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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 ..... robate, Article 137 of Limitation Act will apply to the case in hand. In this matter, the Appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965. In our considered opinion, three years limitation as prescribed Under Article 137 runs from the date of the Appellant attaining the age of majority i.e. three years from 09.09.1965. The Appellant did not choose to initiate any proceedings till the year 25.01.1996 i.e., a good 31 years after she attained majority. No explanation worthy of acceptance has been offered by the Appellant to show as to why she did not approach the Court of law within the period of limitation. At the cost of repetition, we observe that the Appellant failed to produce any evidence to prove that the Will was a result of fraud or undue influence. The same Will has remained un-challenged until the date of filing of application for revocation. No acceptable explanation is offered for such a huge delay of 31 years in approaching the Court for cancellation or revocation of grant of probate. The District Court as well as the High Court is justified in dismissing the application of the Appellant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to have been issued in the District of Chikmagalur where the immovable property of the testator was situated; the application for grant of probate did not disclose the names of the Appellant and her other two siblings; Mrs. Mathias ought to have arrayed all the three children as Respondents in the application for grant of probate. The Appellant also argued that the grant of probate in favour of Mrs. Mathias i.e. mother of the Appellant was as a result of fraud played by her on the Court. 3. Per contra, the advocate for the Respondent argued in support of the judgment of the Trial Court as well as the High Court. He contended that the Courts have rightly dismissed the application filed by the Appellant for revocation of probate, inasmuch as such prayer was made after a long period of 36 years; neither the allegation of fraud nor the evidence in that regard was let in by the Appellant; since Mrs. Mathias was the sole beneficiary under the Will, there is no reason for her to make her minor children as party Respondents in the application praying for grant of probate; and as the parties were permanently residing at Mangalore, no prejudice whatsoever was caused to the parties, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th her mother when Mrs. Mathias applied for probate. The Appellant has not adduced any evidence to prove that the Will was not genuine. She has not initiated any proceedings to question the validity of the Will. The Will executed by Mr. Richard P. Mathias in favour of Mrs. Gertie Mathias has remained unquestioned. Section 263 of the Indian Succession Act, makes it very clear as to what 'just cause' means and includes. As mentioned supra, the grant of probate may be revoked or annulled for 'just cause' only. The explanation to this Section further clarifies that 'just cause' shall be deemed to exist where the proceedings to obtain the grant were defective in substance. In our opinion, a mere non-issuance of citation at Chikmagalur where the property is situated does not amount to rendering the proceedings defective in substance under the facts and circumstances of this case. It may be procedural irregularity in this case inasmuch as though the property existed at Chikmagalur, all the parties including the owner of the property resided at Mangalore. Mr. Richard P. Mathias left behind his Will at Mangalore. Mr. Richard P. Mathias, who bequeathed the property in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were pointed out to show that if Girish had been cited he would have been able to enter a caveat, the absence of citation would have rendered those proceedings defective in substance . It may be that Girish having been found to have been the next reversioner to the testator's estate in case of intestacy and on the assumption that Charu had murdered the testator, Girish might have been entitled to a revocation of the grant if he (1) 10 C.L.J. 263 at p. 273. (2) I.L.R. 33 Cal. 1001, had moved shortly after the grant of the probate on the simple ground that no citation had been issued to him. The omission to issue citations to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant. But this is not an absolute right irrespective of other considerations arising from the proved facts of a case. The law has vested a judicial discretion in the Court to revoke a grant where the court may have prima facie reasons to believe that it was necessary to have the will proved afresh in the presence of interested parties. But in the present case we are not satisfied in all the circumstances of the case that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with equal vehemence that the mother was the natural guardian of the Appellant at the time; she appeared in the case and contested the grant right up to the High Court; there is nothing in the record to show that she acted injuriously to the Appellant or that her interest was adverse to that of the minor; therefore, she effectively represented the Appellant in the probate proceedings, and it cannot be said that the defect arising out of the absence of citation was a defect of substance, which alone can be a ground for revocation. Apart from authority, which I shall presently discuss and which also (in my opinion) is in favour of the view I am about to express, I fail to see how a proceeding can be said to be defective in substance, when the natural guardian of the minor has appeared and has contested the grant right up to the High Court. The position, no doubt, will be different if the natural guardian is under the influence of the propounder of the will or puts up a nominal contest or does not appear at all or her interest is adverse to that of the minor. In those and other like circumstances, the absence of citation on a person, who ought to have been cited, will no doubt be a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which fortifies the existence of the English rule', namely that in England there is no judicial determination of the right to probate. In India, judicial determination is a matter of course. Thus, we agree that there cannot be a common form of probate in India. Be that as it may, since the evidence of Mrs. Mathias was recorded at the time of grant of probate by the competent Court of law, it is clear that the probate was granted in favour of Mrs. Mathias after publishing Citation at Mangalore and after due application of mind by the Court. Hence it was solemn form only. Since the provisions of Section 263 of the Indian Succession Act state that a probate can be revoked on grounds of just cause, it was open for the Appellant to approach the Court of law by filing an application Under Section 263 of the Indian Succession Act, seeking revocation. As the Appellant has approached the Court of law, and her application is being dealt with by a rigorous process of adjudication upto this Court, there is no question of common form being an obstacle to her ability to challenge the probate. The question raised by the Appellant on the distinction between common form and solemn form is aca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation is provided elsewhere in this division. Three years When the right to apply accrues This Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma AIR 1997 SC 282 has held that any application under any Act, including a Writ Petition under any Special Act will fall under within Article 137 of the Limitation Act and have a limitation period of three years. 22. The changed definition of the words applicant and application contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityanada Joshi's case (supra) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case (supra) where this Court construed Article 137 to be referable to applications under the Code of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f probate come within the meaning of an application Under Article 137 of the Limitation Act, 1963. The judgment of the Madras High Court, mentioned supra, is considered by this Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma AIR 1997 SC 282, cited supra. In our considered opinion, in view of the judgments of this Court in the case of both Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma AIR 1997 SC 282 and Kunvarjeet Singh Khandpur v. Kirandeep Kaur, (2008) 8 SCC 463, the judgments of the High Court's cannot be pressed by the Appellant. 13. One must keep in mind that the grant of probate by a Competent Court operates as a judgment in rem and once the probate to the Will is granted, then such probate is good not only in respect of the parties to the proceedings, but against the world. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation Under Article 137 of the Limitation Act in proceedings for revocation of probate. In this matter, as mentioned supra, the Appellant was a minor at the time of grant of probate. She attained majority on 09.09.1965. She got married on 27.10.1965 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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