Karnataka High Court
Mrs Eulalia Sequeira Nee Menezes vs Cyril Anthony Menezes (Since ... on 8 September, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
R
DATED THIS THE 8 DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
M.F.A. NO.12112/2007 (ISA)
BETWEEN:
1. MRS. EULALIA SEQUEIRA NEE MENEZES
AGED ABOUT 58 YEARS
WIDOW OF LATE DENIS SEQUEIRA
RESIDING AT MENEZES COMPOUND,
BEJAL NEW ROAD,
MANGALORE-575 004. ... APPELLANT
(BY SRI VIJAY KRISHNA BHAT M., ADVOCATE)
AND:
1. CYRIL ANTHONY MENEZES
(SINCE DEAD)
BY LEGAL REPRESENTATIVES
1(a) MARIETTE ARANHA
AGED 2 YEARS
1(b) MARIOLA FERNANDES
AGED 50 YEARS
BOTH ARE DAUGHTERS OF FIRST
RESPONDENT RESIDING AT B-21,
RAINBOW VIEW CO-OP. HOUSING SOCIETY,
345, VAKOLA SANTRACRUZ (EAST)
MUMBAI-400 055.
2
2. DONALD PETER MENEZES
AGED 57 YEARS,
SANKAIGUDDA,
BEJAI POST
MANGALORE-3.
3. MRS. EMILIA PINTO NEE MENZES
SINCE DEAD BY LRS
3(a) GRETTA PINTO
D/O LATE EMILIAPINTO,
AGED 60 YEARS
LOBO PRABHU FLATS,
LIGHT HOUSEHILL,
MANGALORE-1.
3(b) CELINE PINTO
D/O LATE WILFRED PINTO
AGED 48 YEARS,
3(c) PRAMEELA PINTO
D/O LATE WILFRED PINTO
AGED 32 YEARS,
3(d) RAJESH PINTO
S/O LATE WILFRED PINTO
AGED 30 YEARS,
3(e) VIRESH PINTO
D/O LATE WILFRED PINTO
AGED 28 YEARS
RESPONDENT NOS.3(b) TO 3(e) ARE
R/AT OPP. CAMPCO, MAREEL
PUTTUR, D.K.-574 201.
3(f) LANCELOT PINTO
S/O LATE EMILIA PINTO
3
AGED 54 YEARS,
BEHIND K.P.T. SAGA HOUSE
MANGALORE-1.
3(g) VINCENT PINTO
S/O LATE EMILIA PINTO
AGED 52 YEARS,
MAYURA COMPOUND
SRINGERI NAGAR,
HOSABETTU-575 026.
3(h) MAREY D'SOUZA
D/O LATE EMILIA PINTO
AGED 50 YEARS,
GURUDATTA NIVAS
SHUBASHBHAVAN,
KISAN NAGAR H,
WAGLEESTATE,
ROAD NO.16,
THANE-400 064.
3(i) MARITA MERAS
D/O EMILIA PINTO
AGED 47 YEARS,
PRADEEP ENTERPRISES
CHURCH BUILDING,
PUTTUR, D.K.-574 201.
3(j) LEONARD PINTO
S/O EMILIA PINTO
AGED 44 YEARS,
LEN LON VIEW, MAREEL,
PUTTUR, D.K.-574 201.
3(k) CLIFFORD PINTO
S/O EMILIA PINTO
AGED 42 YEARS,
LEN LON VIEWMAREEL,
4
PUTTUR, D.K.-574 201.
(DELETED AS PER COURT ORDER DATE 29.10.2014)
4. GERALD MENZES
SINCE DEAD BY LRS
4(a) MRS. CELINE MENEZES
(RESPONDENTS 4(e) AND 4(f) ARE TREATED AS
LRS OF DECEASED R4(a) AS PER COURT ORDER
DATED 04.09.2019)
4(b) PREMA D'SLIVA
4(c) SHALINI PAIS
4(d) NANDITHA MANEZES
4(e) ROHAN MANEZES
4(f) NARESH MENEZES
WIDOW AND CHILDREN OF
LATE GERALD MENEZES
ALL ARE RESIDING AT NO.6,
SKYLARK, ANGELORE CO-OPERATIVE
HOUSING SOCIETY,
PESTAM SAGAR, CHEMBUR,
MUMBAI-400 089.
