P.S. Narayana, J.
1. This civil miscellaneous appeal is filed under Section 299 of Indian Succession Act, 1925 (hereinafter referred to as 'the Act' for the purpose of convenience) as against the order made in LA. No. 625 of 2005 in O.P. No. 307 of 2004 in the matter of Estate of Sri Alluri Narsimha Raju. The first respondent, A.P. State Financial Corporation, represented by its Senior Manager, Rajahmundry Branch, Rajahmundry, East Godavari District, is the third party-petitioner who filed LA. No. 625 of 2005 in O.P. No. 307 of 2004 under Sections 263, 264 and 268 of the Act praying for revocation of the probate of the will dated 15-4-1991 issued by the learned Principal District Judge, East Godavari at Rajahmundry, by order dated 24-7-2006 in O.P. No. 307 of 2004 on the ground that the first respondent herein i.e., the third party petitioner in the aforesaid LA. sanctioned credit facility to a tune of Rs. 42,00,000 : 00 and Rs. 8,35,000 : 00 for construction and running of cold storage unit on Ac:2-54 cents of land in R.S. No. 22/1 of Rajavolu Village of Rajahmundry Rural Mandal to M/s. Satyakrishna Cold Storage (Pvt.) Ltd., Kovvur and the said credit facility was given on the representation made by the appellants herein that the said land originally belonged to Alluri Narasimha Raju, the husband of the first respondent in the said application, the first appellant herein and that on his death his last will dated 14-11-1991 came into operation by which the property devolved on the fourth respondent in LA. No. 625 of 2005 shown as R4 Alluri Venkata Krishnamraju and specified as not necessary party in the appeal and certain other additional facts have been averred and the representation and stand taken in O.S. No. 7 of 2001 on the file of the Court of Second Additional District Judge, Rajahmundry also had been averred and thus inasmuch as virtually in O.P. No. 307 of 2004 without impleading the first respondent in civil miscellaneous appeal-third party petitioner, the probate of another will dated 15-4-1991 was obtained, the said LA. No. 625 of 2005 in O.P. No. 307 of 2004 was filed for revocation of the same. The first appellant herein as first respondent filed counter resisting the same and respondents 2 and 3 therein adopted the same and specific stand was taken that the third party petitioner has no locus standi to file the petition and the petition is time barred and the same is not maintainable. This petition as against fourth respondent, Alluri Venkata Krishnamraju stood dismissed for non-prosecution. It is needless to say that the said party is shown as R2 in the civil miscellaneous appeal but however it is specified as R2 is not a necessary party in this appeal. No oral evidence was let-in by both the parties but however on behalf of the first respondent-third party petitioner, Exs.Al to A4 had been marked. The learned Judge in the light of Exs.Al to A4 came to the conclusion that the said order of probate was obtained fraudulently and hence the first respondent-third party petitioner made out a ground under Clause (b) of explanation to Section 263 of the Act for revoking the probate and accordingly allowed the said application for revocation of probate in O.P. No. 307 of 2004. Aggrieved by the same, the present civil miscellaneous appeal is filed.
