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2001 DIGILAW 74 (MAD)

K. Jayaraman v. K. Rajagopalan

2001-01-22

K.GNANAPRAKASAM, R.JAYASIMHA BABU

body2001
Judgment : R. Jayasimha Babu, J. 1. Order XXV Rule 4 of the Original Side Rules of this Court provides thus: Application for probate shall be made by a petition with the will annexed, accompanied, if the will is not in English by an official translation thereof in English; such application shall be in form No.55 or as near thereto as the circumstances of the case may permit and shall be accompanied by: (a) (b) (c) (d) It is not necessary to refer to other parts of the Rules for the purpose of this case. 2. Form No.55 is the form of the application for the probate of the will in the High Court of Judicature at Madras. Paragraph 7 of the form reads thus: “Petitioner has impleaded all the next of kin or other persons interested as party/respondents. There is no next of kin or other person interested to be impleaded." 3. In clear violation of the requirements of that Rules a probate application O.P.No.691 of 1993 was filed by the appellant in O.S.A.No.99 of 1998 who is the Executor and Principal beneficiary under the will executed by his late father who dies on 14.11.1991, omitting the aforementioned paragraph-7. In the body of the application no mention was made of two of his three brothers and no mention made of his four sisters. A copy of the English Translation of the will dated 4.8.1986, which had also been registered as document No. 105 of 1995 was, however, annexed to that application, as required by the Rules. 4. In that will, which is a registered handwritten document, it is stated by the testator R. Krishnamoorthy Iyer, the father of the appellant, as also of the respondent Rajagopalan, that the testator had a wife named Thangammal Ammal; that they had four daughters (1) Krishnammal alias Radha Ammal; (2) Savithri Ammal; (3) Alamelu Ammal and (4) Rajalaskhmi and sons (1) Rajagopalan; (2) Jayaraman; (3) Ramamoorthy and (4) Subramanian. 5. It is, therefore, clear beyond any doubt that those four sisters of the applicant for probate his other brothers, as also their mother should have been impleaded to the probate application. The applicant for probate impleaded only his mother and one of the brothers Jayaraman who was one of the legatees under the will in which the other two sons Rajagopalan and Ramamurthy were altogether excluded from the bequests made thereunder. The applicant for probate impleaded only his mother and one of the brothers Jayaraman who was one of the legatees under the will in which the other two sons Rajagopalan and Ramamurthy were altogether excluded from the bequests made thereunder. That application being defective, ought to have been returned by the Registry for rectifying the defect. That however was not done and the application came to be registered as O.P.No.691 of 1992. On that O.P. an order was passed on 18.11.1994 granting probate. 6. An application to revoke the probate so granted was thereafter filed by the eldest son of the testator K.Rajagopalan, who on 9.12.1994 filed application No.7194 of 1994 in O.P.No.691 of 1992 stating therein, inter alia, that he is one of the sons of Krishnamurthy Iyer; that his sisters, his brother Ramamurthy, and himself; though required to be, had not been impleaded in the probate proceedings, and that the probate was required to be revoked. Respondent Subramanian having objected to that, a rejoinder was filed, where in Rajagopalan claimed that the will had been obtained by coercion and undue influence and that he also needed to verify the genuiness of the signatures of his father on the will. 7. In the proceedings relating to that application the evidence of Jayaraman and Ramamurthy who were examined for the respondents in the application to revoke the probate was recorded. Their testimony was tendered for showing that Rajagopal though not a party to the probate application, had knowledge of the will and the probate proceedings. Ramamurthy, however, did not say that he had informed Rajagopal about the will. On the other hand he too filed an affidavit supporting Rajagopalan and sought revocation of the probate. Thereafter, the respondent in the revocation application wanted to examine one of the attestors of the will. 8. At that point, the learned single Judge took the view that it was not necessary for him to go into the genuiness of the will, as in the proceedings before him, the only question was as to whether the will was required to be revoked on the ground that a person to whom notice ought to have been given, had not been notified and on the ground that the knowledge of the will imputed to him had not been proved. The Court heard arguments, and after some time made an order revoking the grant of probate. The Court heard arguments, and after some time made an order revoking the grant of probate. That order was made on 8.6.1998. It is that order which has been challenged before us by the applicant for probate K. Subramanian and his brother K. Jayaraman. 9. Learned Senior Counsel for Subramanian, Mr. Dipenkar Gupta submitted before us that the impugned order is required to be set aside and the matter remanded to the trial Judge, as evidence had been wrongly shut out, and the learned Judge had drawn interference ad made observations which were not warranted by the evidence on record. It was submitted that the question of genuiness of the will ought to have been gone into in the revocation proceedings and the view of the learned Single Judge to the contrary, was not consistent with the law laid down by the Privy Council and the Supreme Court. Mr.Vedantham Srinivasan appearing for the other appellant Jayaraman adopted those submissions, and also submitted that the applicant for revocation Rajagopalan had knowledge of the existence of the will and the observations of the trial Judge to the contrary were not consistent with the record. 