5 CELILINE RODRIGUES NEE MENEZES
AGED 64 YEARS
W/O B.A.RODRUGUES
AARAM HOUSING CO-OP. SOCIETY,
F/24, II FLOOR, VAKILA
SANTACRUZ ( EAST)
5
MUMBAI-400 055.
(DISMISSED AS ABATED
AS PER ORDER DATED 08.09.2021)
6. HAROLD MENEZES
SINCE DEAD BY LRS
6(a) MRS. LEENA MENEZES
WIDOW OF LATE HERALD MENEZES
AGED 60 YEARS
6(b) MALINI MENEZES
D/O LATE HERALD MENEZES
AGED 40 YEARS
6(c) SHALINI PINTO
D/O LATE HERALD MENEZES
AGED 20 YEARS
6(d) PALINI PINTO
D/O LATE HERALD MENEZES
AGED 38 YEARS
6(e) SANTHOSH PINTO
D/O LATE HERALD MENEZES
AGED 36 YEARS
6(f) LALINI NAZARETH
D/O LATE HERALD MENEZES
AGED 34 YEARS
6(g) VINALINI MENEZES
D/O LATE HERALD MENEZES
AGED 32 YEARS
6
6(h) DAYALINI MENEZES
D/O LATE HERALD MENEZES
AGED 29 YEARS
RESPONDENTS 6(a) TO 6(h) ARE
RESIDINTS OF "DIVYA DAYA",
171, MUNISWAMAPPA LAYOUT,
CHIKKABANASWADI POST
BANGALORE-43.
... RESPONDENTS
[BY SRI GANESH BHAT Y.H., ADVOCATE FOR R1(a) & R4(e);
R4(a) & R5 ARE DECEASED
SRI K.SANATH KUMAR SHETTY, ADVOCATE FOR R4(f);
R1(b), R2, R3(a) TO R3(J) ARE SERVED;
R3(k) & R4(a) DELETED VIDE ORDER DATED 05.11.2012;
R4(b) TO R4(d), R6(a) TO R6(h) ARE SERVED;
R5 DISMISSED VIDE ORDER DATED 08.09.2021
R4(e & f) ARE LRS OF R4(a)
VIDE ORDER DATED 04.09.2019]
THIS M.F.A. IS FILED UNDER SECTION 299 OF ISA
AGAINST THE JUDGEMENT DATED 13.8.2007 PASSED IN
MISC.CASE NO.16/1998 ON THE FILE OF THE PRL. DIST. JUDGE,
D.K., MANGALORE, DISMISSING THE PETITION FILED U/S.263
OF INDIAN SUCCESSION ACT TO REVOKE THE PROBATE.
THIS M.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 31.08.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
7
JUDGMENT
Heard the learned counsel for appellant and learned
counsel for respondents
2. This miscellaneous first appeal is filed under Section
289 of Indian Succession Act challenging the impugned order
passed in Misc.case.No.16/1998 and prayed the Court to set
aside the order dated 13.08.2007 passed by the Prl. District
Judge, Dakshina Kannada, Mangalore and consequently allow
the petition filed by the appellant under Section 263 of Indian
Succession Act and grant such other relief as deem fit in the
interest of justice and equity.