2. Sri M. Srinivasa Rao, the learned Counsel representing the appellants Rl to R3 in the application, LA. No. 625 of 2005 in OP No. 307 of 2004 made the following submissions:
The learned Counsel would submit that though it is stated that the first respondent-A.P. State Finance Corporation is in custody of all the documents inclusive of the alleged last will dated 14-11-1991, the same was not produced before the Court, the mere fact that a suit, O.S. No. 7 of 2001 on the file of the Court of Second Additional District Judge, Rajahmundry was filed for partition by itself cannot be a ground to revoke the probate in the absence of any other acceptable evidence relating to genuineness or otherwise the respective wills dated 14-11-1991 or 15-4-1991 as the case may be. The learned Counsel would also contend that it is no doubt true that in O.P. No. 307 of 2004 the A.P. State Finance Corporation was not impleaded as party but however the interest of creditors being limited that by itself cannot be a ground to revoke the probate and even if probate is revoked again opportunity should have been given to the parties to establish their respective stands in O.P. No. 307 of 2004 and instead without issuing appropriate direction allowing the application revoking the probate would cause serious prejudice to the rights of the appellants. While further elaborating his submissions, the learned Counsel also pointed out that in the present case when the first respondent approached the Court for revocation of probate, the burden is on the first respondent and no oral evidence had been let-in except marking the documents, Exs.Al to A4. The first respondent-third party had not established the case for revocation, hence there is no need for the appellants-respondents in the application to let-in any evidence and in the light of the facts and circumstances, at any rate, the order impugned cannot be sustained and in the interest of justice opportunity to be given to all the parties to contest the matter. Incidentally, the learned Counsel also would submit that though it is stated that during the pendency of these proceedings, the A.P. State Finance Corporation had sold away the property, which is said to have been knocked down in favour of one Sri R. Seshagiri Rao, this fact was not brought to the notice of the learned District Judge, East Godavari, Rajahmundry, though in fact the order was made on 24-7-2006. The learned Counsel also placed strong reliance on several decisions to substantiate his submissions.
3. Sri V. Srimannarayana, the learned Counsel representing the first respondent-third party petitioner in the application, LA. No. 625 of 2005 in O.P. No. 307 of 2004 made the following submissions:
The learned Counsel would maintain that in CMAMP No. 1699 of 2006 interim injunction for a limited period was granted and subsequent thereto by order dated 9-11-2006 status quo existing as on the said date was directed to be maintained by the parties. The learned Counsel also had pointed out to the relief prayed in CMA MP No. 2100 of 2006 wherein the relief to vacate the interim order had been prayed for and the learned Counsel pointed out to the stand taken in the counter-affidavit filed in detail in Paras 2 to 9. The Counsel also would submit that this is a case where the very obtaining of the probate is not necessary, since the will said to have been executed in the specified area needs no probate to be obtained however since the loan was unrealized at that time since A.P. State Finance Corporation felt that this may operate as bar for further proceeding with the sale of the property in question inasmuch as without putting the caveator on notice, behind the back of the creditor the probate was obtained in O.P. No. 307 of 2004. The A.P. State Finance Corporation as third party petitioner thought it fit to get the said probate revoked. The learned Counsel also would placed strong reliance on certain decisions to substantiate his submissions. While further elaborating the submissions, the Counsel also pointed out to the conduct of the parties and also Exs.Al, A2, A3 and A4 in particular and the inconsistent stands which had been taken by these parties in the prior proceedings in O.S. No. 7 of 2001 and also suppressing the same in O.P. No. 307 of 2004. The learned Counsel also had brought to the notice of this Court that in a way these proceedings became infructuous inasmuch as the sale was conducted by A.P. State Finance Corporation and the same was knocked down in favour of one Sri Seshagiri Rao and the said Sri Seshagiri Rao has been in actual possession and enjoyment of the property.
4. Heard the Counsel, perused the impugned order and the other material available on record.
5. It is no doubt true that before this Court, the learned Counsel representing the first respondent, Sri Vattikuti Srimannarayana placed panchanama dated 10-8-2005, sale deed dated 10-8-2005, will dated 14-11-1991 and the notary affidavit dated 22-8-1996. It is needless to say that in the present civil miscellaneous appeal this Court is concerned with the order, which is impugned before this Court. No doubt the additional documents and the additional material, these are being placed before this Court to further substantiate the stand taken by the A.P. State Finance Corporation in the counter-affidavit. The facts in nutshell had already been narrated supra.
6. Section 263 of the Act deals with revocation or annulment for just cause. The grant of probate or letters of administration may be revoked or annulled for just cause and the explanation specifies that just cause shall be deemed to exist and (b) specifies that the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case. This is exactly the ground on which the probate was revoked. Section 265 of the Act dealing with the procedure in contentious cases, reads as hereunder:
In any case before the District Judge in which there is contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.
