S. Leorex Sebastian v. Sarojini

4.1. Learned Counsel contended that the District Court, upon a detailed consideration of the arguments advanced, the evidence on record and the law governing the proof of Will, rendered a well-reasoned judgment declaring that the Will dated 09.01.1976 had not been proved in accordance with law and consequently, revoked the probate granted in Special Leave Petition (C) No. 2005[5] of 2022 Page 8 favour of present respondent no. 1. It is asserted that the High Court erred in exercising its power under Article 227 of the Constitution of India, without addressing any of the specific findings or the grounds on which revocation was sought and granted.

4.2. Learned Counsel further submitted that the proof of a Will must ordinarily satisfy the test of the prudent mind, and that the propounder must establish due and valid execution of the Will. Reliance was placed on Shivakumar & Ors vs. Sharanabasappa and Ors, [2021 (11) SCC 277], wherein this Court held that where the Will is surrounded by suspicious circumstances, the propounder is bound to remove all legitimate suspicions before the document can be accepted as the last Will of the testator. It is asserted that under suspicious circumstances, the true question which arises for consideration before the Court is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator.

4.3. Learned Counsel further placed reliance on Jaswant Kaur v. Amrit Kaur, [(1977) 1 SCC 369], to contend that Special Leave Petition (C) No. 2005[5] of 2022 Page 9 the Will was not proved in accordance with Section 63 of the ISA and Section 68 of the IEA. It is contended that, as held rightly by the District Court, the validity of the Will was not established on the grounds of respondent no. 1's failure to examine any attesting witnesses to the Will or, in the alternative, to offer any adequate justification for their absence.

4.4. Learned Counsel submitted that the appellants are the absolute owners and in peaceful possession of the subject properties by virtue of sale deeds dated 31.12.1997. Learned Counsel highlighted the lack of any explanation as to in whose custody the Will remained until 21.04.2009, i.e., the date of filing of the suit. It is further submitted that the original Will was taken away from the Court’s custody on 23.02.2010, thereby contravening Section 294 of the ISA, which mandates that after the Order of probate, the original will must be kept in the custody of the court along with other registered documents.

4.5. Learned Counsel invoked Section 263 of the ISA, contending that the grant of probate could be revoked if parties who should have been included were left out of the Special Leave Petition (C) No. 2005[5] of 2022 Page 10 proceedings. It was further claimed that the sons of the testator and the appellants, who own the property, were the necessary parties. It is asserted that the respondents colluded together with the intent of concealing the existence of the disputed Will from the above parties, thereby procuring the probate order dated 26.11.2009 by playing fraud upon the Court with the motive of creating a cloud over the title of the interested persons.

4.6. Learned Counsel, therefore, urged that the impugned judgment passed by the High Court is liable to be set aside, and the order of the District Court revoking the probate, be restored in the interest of justice.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

5. Mr. M. A. Chinnasamy, learned counsel appearing on behalf of the respondents, submitted that the impugned judgment passed by the High Court is legally valid and based on a correct appreciation of facts and law, warranting no interference under Article 136 of the Constitution of India. The following submissions were made on behalf of the respondents: Special Leave Petition (C) No. 2005[5] of 2022 Page 11

5.1. Learned Counsel submitted that the father of present respondent no. 1, Eswaramurthy Gounder, executed an unregistered Will dated 09.01.1976 in her favour and passed away on 05.05.1983. Thereafter, present respondent no. 1 filed P.O.P. No. 72 of 2009 before the District Court, for the grant of probate of the said Will, and the District Court, upon due consideration, granted probate in her favour vide order dated 26.11.2009. It is submitted that since the death of her father, present respondent no. 1 has been in possession and enjoyment of the suit properties.