3. The grounds urged in the present appeal is that the
very impugned order is erroneous, contrary to law and suffers
from legal and factual infirmities. The Court below fails to
appreciate the evidence and material on record in its proper
perspective. The findings of the Court below are opposed to
weight of evidence and probabilities of the case. The Court below
seriously erred in coming to the conclusion that the appellant
has been served notice personally in P and SC No.38/1983. The
said finding is without any evidence. There is no documentary
evidence on record to show the personal service of notice,
neither the copy of the said notice nor the acknowledgment has
been produced before the Court. The drawing of inference of
personal service of notice on the basis of the entry in the order
sheet is improper and unsustainable in law. It is also contended
that the RW1 in his cross examination has admitted that there
are no records to show the service of notice in P and SC
proceedings. Hence, the impugned order is illegal and liable to
be set aside.
4. The counsel also vehemently contend that citation of
the probate proceedings was taken out in a newspaper which is
not at all having proper circulation. It is admitted by the witness
RW1 that the newspaper in which the citation was taken out will
be circulated only among the subscribers to the same. Therefore,
it cannot be held that the requirement of law has been complied.
5. It is also contended that the Court below seriously
erred in holding that the petition filed by the appellant suffers
from latches even though the same is within the period of
limitation. When the petition for revocation of probate was filed
within the limitation period, the question of delay or latches will
not arise for consideration at all. The said findings of the Court
below is opposed to law and liable to be set aside.
6. The counsel also would vehemently contend that the
Court below failed to note that the witness RW1 is not at all
competent to depose about the facts of the case. Since, the said
witness is only a power of attorney holder. The counsel also
vehemently contend that the RW1 in his cross examination it has
been admitted by him that only after becoming the power of
attorney holder for 4th respondent he came to know about the
proceedings. The said power of attorney is of the year 1996.
Hence, the evidence of RW1 could not have been relied upon.
7. The counsel also would vehemently contend that the
respondents have obtained the probate by suppression of
material facts and the executant of the Will was not in a position
to execute any Will before his death and as on the date of
alleged execution of Will he was 84 years old and he was not in
physically fit condition. The Counsel also vehemently contend
that the appellant was looking after the Testator being the
youngest daughter of him and none other children of the
Selvadore Menezes looked after him or lived with him and her
father was not having any capacity to execute the Will during the
year 1973 or anytime subsequent to the period of 1971 to 1972
and probate was obtained fraudulently by concealing the
material facts.
8. The counsel in his argument vehemently contend
that when there was not a proper service and not followed the
mandatory provision in making citation and obtained the probate
fraudulently, hence, the impugned order requires to be set aside
and matter has to be considered restoring the probate
proceedings and to consider the same on merits. Hence, P and
SC No.38/1983 has to be restored by setting aside the earlier
order.
9. Per Contra, the counsel appearing for the respondent
No.4(f) in his argument would vehemently contend that
pleadings made in paragraph No.3 of the petition is not clear and
in the probate proceedings notice was served personally on
24.01.1984. The Court also can invoke Section 114 of Indian
Evidence Act and there is presumption with regard to the Court
proceedings. The counsel also would vehemently contend that
prior to filing of the suit, the notice was given in terms of Ex.D1
and reply was given in terms of Ex.D2 and he had the knowledge
when the notice was served, notice with regard to the execution
of the Will dated 24.01.1984 itself, now cannot dispute the Will.
10. The counsel also vehemently contend that the suit
was also filed by the respondents in O.S.No.7/1997 for
possession and prior to filing of the suit, notice was given and
categorically stated probate was issued based on the Will. The
said notice was served in the month of November 1995 itself and
given reply in terms of Ex.D2 vide reply dated 24.11.1995 and
the suit was filed on 02.12.1996 and appeared in the said suit,
written statement also filed in the year 1998. The petition for
recalling the of probate proceedings is also filed in the year 1998
and no explanation for delay. The documents are also produced
i.e., Ex.R5 - letters for administration granted. The Will was
executed in the year 1973 and bond was executed in year 1974
by the executant. He was having testamentary capacity and his
testamentary capacity cannot be challenged since, he himself
has executed bond in the year 1974 i.e, after the execution of
the Will. The petitioner has not stated anything about the
capacity in the evidence and not made out any grounds to set
aside the impugned order. The very pleadings is also cryptic and
Ex.R13 is clear with regard to the accounts and inventory and
the same is produced.
