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2021 DIGILAW 2833 (MAD)

V. Seethapathy v. Saraswathy

2021-10-20

V.PARTHIBAN

body2021
JUDGMENT : V. PARTHIBAN, J. Prayer: Original Petition No. 45 of 2018 filed under Sections 232 and 276 of the Indian Succession Act and under Order XXV Rule 5 of the Original Side Rules of this Court, for issuance of Letters of Administration with the Will annexed to the petition as one of the Legatees (Son) under the Will of the deceased R. Venkatachala Naicker, giving effect limited to the State of Tamil Nadu. Judge's Summons issued under Order XIV Rule 8 of the Original Side Rules of this Court read with Section 263 of the Indian Succession Act, and Application No. 2829 of 2021 (in O.P. No. 45 of 2018) filed praying to revoke the Letters of Administration order passed in O.P. No. 45 of 2018, dated 24.04.2019. Judge's Summons issued under Order XIV Rule 8 of the Original Side Rules of this Court, read with Section 151 of the Code of Civil Procedure (CPC) and A. No. 2830 of 2021 (in O.P. No. 45 of 2018), filed praying to grant an order of stay of all further proceedings in O.S. No. 482 of 2019 on the file of the III Additional District Court, Poonamallee, pending disposal of the application seeking for revocation of grant of Letters of Administration in this Court. 1. Original Petition No. 45 of 2018 was filed under Sections 232 and 276 of the Indian Succession Act and under Order XXV Rule 5 of the Original Side Rules of this Court, for issuance of Letters of Administration with the Will annexed to the petition as one of the Legatees (son) under the Will of the deceased R. Venkatachala Naicker, giving effect limited to the State of Tamil Nadu. This Court, by order dated 24.04.2019 granted Letters of Administration in favour of the petitioner/V. Seethapathy. 2. Now, A. No. 2829 of 2021 in O.P. No. 45 of 2018 is filed by the fifth respondent in the said O.P. (i.e. V. Anandan) to revoke the Letters of Administration granted by this Court on 24.04.2019 in favour of the said V. Seethapathy. 3. According to the applicant/V. Anandan, the Letters of Administration granted in respect of the last Will, dated 04.04.2006, was fabricated and created by the first respondent/V. Seethapathy in his favour with an ulterior motive to grab the properties in an unlawful manner. According to the applicant herein, the testator Mr. 3. According to the applicant/V. Anandan, the Letters of Administration granted in respect of the last Will, dated 04.04.2006, was fabricated and created by the first respondent/V. Seethapathy in his favour with an ulterior motive to grab the properties in an unlawful manner. According to the applicant herein, the testator Mr. R. Venkatachala Naicker had never executed any Will and during the lifetime of the testator, the applicant as well as the respondents herein had jointly enjoyed the properties. After the death of the said Venkatachala Naicker on 10.03.2008, there was no amicable settlement among the parties, which led to the filing of the partition suit in O.S. No. 71 of 2009 on the file of the Subordinate Court, Poonamallee (Thiruvallur District). Suppressing the pendency of the said partition suit, O.P. No. 45 of 2018 was filed before this Court and the Letters of Administration has been obtained by the first respondent herein. 4. According to the applicant, he received summons from this Court on 17.02.2018, and due to pre-occupation and illness, he could not appear before this Court and contest the said O.P. The applicant had come to know about the O.P. being disposed of finally by this Court on 24.04.2019. Relying upon the order dated 24.04.2019 passed in the said O.P. the first respondent-Seethapathy has filed the suit for declaration and recovery of possession in O.S. No. 482 of 2019 on the file of the III Additional District Court, Poonamallee. Hence, A. No. 2829 of 2021 in O.P. No. 45 of 2018 is filed to revoke the said grant of Letters of Administration in favour of the first respondent/V. Seethapathy. Further, A. No. 2830 of 2021 in O.P. No. 45 of 2018, is filed before this Court to stay all further proceedings in the said O.S. No. 482 of 2019. 5. The said applications are strongly resisted by the learned counsel for the first respondent, by filing counter affidavit, on the ground that the said applications are not maintainable for several reasons. At the outset, he submitted that in terms of Section 263 of the Indian Succession Act, the grant of Probate or Letters of Administration may be revoked or annulled for “just cause” being shown by the party. In the Explanation to the said Section 263 “just cause” has also been defined in the sub-clauses therein. At the outset, he submitted that in terms of Section 263 of the Indian Succession Act, the grant of Probate or Letters of Administration may be revoked or annulled for “just cause” being shown by the party. In the Explanation to the said Section 263 “just cause” has also been defined in the sub-clauses therein. For easy reference, Section 263 is extracted hereunder: “Section 263: Revocation or annulment for just case - The grant of probate or letters of administration may be revoked or annulled for just cause. Explanation: Just cause shall be deemed to exist where: (a) the proceedings to obtain the grant were defective in substance. (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case. (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently. (d) the grant has become useless and inoperative through circumstances. (e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.” 