IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 1.07.2011 CORAM: THE HONOURABLE MRS. JUSTICE R.BANUMATHI AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH O.S.A. No.37 of 2011 E.Sankaran .. Appellant/3rd Party -Vs- 1. Mrs. Krishnaveni 104-A, Bricklin Road, Chennai-600 012. 2. Rajammal No.13, S.S.Puram, 'B' Block, Purasawalkam, Chennai-600 007. .. Respondents/Petitioner and Respondent For appellant : Mr.P.B.Balaji For respondents : Mr.S.M.Pandian for R1 No appearance for R2. Prayer:- Appeal against the order and decretal order dated 10.6.2010, passed by the learned single Judge of this Court in Application No.111 of 2008 in O.P.No.565 of 2001. JUDGMENT V. PERIYA KARUPPIAH, J. This appeal is directed against the order of dismissal passed by the learned single Judge in Application No.111 of 2008 in O.P.No.565 of 2001 2009, dated 10.6.2010. 2. The applicant before the learned single Judge is the appellant herein. He, as a third party, filed an Application to pass an order of revocation of the grant of probate of the Will dated 19.11.1995 executed by Late E.Andal in favour of the first respondent in the said application/petitioner in the Original Petition, ordered on 28.3.2003. https://hcservices.ecourts.gov.in/hcservices/ 3. The learned single Judge had gone through the contentions of both parties and had dismissed the claim of the applicant to revoke the grant of probate as ordered by the Testamentary Court in O.P.No.565 of 2001 on 28.3.2003. Aggrieved by such an order, the appellant has preferred the present appeal. 4. Heard Mr.P.B.Balaji, learned counsel appearing for the appellant and Mr.S.M.Pandian, learned counsel appearing for the first respondent. 5. The learned counsel for the appellant would submit in his argument that the refusal to grant an order of revocation of the probate by holding that the applicant should have a caveatable interest to maintain an application for revocation of grant of probate is erroneous and the finding of the learned single Judge that the appellant has no locus standi to question the grant of probate under Section 263 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act"). He would further submit in his argument that the appellant even though was a third party to the probate proceedings, had an interest in the property bequeathed and the grant of probate had affected his right in the property and he, as an aggrieved person, can always invoke the provisions of Section 263 of the Indian Succession Act to revoke the order of grant of probate. He would further submit that the well settled proposition of law is that a probate order which was an order in rem, could be questioned by any person, but such reasons put forth for revocation should be a just cause as detailed in the explanation of Section 263 of the Act. He would also submit that the right of the appellant in the immovable property is disturbed by virtue of the order of grant of probate and the said order being a right in rem, could be questioned by the appellant, since he was prejudiced by the grant of such probate. He would also submit that the first respondent had played fraud upon the Court by suppressing the true facts and also put forth false information regarding the relationship of the first respondent with the testatrix and had applied for the probate and such a fraudulent act of the first respondent could be brought by the appellant for revoking the probate as detailed under Section 263 of the Act. He would further submit that the first respondent as petitioner in the Original Petition, did not bring the legal heirs of the deceased testatrix E.Andal, viz., Dharmalingam, Mohana, who are the brother and sister of deceased Andal. He would produce the voters' list of the house bearing Door No.66 of Ponniamman Street, where the testatrix E.Andal was living. He would refer to the name Dharmalingam, son of Ezhumalai, Mohana, wife of Gopal along with Andal, daughter of Ezhumalai were living in the said address and the said Dharmalingam and Mohana, who are the legal heirs of deceased testatrix E.Andal, but for the Will they were neither impleaded nor cited as necessary parties to the said O.P. He would also submit in his argument that the learned single Judge had misconstrued the position of law that caveatable interest is required for revocation https://hcservices.ecourts.gov.in/hcservices/ of probate also apart from probate proceedings. He would further submit in his argument that caveatable interest is required only for being cited as parties to the probate proceedings but not after the grant of probate. He would also submit that after the grant of probate, the said order would bind all the persons apart from the parties to the probate proceedings. Such an order was a right in rem and if any person is affected by such an order, even though he has no caveatable interest, he can invoke the provisions of Section 263 of the Indian Succession Act. 5A. He would also submit that the principle laid down by Honourable Apex Court, reported in AIR 1990 SC 1576 (Elizabeth Antony v. Michel Charles John), would clear the doubts. Taking support from the said Judgment, he would further argue that any slightest interest in the property would entitle the aggrieved person to invoke the provisions of Section 263 of the Act, since an order passed in probate proceedings is a right in rem. He would also bring it to our notice yet another Judgment of the Honourable Apex Court, reported in 2008 (1) CTC 698 (SC) ( Basanti Devi v. Raviprakash Ramprasad Jaiswal) for the principle that the persons who ought to have been cited as parties in the probate proceedings if not cited, would also lead to revocation. Quoting the aforesaid Judgment, he would argue