11. The counsel in support of his argument he relied
upon the judgment of the Madras High Court Laws (MAD)-
2009-10-265 in case of J.Srinivasan (Died) V/s
S.Venkataraman Alias Balaji and brought to notice of this
Court in paragraph No.5 wherein discussed with regard to when
the notice was served, when the same was not objected by filing
objections question of seeking an order to set aside the probate
does not arise. Since, no objection was raised. The counsel also
brought to notice of this Court in paragraph No.6 and contend
that after obtaining the probate, the respondent herein issued a
notice to the appellant to vacate and handover the possession of
the property and gave reply and in the present case only filed for
revocation of the probate after filing of the suit. Hence, the
present judgment is aptly applicable to the case on hand.
12. The counsel also relied upon the judgment reported
in AIR 1955 Supreme Court 566 in case of Anil Behari
Ghosh V/s Smt.Latika Bala Dassi and others and brought to
notice of this Court at paragraph No.16 and 17 wherein
discussed in detail regarding revocation of grant and held that
the onus is upon the opponents to prove that the Will is genuine,
only if the persons who ought to have been cited were not cited.
In every case where there is a defect in citation, the Court must
order a revocation or annulment of the grant and annulment is a
matter of substance not of mere form. The Court may refuse to
grant annulment in cases where there is no likelihood of proof
being offered that the Will admitted to probate was either not
genuine or had not been validly executed and it would serve no
useful purpose to revoke the grant and make the parties to
through the mere formality of proving the Will over again.
Therefore, the omission of citation had no effect on the
regularity of the proceeding resulting in the grant of 1921.
13. The counsel for the respondent No.1(a) and
respondent No.4(e) in his argument would vehemently contend
that the appellant has pleaded false plea regarding knowledge.
The appellant grossly fails to prove that the procedure is
defective in substance under Section 263 of Indian Succession
Act. The same is also barred by law under Article 137 of
Limitation Act.
14. The counsel would vehemently contend that suit is
filed in O.S.No.7/1997 by one of the beneficiary of the Will for
possession. The Will is executed in favour of his sons with
limited interest to wife and not in favour of any of his daughters.
The document marked at Ex.R11 and Ex.R12 that it shows
allegations are false and not produced any documents in the
miscellaneous proceedings. The document marked at Ex.R3 is
very clear that personally notice was served and the same was
not disproved. Notice was served in the year 1984 itself and
after 14 years, miscellaneous proceedings was filed.
15. The counsel in support of his argument also filed
synopsis with citations, the counsel referring the judgment
reported in (1997) 9 SCC 689 in case of Nalini Navin
Bhagwati and others V/s Chandravadan.M.Mehta wherein
held that the application under Section 263 of Indian Succession
Act for revocation of probate can be treated as a miscellaneous
application and mainly disposed of on the fact situation either in
summarily after recording evidence and the application for
revocation shall not be treated as a suit as has been provided
under Section 295 of Indian Succession Act, 1925.
16. The counsel also relied upon the judgment reported
in AIR 1954 SC 280 in case of Ishwardeo Narain Singh V/s
Kamta Devi wherein held that the Court of probate is only
concerned with the question as to whether the document put
forward as the last Will and Testament of deceased person was
duly executed and attested in accordance with law and whether
at the time of such execution the testator had sound disposing
state of mind. The question whether a particular bequest is good
or bad is not within the purview of the probate Court.
17. The counsel also relied upon the judgment reported
in AIR 1996 SC 2677 in case of Ajay Krishan Shinhal etc
V/s Union of India and counsel brought to notice of this Court
that Section 114 of the Indian Evidence Act, 1872 and also
brought to notice of this Court illustration (e) wherein held that it
is not the law could not and would not be the law that
publication of the substance of the Section 4(1) notification in
the locality should be established beyond the shadow of doubt
and benefit should be extended to the owner or interested
person of the land. Obvious thereto, presumption under Section
114(e) of Evidence Act has been raised that official acts have
been properly done unless proved otherwise.