5.2. Learned Counsel further submitted that after the grant of probate, present respondent no. 1 filed O.S. No. 110 of 2009 against the parties who were illegally interfering with her possession. It is highlighted that out of the 12 defendants in the said suit, 11 remained ex parte, and only one defendant came forward for settlement. Learned Counsel pointed out that the appellants, having filed O.S. Nos. 247 and 248 of 2011 before the Sub Court, Tirupur, seeking bare injunction restraining present respondent no. 1 from trespassing, made no prayer whatsoever for a declaration establishing their ownership or title over the suit properties. Special Leave Petition (C) No. 2005[5] of 2022 Page 12 It is asserted that the appellants, even in I.A. No. 612/2015, made no claim to ownership, and the suits filed by them remain pending before the Sub Court, Coimbatore, till date.

5.3. Learned Counsel contended that the application for revocation filed under Section 263 of the ISA was, on the face of it, misconceived and legally untenable, inasmuch as the claim raised by the appellants, namely, that they had purchased certain property from certain vendors, is essentially a mixed question of law and fact.

5.4. Learned Counsel further submitted that the appellants filed O.S. No. 247 of 2011 and No. 248 of 2011 for bare injunction only. In fact, the said suits were filed after a period of 02 years from the grant of probate in favour of the respondent no. 1 herein. At this stage, it is also submitted that even I.A. No. 612 of 2015 filed by the present appellants in P.O.P. No. 72 of 2009 is also barred by limitation.

5.5. Learned Counsel further urged that the procedure adopted for revocation of probate was unlawful and not in accordance with law. It is a well-settled principle of law that if a party wishes to contest or agitate the issue of a probate Special Leave Petition (C) No. 2005[5] of 2022 Page 13 grant, it must be done through a separate Testamentary Original Suit as mandated by the provisions of the ISA, rather than through a mere Interlocutory Application. Therefore, it is contended that the appellant’s application for revocation of probate was entirely improper and illegal.

5.6. Learned Counsel submitted that the High Court was wholly correct in holding that the jurisdiction of a court in testamentary proceedings is confined exclusively to pronouncing upon the genuineness of the execution of the Will and does not extend to adjudicating upon questions of title to the property bequeathed thereunder.

5.7. Learned Counsel therefore urged that the High Court has not committed any error while passing the impugned judgment and order. Therefore, it is submitted that the present appeal is liable to be dismissed.

ANALYSIS AND REASONING

6. Having heard the learned counsel appearing for the parties and having gone through the provisions of law as well as the relevant judicial decisions on the point in question, the following facts would emerge from the record: Special Leave Petition (C) No. 2005[5] of 2022 Page 14

6.1. It is the case of the present respondent no. 1 (Sarojini) in the probate petition, bearing P.O.P. No. 72 of 2009, filed by her before the District Court, under Section 276 of the ISA, that the father of the respondent no. 1, namely, Eswaramurthy Gounder, had executed an unregistered Will dated 09.01.1976 in favour of the present respondent no. 1 (the petitioner of P.O.P. No. 72 of 2009). The said Will is attested by two witnesses. Father of the present respondent no. 1 died on 05.05.1983, and the executants never disclosed about his Will to anybody, including the petitioner (present respondent no. 1) and the other two respondents in the said petition (present respondents no. 2 and 3). The description of the properties was mentioned in the said petition, and prayer was made to grant probate of the unregistered Will dated 09.01.1976. It is relevant to observe that in the said probate proceedings, the present respondent no. 1 only impleaded present respondents no. 2 and 3 as party respondents. However, the other legal heirs, namely, two brothers of the present respondent no. 1/their legal heirs, were not impleaded as party respondents. It is also required to be observed that the said probate petition under Section 276 of Special Leave Petition (C) No. 2005[5] of 2022 Page 15 the ISA came to be filed on 21.04.2009 i.e., after a period of 33 years from the execution of the unregistered Will dated 09.01.1976.

