The court ruled that failure to disclose necessary parties with caveatable interest justifies revocation of probate under Section 263 of the Indian Succession Act.

JUDGMENT :

This miscellaneous first appeal is filed challenging the order passed by the Trial Court in Misc. Case No.25/2016 dated 15.12.2017 wherein the Trial Court allowed the petition filed under Section 263 of the Indian Succession Act and the probate granted in favour of the respondent in P&Sc No.6/2014 dated 06.06.2015 is revoked and permitted the petitioners to contest the said petition.

2. Heard the learned counsel appearing for the respective parties.

3. The factual matrix of the case of the appellant/petitioner in P&Sc No.6/2014 is that Mulky Annappayya had executed a Will in favour of the appellant on 10.07.1990 and he died on 07.09.1999 and consequent upon the Will, M.R.No.74/1999-2000 was effected and name of the legatee Manohar S Moodabidri was entered in the Records of Rights. The executant of the Will also having two sisters by name Rajivibai and Sundaribai and both of them were died on 04.02.1999 and 04.06.2000 respectively. The said Rajivibai pre-deceased by the executant and the other sister Sundaribai died subsequent to the death of Mulky Annappayya. The mother of respondent Nos.1 and 4 – Smt. Prafulla S Rao, who is the daughter of Rajivibai, also died on 02.07.2014. A notice was sent to respondent Nos.1 to 4 by Manohar S Moodabidri stating that Mulky Annappayya executed a Will and in the said Will, a condition was made that heirs of late Sridhar Rao and Smt. Prafulla S Rao shall be provided with an alternative dwelling house and respondents sent a reply dated 19.09.2014 denying the contentions of the notice.

4. It is contended that probate was granted in favour of the appellant in P&Sc No.6/2014 on 06.06.2015. The respondents have filed the appeal before the Assistant Commissioner challenging the M.R.No.74/1999-2000 and the same was dismissed and thereafter, respondent Nos.1 to 4 have filed Misc.No.25/2016 under Section 263 of the Indian Succession Act praying for revocation of the letter of administration granted in P&Sc No.6/2014 on 06.06.2015 and the said Misc. Case No.25/2016 was filed on 01.04.2016 in pursuance of P&Sc No.6/2014 and probate granted was revoked. Hence, the present appeal is filed before this Court. In Misc. No.25/2016, respondent Nos.1 to 4 herein have contended that they are the children of late Smt.Prafulla S Rao and Sridhar Rao. The said Prafulla S Rao is the niece of late Mulky Annappayya. The Mulky Annappayya was a bachelor and he was a businessman in Mumbai and further contended that they are the legal heirs of Mulky Annappayya and the appellant is only a distinct relative and set out a ground that the respondents have received a notice and given a reply. It is further contended that Manohar S Moodabidri also filed a suit in O.S.No.433/2015 seeking for the relief of mandatory injunction to hand over possession of the property based on the alleged Will dated 10.07.1990. The respondents herein contended that the said Will is not valid and also not proved and same is not binding and even said Will is not executed voluntarily since the executant was not having sound state of mind and disputed the Will and probate proceedings. It is also further contended that they should have been impleaded as parties to the proceedings of the probate if they are interested and necessary parties. Hence, prayed the Court to set aside the probate and succession certificate granted in P&Sc No.6/2014 and prayed the Court to revoke the same.

5. The counsel for the appellant appeared and filed the objections denying the relationship with the respondents. It is contended that the mother of the respondents when she was alive was aware the factum of the execution of the Will executed by Mulky Annappayya. It is also contended that the name of the legatee came to be mutated based on the Will as per the order of Tahsildar in M.R.No.74/1999-2000. It is also contended that when the said mutation was challenged, the said application was dismissed by the Assistant Commissioner. It is also contended that other sister Sund