18. The counsel also relied upon the judgment reported
in (2006) 5 SCC 353 in case of Prem Singh and others V/s
Birbal and others and brought to notice of this Court in
paragraph No.28 wherein also an observation is made with
regard to illustration (e) invoking Section 114 of the Indian
Evidence Act, 1872. Presumption of existence of certain facts
and that judicial and official acts have been regularly conducted
will be one of the presumptions.
19. The counsel also relied upon the judgment reported
in AIR 1984 Karnataka 45 in case of Ramakrishna
Ganapayya Hegde V/s Lakshminarayana Thimmayya and
brought to notice of paragraph No.14 wherein also discussed
with regard to illustration (e) where a discussion is made that
there is presumption under Section 114 illustration (e) of the
Indian Evidence Act that all official acts done by the official are
in accordance with proper procedure. When plaintiff comes to
Court challenging such official act, the burden is on him to prove
that the act was not done in accordance with law and for that
purpose call for necessary records making the official a party to
the suit and show that the procedure followed by him was
vitiated.
20. The counsel also relied upon the judgment reported
in AIR 1974 SC 555 in case of E.P.Royappa V/s State of
Tamilnadu and another and the counsel brought to notice of
this Court in paragraph No.92 wherein also discussed with
regard to the burden of establishing malafides is very heavy on
the person who alleges it. The allegations of malafides are often
more easily made than proved, and the very seriousness of such
allegations demands proof of high order of credibility.
21. The counsel also produced the document with regard
to the rules governing probate and succession matters,1966 and
brought to notice of this Court that when the Court directs that
citation issued shall be published in any newspaper, the
petitioner shall file into Court a copy of the newspaper in which
citation is published and accordingly citation was taken and
produced before the Court.
22. The counsel also relied upon the judgment reported
in AIR 1955 SC 566 in case of Anil Behari Ghosh V/s
Latika Bal Dassi and others and brought to notice of this
Court paragraph No.16 wherein discussed with regard to Section
263 veils a judicial discretion in the Court to revoke or annul a
grant for just cause. The explanation has indicate the
circumstances in which the Court can come to the conclusion
that "just cause" had been made out. The omission to issue
citations to persons who should have been apprised of the
probate proceeding may well be in normal case a ground by
itself for revocation of the grant, but this is not as absolute right
irrespective of other considerations arising from the proved facts
of the case.
23. The counsel also relied upon the judgment reported
in AIR 2017 SC 5453 in case of Lynette Fernandes V/s
Gertie Mathais since deceased by LRs' and brought to notice
of Section 3 and Article 137 of limitation Act, 1963 and relied
upon paragraph No.6 of the judgment wherein discussed with
regard to substantial defect for the grant of probate that the
appellant has not adduced any evidence to prove that the Will
was not genuine and she has not initiated any proceedings to
question the validity of the Will and also brought to notice of
paragraph No.11 wherein also discussed with regard to article
137 of the Limitation Act as there is no provision under the
limitation Act specifying the period of limitation for an application
seeking revocation of grant of probate, Article 137 of Limitation
Act will apply to the case in hand. The counsel referring this
judgment would vehemently contend that belatedly questioned
the probate proceedings.
24. The counsel also relied upon the judgment reported
in (2008) 12 SCC 577 in case of Kamalesh Babu and
others V/s Lajpat Rai Sharma and others by referring this
judgment, the counsel brought to notice of this Court, paragraph
No.19, 20 and 21 that plea of limitation is a mixed question of
law and facts and the same cannot be raised at the appellate
stage, the reasoning behind the said proposition is still that
certain questions relating to the jurisdiction of Court, including
limitation, goes to the very root of the Court's jurisdiction to
entertain and decide a matter, as otherwise, the decision
rendered without jurisdiction will be nullity.