9. Counsel for Rajagopalan, Mr.Thiruvenkatasamy, pointed out the evidence of Ramamoorthi, where in he had, in the chief examination, stated that he had not talked to Rajagopalan and submitted that the claim of the respondents in the revocation application that Rajagopalan had knowledge about the contents of the will, through Ramamurthy was falsified by the evidence of Ramamoorthy. It was pointed out by Mr.Gupta, counsel for the appellants, that the affidavits of the sisters had been filed wherein they had stated that there were discussions, after the demise of their mother, in the course of which the existence of the will had been brought to the notice of Rajagopalan. 10. The learned Senior counsel for Subramanian rightly did not put forth the argument that the breach of the requirements of the Rule should be overlooked and that the probate granted be sustained on the ground that Rajagopal had not established that the will was not genuine. He fairly stated that the burden of proving genuineness of the will is on the person propounding the will and his client is ready and willing to adduce necessary proof in that regard. 11. He fairly stated that the burden of proving genuineness of the will is on the person propounding the will and his client is ready and willing to adduce necessary proof in that regard. 11. It is, however, urged by counsel that Section 263 of the Indian Succession Act requires that even in revocation proceedings, an opportunity must be provided to the person, who had propounded the will, to show that the will was genuine and that the trial court must be directed to provide that opportunity. 12. Counsel placed reliance on the decision of the privy council in the case of Ramanandi Kuer v. Kalawati Kuer, 55 IA 18 : AIR 1928 P.C. 2 in which in the judgment delivered by Lord Sinha, the provisions of Section 50 of the probate and Administration Act, 1881 was adverted to. That provision, in so far as it is relevant for our purpose, provides that the grant of probate may be revoked or annulled for just cause, and that just cause, inter alia, is the defect in substance in the proceedings, which resulted in the grant of probate, or the concealment of something material in these case making the proceeding fraudulent at the instance of the person, who propounded the will. It was observed that in the case before the privy council, both those grounds, namely the parties who ought to have been cited not having been cited, and the probate having been obtained by forgery, had been taken. It was, thereafter, observed as follows: If the issues were tried separately and the plaintiff succeeded on the first issue, that in itself would be sufficient for revoking the probate; but it would still be open to the defendant to prove the Will and, if he succeeded, the probate would stand." Counsel also referred to the decision of a learned single Judge of the Calcutta High Court in the goods of Atul Krishna Majmudar Decd., 91 Cal. L.J. 224. The head note that report, inter alia, reads thus: “Proof of non citation of a person, who ought to have been cited makes the proceedings defective in substances, but it is not if itself sufficient for summary revocation of the probate granted ex parte. L.J. 224. The head note that report, inter alia, reads thus: “Proof of non citation of a person, who ought to have been cited makes the proceedings defective in substances, but it is not if itself sufficient for summary revocation of the probate granted ex parte. The Court ought to give the grantee an opportunity to prove the Will in Solemn form and after hearing evidence and objections, decide whether the order granting probate should stand or whether it should be revoked. Proof of non citation itself, converts a non contentious proceedings into a defended actio n for proof in solemn form." 13. Counsel then referred to the decision of the Full Bench of Rangoon High Court in the case of Eusof Ahmed Seema v. Ismail Ahmed Seema, AIR 1938 Ran. 261. The Court held, as set out in the head notes, that the absence of citations in a case in which they are ordered, but did not issue, does not by itself constitute just cause for revocation of probate, though it may do so, if the party, claiming that citation should have been ordered and served upon him, can show a prima facie case of revocation, which the executor is unable to rebut....... In cases where citations have not been ordered, the party impugning the Will on the ground of his non citation must first show that he ought to have been cited, before the burden of proof is shifted to executor to show that the defect in the proceedings was not one of substance and that no just cause of revocation exists. 14. Counsel lastly referred to the decision of the Supreme Court in Anil Behari v. Latika Bala Dassi, AIR 1955 SC 566 . The Supreme Court in that case referred to an earlier decision of the Calcutta High Court in the case of Mokashadayini Dassi v. Karnadhur Manda, AIR 1915 Cal. 421 (A), wherein it had been held by the High Court that the only matter for consideration. In an application for revocation was whether the appellants have made out a just cause for revocation of the probate and that question of genuineness cannot be considered till a case for revocation is made out. 421 (A), wherein it had been held by the High Court that the only matter for consideration. In an application for revocation was whether the appellants have made out a just cause for revocation of the probate and that question of genuineness cannot be considered till a case for revocation is made out. The Apex Court, after referring to that judgment, pointed out that Section 263 of the Indian Succession Act 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 and 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. 15. The decision of the Privy counsel in the case of Ramanandi Kour was also referred to. It was observed that, that case is no authority for the proposition that every case where there is defect in citation, the court must order a revocation or annulment of the grant. The Apex Court, thereafter, observed. The annulment is a matter of substance and not of mere form. The Court may refuse the grant of annulment in cases where there is no likelihood of proof being offered that the Will admitted to probate was either not genuine or had not been validly executed." 