that the brother and sister of the testatrix, E.Andal were not made as the respondents in probate O.P proceedings and the Will itself was a forged and fabricated one and the contents of the Will would go to show that the relationship of the respondents with the testatrix was absolutely false in view of the earlier proceedings held in between the respondents and the testatrix, the appellant and the testatrix and the respondents and one Duraisamy before the City Civil Court. He would also draw the attention of the Court that the first respondent who was granted with the probate, was not at all related to testatrix E.Andal and the respondents and the said Andal were pitted against the title of the property. The proceedings in O.S.No.5344 of 1998 on the file of City Civil Court, Chennai would go to show that the first respondent had pleaded in the plaint that she purchased the property from the said E.Andal for a valid consideration on oral sale and due to the understanding in between the respondents herein and the said Andal, there was no sale deed reduced in writing. He had also brought it to the notice of the Court that a suit was filed by the appellant against the testatrix, Andalammal, Duraisamy Nadar and the first respondent in O.S.No.4033/1994 in respect of the property to an extent of 400 sq. ft in R.S.No.2870/12 bearing Old D.No.48C New D.No.104 and Decree has been obtained for permanent injunction on 4.9.1996 and the same is in force. All these proceedings would go to show that the said testatrix E.Andal was not at all related to the respondents herein, but the Will probated in the absence of legal heirs of E.Andal and the appellant would explain that the first respondent was the daughter of testatrix's sister viz. Rajammal. He would stress in his arguments that the said allegation made in the https://hcservices.ecourts.gov.in/hcservices/ Will would be sufficient for showing a prima facie case of fraud committed by the respondents in fabricating the Will and the signatures of the testatrix found in the said Will was extraordinarily attested by a Notary Public and it was also engrossed in a stamp paper which are not necessary for the execution of a Will. He would also submit that the fraudulent act and forgery of the Will has been prima facie shown to Court and the legal heirs of the testatrix viz. Dharmalingam and Mohana were also not cited as parties to the probate proceedings and therefore, the probate obtained on the Will of the testatrix dated 19.11.1995 has to be revoked for 'just cause'. He would also submit that the learned single Judge has not considered all these aspects but had harped on the only point of caveatable interest which was categorically laid down by the Hon'ble Apex Court that it was not necessary to resort to the provisions of Section 263 of the Indian Succession Act. He would also rely upon a judgment of Calcutta High Court reported in AIR 1970 Calcutta 433 (v.57 C 81) (Smt. Annapurna Kumar v. Subodh Chandra Kumar) for the principle that any interest however slight, and even the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. He would therefore, request the Court that the order of learned single Judge refusing the appellant to maintain the revocation proceedings by saying that the appellant had no locus standi should be set aside and the grant of probate may be revoked on the ground of fraudulent, fabrication and forgery of the Will and non-citation of the legal heirs of the deceased testatrix E.Andal and the applicant and to revoke the probate order passed in O.P.No.565/2001 dated 28.3.2003 and thus, to allow the appeal. 6. The learned counsel for the first respondent would submit in his arguments that the appellant was a third party and was not related to the testatrix and therefore, he need not be impleaded as a necessary party having interest in the said property. He would further submit that the appellant, except being in possession of a portion of the property, have no interest nor any caveatable interest in the estate of the testatrix-Andal and he was not a beneficiary under the Will and therefore, there is no caveatable interest in the estate of the deceased and he could not participate in the probate proceedings and therefore, he cannot also entitle or maintain the application for revocation of the probate order. He would further submit in his argument that this Court, on an earlier occasion, in its unreported Order made in Application No.1533 of 2000 in O.P.No.368 of 1997 (Mrs.A.Sundari v. M/s.Ambika Appalam Depot) dismissed the revocation application in similar circumstances. He would also produce yet another unreported Order of this Court made in A.No.5342 of 2001 in O.P.No368 of 1997 for the same principle. He would also bring it to the notice of this Court a Judgment reported in AIR 1996 MADRAS 318 (Re: v. P.D.Rajan) for the same principle. Placing reliance on those judgments, he would request the Court to confirm the order of dismissal passed by the learned single Judge and https://hcservices.ecourts.gov.in/hcservices/ to dismiss the appeal. 