7. Reliance was placed on the decision of the Division Bench of the Madhya Pradesh High Court in Smt. Yuvrani Tank Rajeshwari Devi v. Harilal and Ors. : AIR1978MP201 , wherein it was held that:
An application for revocation must, in order to succeed, establish just cause within the meaning of Section 263, that is, as laid down in Clauses (a) to (e) thereof, but, even if just cause be established, revocation may still be refused by the Court in the exercise of its discretion under that section if the facts and circumstances of the particular case would warrant such refusal. The Division Bench explained the conditions to be satisfied to make an order for revocation in the light of explanation Clauses (a) to (e) of Section 263 of the aforesaid Act.
8. Reliance was placed on the decision of the Division Bench of Calcutta High Court in Promode Kumar Roy v. Sephalika Dutta : AIR1957Cal631 , while dealing with Section 263 of the Act, right to apply, wherein it was observed:
A person who has acquired an interest in the testator's estate, though after his death, by reason of the mortgage transfer by the testator's son and who is undoubtedly also a creditor of the testator's said son whom the alleged will purports to disinherit has plainly locus standi to apply for revocation of the grant, particularly when his allegation is that the grant was obtained in fraud of the creditors.
9. Reliance was placed on the decision in Anil Behari Ghosh v. Smt. Latika Bala Dassi and Ors. : [1955]2SCR270 , while dealing with the aspect-whether the question of genuineness of the will can be raised before revocation of grant of probate, it was observed at Para No. 15:
It was vehemently argued at all stages of the case including the appeal before us that admittedly no citation was issued against Girish Chandra Ghosh aforesaid and as he was the person most interested in the testator's estate besides the legatees named in the will, the case came directly within the purview of Clause (a) of the Explanation and Illustration (ii) quoted above. Girish Chandra Ghosh has been found by the Judge in the first instance to have been the person most vitally interested in the estate of the testator, whether he died intestate or leaving a will, in the events which had happened.
The learned Counsel for the contesting respondent suggested that it had not been found by the lower Appellate Court as a fact upon the evidence adduced in the case, that Girish was the nearest agnate of the testator or that Charu had murdered his adoptive father, though these matters had been assumed as facts. The Courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the will is a valid and genuine will, there is intestacy in respect of the interest created in favour of Charu, if he was the murderer of the testator. On this question the Courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the Sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Cham was the murderer. That question has to be decided on evidence.
However, for purposes of this case, we shall assume in favour of the appellant that Charu was the murderer. The result of such an assumption is that Girish being the nearest reversioner to the estate of the testator, in case of intestacy after the death of the testator's widow in 1921; or in case of testamentary succession after the death of the two legatees, the testator's daughter-in-law and the nephew's wife aforesaid, and the failure of the legacy in favour of Cham on account of the murder would, in either event, have sufficient interest in the estate of the testator to entitle him to challenge the grant and to obtain revocation.
But it is noteworthy that Girish who died in 1940, lived for about 19 years after the grant and took no steps in that direction. There may be some doubt as to Girish's knowledge of the probate proceedings and of the grant until 1933; but, in our opinion, there is simple evidence in support of the finding arrived at by the Court of Appeal below that Girish was aware of the grant of the latest in 1933 when Debi Prosad Mitter took proceedings to obtain a grant in his own favour also. In his application, as indicated above, he clearly stated that Charu was the murderer of his adoptive father and that Girish would succeed to his estate, which otherwise would have gone to Charu.
