Karnataka High Court
Azeez Mohammed vs Mr Parameshwaran Subramani on 14 December, 2023
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
PROBATE CP NO.23 OF 2019
C/W
PROBATE CP NO.25 OF 2019
IN PROB.CP NO.23/2019
BETWEEN:
1. MR. AZEEZ MOHAMMED
SON OF LATE MOHAMMED DADA
AGED ABOUT 67 YEARS
2. MRS FARIDA AZEEZ
WIFE OF MR AZEEZ MOHAMMED
AGED ABOUT 63 YEARS
3. MR. ADIL AZEEZ
SON OF AZEEZ MOHAMMED
AGED ABOUT 44 YEARS
4. MR. AZEEM AZEEZ
SON OF MR AZEEZ MOHAMMED
AGED ABOUT 35 YEARS
ALL ARE RESIDING AT PRESTIGE ORCHID
FLAT NO.01 AND 102, NO.37, BERLIE STREET
LANGFORD TOWN, BENGALURU-560 025
...PETITIONERS
(BY SRI.K.N.PHANINDRA, SR.COUNSEL FOR
SRI.SRIHARI A V, ADVOCATE)
2
AND:
MR. PARAMESHWARAN SUBRAMANI
SON OF LATE L P AIYAR
AGED ABOUT 72 YEARS,
RESIDING AT NO.7/1 CAMPBELL CROSS ROAD,
P O VIVEK NAGAR
BENGALURU-560 047
GPA HOLDER OF MR ADRIAN SHEDDEN
...RESPONDENT
(BY SRI.RANJANA IYER, ADVOCATE)
THIS PROBATE CP IS FILED U/S 263 OF THE INDIAN
SUCCESSION ACT 1925, PRAYING TO
REVOKE / ANNUL THE GRANT OF LETTERS OF ADMINISTRATION IN
FAVOUR OF THE RESPONDENT IN RESPECT OF THE PROPERTY OF
MRS. DOROTHY MAVIS SHEDDEN, THE DECEASED IN FAVOUR OF
HER GRANDSON AND EXECUTOR OF HER WILL DATED 11.12.1998
VIDE ORDER DATED 01.07.2016 IN PROB CP. NO. 1/2016
(ANNEXURE-A) PASSED BY THIS HON'BLE COURT.
IN PROB.CP NO.25/2019
BETWEEN:
1. MR. AZEEZ MOHAMMED
SON OF LATE MOHAMMED DADA
AGED ABOUT 67 YEARS
2. MRS. FARIDA AZEEZ
WIFE OF MR AZEEZ MOHAMMED
AGED ABOUT 63 YEARS
3. MR. ADIL AZEEZ
SON OF AZEEZ MOHAMMED
AGED ABOUT 44 YEARS
3
4. MR AZEEM AZEEZ
SON OF MR. AZEEZ MOHAMMED
AGED ABOUT 35 YEARS
ALL ARE RESIDING AT PRESTIGE ORCHID
FLAT NO.01 & 102, NO.37, BERLIE STREET
LANGFORD TOWN, BENGALURU-560 025
...PETITIONERS
(BY SRI.K.N.PHANINDRA, SR.COUNSEL FOR
SRI.SRIHARI A V, ADVOCATE)
AND:
MR. PARAMESHWARAN SUBRAMANI
SON OF LATE L P AIYAR
AGED ABOUT 72 YEARS,
RESIDING AT NO.7/1 CAMPBELL CROSS ROAD,
P O VIVEK NAGAR
BENGALURU-560 047
GPA HOLDER OF MR ARTHUR.R.W.TOWT.
...RESPONDENT
(BY SRI.RANJANA IYER, ADVOCATE)
THIS PROBATE CP IS FILED U/S 263 OF THE INDIAN
SUCCESSION ACT 1925, PRAYING TO
REVOKE / ANNUL THE GRANT OF LETTERS OF ADMINISTRATION IN
FAVOUR OF THE RESPONDENT IN RESPECT OF THE PROPERTY OF
MR. GEORGE REGINALD UPSHON, THE DECEASED IN FAVOUR OF
THE EXECUTOR OF HER WILL DATED 24.03.2010 VIDE ORDER
DATED 08.07.2016 IN PROB CP. NO. 2/2016 (ANNEXURE-A)
PASSED BY THIS HON'BLE.