6.2. It would further emerge that immediately thereafter i.e. on 29.04.2009 the present respondent no. 1 filed O.S. NO. 110 of 2009 against 12 defendants including one C.R. Palanisamy Gounder and Manickavasagam. In paragraph 2 of the plaint, the present respondent no. 1 specifically averred that deceased Eswaramurthy Gounder had 03 daughters and 02 sons as his legal heirs. During his lifetime, deceased Eswaramurthy Gounder was with plaintiff (present respondent no. 1), who is the first daughter and he was looked after for about 10 years prior to his death. It is also stated that the father of present respondent no. 1, namely, Eswaramurthy Gounder, died on 05.05.1983. The present respondent no. 1, further stated in paragraph 3 of the plaint that she was under the impression that the properties belonging to her father were available to be partitioned in between his legal heirs till recently. But when she approached the other legal heirs for the purpose of effecting a partition, her brothers, namely, E. Somasundaram and E. Special Leave Petition (C) No. 2005[5] of 2022 Page 16 Ramasamy, were evasive and reluctant to take any steps for the legal demand of the plaintiff in this regard. It is the specific case of respondent no. 1 in the said plaint that her sister, namely, Savithri informed her that her father had executed an unregistered Will on 09.01.1976 in favour of the present respondent no. 1, and the said will was delivered to her on 29.03.2009. It is a specific contention in the plaint that she was told that the estate, including the suit property of the deceased Eswaramurthy Gounder was already encumbered in favour of third parties without the knowledge of the plaintiff (present respondent no. 1), immediately after the execution of the unregistered Will dated 09.01.1976, at the instance of his sons, who wrongfully received the entire proceedings of the sale. In paragraph 4 of the plaint, present respondent no. 1 herein has further averred that the deceased father of the plaintiff was not well at the time of alleged disposal of the properties and in fact, he was forcibly taken out of the plaintiff’s house by his sons, who obtained his signature against his will to dispose his properties including the suit property for which the will was executed in favour of the plaintiff. In the said suit, the plaintiff (present Special Leave Petition (C) No. 2005[5] of 2022 Page 17 respondent no. 1) has prayed that a decree be passed declaring her as the absolute owner of the suit property, by setting aside the encumbrances created after the unregistered Will dated 09.01.1976 was executed in her favour. It was further prayed that permanent injunction be granted, restraining defendants from alienating the suit property.

6.3. On 26.11.2009, the District Court granted probate of the unregistered Will dated 09.01.1976 in P.O.P. No. 72 of 2009 in favour of the present respondent no. 1.

6.4. Thereafter, present appellant no. 1 filed O.S. No. 247 of 2011 against present respondent no. 1 in which he has specifically averred that the scheduled property in the suit filed by him as well as other properties originally belong to one C.R. Palanisamy Gounder and Manickavasagam. They purchased the suit property vide registered sale deed dated 21.02.1976 bearing Document No. 154/1976 and, thereafter, appellant no. 1 purchased the suit property vide registered sale deed dated 31.12.1997 bearing Document NO. 1483/1998. Special Leave Petition (C) No. 2005[5] of 2022 Page 18

6.5. Appellant no. 2 filed a similar suit being O.S. No. 248 of 2011, wherein also appellant no. 2 has made a similar type of averment that suit property was purchased by C.R. Palanisamy Gounder and Manickavasagam by registered sale deed dated 21.02.1976. It is further stated that C.R. Palanisamy Gounder died, leaving his wife Saraswathi, two sons, namely the said Manickavasagam and C.P. Mahalingam, and two daughters, namely Maheswari and Radhamani. After the death of C.R. Palanisamy Gounder, all legal heirs jointly sold the suit property in favour of one Stephen Mariadass (paternal grandfather of appellant no. 2). It is also said that his paternal grandfather executed a Will dated 22.02.2003 in favour of appellant no. 2 and thereafter died on 22.06.2003. Appellant no. 2 has claimed right, title and interest in the suit property and therefore filed the suit against the respondent no. 1 herein.

6.6. At this stage, it is also relevant to observe that the appellants filed I.A. No. 612 of 2015 in P.O.P. No. 72 of 2009, under Section 263 of the ISA for revocation of the probate.

6.7. The District Court after considering the record as well as submissions by learned advocates appearing for the Special Leave Petition (C) No. 2005[5] of 2022 Page 19 parties, passed a detailed order dated 30.09.2020, by which I.A. No. 612 of 2015 filed by the appellants came to be allowed and the order of probate granted in favour of present respondent no. 1 was revoked.