6. The learned counsel for the first respondent referred to the affidavit filed in support of the applications stating that the applicant has casually averred that due to his pre-occupation and illness, he could not appear before this Court, when summons had been received by him for hearing as early as on 17.02.2018. For more than two years, the applicant had kept quiet and without any sufficient or proper or “just cause” the present application has been filed, which deserves to be dismissed. 7. According to the learned counsel, there are several decisions in support of his contention that “just cause” means there ought to be special cause to be demonstrated and shown, while the application for revocation of Letters of Administration or Probate is to be considered and ordered. 7. According to the learned counsel, there are several decisions in support of his contention that “just cause” means there ought to be special cause to be demonstrated and shown, while the application for revocation of Letters of Administration or Probate is to be considered and ordered. The learned counsel for the first respondent factually submitted that as many as 15 persons were arrayed as respondents in the O.P. and when the notices sent to them, only some of them have entered appearance through counsel, but never filed any caveat or objection for the grant of Letters of Administration. 8. The learned counsel for the first respondent/petitioner in O.P. in support of his legal contentions, has referred to the following decisions with the relevant paragraphs which are extracted hereunder: (i) R. Sivagnanam vs. P.K. Sadananda Mudaliar, AIR 1978 Madras 265 : 1978 (91) LW 214 : “6......The grant of a probate may be revoked for a just cause. “Just cause” is explained in the body of the section itself. The various clauses which explain the expression “just cause” provide guide lines for the court, whose assistance is sought for revocation of a proper grant under the Act. As revocation of grant implies the effacement of the earlier valid judicial order of a court, not only there should be caution in acceding to such a request, but strict proof of the existence of one or other of the circumstances enumerated in the explanation to S.263 of the Indian Succession Act are necessary before the Court could acceded to such request.” (ii) G. Shanmugham Chetti and Another vs. Chinnammal, AIR 1978 Madras 304 : 1978 (91) LW 237 : “7......The discretion vested in the probate Court either to revoke or annul the earlier grant has to be judiciously exercised. It is not every nonconformity with procedural irregularities which were not made as an issue at the time of the grant nor such infirmities which do not shake the foundation of the grant that would ever be the cause for revocation or annulment of an earlier grant. The expression ‘just cause’ explained in S.263 of the Indian Succession Act is obviously illustrative and not exhaustive. There may be cases where a just cause for revocation or annulment is available, even though they may not strictly come within the framework of the illustrations given in explanation to S.263 of the Act. The expression ‘just cause’ explained in S.263 of the Indian Succession Act is obviously illustrative and not exhaustive. There may be cases where a just cause for revocation or annulment is available, even though they may not strictly come within the framework of the illustrations given in explanation to S.263 of the Act. A mere error in form and procedure but not in substance cannot vitiate an earlier grant. If in a given case fraud is alleged or a material concealment is suggested such fraud must not only be pleaded, but also be proved at least prima facie to enable the court to re-act and issue a direction by way of a citation to the primary grantees to lodge the original letters of administration in court. Vague suggestions about concealment which do not go into the root of the matter and which is not material in the cases, cannot also be considered as a just cause for revocation. In effect, therefore, there must be abundant material which is acceptable to a reasonable person to come to the conclusion that the court has been misled in making the original grant and that there was a deliberate design and a motive for the making of untrue