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 29.11.2023, COMING ON FOR PRONOUNCEMENT OF
ORDER THIS DAY, THE COURT MADE THE FOLLOWING:
4
ORDER
These two petitions are filed under Section 263 of Indian
Succession Act, 1925 seeking revocation of letters of
administration granted by this Court in C.P.Nos.1/2016 and
2/2016.
2. Before I advert to the facts of the case, I deem it fit
to cull out the family tree which is placed on record by the
parties and the same is as under:
Alice Victoria
|
---------------------------------------------------------
| |
(Daughter) (Son)
DOROTHY GEORGE
(Died on 29.7.2004) (Died on 19.06.2012)
(Will dated 11.12.1998) (Will dated 24.03.2010)
| |
(Grandson) ------------------------
ADRIAN (JR.) | |
(Executor) (Friend) CRYSTAL MAYES
(Probate granted in ARTHUR R.W.TOWT (Also GPA Holder of
Australia on 7.10.2014) (Executor) George & Dorothy)
(Probate granted in |
Australia on 9.8.2012) Sale Deed dated
20.04.2006
|
(Azeez Mohammed
his wife & children)
3. It is not in dispute that property bearing Municipal
No.6 (Old No.12) situated at Elysium, Moyenville Road,
Langford Town, Bangalore, originally belonged to Patel
Alexander Wallace, Retired Customs Officer. The said Patel
Alexander Wallace and H.W.Wallace sold the same to
V.G.Upshon, Retired Electrical Foreman of South Indian
Railway Company vide registered sale deed dated 12.12.1941.
The said V.G.Upshon bequeathed the property by executing
Will on 08.10.1951 in favour of his wife Mrs.Alice Victoria
Upshon. Mrs. Alice Victoria Upshon obtained letter of
Administration of Will from the Court of District and Sessions
Judge. Mrs. Alice Victoria Upshon sold schedule 'A' property to
her children Dorothy Mavis Shedden and George Reginald
Uphson vide registered sale deed dated 24.03.1971. The
children of Mrs. Alice Victoria Upshon namely Dorothy Mavis
Shedden and George Reginald Upshon migrated to Australia.
4. The present petitioners are asserting right and title
by alleging that the said Dorothy Mavis Shedden and George
Reginald Upshon have authorized the daughter of George
Reginald Upshon namely Crystal Mayes by executing GPA.
The present petitioners herein contend that George Reginald
executed GPA in favour of his daughter Crystal Mayes on
31.12.1981. Similarly, Dorothy Shedden also executed GPA in
favour of her niece namely Crystal Mayes on 19.05.1983. The
petitioners are asserting right and title based on registered
sale deed executed by Crystal Mayes as a GPA holder of
Dorothy Shedden and George Reginald dated 20.04.2006.
5. The respondent filed two petitions seeking ancillary
probate in C.P.Nos.1/2016 and 2/2016 by contending that
Dorothy Mavis Shedden has executed a Will in Victoria,
Australia appointing her grandson Adrian Maxwell as Executor
vide Will dated 11.12.1998. The respondent also claims that
George Reginald has also executed a Will appointing Arthur
R.W.Towt as the Executor vide Will dated 24.03.2010.
6. The respondent filed two probate civil petitions
under Section 228 by contending that the Executor moved a
petition before Supreme Court of Victoria and the Supreme
Court of Victoria, Australia has granted probate of Will of
Dorothy Mavis on 07.10.2014. The respondent also claims
that Arthur R.W.Towt who has been appointed as Executor of
Will of George Reginald also applied for probate of Will from
Anne Court, Australia. Based on probate issued by the
Australian Court, the present respondent on the strength of
GPA executed by Mr. Adrian Shedden, has filed two petitions
in C.P.Nos.1/2016 and 2/2016 seeking ancillary probate in
respect of Will executed by Dorothy Shedden and George
Reginald.
