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TMI Blog2017 (11) TMI 1918X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. As on that date, all the three children of Mrs. Gertie Mathias were minors, and the Appellant attained majority on 09.09.1965. She filed a suit for partition on 06.07.1995, claiming 1/4th share of the properties referred to in the Will of the deceased Mr. Richard P. Mathias. The same is said to be still pending. The Appellant herein did not initiate any action either against her mother or against her other siblings in respect of the Will and the probate in question till the year 1996. The Appellant filed P & SC No. 23 of 1996 Under Section 263 of Indian Succession Act, before the District Court, Bangalore, seeking revocation of probate granted to Mrs. Mathias on 09.09.1960. It means that the Appellant approached the jurisdictional Court for cancellation of probate after about 36 years from the date of grant of probate. The learned District Judge dismissed the application both on merits as well as on grounds of limitation. The High Court in M.F.A. No. 2744/00 (ISA) upheld the findings of the District Judge, and consequentially dismissed the appeal filed by the Appellant herein. The judgments of the District Court and the High Court are called in question in this appeal. 2. It wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing material to the case; or (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or (d) the grant has become useless and inoperative through circumstances; or (e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect. The aforementioned provision allows revocation of grant of probate of the Will on the existence of 'just cause'. The Appellant seeks to bring her case within explanations (a) & (b) to this Section, as she claims that the proceedings were defective and that the grant was fraudulently obtained. 6. With respect to the first ground, we are unable to accept the contention that not taking out a citation at Chikmagalur is a substantial defect for the grant of probate. It is a finding of fact by the Trial Court and the High Court that the Appellant and her entire family lived in the 'Highlands' ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... she was not interested in filing a caveat or in opposing grant of probate. In this regard, it would be relevant to note the observations by this Court, in the case of Anil Behari Ghoshe v. Smt. Latika Bala Dassi and Ors. AIR 1955 SC 566, which reads thus: It was further argued on behalf of the Appellant that the appeal should be allowed and the grant revoked on the simple ground, apart from any other considerations, that there had been no citation issued to Girish. In our opinion, this proposition also is, much too widely stated. Section 263 of the Act vests a judicial discretion in the court to revoke or annul a grant for just cause. The explanation has indicated the circumstances in which the court can come to the conclusion that "just cause" had been made out. In this connection the Appellant relied upon Clause (a) quoted above which requires that the proceedings resulting in the grant sought to be revoked should have been "defective in substance". We are not inclined to hold that they were "defective in substance". "Defective in substance" must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioned the grant of probate. On the other hand, they are opposing the Appellant throughout. 7. The Appellant relied upon the judgment in the case of Mt. Sheopati Kuer v. Ramakant Dikshit and Ors. AIR 1947 Patna 434, where it was held that any interested party, including the minor daughter of the person seeking revocation of the probate, ought to be served with a citation. However, the Appellant has omitted to note the following paragraph in the very judgment which reads thus: 9. Now, comes the main question whether in the circumstances mentioned above, there is just cause for revoking the grant, It has been very strenuously contended on behalf of the Appellant that absence of citation on her at once brings her case within illustration (ii) of the Section and it must be held that the proceedings to obtain the grant were defective in substance, once that is held, the grant must be revoked. Learned Counsel for the Appellant has placed very great reliance on the decision of their Lordships of the Judicial Committee in Ramanandi Kuer v. Mt. Kalawati Kuer A.I.R. 1928 P.C. 2 and also on Haimabuti (sic Haimabati) Mitra v. Kunja Mohan Da AIR 1931 Cal 713. I shall presently consider these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently service on them was essential. In the present matter, as mentioned supra, no benefit accrued from the Will of Mr. Mathias in favour of the Appellant. The Appellant also sought to rely on the case of Sachindra Narain Sah v. Hironmoyee Dasi, 24 CWN 538. The aforementioned case does not help the Appellant as it did not deal with the necessity of appointing a guardian while serving notice, but instead dealt with the consent of the guardian so appointed. 9. The Appellant further contended that the probate was granted to Mrs. Gertie Mathias in 'common form' and not in 'solemn form' and thus, it is open to challenge such a grant of probate. Such argument may not arise in this matter. In England, common form of grant of probate is a matter of right in the absence of all other interested parties, but there is no such right for any applicant who seeks a grant of probate in India. A party seeking the revocation of grant of probate cannot later resort to English law and contend as mentioned supra. The Calcutta High Court in Southern Bank Ltd. v. Kesardeo Ganeriwalla AIR 1958 Cal 377 observed that there is no system in India like the English common form procedure, as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undue influence. Mere bald pleading will not help her in the absence of proof. In the absence of any evidence on record showing prejudice because of non issuance of citation at Chikmagalur, and in the absence of any evidence-much less cogent evidence-to prove fraud and undue influence, we conclude that the Trial Court as well as the High Court is justified in concluding that there is no just cause for revocation of grant of probate Under Section 263 of the Indian Succession Act. 11. To crown all the aforementioned, the Appellant's application for revocation of grant of probate was highly belated. The District Court as well as the High Court is correct in holding that the Appellant's application for revocation of grant of probate is hopelessly barred by limitation. 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. Article 137 reads thus: Article Description of application Period of Limitation Time from which period begins to run 137. Any other application for which no period of limitation is provided elsewhere i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and sought to apply it to the present case of application for revocation of grant. The High Court of Karnataka while passing the aforementioned judgment relied upon the judgment of Madras High Court in the case of S. Krishnaswamy v. E. Devarajan AIR 1991 Mad 214. In these judgments, the High Courts have observed that in the application filed for grant of probate or Letters of Administration, no right is asserted or claimed by the Appellant. The applicant only seeks recognition of the Court to perform a duty. By the proceedings filed for grant of probate or Letters of Administration, no rights of the applicant are settled or secured in the legal sense. The author of the testament has cast a duty with regard to the administration of his estate, and the applicant for probate only seeks the permission of the Court to perform that duty. The duty is only moral and not legal. There is no law which compels the applicant to file the proceedings for probate or letters of administration. Based on these observations, the Courts have ruled that it would be very difficult to hold that the proceedings for grant of probate come within the meaning of an application Under Article 137 of the Limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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