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High Court of Judicature at Madras
P.Veeruraghavan, for Appellant. K.P.Gopalakrishnan, for Respondent.
. - Appellant
Versus
. - Respondents
O.S.A.No.94 of 1983
Decided On : 28 June 1991
PROBATE - REVOCATION - JUST CAUSE - OMISSION TO CITE INTERESTED PARTY - EFFECT - INDIAN SUCCESSION ACT, 1925, SEC. 263 - INTERPRETATION.
Fact of the Case:
The respondent purchased 1/4th share in a property from the legal heirs of the deceased, Subbaraya Mudaliar. The appellant, who was one of the sons of Subbaraya Mudaliar, filed an application for grant of probate of a will allegedly executed by Subbaraya Mudaliar. The respondent was not cited as a person interested in the property in the probate application. The appellant obtained the probate ex parte. The respondent filed an application for revocation of the probate on the ground that he was not cited in the probate application and that he had purchased 1/4th share in the property from the legal heirs of Subbaraya Mudaliar.
Finding of the Court:
The court held that the omission to cite the respondent in the probate application was a just cause for revocation of the probate. The court found that the appellant knew about the sale deeds executed by the respondent's vendors and that he was a person who ought to have been cited before the probate was granted. The court also found that the respondent had no opportunity to enter caveat or appear before the court to oppose the grant of probate.
Issues: Whether the omission to cite the respondent in the probate application was a just cause for revocation of the probate.
Ratio Decidendi: The court held that the omission to cite the respondent in the probate application was a just cause for revocation of the probate because the respondent had an interest in the property and he was not given an opportunity to be heard before the probate was granted. The court relied on Section 263 of the Indian Succession Act, 1925, which provides that the grant of probate may be revoked for just cause. The court also relied on the Supreme Court decision in Anil Behari Ghosh v. Latika Bala Dassi, (1955) 2 M.L.J. (S.C.) 84, which held that the omission to issue citations to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant.
Final Decision: The court dismissed the appeal and upheld the order of the learned single judge revoking the grant of probate.
Mishra, J.:
A learned single Judge of this Court has allowed an application for revocation the probate in O.P.No.15 of 1982 granted in favour of the appellant. Hence the appeal Clause 15 of the Letters Patent of this Court.
2. One S.T.Subbaraya Mudaliar who died on 23rd August, 1978, executed a will with to his properties including a property at Mallan Pon-nappa Mudali Street, Triplicane city of Madras. This property, according to the respondent herein, belonged to one Mudaliar who had four sons, Manicka Mudaliar, Thanga-velu Mudaliar, Kuppuswamy Mudaliar, Kamatchi Mudaliar. Manicka Mudaliar died leaving behind his only son Loganatha Mudaliar. Thangavelu Mudaliar died leaving behind Doraisami Mudaliar. Kuppuswami Mudaliar died leaving the respondent herein and Kamatchi Mudaliar died without any.
3. Loganatha Mudaliar died leaving his only son Arumugha Mudaliar. Arumugha filed a suit for partition of his share in the joint family property. It had so happened that the property in Triplicane had been purchased by Subbaraya Mudaliar in Court Arumugha attacked the court auction purchase and obtained a preliminary decree aside the court auction sale and directing Subbaraya Mudaliar to pay a sum of Rs.3,092. was alleged that Subbaraya Mudaliar paid the amount. He however died leaving his sons and six daughters, one daughter pre-deceasing him. Subbaraya Mudaliar possession of the property in May, 1981. The respondent herein, it is claimed, purchased 1/8th share in the property from one of the daughters of Subbaraya Mudaliar, Raieswari, for a consideration of Rs.4,000 and another l/8th share for a consideration Rs.3,000 from the legal heirs of Indirani. He filed a suit in O.S.No.906 of 1980 on the City Civil Court, Madras, for partition and separate possession of 1/4th share property. He however came to know in the said proceeding that a will was probated 18.2.1982. Alleging that the appellant herein was well aware of the fact that respondent) had purchased 1/4th share in the property and that he was deliberately cited as one of the persons interested in the property by the appellant herein application for grant of probate the respondent herein moved the court for revocation probate.
4. In this application, the respondent stated that Rajeswari, daughter of Subbaraya and the husband of Indirani for himself and on behalf of his minor son transferred Rajeswari ’ s l/8th share in the property bearing door No.75, Mallan Ponnappa Mudali for a consideration of Rs.4,000 on 7.12.1979 and Indirani’s 1/8th share in the property 21.12.1979 for a sum of Rs.3,000. He thereafter filed the suit in O.S.No.906 of 1980 file of the IX Assistant Judge, City Civil Court, Madras, for partition and separate possession. He impleaded all the heirs of Subbaraya Mudaliar as defendants. They took the defence their father had executed a will and that application for grant of probate had already filed by the appellant herein. It is then stated in the petition:
“The said suit came upon list for trial on 16.12.1982 and the examination of the appli-cant was over on 17.12.1982. is only on that day, suddenly without notice a probated will was sought to be marked suit. It is only at that time I came to know that a will in respect of the premises Mallan Ponnappa Mudali Street was probated by this Hon’ble Court ex parte in the O.P. on 13.2.1982”
...It is noteworthy to mention here that the heirs of the late Subbaraya Mudaliar who derive benefit from the alleged will said to have been executed Subbaraya Mudaliar have not whispered even in all proceedings regarding the probate will....The very same counsel who is conducting case for the heirs of Subbaraya Mudaliar the counsel who filed the above O.P. for probate and who is aware of that I have purchased the substantial portion of the property covered in the alleged will said to have executed. The petitioner Ponnuswamy Mudaliar and also the heirs of the late Subbaraya Mudaliar are all quite alive to the fact that I
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