7. This Court vide order dated 08.07.2016 has allowed
both the petitions and the respondent who claims to be the
GPA holder of original Executor under both the Wills is granted
letters of administration by this Court vide order dated
08.07.2016. The present petitioners in both these petitions
are claiming to be the purchasers and they are tracing their
right and title based on sale deed executed by the GPA holder
of the original owners namely Dorothy Shedden and George
Reginald who had 50% share in the properties. The
petitioners are claiming that Crystal Mayes as a GPA holder of
Dorothy Shedden and George Reginald has sold the entire suit
property under registered sale deed dated 20.04.2006.
8. Learned Senior Counsel reiterating the grounds
urged in both the petitions would vehemently argue and
contend that these two petitions are filed seeking grant of
ancillary probate by suppressing the pendency of suit filed by
the Executor through respondent herein who is the GPA holder
questioning the sale deed executed by Crystal Mayes on
20.04.2006. The petitioners have also contended that suit
filed by the original Executor through respondent/GPA holder
is partly dismissed and the petitioners sale deed insofar as
share of George Reginald is upheld while remaining half share
owned by Dorothy Shedden to an extent of 50% is declared to
be null and void and Regular First Appeals are pending before
this Court. He would vehemently argue and contend that the
probate proceedings initiated by the Executor before the
Australian Court insofar as Dorothy Shedden's 50% is
concerned, it is subsequent to filing of the suit, while the
probate proceedings of George Reginald's 50% share is
concerned, same is obtained in 2012. Learned Senior Counsel
referring to Section 283 of Indian Succession Act would
contend that respondent who is the GPA holder of the
Executor has deliberately suppressed the pendency of the suit
and without impleading the petitioners has applied for grant of
ancillary probate.
9. Learned Senior Counsel would contend that the
petitioners have acquired title pursuant to registered sale deed
executed by original owners namely Dorothy Shedden and
George Reginald who had 50% share each and therefore, he
would point out that the respondent would not have
maintained these two petitions seeks grant of ancillary probate
without impleading the petitioners herein.
10. To buttress his arguments, he has placed reliance
on the following judgments:
1) Elizabeth Antony vs. Michel Charles John Chown
Lengera - 1990 (3) SCC 333;
2) Manibhai Amaidas Patel & Another vs. Daya Bhai
Amaidas - (2005) 12 SCC 154;
3) Basanti Devi vs. Raviprakash Ramprasad Jaiswal -
2008 (1) SCC 267;
4) International Woolen Mills vs. Standard Wool (U.K.)
Ltd. - 2001 (5) SCC 265;
5) Alcon Electronics Pvt. Ltd. vs. Celem S.A. of FOS
34320 Roujan, France and Others - (2017) 2 SCC 253;
6) Devika Dhamji Shah vs. Rashi Mukesh Shah - 2012
(6) MLJ 182.
11. Placing reliance on the judgments cited supra, he
would vehemently argue and contend that a person who has a
real interest in the estate and is likely to be adversely affected
by grant of probate is an interested party and therefore, a
person applying for grant of probate or letters of
administration is bound to implead the person having
caveatable interest. Referring to the principles laid down by
the Apex Court in the judgment cited supra, he would further
contend that even a bare possibility of an interest is sufficient
to be heard in a probate proceedings. Referring to these
principles, he would contend that the petitioners are better
placed and are asserting title over the suit property under
registered sale deed for valuable sale consideration.
12. He would further contend that the petitioners who
have acquired valid right and title deserve a fair opportunity to
contest the probate proceedings to demonstrate that the
probate granted by a Foreign Court is not in accordance with
law. Referring to Section 13 of CPC, he would contend that
had respondent impleaded petitioners, they could have very
well demonstrated that probate granted by the Australian
Court does not satisfy the ingredients of Section 13 of CPC.
13. Placing reliance on the judgment rendered by the
Maharashtra High Court in the case of Devika Dhamji Shah
vs. Rashi Mukesh Shah (supra), he would vehemently argue
and contend that that ancillary probate granted in India
cannot be sustained if the foreign court failed to consider
mandatory provisions of Indian law while granting probate.
