Back
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. SANDESH, J.
Mrs. Eulalia Sequeira Nee Menezes – Appellant
Versus
Cyril Anthony Menezes – Respondent
M.F.A. NO.12112 of 2007 (ISA)
Decided on : 08-09-2023
Indian Succession Act - Section 263, Section 283 - The court considered the provisions of the Indian Succession Act, particularly Section 263 and Section 283, in relation to the arguments made by the appellant and the respondents. The court found that there was no proper service of notice and that the citation of the probate proceedings was not published in a newspaper with proper circulation. The court also found that the appellant's petition was not barred by limitation. These findings influenced the court's decision to set aside the order granting probate and restore the probate proceedings for further consideration.
Fact of the Case:
The appellant filed a miscellaneous first appeal challenging the order passed by the District Judge granting probate. The appellant argued that the order was erroneous, contrary to law, and suffered from legal and factual infirmities. The appellant claimed that there was no proper service of notice and that the citation of the probate proceedings was not published in a newspaper with proper circulation. The appellant also contended that the court below erred in holding that the petition suffered from laches. The respondents argued that notice was served personally and that the appellant had knowledge of the proceedings. They also claimed that the appellant's petition was barred by limitation. The court considered the evidence and arguments presented and concluded that there was no proper service of notice and that the citation was not published in a newspaper with proper circulation. The court also found that the appellant's petition was not barred by limitation. Therefore, the court set aside the order granting probate and restored the probate proceedings for further consideration.
Finding of the Court:
The court analyzed the evidence and arguments presented by both parties. It found that there was no proper service of notice and that the citation of the probate proceedings was not published in a newspaper with proper circulation. The court also found that the appellant's petition was not barred by limitation. Based on these findings, the court set aside the order granting probate and restored the probate proceedings for further consideration.
Ratio Decidendi: The court held that there was no proper service of notice and that the citation of the probate proceedings was not published in a newspaper with proper circulation. The court also held that the appellant's petition was not barred by limitation. Therefore, the court set aside the order granting probate and restored the probate proceedings for further consideration.
Result: The appeal was allowed. The order granting probate was set aside and the probate proceedings were restored for further consideration. The parties were directed to appear before the District Court without expecting any notice. The Trial Court was directed to dispose of the matter within six months from the specified date. The records were to be sent to the Trial Court to enable it to take up the matter.
JUDGMENT :
Heard the learned counsel for appellant and learned counsel for respondents
2. This miscellaneous first appeal is filed under Section 289 of Indian Succession Act challenging the impugned order passed in Misc.case.No.16/1998 and prayed the Court to set aside the order dated 13.08.2007 passed by the Prl. District Judge, Dakshina Kannada, Mangalore and consequently allow the petition filed by the appellant under Section 263 of Indian Succession Act and grant such other relief as deem fit in the interest of justice and equity.
3. The grounds urged in the present appeal is that the very impugned order is erroneous, contrary to law and suffers from legal and factual infirmities. The Court below fails to appreciate the evidence and material on record in its proper perspective. The findings of the Court below are opposed to weight of evidence and probabilities of the case. The Court below seriously erred in coming to the conclusion that the appellant has been served notice personally in P and SC No.38/1983. The said finding is without any evidence. There is no documentary evidence on record to show the personal service of notice, neither the copy of the said notice nor the acknowledgment has been produced before the Court. The drawing of inference of personal service of notice on the basis of the entry in the order sheet is improper and unsustainable in law. It is also contended that the RW1 in his cross examination has admitted that there are no records to show the service of notice in P and SC proceedings. Hence, the impugned order is illegal and liable to be set aside.
4. The counsel also vehemently contend that citation of the probate proceedings was taken out in a newspaper which is not at all having proper circulation. It is admitted by the witness RW1 that the newspaper in which the citation was taken out will be circulated only among the subscribers to the same. Therefore, it cannot be held that the requirement of law has been complied.
5. It is also contended that the Court below seriously erred in holding that the petition filed by the appellant suffers from latches even though the same is within the period of limitation. When the petition for revocation of probate was filed within the limitation period, the question of delay or latches will not arise for consideration at all. The said findings of the Court below is opposed to law and liable to be set aside.
6. The counsel also would vehemently contend that the Court below failed to note that the witness RW1 is not at all competent to depose about the facts of the case. Since, the said witness is only a power of attorney holder. The counsel also vehemently contend that the RW1 in his cross examination it has been admitted by him that only after becoming the power of attorney holder for 4th respondent he came to know about the proceedings. The said power of attorney is of the year 1996. Hence, the evidence of RW1 could not have been relied upon.
7. The counsel also would vehemently contend that the respondents have obtained the probate by suppression of material facts and the executant of the Will was not in a position to execute any Will before his death and as on the date of alleged execution of Will he was 84 years old and he was not in physically fit condition. The Counsel also vehemently contend that the appellant was looking after the Testator being the youngest daughter of him and none other children of the Selvadore Menezes looked after him or lived with him and her father was not having any capacity to execute the Will during the year 1973 or anytime subsequent to the period of 1971 to 1972 and probate was obtained fraudulently by concealing the material facts.
8. The counsel in his argument vehemently contend that when there was not a proper service and not followed the mandatory provision in making citation and obtained the probate fraudulently, hence, the impugned order requires to be set aside and matter has to be considered restoring the probate proceedings
The main legal point established in this judgment is that proper service of notice and publication of citation in a newspaper with proper circulation are essential requirements for probate proceeding....
The court emphasized that judicial discretion is crucial in probate revocations, where citation omissions do not automatically justify revocation without substantial proof or timely actions from the ....
The court ruled that failure to disclose necessary parties with caveatable interest justifies revocation of probate under Section 263 of the Indian Succession Act.
(1) Revocation of Probate of Will – Grant of probate is a judgment in rem – If a party has caveatable interest in estate of deceased, it is entitled to be served before final order is passed.(2) Tran....
(1) Revocation of Probate – Limitations starts from date of grant of probate and not from date of knowledge about probate proceedings.(2) Probate Court is a court of conscience – Approach of a probat....
The explanations under Section 263 of the Indian Succession Act, 1925 are illustrative, allowing for revocation of probate based on just causes not explicitly listed.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