7. We have given anxious consideration to the arguments advanced on either side. 8. Indisputable facts are that the property was originally belonged to E.Andal; the appellant, a third party, had filed the suit against the said Andal (testatrix) and one Duraisamy Nadar and the first respondent herein on the file of City Civil Court, Chennai in O.S.No.4033 of 2004 and obtained an order of permanent injunction in respect of his possessory right over the property, to an extent of 6400 sq ft in R.S.No.2870/12 bearing Old No.48C, New Door No.104. The said judgment is dated 4.9.1996 and produced in page No.29 of the typed set. Similarly, yet another suit in O.S.No.5344 of 1998 was filed by the first respondent against the said Doraiswamy in respect of the property measuring about 2 grounds and 1251 sq. ft Old D.No.48-C with New D.No.104A and the plaint was filed in page No.36 of the typed set. 9. According to the said plaint allegations, the first respondent was said to have purchased the property bearing new Door No.104-A, Bricklin Road, Otteri, Chennai-600 012 on an oral sale and the first respondent was stated to be in possession. However, a sale deed was said to have been executed by the deceased Andal for 2 Grounds and 689 sq. ft. to the said Doraiswamy on 29.8.1986 and she was in possession of the remaining extent of the property, out of four grounds and 1378 sq. ft. In the said extent, the appellant was said to have been in adverse possession for over 60 years in 400 sq.ft of the property. The judgment and decree passed in O.S.No.4033 of 1994, dated 4.9.1996 produced in page Nos.24 to 29 of the typed set would categorically show that out of the said total extent of the property, the petitioner was found in possession of new Door No.104, Bricklin Road, Purasawalkam, Chennai-7. The respondents did not show the Court that the said judgment and decree passed in favour of the appellant in O.S.No.4033 of 1994 by the City Civil Court, Chennai was challenged and was set aside. Therefore, we could understand that the appellant had got some extent in the property by virtue of judgment and decree passed in his favour. 10. The learned single Judge had found that the appellant has no locus standi to maintain the applications since he was not related to the deceased testatrix and therefore, there is no caveatable interest in the estate. The application was filed by the appellant before the learned single Judge for revocation of the probate order granted by this Court in O.P.No.565/2001 on 28.3.2003 by stating that fraud has been committed and thereby, Will has been fabricated and forged and an order of probate was obtained. 11. The learned single Judge had found that the appellant was https://hcservices.ecourts.gov.in/hcservices/ not admittedly related to testatrix or beneficiary to the said Will and therefore, he had no caveatable interest and thus, found that the appellant has no locus standi to maintain the said application. But the learned single Judge has not gone into the reasons put forth by the appellant for ascertaining just cause. 12. The Judgment of the Hon'ble Apex Court reported in AIR 1990 SC 1576 (Elizabeth Antony v. Michel Charles John) is the answer for the situation dealt with by the learned single Judge. In para 10 of the said Judgment, it has been held thus: "10. The learned counsel, however, lastly submitted that the petitioner in spite of having substantial interest in the estate is losing her right to prove that the alleged Will by Miss Zoe Enid Browne (sic) is not a genuine one and that it is a fictitious one. We must point out that by granting a probate, the Court is not deciding the disputes to the title. Even with regard to a probate granted, it can be revoked as provided under Sec.263 of the Act in any one of the cases mentioned therein. But the learned counsel for the petitioner submits that the findings of the Sub Court and the High Court regarding the caveatable interest will come in the petitioner's way in seeking revocation of the grant of probate. It is needless to say that the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of granting of probate. But they cannot deprive his right, if he has any, to invoke Sec. 263 of the Act it is up to the petitioner to satisfy the Court." 13. The Honourable Apex Court had categorically distinguished the parties who can participate in the probate proceedings and the parties who are affected by the order of grant of probate, who can resort to the provisions of Section 263 of the Indian Succession Act for getting the appropriate relief, which has been categorically found that caveatable interest have a limited effect and they cannot deprive the right of any portion to invoke the provisions of Section 263 of the Act. Therefore, we could find that the revocation application can be filed by any person whose interest is affected by an order of grant of probate to invoke provisions of Section 263 of the Act and if those provisions are satisfied, an order has to be passed under the said Section 263 of the Indian Succession Act. Therefore, we find that it is clear from the dictum of the Honourable Apex Court that theory of requirement of caveatable interest for maintaining an application for revocation of probate order reached by the learned single Judge, cannot be sustained for any moment. https://hcservices.ecourts.gov.in/hcservices/ 13A. The appellant who was the applicant before the learned single Judge, had pleaded that the Will has been fabricated by the propounder/first respondent and the first respondent herself had shown to be the sister's daughter of testatrix which was obviously untrue and thereby the respondents had played fraud upon the Court. Apart from that, the brother of testatrix viz., Dharmalingam and sister viz., Mohana were not impleaded or cited as respondents in the probate proceedings.The appellant had prayed for revocation of probate on these grounds. 