Asher Reuben Samson and others vs Zillah Solomon and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1990 Supreme(Bom) 183

IN THE HIGH COURT OF BOMBAY
A.A. Cazi, J.
Asher Reuben Samson and others .... Petitioners.
Versus
Zillah Solomon and others .... Respondents.
Miscellaneous Petition No. 1 of 1990, decided on 24-4-1990.
Advocates appeared :
M.J. Humranwala, for the petitioners.
A.A. Sayed with A. Sayed, for respondents Nos. 1 and 5.
C.S. Sargute, for respondent No. 2.
A.N. Mody with Mrs. O.S. Pereira, for respondent No. 3.
R. Raymond, for respondent No. 4.
A.P. Talathi, for respondent No. 6.

Headnote:258 YEARLY MAHARASHTRA LAW DIGEST, 1991
       Section 63-Will-Proving of-Contention-Court in its finding not referred to material on basis of which it held the will as proved-Whether order of Court to be upset and there was non-application of mind as part of Court.
       Where there is sufficient material before the Court for arriving at a particular finding any order passed by the Court which would be sound on the basis of that finding cannot be upset merely because the Court has not expressly referred to that material as to its finding as being based on that material and no inference of non-application of mind by the Court passing that order can be drawn.
       Sections 280, 281 & 283-Grant of rebate or letter of Administration Proving of.
       Held-Sections 275 to 283 of the Indian Succession Act provided special rules for evidence in the matter of grant of rebate or letters of administration and would have to be followed irrespective of there was a conflict between these provisions and the Evidence Act which is a General Act.
       Section 263-Annolmeot of Letters of administration-Letters of administration granted by Court-Allegation of non-application of mind by Court-Held, any order of Court being found sound on basis of it finding can not be set aside on ground that Court bad not referred to material found sufficient.
       Petitioner urged that even if affidavit of an attesting witness is sufficient to prove a Will, in the present case the Court has not held the Will as proved on the basis of the affidavit, and in fact the Court has not applied its mind to this aspect and has passed an order on the basis of the consent terms without giving a finding that the Will was proved.
       Where there is sufficient material before the Court for arriving at a particular finding any order passed by the Court which would be sound on the basis of that finding cannot be upset merely because the Court has not expressly referred to that material as to its finding as being based on that material and no inference of non-application of mind by the Court passing that order can be drawn.
       Sections 275 to 283-Evidence Act, 1872, Section 68-Graot of probate or letters of administration-Proof of Will-Conflict between provisions of Act and Evidence Act-Held, Irrespective of such conflict provision of Sections 275 to 283 have to be followed- will can be sufficiently proved by affidavit of attesting witness.
       Section 275 to 283 of the Indian Succession Act provided special rules for evidence in the matter of grant of probate or Letters of Administration and would have to be followed irrespective of whether there was a conflict between this and the Evidence Act which is a general Act.

JUDGMENT - A.A. CAZI, J.:---The petition is for--(a) setting aside ex-parte order of Suresh. J., dated 30th November, 1989 and revoking the Letters of Administration granted to respondents Nos. 1 and 2 pursuant to that order, (aa) revoking and cancelling the Letters of Administration with Will annexed and/or the decree and order of issue of grant in favour of respondents Nos. 1 and 2, (b) permanent injunction restraining respondents Nos. 1, 2 and 3 from acting on the strength of the said grant/order/decree, and (c) mandatory order directing respondents Nos. 1 and 2 render true and complete accounts of the estate of the deceased Rachel Hyams.

2. The facts giving rise to the present petition are as follows :

A. The matter concerns the estate of one Rachel Hyams who died on 15th October, 1978. Petitioner Nos. 1, 2, 3 and 4 (Asher, Elsie, Diana and Sophie) are brothers and sisters of the deceased. Petitioner No. 5 (Samson) is the nephew of the deceased, being the son of Rebecca a sister of the deceased. Respondent No. 1 (Zillah) is a neice of the deceased, being the daughter of Daisy, a sister of deceased. Respondent Nos. 2, 5 and 6 (Emmameul, Daisy and Jonathan) are brothers and sister of the deceased, respondent No. 5 being the same sister of which Zillah is the daughter. Respondent No. 4 (Gene) is a niece of the deceased being the daughter of Issac who was a brother of the deceased. It will be noticed that all the parties to this petition, except respondent No. 3, are either brothers or sisters or the children of the brothers and sisters of the deceased. It may be mentioned at this stage that Zillah, who is daughter of respondent No. 5, comes into the picture not as an heir of the deceased Rachel Hyams but as she was a legatee under the propounded Will dated 30th August, 1968 of Rachel Hyams and because she had applied for Letters of Administration with Will annexed by taking out Petition No. 648 of 1980 on 31st July, 1980.

B. On 31st July, 1980 Zillah, as stated above, filed Petition No. 648 of 1980 for Letters of Administration with Will annexed of the deceased. Citations were issued. The sufficienty or the legality of those citations is in dispute. Caveats were filed by Emmameul (respondent No. 2) and Issac, who has died and whose daughter is Gene (respondent No. 4). On 22nd December, 1981 the caveats were withdrawn and there was an order passed by Rele, J. The minutes of the order read as follows:

"Order in terms of the Consent terms signed by the plaintiff and defendant No. 1 and their Counsel are handed in marked "X".

C. On 7th September, 1989, the present petition was filed. At the time of filing of the present petition relief in terms of present prayer (a) had not been sought. At that time the present prayer (aa) stood as prayer (a). At that time Letters of Administration had not been issued. On 30th November, 1989, Suresh, J passed order which reads- " Service of citations who have appeared earlier in this matter is dispensed with. Office to proceed further." On 5th December, 1989 the Letters of Administration were issued. Thereafter the present petition was amended by adding the present prayer (a) and re numbering the then prayer (a) as present prayer (aa). It may be stated that, before the present petition was amended as stated above, the petitioners had taken out separate Notice of Motion wherein the relief as asked for in the present prayer (a) had been sought. There was an objection to the format for asking that relief by way of Notice of Motion and there was also an objection that the present petition itself was premature inasmuch as it had been filed before the grant of Letters of Administration. Both these objections stood waived as the petitioners carried out the amendments as stated above.

D. The grounds for seeking revocation of the Letters of Administration are enumerated in paragraph 18 of the petition and, shortly stated, they are as follows :

(a) Respondents Nos. 1 and 2 deliberately fai

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