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High Court Of Madhya Pradesh
N. C. Dwivedi and M. L. Malik, JJ.
YUVRANI TANK RAJESHWARI DEVI - Appellant
Versus
HARILAL - Respondents
Misc. (First) Appeal 79 Of 1972
Decided On : 11/15/1977
The probate proceedings are not invalid on the ground of absence of citations to the persons concerned because all the interested parties were before the Court, had knowledge of the probate proceedings and had put in contest therein. [Para 25
The absence of citations in a case in which they are ordered but did not issue does not by itself constitute just cause for revocation of probate. In cases where citations had not been ordered, the party impugning the will on the ground of his non-citation must first show that he ought to have been cited, before the burden of proof is shifted to the executor to show that the defect in the proceedings was not one of substance and that no just cause for revocation exists. [Para 28
Non-service of citation is not a defect of substance so as to reconstitute just cause under section 263 of the Succession Act where non-cited party has knowledge of probate proceedings or where he is not prejudically affected thereby. [Para 29
Section 263 contemplates a case for revocation based on the single ground that the will in respect of which the granting question was obtained was a forged one. In such a case, whether or not the will was a forged one would be the only question to be canvassed before the Court before the order of revocation could be made out. [Para 30
(2) Succession Act, 1925-S.263, explanation-nature of the provision-circumstances enumerated one exhaustive-revocation when may be refused even if any ground existed.
The enumeration of circumstances, in the explanation to section 263, which would make out a just cause under the section is exhaustive and not merely illustrative. An applicant for revocation must, in order to succeed, establish just cause within the meaning of section 263, that is, as laid down in clauses (a) to (e) thereof, but, even if just cause be established, revocation may still be refused by the Court in the exercise of its discretion under that section if the facts and circumstances of the particular case would warrant such refusal. [Para 31
(3) Court fees Act, 1870-Ss.19-H and 19-I-no objection raised about Court fees before the Court granted probate - objection cannot be raised for revoking the probate-Succession Act, 1925-S. 263.
The question of non-compliance with the provisions of section 19-H and 19-I of the Court fees Act was not raised by the petitioner in the previous proceedings for which there is no reasonable explanation. The question of Court fees is a matter between the State and the parties. The objection could not be raised in revocation proceedings under section 263 of the Succession Act. [Para 32
(4) Succession Act, 1925-proviso-jurisdiction - some property of the deceased outside the State-probate proceedings not invalid.
A District Court does not lose its jurisdiction to grant a probate merely because properties worth more than Rs. 10.000, belonging to the estate of the deceased are situate outside the State in which it exercises jurisdiction. [Para 33
( 1 ) THIS is an appeal by Smt. Yuvrani Tank Rajeshwari Devi, the petitioner against the decision of the District Judge, Bilaspur, in Misc. Judicial Case No. 2 of 1970 decided on 24th Dec. 1971 whereby her petition under Section 263 of the Indian Succession Act was dismissed.
( 2 ) LATE Raja Bahadur Leeladhar Singh was the ex-ruler of Sakti and left behind him his widow Smt. Indumati Devi respondent No. 2, Smt. Rajkumari Gyanda devi respondent No. 5 is the daughter of late Raja Bahadur Leeladhar Singh. Yuraj Jivendranath Bahadur Singh was the pre-deceased son of late Raja bahadur Leeladhar Singh. He left behind him his two sons. Surendra Nath bahadur Singh and Pushpendra Nath Bahadur Singh, respondents 3 and 4 respectively and the petitioner his widow.
( 3 ) RESPONDENT No. 1 had filed a petition in the Court of District Judge, Bilaspur for obtaining a probate in respect of a will executed by late Raja Bahadur leeladhar Singh. This was registered as Civil Suit No. 3-A of 1965. The grant of probate of the will was opposed by the petitioner and respondents 3 and 4. Respondent No. 3 Surendra Nath Bahadur Singh put in appearance through Shri godbole, Advocate of Bilaspur and withdrew from the contest. On this, the probate of the will of late Raja Bahadur Leeladhar Singh was granted in favour of respondent No. 1 Harilal.
( 4 ) THE petitioner's case is this : The petitioner and respondent No. 4 had put respondent No. 3 in charge of the proceedings in Civil Suit No. 3-A of 1965. In sept. 1966, respondent No. 3 informed the petitioner that respondent No. 1 with the consent of respondent No. 2 Rani Indumati Devi had dropped the probate proceedings and, therefore, there was no necessity for summoning the witnesses for examination. Respondents 2 and 3 looked after the election work for Legislative Assembly in which respondent No. 2 Rani Indumati Devi was a candidate. In the month of Dec. 1969, the petitioner learnt that the name of respondent No. 2 was mutated over the plot numbers given in Schedules A-1, a-2 and A-3 of the petition. She learnt that this was done in pursuance of the probate granted by the District Judge, Bilaspur in Civil Suit No. 3-A of 1965.
( 5 ) ON an enquiry from respondent No. 3, the petitioner learnt that respondent no. 1 Harilal and respondent No. 2 Rani Indumati Devi practised fraud upon him by stating that in the ensuing Assembly election, respondents 1 and 2 have decided to set him up as a Congress candidate in the Sakti Constitutency and that they would give him full support provided he does not contest the probate proceedings. Respondents 1 and 2 further took a word from respondent No. 3 that he would keep the pact concealed from his mother, the petitioner and his brother, respondent No. 4. It was then that the fraud committed by respondents 1 and 2 and respondent No. 3 came to the notice of the petitioner. Thus, there was a conspiracy between respondents 1 and 2 to. get the case proceeded ex parte against the petitioner and respondent No. 4. The petitioner thus alleged that respondent No. 1 practised the heinous type of fraud on respondent No. 3 by giving out false hopes that he will be set up as a candidate in the election to the Legislative Assembly. This assurance was made in spite of knowledge that respondent No. 3 was under-age for "such candidature. In pursuance of the conspiracy and the fraud behind the back of the petitioner, respondent No. 3, through Advocate Shri Godbole made an application to the Court on 6th October 1966 that he does not wish to oppose the petition and the court passed an order on the same day. ( 6 ) THE petitioner alleged that because of this fraud and undue influence, the probate granted was liable to be revoked. She further alleged that late Raja bahadur Leeladhar Singh, who was holding lands in Bhumiswami rights could not have bequeathed them before 20th October 1961 under the unamended section 165 of the Madhya Pradesh Land Revenue Code 1959. Late Raja baha
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