If Girish had initiated proceedings for revocation of the grant and had insisted on the will being proved in his presence, the Courts would have had no difficulty in having all the necessary evidence before it because the chief person who had played the most leading part in the execution of the will, in its registration and in its being admitted to probate, viz., Anil Nath Basu, was then alive and could have been examined. But for reasons not made clear in these proceedings Girish did not think it worth his while to take any steps in Court to challenge the will or the grant. The estate was worth anything between five to forty lakhs, perhaps nearer five lakhs than forty lakhs. Girish was a mere pensioner belonging to middle class family. Either he did not think it worth his while to embark on a litigation with all its uncertainties or he had not the wherewithal to do so. The record as it stands does not satisfactorily explain the reasons why Girish refrained from making any attempts to get this large estate.
If the will was not genuine or valid, Girish would take the reversionary estate at once because the testator's widow died in 1921 and there was no other impediment in his way, except to get rid of the will. If, on the other hand, the will was genuine and valid, even then he would stand to gain all the interest which had been bequeathed in favour of Charu. The fact that Girish did not take advantage of his position as the nearest reversioner as on partial intestacy goes a long way to support the great probability of the will being valid and genuine, especially as it had been probated and because the appellant in his long petition for revoking the grant has not made the least suggestion casting any doubt on the genuineness and validity of the will.
But it was argued on behalf of the appellant that stage had not yet arrived and that it would be open to the appellant after obtaining an order of revocation of the grant to show that the will was either not genuine or had not been validly executed. Great reliance was placed in this connection on the judgment of a Division Bench of the Calcutta High Court in AIR 1915 Cal. 421(A) where the following observations have been made:
No question of the genuineness of the will arises for consideration till the Court has decided that the probate must be revoked on one or more of the grounds specified in Section 50, Probate and Administration Act. The only matter for consideration at this stage is, whether the appellants have made out a just cause for revocation of the probate which was granted without notice to them - Brindaban v. Sureshwar 10 Cal.LJ 263 at page 273 (B) the question of genuineness cannot be considered till a case for revocation is made out - Durgagati v. Sourabini 33 Cal. 1001 (C). The observations relied upon by the appellant were made with reference to the facts of that case and were not intended to be of universal application. As pointed out above, Section 263 of the Act also contemplates a case for revocation based on the single ground that the will in respect of which the grant in question was obtained was a forged one. In such a case, whether or not the will was a forced one would be the only question to be canvassed before the Court before the order of revocation could be made.
10. In Mutukdhari Singh v. Smt. Prem Debi and Ors. : AIR1959Pat570 , the learned Judge of Patna High Court observed at Para 68 as hereunder:
From a consideration of the above authorities, therefore, it is plain that Section 263 of the Act vests a judicial discretion in the Court to revoke or annul a grant for just cause. The Explanation to Section 263 has indicated the circumstances in which the Court can come to the conclusion that 'just cause' had been made out. 'Defective in substance' occurring in Clause (a) to the Explanation to Section 263, must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings.
The question, if the proceedings to obtain the grant were, in the particular case, 'defective in substance' would depend on the individual cases and on the particular circumstances existing in each case. The omission to issue citations to persons who could have been apprised of the proceedings for the grant may in a normal case be a ground by itself for revocation of other considerations arising from the proved facts of a case.
Therefore, whether the omission to issue citation to a person, on the facts of a particular case, would be a 'just cause' will depend on the facts and circumstances of each case. The words of the Explanation are imperative in character and say that 'just cause' shall be deemed to exist, amongst other things, when the proceedings to obtain the grant were defective in substance, Illustration (ii) of Section 263 is merely an instance of the practical application of the Explanation, Section 263 also contemplates a case for revocation based on the single ground that the will in respect of which the grant was obtained was a forged one. Illustration (iii) of Section 263 covers such a case.
11. In Sarala Sundari Dassya v. Dinabandhu Roy Brajaraf Saha (Firm) AIR (31) 1944 PC 11, while dealing with the aspect creditor of heir of testator to apply for revocation of probate, it was held:
It cannot be said that it is only those persons who could be cited before the grant of probate who are the persons who could apply to revoke the probate. If a person is complaining that he has in fact been defrauded, he is one of the persons who is injured by the fraud alleged and that person is entitled to have his redress by applying to revoke the probate and thereby cause the fraud to become inoperative. Therefore the creditor of an heir of a testator who says that he is being or is likely to be defeated in his rights against the heir by reason of property which otherwise appeared to be in possession of the heir being withdrawn by a will, has locus standi to apply for revocation of the probate on the ground that the grant was obtained fraudulently.