25. In reply to the arguments of the counsel for
respondents, the counsel for the appellant would vehemently
contend that with regard to the knowledge is concerned,
particularly in page No.3, it is specifically stated that after
service of summons in original suit, only verified the records and
the very observation of the Trial in paragraph No.11 and 12 is
erroneous. But, observed that within time the petition was filed
technically but erroneously comes to the conclusion that latches
on the part of the appellant and the said observation is
erroneous. In order to prove that the appellant had the
knowledge, the respondents have not produced the document of
service of notice.
26. The counsel also would vehemently contend that
except office note, regarding service, no documents are
produced and RW1 categorically admitted that it is only a weekly
newspaper which circulates among the subscribers and
categorically admitted that no documents are produced to show
for having served the notice. Hence, there is a defective citation
and no notice was served.
27. Having heard the respective appellant's counsel and
the counsel appearing for the respondents and also the
principles laid down in the judgments referred supra, the point
that would arise for consideration of this Court are:
1) Whether the impugned order requires to be set aside
and probate proceeding of P and SC No.38/1983 has to be
restored for consideration on merits for non-compliance of
Section 263 and Section 283 of Indian Succession Act?
2) What order?
28. The main contention of the appellant's counsel in the
appeal that the Court below fails to appreciate the evidence and
material on record in proper perspective. The main contention
that the Court below erroneously comes to the conclusion that
appellant has been served notice personally in P and SC
38/1983. No doubt on perusal of the Trial Court order sheet,
there is a reference that notice was served personally on
24.01.1984 and the said reference is only an endorsement.
29. The very contention of counsel for the respondents
also that notice was served and to that effect the counsel for
respondent No.1 is also relied upon judgment of the Madras High
Court which is referred supra and brought to notice of this Court
observation made at paragraph No.5 and 6, where the
discussion is made with regard to not objecting the same.
30. The very contention of the appellant that no such
notice was served. No doubt there is an endorsement on the
order sheet, that it was served personally. But, no document is
placed by the respondents before the Court that it was served
personally. No documentary evidence to show that personal
service of notice. Even the respondent neither produced the copy
of the notice which was served on the appellant nor produced
any acknowledgement for having served notice as contended by
the respondents that it was personally served.
31. The very contention of the counsel for the
respondent referring the judgments referred supra that the
Court has to draw an inference for personal service of the notice
on the basis of the entry in the order sheet, since the said act is
done in the Court proceedings. No doubt the Court can draw an
inference, but in the case on hand, it is the contention that no
such notice was served and also not produced any document by
the respondent that notice was served on the appellant herein
and also no acknowledgment is produced, when such being the
case, drawing of inference is improper and the same is also not
sustainable in the eye of law, since the same is not substantiated
by producing any material.
32. It is also important to note that the RW1 in his cross
examination has categorically admitted that there are no records
to show that service of notice in P and SC proceedings against
the appellant and when the appellant disputed the service and
put the question to the RW1 that no proper service was taken
and the respondents ought to have produced the
acknowledgment for having served on the appellant, but no such
acknowledgment is produced, no such notice was produced
which bears the signature of the appellant.
33. The appellant categorically disputed that no such
notice was served in P and SC proceedings. When the appellant
took the specific ground in the petition, no such proper service of
notice and when the respondent also fails to produce the
document and the Trial Court ought to have accepted the
contention of the appellant, only relies upon the ministerial entry
in the order sheet that there is a service of notice and the same
is not supported by any document in the evidence. Hence, the
Trial Court has committed an error in coming to the conclusion
that there is a proper service. The decisions quoted by the
respondents regarding inference will not comes to the aid of the
respondents. The burden is on the respondents to substantiate
the contention of proper service, since the person who asserts
the same has to be proved.
34. The second ground urged by the appellant before the
Court that no proper citation of probate proceedings was taken
out in a newspaper which is not at all having proper circulation.
