Varkey v. George — 1992 DIGILAW 284 (KER)

Judgment :- The first defendant in O.S.1 of 1991 on the file of the District Court, Kottayam is the petitioner in this Civil Revision Petition. Respondents herein made an application for letters of administration under S.278 of the Indian Succession Act. The application was for the issue of letters of administration in respect of a Will said to have been executed by one Varkey on 20-6-1987. The application was in terms of the Indian Succession Rules (Kerala), 1968. R.8 there of provides that the application for letters of administration with the will annexed shall be made by petition in Form No.4 as set out in the said Rule. Form No.4provides for certain details to be furnished in the application The application for letters of administration was contested in terms of the Rules by the revision petitioner. The proceeding therefore became contentious within the meaning of the Rules. In terms of R.26 of the Rules, the application was converted into a suit. 2. The revision petitioner disputed the genuineness and the due execution of the will dt. 20-6-1987. According to the respondents there was an earlier will of the year 1975 executed by the same testator and the same will had been revoked by the 1987 will. Apprehending that one of the attesters had changed sides and therefore they may not be able to prove the due execution of the latter will, the respondents herein thought of introducing an additional claim for the issue of letters of administration of the will dt.8-10-1975 in case it was found by the court that the due execution of the 1987 will was not proved. This application for amendment made under Order 6 Rule 17 of the Code of Civil Procedure was opposed by the revision petitioner contending inter alia that no such amendment is permissible, that Order 6 Rule 17 of the Code of Civil Procedure has no application and that if the respondents herein want to claim letters of administration in respect of the 1975 will, they had to make a separate application in terms of the Rules and that the court exercising the probate jurisdiction has no authority to allow an amendment of this nature. No authorities were cited before the Court below on the question as to whether an amendment could be allowed or could not be allowed in proceedings under the Indian (Kerala) Succession Act as regulated by the Indian Succession Rules, 1968. The trial court allowed the amendment sought, on the following reasoning: "3. On going through the records I am convinced that in the interest of justice, for avoiding multiplicity of proceedings and technical pleas of res judicata in future litigations, it is essential to adjudicate upon the validity of the wills executed by same person in respect of his properties, in the same proceedings. Both counsel for parties were not able to show me any precedent for or against the view taken by me. The amendment will not harm respondent in the least and they are not expected to be concerned about strangers who are entitled to notice. 4. Justice is paramount and the law is only her handmaid. The subject matter of the suit to be administered is more important than the form of Will relating to it". It is the correctness of this order of the court below that is challenged in this Civil Revision Petition by the Revision Petitioner. 3 It is submitted by counsel for the revision petitioner that though the procedure prescribed by the Code of Civil Procedure can be applied as far as may be in the trial of a contentious proceeding and though in terms of R 26 of the Rules converted into a suit, it is not really a suit in the sense understood by the Code of Civil Procedure and therefore the provisions of the Code of Civil Procedure and Order 6 Rule, 17 in the case on hand cannot be automatically applied to such a suit. He also points out than he application for letters of administration is hedged in by formalities prescribed Ss.278 of the Act and Rules 7 and 8 of the Rules and that unless those formalities are complied with, no prayer for grant of letters of administration can be entertained. He also points out than he application for letters of administration is hedged in by formalities prescribed Ss.278 of the Act and Rules 7 and 8 of the Rules and that unless those formalities are complied with, no prayer for grant of letters of administration can be entertained. He sZ s that i the respondents herein want to claim letters of administration in respect of the earlier will of 1915, the remedy open to them would be to make a separate application for letters of administration and that too only if their claim for issuance o Es of administration of the 1987 will is rejected. He also submits that the respondents cannot propound two wills at the same time as the last will of the deceased testator and claim the issuance of letters of administration for one or for the other. It is further submitted that a mere amendment without complying with the formalities prescribed by S278 and R8 and Form No.4 of the Rules in respect of the 1975 will would not enable the respondents to seek nor the court to permit the seeking of the issuance of letters of administration in respect of that will. He also submits that even m the amendment application the request formalities