V. Muralidharan vs R. Raghavendran

Srinivasan, J.—This Appeal is filed by the petitioner in O.P. No. 689 of 1991 in whose favour, a probate was granted in the said Original

Petition on 25-2-1992. The respondent herein filed Application No. 3534 of 1993 for revocation of the said probate and the Application has been

allowed by the learned single judge by order dated 27-9-1993. This Appeal is against the said order. The main contention urged by Learned

Counsel for the appellant is that the respondent does not have any covetable interest as he is claiming only under a will which is not probated. It is

pointed out by Learned Counsel for the appellant that no person can claim in a court of law that he is a legatee or an executor unless the Will is

probated, where the Will requires probate by virtue of the provisions of the Indian Succession Act. The respondent is claiming under a Will dated

9-4-1989 said to have been executed by A.K. Ranganatha Rao, brother of the respondent''s paternal grand mother Sakkubai. On the other hand,

the said Sakkubai is, the maternal grandmother of the appellant. The appellant also claims that he is an adopted son of the said Ranganatha Rao,

who died on 7-10-91. According to the appellant, the said Ranganatha Rao left a Will dated 9-5-1991 which was a registered one.

The appellant filed the Original Petition for probate on 9-12- 91 Along with the petition, affidavit of both the attesting witnesses and consent

affidavits of three of the sisters of late Ranganatha Rao, besides the consent affidavit of the daughters of the two diseased sisters of Ranganatha

Rao were also filed. Notice was issued to the father of the respondent by name Ramachandra Rao on 24-1-92. He did not, however, file any

caveat petition. On 4-2-92, the respondent filed a suit O.S. No. 246 of 1992 on the file of District Munsif, Trichy, for declaring his right as a

legatee under the Will of the deceased Ranganatha Rao dated 9-4-89 and for consequential relief''s. The appellant was a party to the said suit. The

appellant was served with a notice in the Interlocutory Application for injunction that is I.A. No. 173 of 1992. The appellant filed a counter

affidavit in the said Application on 16-2-92 disputing the genuineness of the said Will. The appellant also filed a written statement on the same day

in that suit.

But, without disclosing either the pendency of the suit in O.S. No. 246 of 1992 or the claim made by the respondent in the said suit, the

appellant obtained an order for probate on 25.2.92 in the Original Petition. A petition for revocation of the said probate was filed in Application

No. 281 of 1993 by the father of the respondent. That petition was dismissed on 22-7-93. The respondent had filed Application No. 3534 of

1993 on 5-7-93 for revocation of the probate. That application was ordered on 27-9-93 as stated by us earlier.

It is not necessary for us to refer to the other facts. It is sufficient to point out that the appellant had not disclosed the fact that the respondent

was claiming as legatee under a Will of 1989, said to have been executed by Ranganatha Rao before getting probate from this Court. The learned

judge has taken the view that there is just cause within the meaning of Section 263 of the Indian Succession Act for revoking the grant made in

favour of the appellant inasmuch as he has omitted to disclose the material facts or issued notice in the original petition to the respondent herein.

It must also be pointed out that the appellant has not complied with the requirements of Order 25 Rule 3 of the Original Side Rules as the Rule

prescribed there under contains a provision to set out all the near relations of the deceased.

It is the contention of the appellant that so long as the respondent had not obtained probate of the Will under which the respondent claims as a

legatee, there was no necessity whatever for the appellant to have disclosed the claim of the respondent or issue notice to him. In short, the

contention of the appellant is that the respondent has no caveat-able interest in the matter.

We do not agree with this contention. The question has been directly considered by the Calcutta High Court in Draupadi Dasya Vs. Rajkumari

Dasya and Another, . The Division Bench of the Calcutta High Court held that a legatee, whose interest under a Will has been considerably cut

down by an alleged Will, said to have been subsequently executed by the testator revoking the earlier one, has locus standi to apply for the

revocation of the probate of the later Will on the ground of non-service of citation, even before he has obtained probate of the earlier Will. We

agree with the view expressed by the Division Bench of the Calcutta High Court. As to what exactly is the meaning of the expression ''just cause'',

has been considered in detail in two recent judgments of this Court. The earlier judgment is in Gita alias Gita Ravi Vs. Mary Jenet James alias M.J.

James and Others, . The later judgment is not yet reported. It is in S. Panchanathan v. Eilappan and others (O.S.A. Nos. 153 and 236 of 1990

dated 22-9-95-, since reported in 1995-2-LW 852). In the later judgment, we have referred to a number of earlier rulings of the other High

Courts, one of them being Annapurna Kumar Vs. Subodh Chandra Kumar, ) wherein it was held that any interest, however slight, and even the

rare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. That principle was reiterated in Sima Rani Mohanti Vs.

Puspa Rani Pal,

Learned Counsel for the appellant invites our attention to the judgment of one of us sitting singly in Pravin Kumar v. P. Rajeswaran (100 L.W.

895). It was held in that case that a person, who had not obtained probate of a Will could not claim any right to the property as an executor or

legatee. That was not a case in which the question arose u/s 263 of the Indian Succession Act. The only question considered there was u/s 213 of

the said Act. Similarly in Mrs. Elizabeth Antony v. Loagmore (1985 (1) M.LJ.16) the question did not arise u/s 263 Indian Succession Act. The

said ruling was affirmed by the Supreme Court in Mrs. Elizabeth Antony Vs. Michel Charles John Chown Lengera, . The following passage in the

judgment of the Supreme Court is relevant and it will be against the contention urged by Learned Counsel for the appellant.

