Case: Lynette Fernandes Vs. Gertie Mathias since Deceased by Lrs

1. Mrs. Lynette Fernandes (appellant) is one of the three daughters of Mr. Richard P. Mathias and Mrs. Gertie Mathias (original respondent). After the demise of Mrs. Gertie Mathias, her other two children were brought on record as respondents. Mr. Richard P. Mathias died at Mangalore on 05.11.1959, leaving behind a Will executed by him on 11.08.1959 bequeathing all his assets to his wife Mrs. Gertie Mathias. Mrs. Gertie Mathias (original respondent) filed an application for grant of probate which was granted to her by the Trial Court on 09.09.1960, in O.P. No. 26/1960. 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.

Reasoning: 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 thehouse at Mangalore. As a matter of fact, the appellant was a minor and lived with 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 ‘justmeans and includes. As mentioned supra, the grant of probate may be revoked or annulled for ‘justonly. The explanation to this Section further clarifies that ‘justshall be deemed to exist where the proceedings to obtain the grant were defective in substance. In our opinion, a mereof 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 favour of his wife, also lived in Mangalore till his death. The beneficiary under the Will, namely, Mrs. Gertie Mathias also lived in Mangalore along with her husband and children, including the appellant. It is also not in dispute that the appellant lived in Mangalore till the initiation of these proceedings. Even if it is assumed that the citation had been issued at Chikmagalur, the appellant would not have got any benefit out of the same. The appellant wanted the citation to be issued at Chikmagalur on the assumption that she would have had the knowledge of the Will and the proceedings. As mentioned supra, since the appellant was residing at Mangalore, she would not have been benefitted, had the citation been issued at Chikmagalur. Section 263 of the Indian Succession Act vests a judicial discretion in the Court to revoke or annul a grant for ‘justDefective in substance must mean that defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. The very fact that the appellant kept quiet for 36 long years would clearly reveal that she was not interested in filing a caveat or in opposing grant ofin the present case we are not satisfied in all the circumstances of the case that just cause within the meaning of section 263 had been made out. We cannot ignore the facts that about 27 years had elapsed after the grant of probate in 1921, that Girish in spite of the knowledge of the grant at the latest in 1933 did not take any steps in his lifetime to have the grant revoked, that there was no suggestion that the will was a forgery or was otherwise invalid and that the will was a registered one and had been executed eight years before the testators unnatural death. Hence the omission of citations to Girish which ordinarily may have been sufficient for a revocation of the grant was not in the special circumstances of this case sufficient to justify the court to revoke the, as mentioned supra, Mrs. Gertie Mathias was the only beneficiary under the Will, and the Will remained unquestioned till the filing of the application seeking revocation for grant of probate. There is nothing on record to show that the grant of probate would not have been made, had the children of Mr, Richard P. Mathias been arrayed.Moreover, the other two children of Mrs. Mathias have not questioned the grant of probate. On the other hand, they are opposing the appellantthe 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 sowe 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 academic.10. Coming to the second ground for just cause,that the grant of probate was obtained by the appellant in fraudulent manner, as mentioned supra, the appellant has not come forward to adduce any evidence to prove the so called allegation of fraud. The signature of Mr. Richard P. Mathias on the Will has not been challenged. The Trial Court as well as the High Court has recorded the finding that the genuineness of the Will was not challenged by the appellant. Moreover, the particulars of fraud are neither pleaded nor proved by the party alleging fraud before the District Court. The party alleging fraud must set forth full particulars of fraud and the case can be decided only on the particulars laid out. There can be no departure from them. General allegations are insufficient. Merely because the appellant has made bald allegations in the revocation application that the Will executed by the deceased is void because the same has been brought out by Mrs. Mathias and the same is constituted by fraud and undue influence, it will not absolve her from providing specifically the particulars of fraud and undue influence. Mere bald pleading will not help her in the absence ofthe absence of any evidence on record showing prejudice because of non issuance of citation at Chikmagalur, and in the absence of any evidencemuch less cogent evidenceto 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, theapplication for revocation of grant of probate was highly belated. The District Court as well as the High Court is correct in holding that theapplication 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 inour 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 Highcannot 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. 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 remaineduntil 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.