It is also admitted by the witness RW1 in the cross examination
that the citation which was taken out will be circulated only
among the subscribers to the same. The same is also a weekly
magzine. The very purpose and object is to taking out the
citation is to give notice to the persons who are interested to
appear and object the same. But, the categorical admission is
given by RW1 that citation was taken out and the same will be
circulated to the subscribers only, the same cannot be a proper
service and the circulation is only among the subscribers. No
doubt the respondent Nos.4(a) and 4(e) have relied upon
several judgments with regard to the proper citation is
concerned, particularly the judgment of Supreme Court
establishing malafides is very heavy on the person who alleges it
and the same has been proved by the appellant that citation was
not taken in a daily newspaper which is in circulation to the
general public and the citation which was taken is a weekly
magzine and same will be circulated among the subscribers only
and the said admission is given by RW1 and the same has not
been properly considered by the Trial Court with regard to the
probate proceedings a citation was taken which is not a proper
circulation and the same has been circulated among the
subscribers, hence the same is not a proper circulation. No doubt
the counsel relied upon the judgment of Anil Behari Ghosh
case wherein discussed with regard to the proper citation is
concerned in order to invoke Section 263 of the Indian
Succession Act and a judicial discretion in the Court to revoke or
annulment grant for just cause wherein the appellate Court has
taken note with regard to the omission to issue citation to
person who should have been appraised of the probate
proceedings may well be in a normal case a ground by itself for
revocation of the grant, but this is not a absolute right
irrespective of other consideration arising from the true facts of
a case wherein also observed that we cannot ignore the facts
that about 27 years had elapsed after the grant probate in 1921
and not the situation in the case on hand and circulation is only
among the subscribers.
35. The counsel also would vehemently contend that
there is a latches on the part of the appellant in approaching the
Court. But, admittedly it is very clear that the probate was
granted in the year 1984 based on the circulation of citation was
made in the weekly magzine that it was circulated among the
subscribers and the same cannot be a proper citation.
36. This Court would like to rely upon the judgment of
the Apex Court reported in (2008) 1 Supreme Court Cases
267 in case of Basanti Devi V/s Ravi Prakash Ram Prasad
Jaiswal wherein also the Apex Court discussed Section 263 of
the Indian Succession Act particularly explanation (c) and held
that application for revocation of probate, maintainability and
locus standi, nature of Section 283(3) and effect of non-
compliance therewith, provisions of Section 283(3), held, are
mandatory. It is observed that where the deceased left the
properties in two different States but due to non-disclosure of
one of them, probate was granted without issuance of citation in
that State, held, application for revocation of the probate would
be maintainable and non publication of citation can be a ground
to revoke the probate, further held, any person aggrieved by the
grant of probate and unaware of the proceedings due to non-
issuance of proper citations can maintain the revocation
application and hence the said judgment is aptly applicable to
the case on hand. Since, non issuance of proper citation can
maintain the revocation of application and in the case on hand
also though citation was taken out and the same was taken in
weekly magzine and that too only circulated among the
subscribers and the same is not a proper citation. On the second
ground also impugned order of the Trial Court is not sustainable
in law.
37. The other contention of the appellant's counsel that
the Court below has seriously erred in holding that petition filed
by the appellant suffers from latches even though the same is
within a period of limitation. It is also brought to notice of this
Court that the Court below by considering the said issue also
comes to the conclusion that technically the petition is in time,
but comes to the conclusion that there is a delay on latches on
the part of the appellant and admittedly though probate
proceedings was initiated in the year 1983 and the same was
granted in the year 1984, for a period of one decade no steps
was taken and suit was filed in the year 1996 and no doubt
notice was issued in the year 1995 November in terms of Ex.R1
and also reply was given in terms of Ex.R2 and the appellant was
also categorically stated that when the suit summons was
received, she has verified the records in the year 1997. The
petition was filed in the year 1998 and when such explanation is
given, the Trial Court committed an error in coming to the
conclusion that there is a delay and latches on the part of the
appellant and the said finding is also erroneous and though
observed that the petition is in time. But, erroneously comes to
the conclusion that there is a delay and latches on the part of
the appellant. The very approach of the Trial Court is erroneous
and when the appellant specifically contend that no proper
service and no proper citation was taken out and merely notice
was given in the month of November, 1995 and the petition was
filed in the month of January 1998 itself within a period of three
years from the date of knowledge also. Hence, the very finding
of the Trial Court that there is latches on the part of the
appellant is also erroneous and ought not to have made such an
observation while dismissing the petition.