On these set of grounds, he would contend that ancillary
probate granted by this Court needs to be revoked and the
civil petitions filed in C.P.Nos.1/2016 and 2/2016 are to be
heard afresh by affording opportunity to the petitioners herein.
14. Per contra, learned counsel appearing for the
respondents would contend that if letters of administration is
not issued, the Executor's right will be seriously prejudiced
and they will not be able to contest the Regular First Appeals
arising out of O.S.No.26280/2014 which is pending
consideration before the Division Bench of this Court. She has
also strongly resisted the petition for revocation on the ground
that revocation is not sought within three years from the date
of grant of letters of administration. Reliance is also placed on
the judgment rendered by Bombay High Court in the case of
Ramesh Nivrutti Bhagwat vs. Dr. Surendra Manohar
Parakhe1. Referring to the judgment rendered by the
Calcutta High Court in the case of Abhiram Dass vs. Gopal
Dass2, she would vehemently argue and contend that a
person disputing the right of the testator cannot be regarded
as having interest in the estate of the deceased. She would
contend that such assertion would amount to assertion of
adverse interest. Reliance is also placed on the judgment
rendered by the Bombay High Court in Pirojshah Bikhaji
and Others vs. Pestonji Meswanji3. Placing reliance on the
said judgment, she would contend that a person who wishes
to come in as a caveator must show some interest in that
estate. Referring to the law laid down by the Apex Court in
the case of Kanwarjit Singh Dhillon vs. Hardyal Singh
2007 SC Online Bom 1506 (DB)
(1890) ILR 17 Cal 48 (DB)
(1910) 12 Bom LR 366
Dhillon and Others4, she would contend that probate Court
is not competent to determine the question of title to the suit
properties. Reliance is also placed on the judgment rendered
by the Apex Court in the case of Krishna Kumar Birla vs.
Rajendra Singh Lodha5. Referring to the principles laid
down in the said judgment, she would vehemently argue and
contend that a person questioning the grant of probate and
seeking revocation must establish that he has an interest
which would have the effect of destroying the estate of the
testator itself. She would further point out that any person
claiming interest adverse to the testator cannot maintain an
application before the probate Court and his remedy is
elsewhere.
15. Heard learned Senior Counsel appearing for the
petitioners and learned counsel appearing for the respondent.
(2007) 11 SCC 357
(2008) 4 SCC 300
16. Before I examine the rights of petitioners herein in
seeking revocation of the probate granted by this Court, it
would be necessary to cull out the observations made by this
Court while granting probate. Para 18 and 19 of the order
dated 08.07.2016 would be relevant and the same is culled
out as under:
"18. In view of the aforesaid legal position and there
being no objection from any quarter, this Court considers
it fit and proper to grant the Letter of Administration to
the present petitioner Mr Parameshwaran Subramani in
respect of the property of Mrs Dorothy Mavis Shedden,
the deceased in favour of her grandson and Executor of
her Will dated 11.12.1998 in favour of Mr Adrian Maxwell
Kenneth Shedden (Jr.) in respect of half of the property
in question situate at New No.6, (Old No.12), Elysium,
Moyenville Road, Langford Town, Bangalore 25. The
petitioner will furnish the inventory and the accounts in
respect of the said administration in terms of S.291 of
the Act quoted above and shall also furnish the bond to
the satisfaction of the Registrar General of this Court in
view of Rule 17 of the 'Rules Governing Probate &
Administration Matters, 1964' (Notification No.SPL
327/63 dated 13.7.1964) which were notified in exercise
of powers conferred by S.129 of the CPC, 1908 by
Karnataka High Court. The said Rule is quoted below for
ready reference:
17. Administration Bond:-
An administration bond shall be in Form No.9.
The Registrar shall, subject to the approval of
the Court, determine the actual amount of
security to be given and may examine the
proposed sureties as to their properties and
liabilities and for this purpose may direct notice
to issue to the proposed sureties and adjourn
the further hearing of the application to a fixed
day by passing and order in Form No.10. The
proposed administrator and his sureties when
approved by the Court, shall execute the
administration bond before the Registrar or
other officer authorized to take affidavits. The
bond shall be filed in Court not less than three
days before the adjourned hearing.