allegations of facts which are essential in point of law...... 11. The allegations of fraud or the averment as to the so-called untrue allegations must be real and should not stand as bare imputations. This is a case in which a citation has been issued to the respondent. No factual material has been placed before us as to compel the exercise of our judicial discretion to revoke the grant, and we are not provoked to come to the conclusion that it is necessary to have the will proved afresh...... ............. Afortiorari therefore, if an opportunity to convert a petition into a contentious suit was given to the respondent and if the respondent, as is seen from her earlier conduct, did not pursue her challenge against the will, which she initiated in 1967, it cannot be said a citation issued to her without making her a party to the original proceedings, is sufficient for the revocation of the original grant. 13.....The respondent had the full opportunity of putting forward her just cause even at the time when she was served with the citation. She did not do so for reasons known to her. 13.....The respondent had the full opportunity of putting forward her just cause even at the time when she was served with the citation. She did not do so for reasons known to her. She cannot, therefore, be permitted to invoke the just and equitable rule in S.263 of the Indian Succession Act, and ask the Court to revoke the original grant. 14......No doubt, there is no inordinate delay in this case. But, the circumstance to be noted is that after citation and after publication which was both to her knowledge and within her knowledge, she did not enter caveat and challenge the grant. What she ought to have done she did not do. She cannot, therefore, in a circuitous manner and after having pretended to have inspected the records in March 1974 and obtained information about the grant of the Probate seek for revocation of the grant. We are unable to share the view that the conduct of the respondent in the earlier litigation is not sufficient in this case to hold that there is no just cause at all for such revocation. 17. Since the respondent should be deemed to have had full knowledge of the proceedings initiated by the appellants in court in O.P. No. 287 of 1973, and since she failed to take any effort, much less earnest effort to enter a caveat and as in the background of events she should be deemed to have avoided a contentious proceeding, since she could not substantiate it in her earlier litigation and since she failed to act at a time when she should have and for the reasons that there was no proof that there was a will dated 17th March, 1966 and for all the reasons abovestated, we allow this appeal and set aside the judgment of Mohan, J. who revoked the order for the issuance of the letters of administration made by Paul, J. on 14th February, 1974.” (iii) V.K. Nandagopal and Another vs. Smt. K. Gunabhooshanam and Others, 2002 (5) CTC 1 “18. .... This is a case where the applicants in my view, ought to have filed the caveat and received the copies of petitions as a matter of entitlement and contested the case. The question now boils down to whether we can say that the present proceedings taken for Letters of Administration are defective in substance. .... This is a case where the applicants in my view, ought to have filed the caveat and received the copies of petitions as a matter of entitlement and contested the case. The question now boils down to whether we can say that the present proceedings taken for Letters of Administration are defective in substance. 26......Even assuming that they had not received copies and the Counsel for the petitioners had not supplied them with copies, they could still have filed caveats after which they would have had opportunity to contest the claim by filing the necessary affidavits as required under Order 25, Rule 51 of the Original Side Rules. I do not think that there had been any defect in the proceedings. 32. Though the applicants had asked for copies of the petitions through counsel by letter dated 25.1.2001, they had not been furnished with copies. The letter by Counsel, however, does not say that their taking suitable steps for filing caveats in the petitions depended on their being furnished with copies. This is even conceding that copies of the petitions had not been sent to them along with Court notice. There, is absolutely no justifiable or acceptable reason given by them for not filing caveats and contesting the original petitions. 33......There is absolutely no doubt that the applicants had full knowledge of the proceedings initiated by them in Court and they had failed to make any effort to enter caveats and it must be deemed that they had avoided contention. 