38. The other ground is also that RW1 is examined, he
was only a power of attorney holder and he also categorically
stated that only after becoming power of attorney holder for
respondent No.4, he came to know about the proceedings. The
power of attorney was issued in the year 1996. He was not
having the knowledge of earlier probate proceedings of P and SC
No.38/1983 and rightly pointed out that he was not having the
knowledge of earlier proceedings also and his evidence would
not have been relied upon by the Trial Court. Since, he was not
having acquaintance with the facts of earlier case.
39. The other contention that the executant was not in a
position to execute Will and he was incapable of execute the
same. The counsel for the respondent brought to notice of this
Court that though the Will was executed in the year 1973 and he
himself has executed the bond in the year 1974 itself. The very
contention that he was not in a position to execute a Will and he
was 84 years old and he was not in a physically fit condition and
the same cannot be considered in a miscellaneous petition filed
for the revocation of the probate as granted in P and SC
No.38/1983 and if any observation is made and the same
amounts to expressing an opinion on the P and SC 38/2023.
40. The other contention that the appellant was the
youngest daughter and she was staying along with the father
and the probate was obtained fraudulently by concealing the said
facts and the father ought not to have disinherit the daughter
who is staying along with him and also she is a widow, the said
contention also cannot be considered in this petition and while
considering the P and SC No.38/1983 on merits can be
considered and if any opinion is formed on that aspect, it
amounts to expressing an opinion on P and SC 38/1983.
41. Having considered the material on record,
particularly considering no proper service of notice and no
production of document for having served the notice and also
citation was taken out not in the regular daily newspaper and the
same was taken in weekly magzine, that too same will be
circulated to only among the subscribers and the same is not a
proper citation as discussed earlier. Regarding other aspect also
this Court considered the erroneous approach of the Trial Court
with regard to the latches and delay as observed and also
evidence of RW1 who was not having acquaintance with earlier
proceedings P and SC No.38/1983 and Power of Attorney holder
of the year 1996 and his evidence and his evidence is
considered. Hence, it is appropriate to set aside the order dated
13.08.2007 passed by the Prl. District Judge, Dakshina Kannada,
Mangalore passed in Misc.Case.No.16/1998 and consequently P
and SC No.38/1983 is restored by allowing the miscellaneous
petition invoking Section 263 of Indian Succession Act and
probate granted is hereby revoked. Hence, I answered the point
as Affirmative.
In view of the discussions made above, I pass the
following:
ORDER
The appeal is allowed.
The impugned order passed in Misc.Case.No.16/1998 is
hereby set-aside and consequently the petition filed under
Section 263 of Indian Succession Act by the appellant is allowed
and probate granted is hereby revoked. The P and SC
No.38/1983 is restored to consider the matter afresh by giving
an opportunity to the appellant herein to resist the same. The
appellant is given one week time to file statement of objection
from 05.10.2023.
The parties are directed to appear before the District Court
in P and SC No.38/1983 without expecting any notice on
05.10.2023 and the Trial Court is also directed to dispose of the
same within six months from 05.10.2023. The respective
counsels and parties are also directed to assist the Trial Court in
disposal of the same within a stipulated time.
The Registry is directed to send the records forthwith to
enable the Trial Court to take up the matter on 05.10.2023.
Sd/-
JUDGE
RHS
