2017 Supreme(SC) 1155

SUPREME COURT OF INDIA
Arun Mishra, Mohan M. Shantanagoudar, JJ.
Mrs. Lynette Fernandes – Appellant
Versus
Mrs. Gertie Mathias since Deceased by Lrs. – Respondents
Civil Appeal No. 2933 of 2010
Decided On : 08-11-2017

IMPORTANT POINTS
Grant of probate can be revoked on ‘just cause’, for example substantial defect in proceedings or fraud in execution of the Will.
English right of ‘common form’ of grant of probate is not available in India. Probate is granted in solemn form only.
Revocation of grant of probate can be sought within three years. Grant of probate being a judgment in rem the limitation starts from the date of probate. If the appellant was a minor at the time of grant of probate, as instantly, limitation of three years will start from the date of his/her attaining majority.

Headnote:(a) Indian Succession Act – Section 263 – Property at Chikmaglur – Owner residing at Mangalore – Executing the Will at Mangalore – Sole beneficiary and entire family including appellant and her two sisters all minors residing at Mangalore – Citation for probate published at Mangalore – Appellant challenging probate of Will after 36 years citing non-publication of citation at Chikmaglur as substantial defect – Even if citation was published at Chikmaglur, appellant was not to benefit as she was living at Mangalore – Held, such non-publication not a substantial defect – Appellant’s sisters opposing her throughout – Held there is no just cause to revoke the probate. (Para 6)

       AIR 1955 SC 566 – Relied upon

       AIR 1947 Patna 434; AIR 1915 Calcutta 393 – Distinguished

       (b) Indian Succession Act – Section 263 – Challenge to probate on ground that it was issued in ‘common form’ and not ‘solemn form’ – English right of ‘common form’ not available in India – Probate granted in favour of the beneficiary after publishing Citation and after due application of mind by the Court – Hence it was solemn form only – Question raised on distinction between common form and solemn form is academic. (Para 9)

       AIR 1958 Cal 377 – Cited with approval

       (c) Indian Succession Act – Section 263 – Appellant challenging probate of the will alleging fraud – Not adducing any evidence – Not tenable. (Para 10)

       (d) Indian Succession Act – Section 263 – Appellant seeking revocation of probate after 36 years as against three years under Article 137, Limitation Act, 1963 – Held petition time barred. (Para 12)

       AIR 1977 SC 282; (2009) 11 SCC 537; (2008) 8 SCC 463 – Relied upon

       AIR 2005 Kar 136; AIR 1991 Mad 214 – Distinguished

       (e) Indian Succession Act – Section 263 r/w Article 137, Limitation Act, 1963 – Grant of probate a judgment in rem – Limitation starts from date of probate – Instantly, appellant attaining majority in 1965 – Limitation starts from date of her attaining majority, i.e., three years from 09.09.1965 – Seeking revocation of probate on 25.01.1996, after 31 years of attaining majority – Application rightly dismissed by courts below. (Para 13, 14)

       Facts of the case:

       Mrs. Lynette Fernandes (appellant) is one of the three daughters of Mr. Richard P. Mathias and Mrs. Gertie Mathias (original respondent). After the demise of Mrs. Gertie Mathias, her other two children were brought on record as respondents. Mr. Richard P. Mathias died at Mangalore on 05.11.1959, leaving behind a Will executed by him on 11.08.1959 bequeathing all his assets to his wife Mrs. Gertie Mathias. Mrs. Gertie Mathias (original respondent) filed an application for grant of probate which was granted to her by the Trial Court on 09.09.1960, in O.P. No. 26/1960. As on that date, all the three children of Mrs. Gertie Mathias were minors, and the appellant attained majority on 09.09.1965. She filed a suit for partition on 06.07.1995, claiming 1/4th share of the properties referred to in the Will of the deceased Mr. Richard P. Mathias. The same is said to be still pending. The appellant herein did not initiate any action either against her mother or against her other siblings in respect of the Will and the probate in question till the year 1996. The appellant filed P & SC No. 23 of 1996 under Section 263 of Indian Succession Act, before the District Court, Bangalore, seeking revocation of probate granted to Mrs. Mathias on 09.09.1960. It means that the appellant approached the jurisdictional Court for cancellation of probate after about 36 years from the date of grant of probate. The learned District Judge dismissed the application both on merits as well as on grounds of limitation. The High Court upheld the findings of the District Judge, and consequentially dismissed the appeal filed by the appellant herein.

       Finding of the Court:

       Courts below rightly dismissed application for revocation of probate.

       Result: Appeal dismissed.