34....The emphasis in Section 263 is on the just cause and not mere default, if any, committed by the applicant at an earlier point of time unless the Court finds that having regard to the circumstances of the case, such default disentitled the applicant to establish the just cause in a proceeding under Section 263 of the Act. (iv) N. Sthirasundari vs. V. Kalyani, 2013 (1) CTC 646 : “4......Learned Single Judge declined to revoke the Probate holding that Appellants having lost their right to file an objection after being notified by the Court, cannot seek for revocation of the Probate and that too by allegations which are not germane to such proceedings. 15. As pointed out earlier, Appellants entered Caveat on 28.4.2006. 15. As pointed out earlier, Appellants entered Caveat on 28.4.2006. It is settled law that Caveator himself has to satisfy the Court that he has some interest in the estate of the deceased either by inheritance or otherwise. The entry of caveat is by itself does not render the proceedings contentious. When the Appellants have not filed the Affidavit in support of Caveat within the time stipulated or thereafter, it cannot be said that Court was not right in discharging the Caveat. The settlement talks do not in any way preclude the Appellants from filing an Affidavit in support of the Caveat. 18......Suffice to note that in spite of several opportunities, Appellants have not chosen to file an Affidavit in support of the Caveat and as such the learned Single Judge has rightly declined to revoke the Probate.” (v) R. Mohanambal and Others vs. M. Palani and Others, MANU/TN/1857/2020: “14........As held in G. Shanmugham Chetti and Another vs. Chinnammal, AIR 1978 Madras 304 : MANU/TN/0229/1978, Clauses (a) to (e) of the explanation to Section 263 are illustrative and not exhaustive. Nevertheless, the overarching consideration is that the Applicants should establish that there is a “just cause” to revoke the probate. Therefore, it has to be determined whether the Applicants have established “just cause.” The use of the expression “just cause” may be contrasted with the use of the expression “sufficient cause” in provisions such as Order IX Rule 13, CPC, which deals with the setting aside of an ex-parte decree. The same expression “sufficient cause” is also found in Section 5 of the Limitation Act, 1963. The use of the expression “sufficient cause” clearly indicates that the reasons or explanation offered by the applicant should be adequate to explain, as the case may be, the failure to attend the court proceedings or failure to perform the obligation of filing the appeal, etc. in time. To put it differently, the focus is on the applicant and the adequacy of the explanation for the earlier default. On the other hand, the use of the expression “just cause” shifts the emphasis from adequacy to justness of the reasons or cause cited in support of the application for revocation of probate. Consequently, on examining each illustration in the explanation to Section 263, it is evident that the focus is firmly on deficiencies of a substantive nature in the grant. Consequently, on examining each illustration in the explanation to Section 263, it is evident that the focus is firmly on deficiencies of a substantive nature in the grant. Although I am conscious that “sufficient cause” may qualify as “just cause” in certain cases, the two expressions are clearly not synonymous. Indeed, I am of the view that “just cause” is a higher standard or threshold than “sufficient cause” inasmuch as it becomes necessary for the Court to conclude that the interest of justice or fairness justifies revocation and it is not enough for the applicant in an application to revoke a grant in testamentary or intestate proceedings to cite adequate reasons for his/her failure to contest such proceedings earlier.....” 9. In the light of the above consistent rulings, the learned counsel for the first respondent contended that in the absence of any “just cause” being shown in the affidavit filed in support of the revocation application, the application deserves to be dismissed. 10. The learned counsel for the applicant/fifth respondent in the O.P. apart from reiterating the above facts, submitted that the first respondent/petitioner in O.P. suppressed the fact of pendency of the partition suit filed before the Subordinate Judge, Poonamallee among the parties and that is the “just cause” for revocation of the Letters of Administration. 11. The learned counsel for the applicant further submitted that the O.P. itself is not maintainable, as no cause of action has arisen within the jurisdiction of this Court. According to him, all the parties are located outside the jurisdiction of this Court. 12. The learned counsel for the applicant also raised an issue of approaching this Court for grant of Letters of Administration after delay of several years when after the alleged execution of the Will is dated 04.04.2006. At this, the learned counsel for the first respondent/petitioner in O.P. submitted that the Will was executed and registered on the file of the Sub-Registrar, Ashok Nagar, Chennai, which is well within the jurisdiction of this Court. 