12. Further reliance was placed on a decision in Venkatarathnam and Ors. v. Satyavati and Ors. AIR 1924 Mad. 578, and another decision in Mt. Ramanandi v. Mt. Kalavati Kuer AIR 1928 PC 2. However, reliance was also placed on a decision of this Court in Gangavath Lalu v. Gangavathi Tulsi : AIR2001AP326 , to convince this Court that the very probate proceeding is unnecessary. The learned Judge in the said decision in fact followed the view expressed by this Court in M. Narayana v. M. Suryakantham reported in : 1999(2)ALD132 . There cannot be any dispute or quarrel relating to the said proposition.
13. But here is a case where for reasons best known the appellants had invoked the jurisdiction of the concerned District Court by filing O.P. No. 307 of 2004 in the matter of estate of Alluri Narsimha Raju and obtained probate of will dated 15-4-1991. It is no doubt true that the learned Judge recorded reasons in detail and had taken into consideration Ex.Al certified copy of the plaint in OS No. 7 of 2001 on the file of the Court of II-Additional District Judge, Rajahmundry, Ex.A2 certified copy of written statement of APSFC in OS No. 7 of 2001 on the file of the Court of II Additional District Judge, Rajahmundry, Ex.A3 is the certified copy of memo filed by plaintiffs in OS No. 7 of 2001 on the file of the Court of Additional District Judge, Rajahmundry, Ex.A4 certified copy of decree and judgment in OS No. 7 of 2001 on the file of the Court of II-Additional District Judge, Rajahmundry.
14. While dealing with the nature of the application to revoke the probate or letters of administration in Mrs. Nalini Navin Bhagwati and Ors. v. Chandravadan M. Mehta : AIR1997SC1055 , while relying on AIR 1933 Bom. 469: 35 Bom. LR 998, and reversing AIR 1966 Guj. 123, the Apex Court at Para 7 observed:
But when the grant of probate or letter of administration is sought to be revoked, it is not clear to what nomenclature would be ascribed to it and what procedure would be adopted for its disposal. Take for instance a situation when the suit is decreed ex parte. Order IX Rule 13 provides for making of an application to set aside the decree on proof of certain grounds ex parte decree gets set aside. Similarly, when the suit was dismissed for a default, under Order IX Rule 9 an application would be filed and on proof of the circumstances for absence, the order would be set aside and suit would get restored. Similarly, when probate or letter of administration is granted and it is sought to be revoked, Section 263 provides for the grounds on the basis of which it would be revoked. When the grounds are sought to be proved, the question is: whether such an application would be treated to be a suit We are of the considered view that an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or after recording evidence. The application to revoke the probate or letter of administration thus may be disposed of by the District Judge either summarily or in a given situation where it requires proof of the facts by adduction of evidence by the parties by recording such a evidence as is adduced by the parties. The burden will be on the applicant to prove the facts to revoke the probate or letter of administration and the respondent who obtained probate or letter of administration has to disprove the contentions of the applicant. In that situation, based upon the given facts situation, it will be for the Court to dispose it of either summarily or after giving opportunity to both the parties to adduce evidence and consideration thereof. Under these circumstances, it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as contemplated under Section 295 of the Act. If the contention of Shri Puri merits acceptance, then any proceedings under the application to revoke the probate or letter of administration should be treated as a suit; the applicant cannot prove the will and at the same time cannot contend that the will was not validly executed. Therefore, it would be self contradictory to adopt such a procedure. Accordingly, we are of the view that the procedure required under Section 295 need not be adopted for disposal of the application filed under Section 263 for revocation of the probate or the letter of administration. It would be treated as miscellaneous application and disposed of as indicated earlier according to the given fact situation. In fact, the Bombay High Court came to consider the question, not directly on this issue but in an analogous situation in Narbheram Jivaram Purohit v. Jevallabh Harijivan (1933) 35 Bom LR 998 : AIR 1933 Bom. 469. Therein, the learned Single Judge had held that the proper procedure for revocation of probate granted by the High Court is by way of a petition filed in the testamentary and intestate jurisdiction of the Court, and not by way of suit in its Ordinary Original Civil Jurisdiction. In other words, the Court indicated that it need not be treated as a suit on the original side of the Court but it could be disposed of as an application independent of the suit. Thus, we hold that the High Court was clearly in error in reaching the conclusion that it should be treated as a suit and disposed of under Section 295.
