Succession

Act says, 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 a fact essential in point of law to justify the grant, though such allegation was made in

ignorance of inadvertently; or

(d) the person to whom the grant was made as wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with

the provision 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 made without citing the parties who ought to have been cited is a just cause. The presence, however, of such a just cause, the Courts

have held is not enough to revoke or annul the grant of probate or Letters of Administration. Something more is required to justify the revocation of

grant in favour of a person who is satisfying the requirements of law and accordingly obtained such a grant. In the instant case, however, it is

difficult to conceive any ground for revocation or annulment if the respondents have not been cited as parties by the appellant in the application for

the grant of probate since their father was alive and he alone satisfied the condition of a person having interest in the properties and respondents

had no independent capacity or right to succeed to the properties of the deceased Dhanushkodi Nadar. No defect in this behalf can be attached to

the application of the applicant filed for the grant of probate.

A Bench of this Court in G. Shanmugham Chetti and Another Vs. Chinnammal, ) has observed that the discretion vested in the probate Court

either to revoke or annul the earlier grant has to be judiciously exercised and it is not every non-conformity with procedural irregularities which

were not made as an issue at the time of the grant, nor such infirmities which do not shake the foundation of the grant would ever be the cause for

revocation or annulment of an earlier grant. In this judgment Ramaprasada Rao, J. as he then was speaking for the Court has also said:

The expression ''just cause'' explained in Sec. 263 of the Indian Succession Act is obviously illustrative and not exhaustive. There may be cases

where a just cause for revocation of annulment is available, even though they may not strictly come within the frame-work of the illustrations given

in Explanation to S. 263 of the Act A mere error in form and procedure but not in substance cannot vitiate an 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 atleast prima facie to enable the Court to

react and issue a direction by way of citation to the primary grantees to lodge the original Letters of Administration in Court. Vague suggestions

about concealment which do not go to the root of the matter and which are not material in 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 framed as it were the basis for the

grant in law, then also the statute assumes by way of a fiction that there is a just cause for revocation. The other illustrative cases in the Explanation

to S. 263 of the Act which would enable the Court to revoke an earlier grant or 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 defective in substance and the

grant was obtained and fraudulently by making false allegation and that there has been a wilful omission to disclose 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.

In Anil Behari Ghosh Vs. Smt. Latika Bala Dassi and Others, The Supreme Court has said:

The omission to issue situation to persons who should have been apprised of the probate proceedings may well be in a normal case a ground for

revocation of grant. But this is not an absolute right irrespective of other considerations arising from the proved facts of a case. The law has vested

a judicial discretion in the Court to revoke a grant. Where the Court may have prima facie reasons to believe that it was necessary to have the well

proved afresh in the presence of interested parties.

There are a number of cases decided on the point as to what is a just cause and when non-service of notice of the proceedings on a person who

ought to have been cited will not be a just cause for revocation/annulment of the grant of probate.

In Smt. Yuvrani Tank Rajeshwari Devi Vs. Harilal and Others, a Division Bench of Madhya Pradesh High Court has however said that in cases

where citation has not been ordered, the party impugning the will on the grounds of this non-citation must first show he ought to have been cited

before the burden of proof is shifted to the executor to show that this defect in the proceedings was not one of substance and that no just cause for

revocation exists, and added that the absence of non-service of citation will not be a defect of substance so as to constitutes a just cause under S.

263 of the Act where non-cited party has knowledge of the probate proceedings or where he is not prejudicially affected thereby. A Bench of this

Court in S.D. Ponnuswamy Mudaliar Vs. S.K. Somasundaram, has said, however, that a determination whether non-citing of a person entitled to

be cited is not enough and the Court in such a case would ask whether the respondent was unaware of the proceedings or that he had no

opportunity to enter caveat and further that his absence in the proceedings has resulted in some miscarriage of justice.