19. The petitioner shall also preserve and maintain the
said property for the benefit of the Executor of the Will,
Mr Adrian Maxwell Kenneth Shedden (Jr.) and the
Executor of the Will shall be entitled to the said property
and any accretion thereto and the proceeds in case he
decides to dispose of the said property through the
petitioner who would administer the said Will of the
deceased in India and he shall also be liable to account
the proceeds of the income and sale proceeds of the
property situate in the State of Karnataka as directed by
the Executor of the Will of deceased Mrs Doroty Mavis
Shedden."
17. The suit filed by the executor through respondent
in O.S.No.26280/2014 is decreed in part. The suit filed by
plaintiff No.2 therein is decreed and the power of attorney
dated 19.05.1983 executed by Dorothy Shedden in favour of
Crystal Mayes is held to be ineffective on account of death of
the principal namely Mrs.Dorothy Shedden and therefore, the
sale deed insofar as Dorothy Shedden's share is concerned is
held to be null and void and the same is pending consideration
before the Division Bench of this Court. Insofar as GPA in
favour of Crystal Mayes executed by George Reginald to the
remaining extent of half share, the sale deed is held to be
valid. It appears both the parties have preferred Regular First
Appeals and the same are pending before the Division Bench
of this Court.
18. In the light of the culled out paragraph 18 of the
order passed by this Court in granting ancillary probate is
looked into, this Court has proceeded to grant letter of
administration having found that there is no contest and
objection from any quarters. The present petitioners are
asserting title based on GPA executed by Dorothy Shedden
and George Reginald who have 50% share each in favour of
one Cystral Mayes. Therefore, the petitioners herein are
tracing their right and title through the original owners based
on GPA. Therefore, what can be inferred is that petitioners
herein are asserting that they have acquired title based on
registered sale deed for valuable sale consideration which is
pending consideration before the Division Bench of this Court.
Therefore, the contention of respondent that the petitioners
are asserting interest adverse to the testator cannot be
acceded to. They have not set up an adverse title to that of
the original owners but they are tracing their title through GPA
alleged to have been executed by the original owners namely
Dorothy Shedden and George Reginald.
19. If these significant details are looked into, then the
question that requires consideration is as to whether the
petitioners seeking grant of letters of administration without
impleading the petitioners needs revocation. Admittedly,
grant of letters of administration was made without citing the
present petitioners as parties who ought to have been cited as
respondents. The citations taken is in the name of agent and
not in the name of the original executors. If respondent
through executors had already filed a comprehensive suit in
O.S.No.26280/2014 and has questioned the validity or
otherwise of sale deed executed by the original owners
through GPA, the filing of the petition seeking grant of
ancillary probate needs to be examined as to whether the
same is filed by concealing material facts in pursuit of
obtaining probate.
20. Concealing material facts in the pursuit of obtaining
probate is not only legally frowned upon but also constitutes a
grave transgression. This principle aligns with the broader
ethical and legal duty to ensure that the court is apprised of all
pertinent information, allowing it to make informed decisions
regarding the issuance of citations. Failure to fulfill this duty
may undermine the integrity of the probate process and
compromise the interests of parties with legitimate claims.
Furthermore, the nexus between the concealment of material
facts and the ground for revocation of probate is rooted in the
need for probate orders to be founded on genuine and
complete information. Section 283(1)(c) explicitly mandates
the issuance of citations to interested persons, and any
deliberate concealment undermines the fairness and efficacy
of this process. Therefore, a probate obtained through such
concealment stands vulnerable to revocation, as it represents
a violation of the trust reposed in the probate proceedings and
compromises the very essence of due process.
21. If respondent based on authorized executors of the
Will has instituted comprehensive suit questioning the sale
deed in favour of the respondent, he was required to array the
present petitioners while filing C.P.Nos.1/2016 and 2/2016.
The respondent was duty bound to disclose all relevant facts.
