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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE LAKSHMANAN
S. Govindaraj & Another
Versus
K.R. Ramamani & Another
A.P. No. 2474 of 1991 in O.P. No. 482 of 1990
Decided On :Decided on : 28-06-1991
REVOCATION OF PROBATE - INDIAN SUCCESSION ACT, 1925 - SECTION 263 - JUST CAUSE - INTERPRETATION - CIRCUMSTANCES NOT EXHAUSTED BY EXPLANATION - COURT'S DISCRETION - GENUINENESS OF WILL - CONTESTED BY SON AND DAUGHTERS OF DECEASED - ALLEGATIONS OF UNDUE INFLUENCE AND FORGERY - APPLICATION FOR REVOCATION ALLOWED - PROBATE REVOKED - TRIAL ORDERED.
Fact of the Case:
The respondents, executors appointed under the will of Mrs. Vijaya Sadasivam, filed an original petition for grant of probate of the will and codicil in common form. The court granted probate on 8.3.1991. The applicants, son and daughters of the deceased, filed an application to revoke the probate, alleging that the will and codicil were not genuine and were obtained by force and undue influence. They claimed that their counsel failed to file the vakalath and caveat opposing the grant of probate due to misplacement of papers.
Finding of the Court:
The court held that the circumstances set out under Explanations A to E of Section 263 of the Indian Succession Act, 1925, do not exhaust the circumstances under which the court can revoke or annul a grant of probate or letters of administration. The court found that the allegations made by the applicants, if true, constituted a just cause for the annulment or revocation of probate.
Issues: 1. Whether the circumstances for revocation of probate are limited to those specified in the Explanation to Section 263 of the Indian Succession Act, 1925? 2. Whether the allegations made by the applicants constituted a just cause for the annulment or revocation of probate?
Ratio Decidendi: 1. The court held that the words 'just cause' in Section 263 of the Indian Succession Act, 1925, enjoin the necessity for the court to see if there are circumstances other than those categorized as A to E in the Explanation to the said Section requiring annulment or revocation. The court found that the circumstances set out under Explanations A to E of Section 263 of the Act do not exhaust the circumstances under which the court can revoke or annul a grant of probate or letters of administration. 2. The court found that the allegations made by the applicants, if true, constituted a just cause for the annulment or revocation of probate. The court noted that the applicants were the son and daughters of the deceased and that they had made serious allegations against the will and codicil, including that they were brought about at the instance of their father, their sister and her husband, who were ill-disposed towards them, and that the will and codicil had been filled up in a blank paper obtained from their mother.
Final Decision: The court allowed the application to revoke the probate granted on 8.3.1991. The original petition was converted into a Trial on Summary of Evidence and was ordered to be posted for trial after the formalities were over.
The respondents herein who are the executors appointed under the will of Mrs. Vijaya Sadasivam filed the above original petition under S. 222 and 276 of the Indian Succession Act, hereinafter referred to as the Act for grant of probate of the will and codicil in common form. On 8.3.1991, I passed the following order in the original petition
“The matter relates to the last will and testament of the late Mrs. Vijaya Sadasivam. The petitioners are the executors appointed under the will executed by the said testator. The testator died on 22.11.1989 at Madras. She executed a will dated 2S. 6.1987 at Madras in the presence of witnesses and she also executed a codicil on 18.7.1989 in the presence of witnesses. As stated above, under the will dated 25.6.1987, the petitioners have been appointed as executors. The first petitioner is a leading membe r of this Bar and the second petitioner is the son in law of the deceased; The deceased died leaving behind the following 1 to 4 as legal heirs:
1. S. Govindaraj, son, 2. S. Padmavathi, daughter, Mrs. Chitrakala Govindasami, daughter and 4. S.T. Sadasivam, husband.
S. Nos. 5 to 11 mentioned in para 7 of the petition are the beneficiaries under the will who are all grand sons and grand daughters of the deceased. The affidavits of two attesting witnesses for the will and codicil have been filed in regard to the proper execution and attestation of the will and codicil. The consent affidavits of S.T. Sadasivam and Mrs. Chitrakala Govindasami have been filed.
They have stated that they have no objection for the probate of the late Mrs. Vijaya Sadasivams will dated 25. 6.1987 and the codicil to the will dated 18.7.1989 being given in favour of the petitioners, the executors named in the will. The Will is proved in common form. All other formalities have been complied with. Issue probate in favour of the petitioners as prayed for to have effect throughout the whole of the Union of India O.P. is ordered.”
To revoke the probate granted by my order dated 8.3.1991, the applicant herein have filed the above application under Section 263 of the Act. According to petitioner her counsel was instructed to file the Vakalath and caveat and also the affidavit in support of the application opposing grant of probate of the will and codicil, that the same have not been filed by the attorneys by some mistake due to the misplacement of the papers, that they came know of the grant of probate only on 10.4.1991, that they were informed by their counsel that the papers were mixed up, that it was found on enquiries made by their counsel that the matter had been taken up by this Court and probate had been granted and that the affidavit and caveat filed by them were missing. According to the petitioners, the non-filing of the vakalath and caveat opposing grant of probate within the stipulated time was beyond their control and only bona fide and that the delay caused is neither wilful nor wanton, but due to the circumstances mentioned above.
2. It is stated in the affidavit that the will said to have been executed by their mother was not at all a genuine document and has been brought about at the instance of Chitrakala Govindasamy, who is their sister and her husband Brig. Chandar Govindaswami, who is one of the petitioners in the main original petition and also their father, S.T. Sadasivam. It is also stated that the petitioners have already issued a legal notice on 13.10.1990 through their Advocate, questioning the genuineness of the Will and Codicil and it has also been stated in the said notice which was received by the respondents herein on 16.10.1990 that the Will and the codicil have been obtained by force and undue influence much to the dislike of their mother Vijaya Sadasivam.
3. The above application was stoutly opposed by the respondents herein. A counter affidavit has been filed by Mr. K.R. Ramamani and Mr. Brig. Chander Govindasami, the petitioners in the main original petition. According to them, the pre
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