14. As regards the plea of fraud played upon the Court, when we go through the copy of the Will produced in page No.60 of typed set, it has been categorically said to have been stated by the testatrix that she had only one sister viz. Rajammal and the remaining extent of the vacant land, after selling 2 grounds and 689 sq.ft to V.Doraisamy, out of 4 grounds and 1378 sq.ft., was in her possession and enjoyment and she bequeathed the said property of 2 grounds 689 sq. ft. to her sister Rajammal's daughter Mrs.Krishnaveni (the first respondent), whereas the plaint filed by the first respondent Krishnaveni in O.S.No.5344 of 1998 would go to show that her ancestors purchased the said property from the said Andal for a valid consideration and on oral understanding between the plaintiff's ancestors and Andal, it was decided not to reduce the said sale deed into writing. The respondent did not trace the title through the Will which was said to have been executed sufficiently 3 years earlier to the said filing of the suit. Similarly, the voters' list produced by the appellant would go to show that the said Andal was having one brother Dharmalingam and one sister Mohana. There is no other sister by name Rajammal mentioned in the said voters' list as sister of Andal. Therefore, we see a prima facie case of suppressing the facts in the original petition and it may amount to a fraud on a full-fledged trial. Apart from that, the legal heirs who are the next of kin of the testatrix were not cited as respondents in the proceedings. Whether they are actually not interested in the property has to be decided in the O.P proceedings. All these factors were not considered by the learned single Judge while disposing the application for revocation. 15. No doubt, it is true that the testamentary Court cannot go into the title to the property bequeathed under the Will. The unreported Judgments cited by the learned counsel for the respondents would go to show that the property dispute cannot be decided by the testamentary Court and therefore, the dispute raised by the appellant should also be considered only by the Civil Court. 16. The case put forth by the appellant before the learned single Judge is not in respect of title. He questioned the grant of probate on the fraud committed by the first respondent as petitioner. Similarly, he has raised objection that the interested persons viz. Dharmalingam and Mohana were not cited as respondents who were the https://hcservices.ecourts.gov.in/hcservices/ legal heirs of E.Andal, but for the Will. The said objections were misconstrued that the appellant had raised the plea of title in the revocation of probate application and was sought to be rejected on the basis of the unreported judgments of this Court. The said judgments cited by the learned counsel for the first respondent are not relevant to the issue in this appeal. 17. According to Section 263 of the Indian Succession Act, 1925 there should be a 'just cause' for revocation of the probate order and the instances of just cause have also been listed in the explanation. Similar illustrations also given for revocation of probate under Section 263 of the Act. For better understanding, the provisions of Section 263 of the Indian Succession Act has to be explained and the illustrations are extracted below: "263. Revocation or annulment for just cause.- The grant of probate or letters of administration may be revoked or annulled for just cause. Explanation.- Just cause shall be deemed to exist where - (a) the proceedings to obtain the grant were defective in substance; or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something 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. Illustrations (i) The court by which the grant was made had no jurisdiction. (ii) The grant was made without citing parties who ought to have been cited. (iii)The will of which probate was obtained was forged or revoked. (iv) A obtained letters of administration to the estate of B, as his widow, but it has since https://hcservices.ecourts.gov.in/hcservices/ transpired that she was never married to him. (v) A has taken administration to the estate of B, as if he had died intestate, but a will has since been discovered. (vi) Since probate was granted, a later will has been discovered. (vii) Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the will. (viii) The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind." 18. The said provisions are self-contained and if any other ground is raised, it would not help the applicant to seek for revocation of the probate order. It is the dictum of the Hon'ble Apex Court that probate Court cannot go into the title dispute of the parties since it does not come within the four corners of the provisions of Section 263 of the Indian Succession Act. 19. We have to see whether the commission of fraud and the non-citation of the persons who have got caveatable interest would lead to revocation. According to the explanation given under clause (b), making a false suggestion or concealing something material to the case in order to obtain the grant of probate is also a "just cause". In the illustration No.(ii), it has been clearly pointed out that the persons who out to be cited as respondents are not cited, would amount to a just cause for revocation of the probate order. As far as this case is concerned, the contents in the Will would show that the first respondent is the sister's daughter of the testatrix whereas the complaint filed by her would show something else that she has obtained the property from the testatrix from the oral sale through the respondents' ancestors and the said allegations in the complaint were made long after the alleged date of the Will. Therefore, we find that some false suggestions appear to have been made so as to obtain the grant of probate by fraudulent means from the Court. However, the said prima facie finding should be confirmed only in the full-fledged trial by converting the Testamentary Original Petition into a Testamentary Original Suit by impleading the appellant also. Similarly, the testatrix's brother Dharmalingam and sister Mohana ought to have been impleaded