V. Muralidharan v. R. Raghavendran — 1995 DIGILAW 841 (MAD)

Judgment :- SRINIVASAN, J. 1. 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. 2. The main contention urged by learned counsel for the appellant is that the respondent does not have any cavetable 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 respondents 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. 3. 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 reliefs. 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 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. 4. 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. 5. 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 in as much as he has omitted to disclose the material facts or issued notice in the original petition to the respondent herein. 6. 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. 7. It is the contention of the appellant that so long as the respondent had not obtained probata 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 caveatable interest in the matter. 8. We do not agree with this contention. In short, the contention of the appellant is that the respondent has no caveatable interest in the matter. 8. We do not agree with this contention. The question has been directly considered by the Calcutta High Court in Draupadi v. Rajkumary (AIR 1919 Calcutta 1012). The Division Bench of the Calcuta 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 v. Mary Jenet James Alias James ( 1995 (I) M.L.J. 467 = 1995-2-L.W. 831). The later judgment is not yet reported. It is in S. Panchanathan v. Ellappan and others (O.S.A. Nos. 153 and 236 of 1990 dated 22-9-95 since reported in 1995-2-L.W. 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 v. Subodh Chandra Kumar (AIR 1970 Calcutta 433) 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 v. Pushpa Rani Bai (AIR 1978 Calcutta 140). 9. 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 under Section 263 of the Indian Succession Act. The only question considered there was under Section 213 of the said Act. Similarly in Mrs. Elizabeth Antony v. Loagmore ( 1985 (1) M.L.J. 16 ) the question did not arise under section 263 Indian Succession Act. That was not a case in which the question arose under Section 263 of the Indian Succession Act. The only question considered there was under Section 213 of the said Act. Similarly in Mrs. Elizabeth Antony v. Loagmore ( 1985 (1) M.L.J. 16 ) the question did not arise under section 263 Indian Succession Act. The said ruling was affirmed by the Supreme Court in Elizabeth Antony v. Michel Charles John ( AIR 1990 S.C. 1576 ). 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. “10. 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 caveatable interest will come in petitioners way in seeking revocation of the grant of probate. It is needless to say that the findings regarding the caveatable 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”. 10. The other rulings referred to by learned counsel for the appellant namely Ganshamdoss v. Gulabbi Bai (AIR 1927 Madras 1054), R. Sivagnanam v. P.K.S. Mudaliar (AIR 1978 Madras 265), G. Shanmugham v. Chinnammal (AIR 1978 Madras 304 = 91 L.W. 237), Rajeshwari Devi v. Harilal ( AIR 1978 M.P. 201 ) and In re: late Rajo Singh Ramautar Singh (AIR 1995 Patna 122) 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 re: late Rajo Singh Ramautar Singh (AIR 1995 Patna 122) is against the proposition contended for by the appellant. 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 re: late Rajo Singh Ramautar Singh (AIR 1995 Patna 122) 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 o n 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”. 11. 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. The caveat was rejected on technical grounds”. 11. 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 caveatable 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. 12. 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: “8. 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 re vocation of, grant in favour of the appellant. The question whether the will propounded by the appellant is genuine or not, has to be decided only on the basis of the evidence to be adduced by the parties in the original proceedings after the revocation is granted. 13. Learned counsel for the appellant has contended vehemently that the fact that the respondents father had filed an application before for revocation of the grant and failed on merits, would show that the respondent is not bona fide 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. 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 prevent 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 for revocation of grand. 14. 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. 15. 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. 16. 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.