15. Further strong reliance was placed on the decision of the Division Bench in Matukdhari Singh v. Mst. Radhakuer : AIR1964Pat567 , wherein the Division Bench of Patna High Court observed:
Where the grant of letters of administration was revoked on the ground that there was no citation given to one of the opposite parties and the petitioner's application to issue special citations to all the opposite parties was rejected on the ground that since the probate proceeding was revoked the petitioner should file fresh application for grant of letters of administration.
Held that the effect of the revocation of the grant of letters of administration was not to revoke the entire proceeding but only to revoke the actual order granting the letters of administration. The original proceedings in the probate case revived after the order of revocation and it was open to the petitioner after the revocation of the grant to apply for the issue of special citations without filing fresh application for grant of letters of administration. In fact the learned Division Bench had relied upon AIR 1928 PC 2 and AIR 1931 Cal. 717 and 10 Cal.LJ-263.
16. In the facts and circumstances, this Court is of the considered opinion that since the A.P. State Finance Corporation the creditor being a party interested in the original petition filed, OP No. 307 of 2004 for grant of probate, such party was not shown as a party and that there was no opportunity given to the said party to contest the said proceedings. Hence, talcing into consideration the said fact and in addition thereto the certified copy of the plaint and certified copy of written statement and the other documents marked as Exs.Al to A4, the learned Judge recorded reasons in detail and came to a conclusion that it is a fit matter to revoke the probate already granted in this regard. This order of revocation in the facts and circumstances, cannot be found fault though the parties had not let-in any oral evidence to support their contentions. Be that as it may, it is suffice to state the fact that the creditor, the first respondent in the civil miscellaneous appeal was not put on notice in the probate proceedings is not in dispute at all. No doubt certain submissions are made that the will relied upon by the creditor had not been produced and the other subsequent events were not brought to the notice of the Court though this order was made by the learned Principal District Judge, East Godavari at Rajahmundry, after a long lapse of time thereafter. This Court is not inclined to express any opinion on those aspects, the necessity or otherwise of obtaining probate also had been further commented upon. These aspects need not detain this Court any longer not for the reason that the parties had invoked the jurisdiction of the Court praying for probate and however on the evidence available on record, the Court came to the conclusion at a particular time that the probate to be granted and subsequent thereto at the instance of third party creditor the same was revoked. In the light of the facts and circumstances without expressing any further opinion on the merits and demerits of the matters, the parties are at liberty to adduce further evidence in the main proceedings in O.P. No. 307 of 2004 on the file of Principal District Judge, East Godavari, praying for grant of probate in the matter of Estate of Alluri Narsimha Raju. It is also made clear that in the said proceedings the A.P. State Finance Corporation-the first respondent herein-the third party petitioner to be made a party and opportunity to be given to the said A.P. State Finance Corporation as well to contest the proceedings. It is also needless to say that in the light of the subsequent events, Sri Seshagiri Rao also be permitted to come on record in the said proceedings and contest the matter if the said party chooses to do so.
17. Accordingly, with the above observations, the civil miscellaneous appeal is hereby disposed of. No order as to costs.