are not sought to be complied with and therefore the amendment in the form in which it is sought cannot be allowed in any event. He therefore submits that the order of the court below is one without, jurisdiction and is therefore liable to be set aside in revision. "It has been argued by Mr. Ganguly that the caveator's case might be that the subsequent will which revoked the earlier one was itself revoked and he might rely upon the presumption that the will was destroyed by the deceased any morevocandi by reason of the fact that the will was last known to be impossession of the deceased and was not found at his death. We do not think that in such cases it is at all necessary for the caveator to propound the second will which itself being revoked has got no existence in law. In such cases it is enough for the caveator to prove that there was a will subsequent to the one propounded by the plaintiff and revoking the same. We do not think that in such cases it is at all necessary for the caveator to propound the second will which itself being revoked has got no existence in law. In such cases it is enough for the caveator to prove that there was a will subsequent to the one propounded by the plaintiff and revoking the same. There is no question here of propounding a will, for there is no will at all declaring the intention of the testator regarding the distribution of his property after his death. The revoked second will can only take effect as an instrument of revocation and the fact that it contained a clause revoking the earlier will could be proved by secondary evidence: see in this connection (1858) 8 El. & B1.876:120 E.R.327 and (1928)1381.t. 526. On the whole, it seems to us that the procedure indicated by Ranganekar J. is a convenient one and has the merit of avoiding future uncertainties and conflict of decision with regard to one and the same testamentary instrument. There may be exceptional circumstances where this procedure cannot be followed,-e.g., when the later will set up by the caveator is alleged to have been revoked. But save and except such extraordinary circumstances, we do not think that there is any difficulty in adopting this procedure". The learned counsel for the respondents, Sri.T.R. Raman Pillai brings to my notice the decision of the Allahabad High Court in Jatindra Mohan v. Dayal Devi (AIR 1948 All. 134) to contend that the Allahabad High Court has held that when separate probate has not been claimed by the caveator but the caveator merely wants to defend the proceedings initiated by the plaintiff to dispute the will relied on by the plaintiff, there is nothing which prevents the caveator from defending the proceeding without seeking an independent probate for the will which he has pleaded. The Allahabad High Court pointed out that in cases where the caveator himself does not claim the grant of probate in respect of the will propounded by him by way of a rival claim, the defence based on an alternate will is not barred by the Indian Succession Act. The Allahabad High Court pointed out that in cases where the caveator himself does not claim the grant of probate in respect of the will propounded by him by way of a rival claim, the defence based on an alternate will is not barred by the Indian Succession Act. The Bombay decision only shows that when an alternate will is propounded by the caveator, the proper procedure is for the caveator to seek the grant of letters of administration in respect of that alternate will and that it cannot be done by merely raising a defence based on that will. The decisions of the Calcutta High Court and the Allahabad High Court show that only if rights are claimed on the basis of the alternate will by the caveator, that the caveator need seek the issue of letters of administration by a separate application under S.278 of the Act and then it is fpr the court to determine both the proceedings together. If it is merely by way of a defence only that an alternate will is put forward by a caveator to contend that the will propounded by the applicant has been revoked or is not the last will of the testator, the caveator is not obliged to make a separate application for letters of administration in respect of that will. These decisions do not directly touch upon the question arising in this case but do give an indication that when an alternate will is put forward as the last will of the testator as against the will propounded by the applicant, letters of administration has to be sought in respect of that will so as to enable the court to determine which of the two wills is the last will of the testator. applying this decision, can it not be said that the plaintiffs here are really seeking the issue of letters of administration in respect of the last will of the testator seeking in the process of an adjudication as to which is the last will? If that be so, is it not for the court to allow the amendment sought for and to determine that question as well? 6. If that be so, is it not for the court to allow the amendment sought for and to determine that question as well? 6. Sri.P.C. Chacko, counsel for the revision petitioner also brought to my notice the decision of the Calcutta High Court reported in Balai Lal Banerjee and others v. Debaki Kumar Ganguly (AIR 1984 Cal.16) to contend that though the proceeding is converted into a suit on the basis of the fact that it has become a contentious proceeding, it is not strictly a suit as known to the Code of Civil Procedure and therefore the aversion of allowing an amendment can not be decided on the basis that the proceeding is a suit as known to the Code of Civil Procedure. It has been held by a Full Bench of the Allahabad High Court in the decision reported in Panzy Fernandez v Queorrs (AIR 1963 All.153 ) that the decision of a court in proceedings for letters of administration cannot be described as a decree but as an order having the force of a decree. We have therefore to proceed on the basis that the proceeding is not really a suit under the Code of Civil Procedure. Both counsel submitted that they have not been able to find any decision directly dealing with the aspect arising in this case, either of our High Court or of any other High Court. 7. In English Law according to Williams, Mortimer and Sun nucks on Executors, Administrators and Probate (16th Edition) " contentious probate or probate in solemn form falls now within the Chancery jurisdiction. The procedure is in general the same as in other Chancery actions but the provisions of Order 76 of the Rules of the Supreme Court have particular application". Order 76 lay? Clown the rules governing contentious proceedings. As regards amendment of pleading' it is said: "The same rules as to amendment apply in probate actions as in other actions", (page 391). In Tristram and Coote's Probate Practice (25th'Edn.) page 615 it is stated: "The court may at any stage of the proceedings allow the plaintiff to amend the writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner, (if any) as it may direct". 8. In Tristram and Coote's Probate Practice (25th'Edn.) page 615 it is stated: "The court may at any stage of the proceedings allow the plaintiff to amend the writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner, (if any) as it may direct". 8. Chapter IY of the Indian Succession Act lays down the procedure for the grant of probate and letters of administration and the Privy Council has laid down in RamanandiKuery. KalawatiKuer (55 Indian Appeals 18) that when there is a positive enactment laid down by the Indian Legislature, it is improper to resort to English Practice in such cases. We are there fore' essentially concerned with the provisions of the Indian Succession Act and the Indian Succession Rules (Kerala) in answering the question raised in this case. 9. I will therefore refer to the relevant provisions of the Act and the Rules which governs the procedure to be followed in an application for letters of administration. S.268 of the Indian Succession Act provides that the proceedings of the court in relation to the granting of ate and letters of administration shall Save as other wise provided, be regulated so far as the circumstances of the case permit, by the Code of Civil Procedure. Ss.276 and 278 of the Act prescribe the requirements and the formalities attached to an application for probate or letters of administration to be made to the court. The following provisions of the Act provide for the procedure to be followed in non-contentious proceedings and in contentious proceedings. S.295 of the Act provides the procedure to be followed in contentious proceedings. S.295 of the Act specifically says that the proceedings shall take as nearly as may be the form of a regular suit according to the provisions of the Code of Civil Procedure in which the petitioner for probate or letters of administration shall be the plaintiff and the person who has appeared to oppose the grant shall be the defendant. S.299 of the Act provides for an appeal to the High Court. in accordance with the provisions of the Code of Civil Procedure. 10. This scheme of the Act is carried forward by the Indian Succession Rules (Kerala) 1968. R.7provides for application for letters of administration and R.8 provides for application for letters of administration with the will annexed. S.299 of the Act provides for an appeal to the High Court. in accordance with the provisions of the Code of Civil Procedure. 10. This scheme of the Act is carried forward by the Indian Succession Rules (Kerala) 1968. R.7provides for application for letters of administration and R.8 provides for application for letters of administration with the will annexed. Specific forms are prescribed for making the application. Rule 15 provides for citation to rightful parties and Rule 17 the procedure for service of citations. Once a caveat has been lodged and the proceedings become contentious, Rule 26 provides, as noticed already, that the application shall be converted into a suit. The Rule goes on to say that the procedure in such suit shall, as nearly as may be, be according to the provisions of the Code of Civil Procedure. R.29 provides for consolidation of applications where there are more than one application for probate or letters of administration relating to the same estate and the court is empowered to consolidate the proceeding and to decide the proceeding as if there was only one proceeding. This in short is what is discernible from the relevant provisions of the Act and the Rules. 