6.8. Respondent no. 1 herein, therefore, being aggrieved and dissatisfied with the aforesaid order, preferred C.R.P. (PD) NO. 1823 of 2021 before the High Court. The High Court, by the impugned order dated 26.04.2022, set aside the revocation order passed by the District Court.

6.9. Thus, from the aforesaid factual aspects culled out from the documents placed on record in the present appeal, it is revealed that, as per the case of respondent no. 1 herein, her father executed an unregistered Will dated 09.01.1976 in her favour. Further, the father of present respondent no. 1 executed a sale deed in favour of one C.R. Palanisamy Gounder and Manickavasagam on 21.02.1976 i.e. after the alleged execution of the Will in favour of present respondent no. 1. Thus, it can be said that the executant of the Will i.e. the father of the present respondent no. 1, after execution of the Will in favour of present respondent no. 1, himself has sold the property vide registered sale deed dated 21.02.1976. Special Leave Petition (C) No. 2005[5] of 2022 Page 20 Thereafter, appellant no. 1 purchased the suit property by registered sale deed dated 31.12.1997 from C.R. Palanisamy Gounder and Manickavasagam. Similarly, paternal grandfather of appellant no. 2 also purchased part of the suit property by registered sale deed dated 31.12.1997 from the aforesaid two persons. It is the specific case of present respondent no. 1 that her father died on 05.05.1983, i.e., much after the execution of the registered sale deed in favour of the concerned parties.

6.10. It is not in dispute that while filing P.O.P. No. 72 of 2009, the present respondent no. 1 had impleaded only her two sisters, namely, Vasanthamani (present respondent NO. 2), and Savithri (present respondent no. 3) as party respondents. It is also not in dispute that respondent no. 1 herein did not implead her two brothers/their legal heirs as party respondents while filing the probate petition under Section 276 of the ISA on 21.04.2009. There is no reference with regards to her two brothers or execution of sale deeds, with regard to the properties mentioned in the said petition executed by her father. Further, surprisingly, after a period of 08 days only, the suit bearing O.S. No. 110 of 2009 was Special Leave Petition (C) No. 2005[5] of 2022 Page 21 filed by present respondent no. 1, wherein she has made averments in paragraphs 2, 3 and 4 of the plaint, as discussed hereinabove. Thus, from the pleadings of present respondent no. 1 in the aforesaid two proceedings, it is clear that she did not disclose the correct aspects and suppressed the relevant facts while filing the petition for the grant of probate on 21.04.2009.

7. Keeping in view the aforesaid factual aspects, the relevant provisions of the ISA are required to be referred to as under:

(i) Section 263 of the ISA provides as under:

(ii) Section 283 of the Act provides as under:

8. Thus, from the provision contained in Section 263 of the ISA, it transpires that powers are given to the District Court to revoke or annul probate or letters of administration for just cause. Further, the explanation of the said provision stipulates that just cause shall be deemed to exist under certain circumstances mentioned in the said explanation. Clause (b) of the explanation specifically provides that the grant was obtained fraudulently by making a false suggestion or by concealing from the Court something material to the case. Certain illustrations are also given in Section 263 of the ISA. Illustration (ii) provides that the grant was made without citing parties who ought to have been cited.

9. Similarly, Section 283 of the ISA gives certain powers to the District Court, which includes the issuance of citations calling upon all persons claiming to have any interest in the Special Leave Petition (C) No. 2005[5] of 2022 Page 24 estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.

10. At this stage, we would also like to refer to relevant decisions on the subject. In the case of Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal, (2008) 1 SCC 26, this Court has observed in paragraphs 23 and 24 as under:

11. From the aforesaid decisions, it can be said that the grant of probate is a judgment in rem and conclusive and binds not only the parties but also the entire world and therefore, a person who is aggrieved thereby and had no knowledge about the proceedings and proper citations having not been made, is entitled to file an application for revocation of probate on such grounds as may be available to him.

12. In the case of Krishna Kumar Birla v. Rajendra Singh Lodha, (2008) 4 SCC 300, this Court has observed in paragraphs 84 and 86 as under: