M.A. Sreenivasan vs H.V. Gowthama And Anr-09/12/2004

The probate Court will not go into question of title of the property which is bequeathed under the will. It is totally outside the scope of enquiry in a probate proceedings. If the testator has a right in the property the beneficiary gets that right on the death of the testator under the will. Grant of probate do not divest any person of his title to the property not vest title in the beneficiary under the Will.

M.A. Sreenivasan vs H.V. Gowthama And Anr

Karnataka High Court

M.A. Sreenivasan vs H.V. Gowthama And Anr. 

Equivalent citations: ILR 2005 KAR 1138

ACTS: Section 263 of the Indian Succession Act

DATE: 9 December, 2004

Bench: N Kumar

ORDER

N. Kumar, J.

1. The above petition is filed under Section 263 of the Indian Succession Act (for short hereinafter referred to as the Act) for revocation of the probate of the will dated 15.3.1992.

2. One Sri. M.A. Krishnamachari was the owner of the properties in question. Second respondent herein is the only daughter. He executed a will dated 15.11.1989 bequeathing all the properties in her favour, and appointed the first respondent as the executor. He died on 15.2.1991. Thereafter the first, respondent, executor, filed a petition for grant of probate before this Court in C.P. No. 1/92. The petition was admitted, citation was ordered. There was no contest. The Court passed an order on 15.3.92 granting probate.

3. The petitioner herein who is the only son of the second respondent claims, late Sri. M.A. Krishnamachari has executed a deed of settlement dated 6.4.1990 under which he had settled all the properties covered under the will in his favour. On the day Sri. M.A. Krishnamachari died he was not the owner of these properties. Therefore he contends that the respondents taking advantage of his absence from the country have clandestinely obtained the said probate behind his back and therefore the same is liable to be revoked as his interest is being affected by the aforesaid grant of probate.

4. After service of notice, respondents have entered appearance and they have filed a detailed statement of objections traversing all the allegations in the petition and denying the execution of the alleged settlement deed by the deceased M.A. Krishnamachari in favour of the petitioner. They contend that the petitioner has no interest in the estate of the deceased M.A. Krishnamachari and the petition filed for revocation of the probate by a person who has no interest in the property is not maintainable. An application is also filed requesting the Court to dismiss the petition as not maintainable at the stage of admission itself. Therefore this petition was heard on the question of maintainability.

5. Learned counsel appearing for the respondents Sri. K.C. Shivasubramanian, contends that this Court has granted probate, after the respondents complied with all the requirements of law. In terms of the grant the property also has been transferred to the second respondent. In other words, the probate has been fully acted upon. The petitioner is claiming property adverse to the deceased M.A. Krishnamachari disputing his title on the day will came into effect. The settlement deed set up by him as source of his title is denied. Unless the petitioner establishes his title and interest in the property he has no locus standi to seek for revocation of the probate. It is settled law that in probate proceedings the Court cannot go into the question of titled of the property which the testator purports to have bequeated. The second respondent it the only daughter. Even without the will she would have got the entire property and the petitioner during her life time has no semblance of any right to the property covered under the will. As such he has no right to maintain this petition.

6. Per Contra, Sri. Yaduraya Gowda, learned counsel appearing for the petitioner contends that admittedly all these properties belongs to deceased M.A. Krishnamachari. He has executed a deed of settlement dated 6.4.90 setting all these properties in favour of the petitioner. Will comes into effect only on the death of the testator. If on the date of the death of the testator he had no right in the property, the legatee cannot get better title. Suppressing these facts during the absence of the petitioner from India, probate petition is filed without making the petitioner a party to the proceedings and probate is obtained. As the petitioner is the absolute owner of the property in question, the probate creates a cloud on his title to the property and therefore the petition filed for revocation of the probate is maintainable.

7. This petition for revocation of Probate is filed Section 263 of the Indian Succession Act, 1925, which reads as under:

“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 nature 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 willfully 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”.

8. Section 263 of the Act under which application for revocation of the probate is made, only deals with the circumstances under which the grant may be revoked or annulled. It does not deal with the question who is entitled to file an application for revocation of the grant. Generally speaking who ever has a right to contest the grant can also be said to be having locus standi to seek for revocation of the grant of probate. Such a person must show that he has some interest in the estate of the deceased, whose Will is said to be probated in order to entitle him to locus standi in the probate Court, He must show an interest in the estate of the deceased person either by inheritance or otherwise. The test for determining generally whether a person has sufficient interest is this: Will the grant displace any right to which he is otherwise entitled? If so he has an interest. If not he is not. An interest, however slight and even bare possibility of an interest is sufficient to entitle a party to oppose the grant or to maintain a petition for revocation of the grant. Persons seeking to revoke the grant or probate or letters of administration must prove that they have an interest in the estate of the deceased sufficient to entitle them to a locus standi in Court. It is not necessary that the person should have an interest in the estate at the time of the death of the testator. An interest acquired subsequent to the death of the testator by a purchaser or mortgagee of a part of the estate of the deceased is sufficient. It cannot be said that only those persons who could be cited before grant of probate are the only persons who could apply to revoke the probate. If a person complains that he is injured by the fraud committed in propounding a forged will, he is interested and can apply for revocation. The findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the question of granting of probate. But the petitioner cannot be deprived of his right, if he has any to invoke section 263 of the Act and it is up to petitioner to satisfy the Court. In other words the person who is seeking revocation of the probate must establish that but for this probate he had an interest in the estate of the deceased and the probate has the effect of either their taking away his vested right or denying the right to him in the estate of the deceased.

9. A person denying title of the testator and claiming property adversely to him cannot be said to have any interest. The expression interest in the estate of the deceased means to include persons who do not dispute the title of the deceased but claim to have some interest in the estate left by the deceased. If he claims the property by paramount title he has no locus standi. A person who claims outside and independent of a will or claims adversely to the testator and claims he has a right to deal with the property in his own right, can in any sense be deemed to claim an interest in the estate of the deceased. It is the invariable practice of the probate Court that on application for grant of probate or letters of administration the Court will not go into the question as to the title of the property which the testator by his will purports to dispose of.

10. The Supreme Court in the case of MRS. HEM NOLINI JUDAH (SINCE DECEASED) AND AFTER HER LEGAL REP. MRS. MARLEAN WILKINSON v. MRS ISOLYNE SAROBASHINI BOSE AND ORS., has held as under:

“Grand of probate or letters of administration does not establish that the person making the will was the owner of the property which he may have given away by the Will, and any person interested in the property included in the Will can always file a suit to establish his right to the property to the exclusion of the testator in spite of the grant of probate or letters of administration to the legatee or the executor, the reason being that proceedings for probate or letters of administration are not concerned with the title to the property but are only concerned with due execution of the Will”.

11. Again the Supreme Court in the case of CHINRANJI LAL SHRILAL GOANKA v. JASJIT SINGH, held that:

“The Succession Act is a self-contained code in so far as the question of making an application for probatee. grant or refusal of probate or an appeal carried against the decision of the probate Court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate Court in the manner prescribed in the Act and in no other ways. The grant or probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the Will. Thus, it does no more than establish the factum of the Will and legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself.”

12. A full Bench of this Court in the case of SMT. SEVERINE D’SOUZA AND ANR. v. FELIX AMBROSE D’SOUZA, ILR 2003 Kar 194 following the aforesaid judgment of the Supreme Court has held that even in a contentious suit for grant of Probate, the Probate Court is not entitled to examine the question of title of the testator to the property.

13. Therefore the law on the point is well settled. The probate Court will not go into question of title of the property which is bequeathed under the will. It is totally outside the scope of enquiry in a probate proceedings. If the testator has a right in the property the beneficiary gets that right on the death of the testator under the will. Grant of probate do not divest any person of his title to the property not vest title in the beneficiary under the Will. The scope of enquiry in a probate proceedings is only to find out whether the will sought to be probated has been duly executed by the testator and is proved in accordance with law and the statutory requirements under the Act have been complied with. Therefore grant of probate in no way affects the right of the person who claims title to the property independently or adverse to the interest of the testator. It does not decide any question of title or the existence of the property itself.

14. In the light of the aforesaid legal position, in the instant case, the petitioner is the son of the second respondent. Second respondent is the only daughter of the testator. Even in the absence of this Will, the entire estate belonging to the testator would have devolved on the second respondent. The petitioner claims the properties covered under the Will by way or a settlement deed dated 06.04.1990. It is on the basis of the said settlement deed, he contends that though the testator was the owner of these properties, by executing a memorandum of settlement in his favour, he ceases to tie the owner of this property and therefore, even if he has executed the Will in favour of the second respondent on 15.11.1989, the said Will came into effect only on his death on 15.02.1991. As on that date he had no subsisting interest in any of these properties, the second respondent can acquire no title to the said properties, under the Will. If the petitioner is able to establish his title to these properties under the settlement dated 06.04.1990, notwithstanding the grant of Probate by this Court, the second respondent would not get any right in these properties. Therefore, the title of the petitioner if any is in no way affected by these Probate proceedings and the grant of probate. It is always open to him to file a suit for declaration of his title based on the said settlement deed and in such proceedings his title is to be decided in accordance with law and on merits without in anyway being influenced by the grant of Probate in favour of the second respondent. As the title of the petitioner is yet to be declared by the competent Court, as on today, as on the date he filed petition for revocation of the Probate, it cannot be said that he has any caveatable interest in the property which is the subject matter of the Will so as to enable him to maintain this petition for revocation of grant of Probate. More over he is claiming title to the property adverse to the interest of the testator. In that view of the matter, as the grant of Probate has in no way affected the right of the petitioner, this petition filed by him for revocation of Probate is not maintainable. Hence, I pass the following order:

The petition for revocation of Probate is rejected as not maintainable. It is made clear that in the event the petitioner were to file a suit for declaration of his title to the property which is covered under the Will on the basis of the memorandum of settlement dated 06.04.1990. the grant of Probate would not defeat his rights.

No costs.

N. Kumar, J

9 December, 2004


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