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High Court of Judicature at Madras
MISHRA & S.M. ALI MOHAMED
R. Thangarajan
Versus
R. Balasubramanian & Others
O.S.A. No. 47 of 1993
Decided On :Decided on: 27-09-1993
REVOCATION OF PROBATE - JUST CAUSE - NON-CITATION OF INTERESTED PARTIES - EFFECT - DISCRETION OF COURT - BURDEN OF PROOF - LAPSE IN AFFIDAVIT OF ATTESTING WITNESS - KNOWLEDGE OF PROCEEDINGS - DELAY IN SEEKING REVOCATION - FACTORS TO BE CONSIDERED.
Fact of the Case:
The appellant, as the executor of the will of his deceased uncle, Dhanushkodi Nadar, obtained probate of the will in common form without citing the respondents, who were the sons of Dhanushkodi Nadar's brother. The respondents subsequently filed an application for revocation of the probate, alleging that the will was not genuine and that they were not cited in the probate proceedings. The single judge revoked the probate, holding that the grant of probate without citing the respondents was a just cause for revocation.
Finding of the Court:
The court held that the non-citation of the respondents in the probate proceedings was not a just cause for revocation of the probate, as they had not shown that they were required to be cited. However, the court found that the respondents had created doubts as to the bona fides of the application for probate, particularly with regard to the discrepancy in the affidavit of the attesting witness about the place where the will was executed. The court also noted that the respondents had not raised any objection to the probate proceedings until after several years and after the death of their father.
Issues: 1. Whether the non-citation of the respondents in the probate proceedings was a just cause for revocation of the probate. 2. Whether the respondents had shown that they were required to be cited in the probate proceedings. 3. Whether the respondents had created doubts as to the bona fides of the application for probate. 4. Whether the respondents had knowledge of the probate proceedings and the delay in seeking revocation was a cause to deny them their interstate interest in the properties of the deceased.
Ratio Decidendi: 1. The court held that the non-citation of the respondents in the probate proceedings was not a just cause for revocation of the probate, as they had not shown that they were required to be cited. The court noted that the respondents had not been cited because their father, who was the only person entitled to the inheritance on the death of Dhanushkodi Nadar, was alive at the time of the probate proceedings. 2. The court found that the respondents had not shown that they were required to be cited in the probate proceedings, as they had no independent capacity or right to succeed to the properties of the deceased Dhanushkodi Nadar. 3. The court found that the respondents had created doubts as to the bona fides of the application for probate, particularly with regard to the discrepancy in the affidavit of the attesting witness about the place where the will was executed. The court noted that this lapse may have been a mistake, but it was possible that it was a deliberate attempt to mislead the court. 4. The court noted that the respondents had not raised any objection to the probate proceedings until after several years and after the death of their father. The court held that it was improper to order revocation of the probate at this stage, as it would disturb the status quo which had existed for several years.
Final Decision: The court upheld the single judge's order treating the proceedings as contentious and directed the parties to proceed in the trial court to prove or disprove the will. The court also ordered that the appellant continue to hold the properties under the will and the probate will be valid for all purposes subject to the order that may be passed in the proceeding after being re-numbered as a suit.
MISHRA, J.
1. By the impugned order in Application No. 3671 of 1991 dated 5.1.1993 a learned single judge of this court has revoked the probate of the will of one P.P.M. Dhanushkodi Nadar (deceased who died on 23.12.1983), in favour of the appellant herein at the instance of his three brothers and a sister.
2. It is not in dispute that the deceased Dhanushkkodi Nadar is the uncle of the appellant as well as the applicants-respondents, who died issueless, his close heir being the father of the appellant and the respondents. According to the appellant, Dhanushkodi Nadar left behind a will appointing him as his executor. He accordingly filed a petition along with the affidavit of one of the attesting witnesses, to probate the Will in the common form. On 22.11.1985 a learned single Judge of this Court recorded a s follows:—
“The deceased has left behind a Will appointing the petitioner as his executor. The testator died as a bachelor and his parents had predeceased him. The affidavit of the attesting witness has been filed and the Will is proved in the common form. All the formalities are complied with. Issue probate”
3. It is common case that Dhanushkodi Nadar, before his death, was having business with his brother, that is to say, P.P.N. Rathina Nadar, the deceased father of the parties. The latter survived his brother Dhanushkodi Nadar and brought in accordance with the Will and wish of his deceased brother, changes in the constitution of the partnership by bringing in the appellant and his three brothers Balasubramanian, Manoharan and Rajendra Bose as partners of equal shares besides himself who was a partner along with his deceased brother Dhanushkodi Nadar. In the application for revocation, however, the applicants-respondents have alleged that Dhanushkodi Nadar was admitted in a private nursing home and his condition was not at all good, when, it is said, he created the document, that is to say, on 23.12.1983. He died in the hospital, according to the respondents, intestate leaving behind him his brother Rathina Nadar and his sons who are the appellant and the respondents herein. On 24.12.1983 the appellant wanted the respondents to sign a document and the respondents signed the said document because when they asked him what was the urgency, he said that the auditor had asked him to get the signature of his brothers and the father, in the document dt. 24.12.1983 as there could be no interval of time between the dissolution on the death of Dhanushkodi Nadar and the re-constitution of the firm and further that he did not given any time to them to go through the document, though he promised to give copy of the document to all of them. Their father died on 2.6.1990 at Virudhunagar. According to the applicants-respondents, the appellant did not turn up on the pretext that he had business commitments at Madras. After, however, funeral ceremonies of their father on 3.6.1990, one of them requested his mother, brothers and sisters to sit together for partitioning the properties of their father including that of the uncle, (which devolved on their father, according to them), the appellant however, told him to wait for a month. Sometime later in or about February, 1990 the first applicant respondent came to Madras to meet the appellant. But, the appellant refused to meet him. The first applicant-respondent then got a lawyers notice issued to the appellant as well as other brothers calling upon them to partition the properties mentioned in the notice. That was replied to by the counsel who informed only on 10.5.1991 that Dhanushkodi Nadar had left behind him a Will appointing the appellant as the executor.
4. According to the respondents, Dhanushkodi Nadar had not executed any Will and in any event he was not in a sound disposing state of mind at least for two weeks prior to his death. The Will, according to them, was created to deprive them of their share in the properties of the deceased Dhanushkodi Nidar. Their further case
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