We have taken notice of the allegations of both sides and the findings recorded by the learned single Judge and we are inclined in the instant

case to hold that the respondents have not proved that they were require to be cited in the petition for the grant of probate, but they have

succeeded on creating doubts as to the bona fides of the application for probate with out citing at least their father and without verification of the

fact whether the will X was executed at the house of Dhanushkodi Nadar or at the hospital, since it is alleged that he was in the hospital at the

relevant date and time of the alleged execution of the Will. There may be some truth in the explanation which the Learned Counsel for the appellant

has advanced as a part of his arguments before us and it seems the Learned Counsel who appeared for the appellant in the court below also

advanced similar argument that there has been a mistake of no serious consequences in the affidavit of the attesting witness. Such a mistake is

possible if care is not taken to couch properly the statutory pro forma where the expression ''house'' is shown in the print and instead of the words

''at the house'' in paragraph 2 of the affidavit as shown in the statutory form, new words are added to signify the place where the Will is allegedly

executed. This lapse may be of no great significance and the Court may find in respect, of the lapse that this by itself is not a circumstance to infer

that the grant has been obtained fraudulently by making false allegations or there has been any willful concealment of material particulars. In other

words, it is possible to contend that the omission in the affidavit as above is one other fraudulent or false allegation. It is not a concealment of any

material particulars. It is not an omission which will give a just cause to the respondents to seek either the annulment or the revocation of the grant

of probate. The persons (respondents in this case) seeking revocation as pointed out by this Court in his judgment in the case of G. Shanmugham

Chetti and Another Vs. Chinnammal, will be required to demonstrate that the appellant who has obtained the grant of probate has wilfully and

without reasonable cause filed the affidavit of the attesting witness containing a wrong allegation of fact that the Will was executed by the testator

and attested by the witnesses at the house of the deceased Dhanushkodi Nadar and not at the hospital.

It can never be just and proper to order revocation or annulment of a probate or Letters of Administration at the instance of a person who has

the knowledge of its existence and who raised no objection at the appropriate and within a responsible time. In the instant case, the respondents

have pleaded that they had no knowledge of the Will or the probate proceedings which took place after several years of the probate and until after

the death of their father. The appellant on the other hand has alleged that they informed about the contents and the existence of the Will first at the

time of the re-constitution of the partnership and second, when there has been a proceeding in which they were also partners along with the

appellants. But the appellant was acknowledged as the sole legatee liable to discharge the debts of the testator, that is to say, Dhanushkodi Nadar.

These facts on either side, however, will need proof and without proof it will not be proper to say that one side has stated the truth and the other

side has not stated the truth. In other words, it is difficult at this stage to say that the respondents had knowledge of the proceedings and the grant

of probate all the while. It is also difficult to say that they had no knowledge, unless evidence in this behalf is examined in accordance with law.

Although the learned single Judge has stated that there are several suspicious circumstances mentioned in the affidavit, he has cited only one

circumstance about the attesting witness stating that on 20.12.1983 he was present with the other witness at the house of Dhanushkodi Nadar, the

circumstance on which we have made our comments earlier.

We are of the opinion that on the facts and circumstance of the instant case, it will be improper if the status quo which was continued for

several years is permitted to be disturbed by the revocation of the Will and a situation is created under which no one will be found responsible to

hold the properties of the deceased Dhanushkodi Nadar. It is a case, in our opinion in which on the one hand full opportunity is afforded to the

respondents to show by such evidence which they may desire to produce that there has been no Will executed by Dhanushkodi Nadar as alleged

by the appellant or that such a Will has been obtained by fraud, undue influence or misrepresentation by the appellant and that they had no

knowledge of the Will and the delay in seeking the revocation is not a cause to deny to them therein interstate interest in the properties of late

Dhanushkodi Nadar, which in the absence of the Will, devolved upon their father and after him upon them along with the appellant and on the

other hand, care is taken to ensure that the thing which have existed until now are continued until such a conclusion is recorded that there is no Will

under which the appellant is entitled to inherit. For the reasons as above, we order as follows:

The order in the impugned judgment treating the proceedings a contentious proceeding is upheld and the parties are accordingly directed to

proceed in the trial Court to prove/or to disprove the will;

Until the disposal of the proceeding, the appellant herein shall continue to hold the properties under the Will and the probate will be valid for all

purposes subject to the order that may be passed in the proceeding in O.P. No. 437 of 1985 after being re-numbered as a suit.

The appeal with the directions as above is disposed of. There will be no order as to costs.