S. Govindaraj v. K. R. Ramamani — 1991 DIGILAW 433 (MAD)

Judgment :- The respondents herein who are the executors appointed under the will of Mrs. Vijaya Sadasivam filed the above original petition under S. 222 and 276 of the Indian Succession Act, hereinafter referred to as the Act for grant of probate of the will and codicil in common form. On 8.3.1991, I passed the following order in the original petition “The matter relates to the last will and testament of the late Mrs. Vijaya Sadasivam. The petitioners are the executors appointed under the will executed by the said testator. The testator died on 22.11.1989 at Madras. She executed a will dated 2S. 6.1987 at Madras in the presence of witnesses and she also executed a codicil on 18.7.1989 in the presence of witnesses. As stated above, under the will dated 25.6.1987, the petitioners have been appointed as executors. The first petitioner is a leading membe r of this Bar and the second petitioner is the son in law of the deceased; The deceased died leaving behind the following 1 to 4 as legal heirs: 1. S. Govindaraj, son, 2. S. Padmavathi, daughter, Mrs. Chitrakala Govindasami, daughter and 4. S.T. Sadasivam, husband. S. Nos. 5 to 11 mentioned in para 7 of the petition are the beneficiaries under the will who are all grand sons and grand daughters of the deceased. The affidavits of two attesting witnesses for the will and codicil have been filed in regard to the proper execution and attestation of the will and codicil. The consent affidavits of S.T. Sadasivam and Mrs. Chitrakala Govindasami have been filed. They have stated that they have no objection for the probate of the late Mrs. Vijaya Sadasivams will dated 25. 6.1987 and the codicil to the will dated 18.7.1989 being given in favour of the petitioners, the executors named in the will. The Will is proved in common form. All other formalities have been complied with. Issue probate in favour of the petitioners as prayed for to have effect throughout the whole of the Union of India O.P. is ordered.” To revoke the probate granted by my order dated 8.3.1991, the applicant herein have filed the above application under Section 263 of the Act. All other formalities have been complied with. Issue probate in favour of the petitioners as prayed for to have effect throughout the whole of the Union of India O.P. is ordered.” To revoke the probate granted by my order dated 8.3.1991, the applicant herein have filed the above application under Section 263 of the Act. According to petitioner her counsel was instructed to file the Vakalath and caveat and also the affidavit in support of the application opposing grant of probate of the will and codicil, that the same have not been filed by the attorneys by some mistake due to the misplacement of the papers, that they came know of the grant of probate only on 10.4.1991, that they were informed by their counsel that the papers were mixed up, that it was found on enquiries made by their counsel that the matter had been taken up by this Court and probate had been granted and that the affidavit and caveat filed by them were missing. According to the petitioners, the non-filing of the vakalath and caveat opposing grant of probate within the stipulated time was beyond their control and only bona fide and that the delay caused is neither wilful nor wanton, but due to the circumstances mentioned above. 2. It is stated in the affidavit that the will said to have been executed by their mother was not at all a genuine document and has been brought about at the instance of Chitrakala Govindasamy, who is their sister and her husband Brig. Chandar Govindaswami, who is one of the petitioners in the main original petition and also their father, S.T. Sadasivam. It is also stated that the petitioners have already issued a legal notice on 13.10.1990 through their Advocate, questioning the genuineness of the Will and Codicil and it has also been stated in the said notice which was received by the respondents herein on 16.10.1990 that the Will and the codicil have been obtained by force and undue influence much to the dislike of their mother Vijaya Sadasivam. 3. The above application was stoutly opposed by the respondents herein. A counter affidavit has been filed by Mr. K.R. Ramamani and Mr. Brig. Chander Govindasami, the petitioners in the main original petition. 3. The above application was stoutly opposed by the respondents herein. A counter affidavit has been filed by Mr. K.R. Ramamani and Mr. Brig. Chander Govindasami, the petitioners in the main original petition. According to them, the present application filed by the petitioners to revoke the grant is unsustainable, that the applicants cannot be absolved of their responsibility by merely handing over the vakalath to their counsel and that the contention now raised in the affidavit is an afterthought and ought to be rejected. It is also further contended that the contention raised by the petitioners in paragraph 5 of the affidavit is unsustainable since on the date when the present original petition was posted before my Court for orders, no entry to the effect was made in the register maintained in the registry for this purpose, that the reasons given for the delay in filing the application is untenable and ought to be rejected and that the petitioners in the main original petition cannot be put to hardship, due to the mistake of the applicants herein. 4. I have heard the elaborate arguments of Mr. Mohan Parasaran, learned counsel appearing for the applicants and Mr. S. Govindaswaminathan, learned senior counsel appearing on before the respondents. Both the learned counsel have reiterated the arguments raised by their parties in their respective affidavit and counter. Mr. Govindaswaminathan has contended that the Explanation to the S. 263 of the Act lists five just causes on the basis of which the Court may grant revocation of the grant of probate or letters of administration and that the application for revocation must fall under one or more of these grounds and that a grant can be evoked or annulled only when a ground stated in these five clauses is made out. 5. S. 263 of the Act deals with the circumstances under which a grant of probate or letters of administration may be annulled or revoked. If the Section has merely stated that the following are the circumstances under which a grant or probate or letters of administration may be revoked it may be contended that unless the circumstances for revocation come within the categories mentioned in the Explanation to the said Section. But it is to be noticed that the Section begins saying “that the revocation or an nulment must be for a just cause”. But it is to be noticed that the Section begins saying “that the revocation or an nulment must be for a just cause”. The words just cause enjoins the necessity for the Court to see if there are circumstances other than those categorised as A to E in the Explanation to the said Section requiring for annulment or revocation. In my opinion, the circumstances set out under Explanations A to E of S. 263 of the Act do not exhaust the circumstances under which the Court can revoke or, annul. 