...Even with regard to a probate granted, it can be revoked as provided under Sec. 263 of the Act in any one of the cases mentioned therein.

But the Learned Counsel for the petitioner submits that the findings of the Sub Court and the High Court regarding the caveat-able interest will

come in petitioner''s way in seeking revocation of the grant of probate. It is needless to say that the findings regarding the caveat-able interest of the

petitioner have a limited effect and are relevant only to the extent of granting probate- But they cannot deprive his right, if he has any, to invoke

Sec. 263 of the Act it is up to the petitioner to satisfy the Court.

The other rulings referred to by Learned Counsel for the appellant namely Ganshamdoss Narayandoss Vs. Gulab Bi Bai, , R. Sivagnanam Vs.

P.K. Sadananda Mudaliar, G. Shanmugham Chetti and Another Vs. Chinnammal, , Smt. Yuvrani Tank Rajeshwari Devi Vs. Harilal and Others,

and In Re: Late Rajo Singh Ramautar Singh alias Ganesh Shankar have no relevance in the present case. They relied on only the well-known

proposition of law that without obtaining probate, on person can put forward a right as executor or legatee under a Will. In fact, the last of the

decisions referred to above namely In relate In Re: Late Rajo Singh Ramautar Singh alias Ganesh Shankar ) is against the proposition contended

for by the appellant. In paragraph 5 of the judgment, the learned judge has observed as follows:

There are decisions galore on the interpretation of Clause (c) of Sec. 263 (1) of the Indian Succession Act which provides for issue of citation

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 also enables the persons claiming such interest to oppose the grant on their own. Each case has been decided, as

indeed it has to be, on its own facts. In the instant case, the point precisely is whether a donee from an heir of the testator is entitled to file caveat

and oppose the grant. I may in this connection observe that I am not impressed by the plea of the applicant that merely by reason of the rejection

of the caveat of Gayatri Devi, the caveat filed by Manorama Devi should be held as not maintainable. It may sound odd to say so because, after

all, the present caveator is only a transferee from the former caveator and she cannot, therefore, claim a better legal character than her. But it

would appear that the caveat was not rejected on merits, that is, on the ground that she had no interest in the estate of the testator. And this could

not be because she was none else than widow of the testator herself. The caveat was rejected on technical grounds.

In the present case, we have already pointed out that the applicant has failed to disclose to the Court the most essential facts which are

necessary, before, getting probate of the Will and also the claim made by the respondent herein. Just because the respondent has not yet obtained

probate of the Will, under which she makes a claim, it does not mean that the respondent has no caveat-able interest at all, We agree with the view

taken by the learned judge that there is just cause for revoking the grant made in favour of the appellant.

However, the contention of Learned Counsel for the appellant that some of the observations made by the learned single judge, having a

bearing on the merits of the claim, are not warranted in the present proceeding, is correct. In paragraph 8 of the judgment under appeal, the

learned judge has observed as follows:

...If the adoption claimed by the respondent is true, there is no reason as to why he has not described himself as the adopted son of

Ranganathan Rao in the said Trust deed and described himself as the son of his natural father. This throws some doubt on the claim of the

respondent that he is the adopted son of Ranganathan Rao, which formed the basis for the execution of the Will in his favour....

In our opinion, this observation is wholly unnecessary for the purpose of deciding the application for revocation of grant in favour of the appellant.

The question whether the will propounded by the appellant is genuine or not, has to he decided only on the basis of the evidence to be adduced by

the parties in the original proceedings after the revocation is granted.

Learned Counsel for the appellant has contended vehemently that the fact that the respondent''s father had filed an application before for

revocation of the grant and failed on merits, would show that the respondent is not bonafide pursuing the litigation and he is only trying to drag on

the proceedings and put spokes in the wheel by delaying the enjoyment of the fruits of the grant of probate in favour of the appellant. There is no

merit in this contention. The respondent is not claiming under his father in so far as the present proceeding is concerned. He is making independent

claim under a Will said to have been executed by A.K. Ranganatha Rao in 1989. The fact that his father had earlier made a claim and failed therein

will not prove it the respondent from putting forward his claim under the Will said to have been executed by Ranganatha Rao. Apart from that, we

find that even on 5-7-93, the appellant had filed present application for revocation of grant whereas the application filed by the father was

dismissed only on 22-7-93. In fact, the arguments in that case were heard only on 7-7-93 after the respondent filed the present application tor

revocation of grand.

In the circumstances, we are convinced that the order by the learned judge is correct and there is no warrant for interference in the appeal. The

appeal fails and is dismissed, there will be no order as to costs.

Learned Counsel for the appellant prays that an early date may be fixed for the disposal of the proceedings as the matter has been pending in

court from 1991. No doubt, the interest of justice requires an early disposal of this litigation. But, at present we cannot fix a specific date for the

hearing of the matter. It is open to either party to apply before the learned judge sitting on the Original Side to fix an early date for the hearing of

the matter and on such application, the learned judge will consider the same and fix an appropriate date for disposing of the matter as early as

possible. Now that the grant has been revoked, the Registry is directed to register the Original Petition filed by the appellant herein as a

Testamentary Original Suit and the respondent is directed to file his written statement within three weeks from the date of the receipt of copy of the

plaint.