16. The Court also referred to the words “defective in substance" used in Section 263 Cl.(a) of the Indian Succession Act and observed that “defective in substance" must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. If there were any suggestions in the present proceedings of any circumstances were pointed out to show that if Girish had been cited, he would have been able to enter a caveat, the absence of citation would hav e rendered those proceedings "defective in substance". 17. The Court further observed thus: The omission to issue citations to persons, who should have been appraised of the probate proceedings may well be, in a normal case a ground by itself, for revocation of the grant. But this is not a discretion irrespective of other considerations arising from the proved facts of a case. 17. The Court further observed thus: The omission to issue citations to persons, who should have been appraised of the probate proceedings may well be, in a normal case a ground by itself, for revocation of the grant. But this is not a discretion 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 Will proved afresh in the presence of interested parties." (Italics Supplied) 18. Having regard to the clear pronouncement of the Supreme Court, we are unable to agree with counsel for the appellants that in all cases where revocation is sought, the Court must allow the parties to adduce evidence regarding the genuineness of the Will. Where it is established that a part who should have been given notice had not been given such a notice thereby depriving him of the opportunity to file a caveat, it is not the law that the court must, as a rule, nevertheless permit the respondent in the revocation proceedings to prove the genuineness of the Will in the same proceedings. 19. As observed by the Supreme Court, in a normal case the Rule is to revoke the grant of probate, once it is established that the notice required to be given to a party had to been given. As to whether the court dealing with the revocation application should permit the propounder of the Will to establish the genuineness of the Will in the same proceedings is a matter of judicial discretion having regard to all the circumstances in the case. 20. In this case we do not find any compelling circumstance to direct the trial court to permit the propounder to the Will to establish its genuineness in the revocation proceedings. 21. Learned counsel for the appellants submitted that many of the observations made by the trial Judge were not really warranted, as the propounder cannot really be accused of having deliberately misled the court. It was pointed out that the will itself was annexed to the application. In the Will, the family of the testator had been set out in great detail and that the propounder therefore could not be accused of having suppressed the details regarding the particulars of the family of the testator. It was pointed out that the will itself was annexed to the application. In the Will, the family of the testator had been set out in great detail and that the propounder therefore could not be accused of having suppressed the details regarding the particulars of the family of the testator. The omission to implied some of the next of kin, it was submitted, was due to an omission, in as much as the unamended from 55, was followed and that it was not deliberate. Though we cannot approve of the conduct of the appellant in not having impleaded two of his brothers and his four sisters, we nevertheless do not consider that the findings of deliberate concealment and suppression, recorded by the trial Judge, were warranted. We, therefore, set aside all findings of suppression and concealment recorded by the learned trial Judge against the propounder of the Will, Subramanian. 22. Sofar as the question of knowledge of the contents of the Will on the part of Rajagopalan is concerned, it is pointed out f or the appellants that even though Ramamoorthy had stated that he had not talked to Rajagopal, the sisters had filed affidavits wherein it had been stated that there had been discussions concerning the Will and that Rajagopalan was aware of the same. The Trial Court, it was submitted, had failed to consider the affidavits. It is not necessary for us to go into that question now, as the revocation is required to be sustained on the short ground that the brothers and sisters who should have been impleaded had not been impleaded. We, therefore, set aside the findings recorded by the learned trial Judge with regard to the knowledge or lack of it on the part of the applicant Rajagopalan regarding the existence and contents of the Will. 23. In the result, we allow the appeals in part. The finding of suppression and deliberate concealment made against Subramanian in the impugned order as also the findings regarding the lack of knowledge of the existence of the Will on the part of Rajagopalan. We however, make it clear that we are not recording a finding that he had such knowledge. The probate that had been granted of all stand revoked on the ground that the proceedings to obtain grant were defective in substance. 24. We however, make it clear that we are not recording a finding that he had such knowledge. The probate that had been granted of all stand revoked on the ground that the proceedings to obtain grant were defective in substance. 24. As it is clear that one of the brothers has taken the stand that the signature of the testator on the Will is to be verified, and that the Will, if true, is the result of coercion and undue influence, we dispense with the requirement regarding the filing of caveat and direct that the application for probate be registered as a testementary original suit to which all the children of testator shall be made parties. All of them shall be served with notice of the suit. We grant liberty to all parties to that suit to file their pleadings in support of their respective cases, before the trial court.