6. I do not feel that this Court is fettered by restrictions in the matter of interpretation of what is a just cause. A to E in the Explanation to S. 263 state no more than the circumstances set out therein shall be considered by the Court as those where just cause shall be deemed to exist. The word ‘deemed’ is by itself indicative that the interpretation of the words ‘just cause’ shall not be construed as inapplicable to the circumstances set out in A to E of the Explanation. In other words, when the Sec tion says that circumstances under A to E of this Explanation point to a finding that just cause shall be deemed to exist, it imports that there may be other circumstances under which a just cause shall not merely deemed to exist but shall also exist, thereby indicating that Section is not exhaustive of the circumstances under which a revocation or annulment may be made of a probate or letters administration. In this light of my interpretation of S. 263, let us see if the allegations contained in the affidavit of the petitioner constitutes a just cause for the annulment or revocation of probate. 7. Hence it is a case where the parties contesting the grant of probate already made are no other than the son and daughters of the deceased Testator. The reason they allege against the Will and codicil are that they were brought about at the instance of their father, their sister and her husband, the second petitioner in the original petition who are ill-disposed towards them and that the will and codicil have been brought about and that the same had been filled up in a blank paper obtained from their mother. Other serious allegations have also been made. 8. Other serious allegations have also been made. 8. These very serious allegations should not be overlooked and permitted to be avoided to be dealt with by the Court on the mere ground that the contestants to the grant of probate failed at the initial stage to appear and contest. The affidavit of the contestants/petitioners for revocation have set out grounds how it occurred and how they could not appear and contest. The affidavit states that it was no fault on their part that prevented their contentions being placed before the Court. The reasons they allege are that they have already entrusted to their Advocates all the necessary papers duly signed but may due to the reason that the said papers were misplaced at the Office of the Advocate rendering their appearance and contesting at the appropriate time. 9. I feel not inclined to probe further as to the tenability of the reasons set out in the affidavit for the petitioners not being able to contest at the appropriate time as the petitioners are the son and daughters of the deceased and as I have no reasons to disbelieve the truth of the allegations as set out in the affidavit of the petitioners. Above all, justice should not fail for wrongs even if the true occasioned by the default of the Advocate in a matter very vital to the interest of parties. The maxim is ‘Fiat justitiae’ . Let Heavens fall; justice must be done. 10. The law has vested a judicial discretion in me to revoke a grant, where the Court may have prima facie. reasons to believe that it was necessary to have the will proved afresh in the presence of interested parties. In Anil Behari v. Latika Bala Dassi AIR (42) 1955 S.C. 566, the Supreme Court has held as follows: “It cannot be laid down as a general proposition that no question of the genuineness of the will arises for consideration till the Court has decided that the probate must be revoked on one or more of the grounds specified in S. 263. S. 263 also contemplates a case for revocation based on the single ground that the will in respect of which the grant in question was obtained was a forged one. S. 263 also contemplates a case for revocation based on the single ground that the will in respect of which the grant in question was obtained was a forged one. In such a case, whether or not the will was a forged one would be the only question to be canvassed before the Court before the order of revocation could be made out.” Similar allegations have also been made in the present case. This decision was strongly relied on by Mr. Mohan Parasaran, learned counsel for the applicants in support of his contention. Mr. S. Govindaswaminathan, learned senior counsel appearing on behalf of the respondents has cited a Division Bench Judgment of this Court reported in P. Sivagnanam v. P.K.S. Miidaliar AIR 1978 Madras 265 = 91 L.W. 214 to say that the grant of a probate can be revoked only for a just cause. He referred to certain passages in the said Judgment. I am of the view that the Division Bench of this Court only say 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 and that each case has to be decided on its own merit. I have discussed the facts and circumstances of this case in this Judgment, which warrant the revocation of my earlier order in the main original petition dated 8.3.1991. In the circumstances, I feel justified in revoking my earlier order dated 8.3.1991 in the main original petition in the interest of justice. 11. In the result, the application No. 2368 of 1991 to revoke my earlier order dated 8.3.1991, granting probate in favour of the respondents herein/petitioners in the main original petition No. 482 of 1990 is ordered. The original petition is converted into a T.O.S. Office is directed to register the original petition as a T.O.S. and post the same immediately after service for trial after the formalities are over.