For the reasons best known to the respondent, though these
two petitions are filed pending consideration of the
comprehensive suit, probate is obtained by taking citations
which is also found to be defective.
My findings regarding maintainability of revocation of
ancillary probate:
22. The respondent has filed two petitions seeking
grant of letters of administration based on probate granted by
the Australian Court. The probate granted by the Australian
Court is in respect of properties situated at India. Section 14
of CPC provides that when a foreign judgment is relied upon,
the production of copy of judgment duly authenticated is
presumptive evidence that the Court which pronounced it had
jurisdiction unless the contrary appears on the record but that
the presumption may be displaced by demonstrating that the
probate proceedings are not conducted in the manner known
to Indian law. A foreign judgment must in order to operate as
res judicata should be on merits and at the same time has to
be obtained by complying the requisite Indian laws. It is
equally trite law that foreign judgment is not enforceable in
India if it has not been passed on merits. The burden of
proving that decree is not on merits would be on the party
alleging it. Therefore, petitioners have got every right and
locus to seek revocation as they were denied a fair opportunity
to make out a case under Section 13 of CPC. The petitioners
herein have every right to demonstrate that the probate
issued by the Australian Court is not in accordance with law.
23. In the realm of probate law, an ancillary grant is
often sought in one jurisdiction to complement an original
grant obtained elsewhere. The conventional understanding is
that the ancillary grant remains intact unless and until the
original grant is revoked. However, this general principle
encounters a deviation when the probate granted by a foreign
court is not recognized as conclusive between the parties in
India. Therefore, the efficacy of a foreign probate decree in
India hinges on various factors, including reciprocity
agreements and compliance with Indian legal principles.
Unless foreign grant meets all the criterias under Indian Law,
the general view that ancillary grant is immune from
revocation until the original grant is not revoked is not
absolute. This exception acknowledges that the validity and
conclusiveness of a foreign probate decree are distinct
considerations from those governing the ancillary grant.
Therefore, ancillary grant's fate becomes contingent not only
on the status of the original grant but also on the extent to
which foreign probate is recognized and accepted within the
Indian legal framework.
24. For a foreign Will to be enforced in India, apart
from being executed as per the laws of such country, it has to
be validated on two-fold basis. At the first stage, a probate
has to be obtained from the concerned Court or authority in
the Foreign country; such order granting a probate must
contain the following observations by the concerned Court of
authority: that the testator has validly signed the Will and that
there are no doubts/suspicions/uncertainties as to the
signature of the Testator on the Will; that the Will is executed
by a person competent to make the Will and is free from
fraud, coercion and undue influence; that atleast one witness
has signed the Will in the presence of the Testator.
25. The judgment rendered by a foreign court should
also indicate that original Will was submitted and has been
retained by the Court or authority in the foreign country and
the certified copy thereof is to be issued to the
applicant/beneficiary. It is equally trite law that a foreign
judgment would not be conclusive if it refuses to recognize the
applicable law of India or is under breach of any law enforced
in India. Therefore, petitioners who are asserting that the
testator through a GPA holder has already meddled with the
property and therefore Will, if any, is of no consequence are
entitled to be heard before granting ancillary probate. Without
expressing any opinion on the right and title of the petitioners
which is now seized before the Division Bench, this Court is
more than satisfied that petitioners have not only caveatable
interest but have substantial interest. Petitioners are entitled
to rebut presumption evidence of probate granted by the
Australian Court. Therefore, they are entitled for revocation of
probate and civil petitions filed in C.P.Nos.1/2016 and 2/2016
are liable to be restored on file and needs a fresh enquiry at
the hands of this Court.
26. For the reasons stated supra, I pass the following:
ORDER
(i) The petitions are allowed;
(ii) The order dated 08.07.2016 is recalled and Probate
C.P.Nos.1/2016 and 2/2016 are restored to file. The matter
requires consideration and there has to be fresh enquiry
before the probate Court;
(iii) The respondent is hereby directed to implead the
petitioners in Probate C.P.Nos.1/2016 and 2/2016.
Sd/-
JUDGE
CA