11. The jurisdiction for the grant of letters of administration is conferred on the District Judge by S.264 of the Indian Succession Act. That the expression 'District judge' as used in S.264 does not refer to a persona designata but refers to the court cannot now be in dispute. In fact the High Court of Bombay in the decision reported in Vera v. Manekbai (AIR 1977 Bom. 419) has held that the District Judge is not a persona designata. That in such circumstances, the reference is to the court, is laid down by our High Court in K.S.E.B. v. C.G. Narayanan (1973 KLT 968 =1973 KLJ 7). This aspect has been put beyond doubt by the decision of the Supreme Court reported in Maharashtra State Financial Corporation v. Jaycee Drugs and Pharma (1991 (2) SCC 637). The position therefore is that the power is conferred on the District Court to entertain the application for the issuance of letters of administration. This aspect has been put beyond doubt by the decision of the Supreme Court reported in Maharashtra State Financial Corporation v. Jaycee Drugs and Pharma (1991 (2) SCC 637). The position therefore is that the power is conferred on the District Court to entertain the application for the issuance of letters of administration. Even apart from the fact that S.268 and S.295 provide that the procedure to be followed is as per the provisions of the Code of Civil Procedure, the fact that the jurisdiction has been vested in an ordinary court would mean that the court seized of such dispute is governed by the ordinary rules of procedure applicable thereto. (See Adaikappa Chettiar & another v. Chandrasekhara Thevar, AIR 1948 PC 12). The position therefore is that in the absence of any embargo created by either the provisions of the Act or the Rules, the District Court can exercise all the powers it can normally exercise in any proceeding that is initiated before it. Going through the provisions of the Act and the Rules, it can be seen that there is no prohibition in the Act or in the Rules against the seeking of the letters of administration in respect of an earlier will if the latter will were to fail for any reason. If that be so, there is no reason to restrict the power of the court to entertain an application which in the alternative claims relief in respect of an earlier will if the latter will propounded fails. As a matter of fact a reference to R.29 of the Rules indicates that even if there are more proceedings than one concerning the estate of a deceased testator, the court must consolidate the various proceedings and try them as a single cause. So prima facie it cannot be said that there is any prohibition in allowing an amendment of the nature claimed in the present proceeding. 12. The fact that S.278 of the Act and Rule 8 of the Rules insist on certain formalities being complied with in making the application for letters of administration cannot by itself be read as an inhibition against the exercise of power of amendment by the District Court. 12. The fact that S.278 of the Act and Rule 8 of the Rules insist on certain formalities being complied with in making the application for letters of administration cannot by itself be read as an inhibition against the exercise of power of amendment by the District Court. At best it can be argued that while seeking an amendment to include an alternative claim in respect of an earlier will, the plaintiff is bound to include the details required by the relevant provisions by way of amendment and not merely the relief. The mere prescription of procedural formalities cannot be made use of to deprive the jurisdiction of the court to avert multiplicity of proceedings and to dispose of the disputes between the parties in respect of the estate of a deceased testator in a case where more than one will is propounded: 13. One of the cardinal objects of allowing the amendment of the pleadings, as has been laid down by the various decisions, is to avoid multiplicity of proceedings and to enable the court to decide all the matters in controversy, between the parties in respect of the subject matter of the suit. Here, if the testator had died leaving the will executed in the year 1987, certainly letters of administration will have to be granted in respect of that will. But on the other hand if it is found that the valid last will of the deceased testator is the 1975 will, then the testamentary court will have to give effect to the dispositions in that will. Even if in this proceeding ultimately it is held by the court that the 1987 will said to have been executed by Varkey is not proved to be the last will and testament of the deceased, still unless and until a decision is taken that the 1975 will propounded is also not duly executed by the testator, it may not be possible for the parties to contend or the Courts to find that deceased Varkey had died intestate. It is therefore necessary for the testamentary court to decide as to whether deceased Varkey had executed a valid will. In that process the testamentary court will have to decide which is the last will executed by Varkey -if he had executed one. It is therefore necessary for the testamentary court to decide as to whether deceased Varkey had executed a valid will. In that process the testamentary court will have to decide which is the last will executed by Varkey -if he had executed one. Looked at from this point of view there cannot be any objection in permitting an applicant for letters of administration to seek the grant of the letters with the latter will annexed and on his inability to prove that will, seek to have the letters issued in respect of an earlier will which had been executed by the testator and which would have stood revoked if the latter will had been accepted by the court. 14. The submission of the learned counsel for the revision petitioner that in view of the procedural formalities prescribed the only alternative to the respondents in this case is to make a separate application in respect of the 1975 will and that too in the case of the 1987 will being found against, at best appears to be too technical. It is one thing to insist that the requirements of the statute must be complied with in making the amendment but quite another to say that there must be a separate application for that purpose after the present proceeding is disposed of. This in fact goes against even the spirit of R.29of the Rules which clearly says that the proceedings must be disposed of as if there were only one proceeding. 15. In view of S.141 of the Code of Civil Procedure and particularly in view of Ss.268 and 295 of the Indian Succession Act application of Order 6 Rule 17 of the Code of Civil Procedure cannot be kept out unless there is anything repugnant to exercise of such power in the Act or the Rules. Various High Courts have held that Order 9, Order 11, Order 16, Order 21, Order 23, Order 39 and Order 40 of the Code are applicable to proceedings under the Indian Succession Act for the grant of probate of letters of administration (See page 726 of Paruck's Indian Succession Act, 7th Edn.) There is therefore no reason why it should be held that Order 6 of the Code could not have operation in the scheme of the Act and the Rules. 16. 16. In the case on hand, both the wills are registered wills and in the latter" will in respect of which the letters of administration was originally sought by the respondents, there is a specific revocation of the registered will of the year 1975. The execution of this 1987 will is questioned by the revision petitioner. If the respondents are not able to prove the 1987 will, necessarily it will have to be decided whether the earlier will of the year 1975 which is also a registered one was duly executed by the testator. Unless and until both the wills are found against, it cannot be postulated that the testator Varkey died intestate. It is therefore the duty of the testamentary court to determine whether deceased Varkey had duly executed the will and if so which is the last will of the deceased testator. To enable the court to decide this controversy once for all it is absolutely necessary to permit the respondents herein to put forward the alternative plea in respect of the 1975 will so that the court could decide once for all the question in dispute between the parties, namely, as to whether the estate of deceased Varkey is to be by testamentary succession or by intestate succession. It appears to me that the object of the very provisions for amendment of pleadings would be defeated, if the amendment sought for is not allowed. 17. The endeavour of the court should be not to curtail the power which is not specifically curtailed by any other Act or the Rules framed thereunder. In a case where both the Act and the Rules provide for the application of the ordinary procedure followed in courts, there will be no justification to curtail the power of the court in the matter of allowing the amendment of pleadings to determine the real dispute between the parties. It is not for the court to impose upon itself self-created fetters so as to disable it from exercising a power which is a normally recognised one and is" used for doing justice in a given cause. 18. In the present case, the application as originally filed had already set out the requirements of S.278 of the Act and Rule 8 of the Rules. Form No.4 prescribed by Rule 8 has been specifically complied with. 18. In the present case, the application as originally filed had already set out the requirements of S.278 of the Act and Rule 8 of the Rules. Form No.4 prescribed by Rule 8 has been specifically complied with. Therefore even in respect of the 1975 will alternatively put forward by the respondents the statutory requirements already exist in the pleadings. The further details required are supplied by the addition of para. 5 to the plaint and the alternative relief along with the production of the 1975 will. I therefore do not think that the technical pleas raised by counsel for the revision petitioner that the formalities of S.278 of the Act and Rule 8 of the Rules have not been complied with is sustainable. 19. It cannot therefore be said that the court below has either exercised a jurisdiction not vested in it by law or that it has exceeded its jurisdiction in allowing the amendment prayed for by the respondents. There is therefore-no reason to interfere with the order of the court below and the Civil Revision Petition has only to be dismissed. In the result the C.R.P. is dismissed without any order as to costs.