13. As far as the delay is concerned, the reason for the delay had been stated as required under the Original Side Rules of this Court and this Court has accepted the same as sufficient cause before granting Letters of Administration. Therefore, it is not open to the applicant herein to re-open the same at his own convenience at this distance of time. 14. Therefore, it is not open to the applicant herein to re-open the same at his own convenience at this distance of time. 14. Heard the learned counsel for the parties, perused the pleadings, materials placed on record and the case laws cited. 15. From the facts as disclosed, it is seen that the notice was served on the applicant herein in the O.P. on 17.02.2018 through Court. Thereafter, the O.P. was pending for more than a year and finally, it was ordered only on 24.04.2019. All parties were arrayed as parties in the O.P. and no objections were recorded at all during the pendency of the O.P. proceedings from any of the parties. As rightly contended by the learned counsel for the first respondent, some of them were represented by counsel, but no objections were raised against the grant of Letters of Administration. Therefore, this Court has rightly granted Letters of Administration and ordered the O.P. in favour of the first respondent herein. 16. The learned counsel for the first respondent has relied on several decisions of Courts and the relevant paragraphs have been extracted supra. In all the decisions, the Courts have consistently held that the “just cause” has to be shown in terms of Section 263 of the Indian Succession Act. Particularly, in the decision reported in R. Mohanambal and Others vs. M. Palani and Others, MANU/TN/1857/2020 the Court has held that the expression “just cause” is a higher standard or threshold than “sufficient cause.” 17. Further, in order to accept that a particular reason is to qualify as “just cause” something more than sufficient reason needs to be stated for the Court to invoke its power towards revocation of grant of probate or Letters of Administration. 18. In the above legal back-drop, the averments made in the affidavit filed in support of the present application need to be referred to. 19. 18. In the above legal back-drop, the averments made in the affidavit filed in support of the present application need to be referred to. 19. As rightly contended by the learned counsel for the first respondent/petitioner in O.P. the applicant has insincerely and perfunctorily stated in paragraph 6 of the affidavit that due to pre-occupation and illness, he could not appear before this Court and contest the O.P. When the statute mandates for revocation of Probate or Letters of Administration, the party praying for revocation has to demonstrate “just cause” for not appearing and contesting the O.P. the reasons in the affidavit must be so inspiring and credible prompting the Court to intervene. But in the case on hand, mere expression of “pre-occupation and illness” is downright fatuous and inane, divorced from any semblance of seriousness while seeking to revoke the grant of Letters of Administration. 20. No doubt, in all the decisions cited above, the Courts have repeatedly held, while interpreting Section 263 of the Indian Succession Act that in what circumstances the revocation could be ordered. In the face of the clear principles evolved in the various rulings of the Court extracted supra, the vacuous expression “pre-occupation” and “illness” does not even remotely qualify to be considered as “just cause” for ordering the present application seeking revocation of Letters of Administration. 21. The other reason of the pendency of the partition suit, does not advance the case of the applicant for revocation of grant of Letters of Administration, as it is always open to the applicant to work out his remedies in the pending partition suit in O.S. No. 71 of 2009 on the file of the Subordinate Court, Poonamallee, notwithstanding the grant of Letters of Administration. The other objections of the learned counsel for the applicant regarding the jurisdictional issue and the delay in approaching this Court, do not merit any serious consideration, as the same have been clearly answered on behalf of the first respondent/petitioner in O.P. 22. On the whole, this Court is of the view that Application No. 2829 of 2021 filed for revocation of the Letters of Administration, is completely devoid of merits and the same is accordingly dismissed. 23. On the whole, this Court is of the view that Application No. 2829 of 2021 filed for revocation of the Letters of Administration, is completely devoid of merits and the same is accordingly dismissed. 23. In view of the dismissal of A. No. 2829 of 2021 as above, the application (in A. No. 2830 of 2021) seeking stay of the suit in O.S. No. 482 of 2019, shall stand closed. 24. No costs.