Ashok Kothari Vs. Dipti Bavishi - Court Judgment

Excerpt:
- 1. this appeal is directed against an order dated 20th february, 2006 by which the learned trial court revoked the grant of probate holding 'that the citation issued by this court in terms of the court's order was not delivered upon the petitioner through the postal communication.'2. the learned court negatived the contention that the letter dated 14th january, 2001 written by the sister of the executor, during the lifetime of the testator, establishes that she had no objection to the grant of probate. the learned trial court has impliedly suggested that a sharp practice was perpetrated upon the court by the appellant in obtaining the grant which is illustrated by the fact that the appellant himself had lodged a caveat and he thereafter obtained an order discharging the caveat whereby an impression was given that the contention had ceased to exist whereupon the grant was made. lastly, it was found that there was admittedly in existence a codicil which was not brought to the knowledge of the court.3. aggrieved by the order revoking the grant, the executor has come up before this court in appeal. mr. kapoor, learned senior advocate appearing in support of the appeal drew our attention to the records which would go to suggest that the special citation was tendered by the postal peon at the residence of the respondent in texas in the usa. but the maidservant of the respondent refused to accept the same and it is in those circumstances that the registered cover containing special citation was received back unserved with the endorsement 'refused'. he, therefore, contended that in the facts of the case proper service of citation has to be presumed.4. in spite of knowledge about the proceedings initiated in this court if the respondent chose not to appear she cannot be now heard to say that the citation was not duly served. he submitted that the learned trial court was wrong in concluding that the presumption about good service arising out of an endorsement of refusal had been rebutted by the respondent.5. he submitted that it is equally wrong to proceed on the basis that there is a codicil; no such allegation is there in the application for grant of probate nor is any codicil, in fact, in existence. the executor in his proposed draft application, a copy whereof was given to the temporary administrator appointed at the instance of the respondent by the courts at texas, made an incorrect statement that there was a codicil on the basis of misapprehension about the true purport of the letter dated 30th september, 2000 addressed by the testator.6. he also submitted that when the respondent has accepted the will by her letter dated 14th january, 2001 there can no longer be any ground for revocation of the grant. he drew our attention to a judgment in the case of latikabala dasi v. anil behari reported in : air1953cal103 for the proposition that a grant shall not be revoked, when the applicant admits that the will was duly executed and was a genuine will, merely because the special citation was not served upon him. the letter dated 14th january, 2001written by the respondent, according to him, goes to show that the respondent had no objection to the will of her father which is also an admission about proper execution of the will.7. he also relied on a judgment in the goods of bhuggobutty dassee (deceased) reported in (1900) 4 cwn 757 for the proposition that 'if a party is cognizance of proceedings for probate or letters of administration and chooses to stand by and allow the proceedings to be concluded in his absence, he will not be allowed to come in afterwards and have the grant revoked'. he, therefore, submitted that the order revoking the grant should be set aside and the appeal should be allowed.8. the judgment in the case of bhuggobutty dassee (supra) in our considered opinion has no manner of application to the case in hand. the law laid down therein is applicable to the privies and parties in a case tried per testes whereas in the present case the grant was ex parte. moreover in spite of laying down or referring to the law as the learned judge did in that case he nonetheless allowed the privy to contest the grant subject to payment of costs 'in order to avoid the least semblance of grievance'. this judgment in our opinion lends assistance to the order passed by the trial court.9. the judgment in the case of latikabala : air1953cal103 (supra) does not also apply to the. case in hand because the contention of the respondent in this case is that the deceased died intestate. the original will is also not forthcoming.10. we are not, on the whole, inclined to interfere with the order revoking the grant for the following reasons:(a) in this case, a peculiar procedure was adopted by the executor. he himself lodged a caveat on 30th march, 2004 and thereafter applied for grant on 8th april, 2004. he thereafter obtained an order dated 9th september, 2004 discharging the caveat although the registry had issued him notice of such caveat on 26th april, 2004. in the application made by him for discharge of caveat, there is an allegation, to be found in paragraph 5, that the special citation sought to be served upon the heir in case of intestacy, that is to say the respondent herein had come back with the endorsement 'refused'. there is, however, no indication in his application for discharge of caveat as to why did he lodge a caveat being the propounder himself and why was the application for discharge made almost five months after receipt of notice from the department. it is for the party cited or minded to oppose the grant to lodge a caveat and not for the propounder himself to lodge one as was done by the appellant in this case. his prayer for discharge of the caveat lodged by himself as allowed and the following order was passed in g.a. no. 3484 of 2004 on 9th september, 2004:the court : mr. sanjoy basu, learned advocate appearing in support of the application submits that under wrong impression his client filed the caveat and he submits that he has instruction not to press his client's caveat. accordingly, the caveat is discharged.let there be an order in terms of prayer (a) to this application.i make no order as to costs.all parties are to act on a signed copy of the minutes of this order on the usual undertaking.11. the prayers made in the application for discharge of caveat are as follows:(a) caveat filed by the petitioner on 30th march, 2004 be discharged;(b) such further order or orders, direction or directions be given as to this hon'ble court may seen fit and proper.thereafter on the basis of affidavit evidence of the attesting witnesses the will was admitted to probate on 23rd september, 2004 whereas the order discharging the caveat lodged by the appellant himself was passed on 9th september, 2004. the learned trial court has suggested in his judgment that the appellant had misled the court. we have not been able to disabuse our mind from the effect of this suggestion and are inclined to agree with him.12. mr. kapoor submitted that the standard practice of this court is to grant probate in common form in a non-contentions case or where the contention has terminated. he drew our attention to page 545 of ormonds fourth edition of 'the rules of the high court of judicature at fort william in bengal' wherein the learned author delineated the practice as follows:practice to application for grant:according to the present practice, the application for grant of probate or letters of administration is presented to the registrar in insolvency, to whom the work has been delegated by the registrar, and he, after examining the papers, endorses the fiat on those he finds to be in order, and places them before a judge for signature. defective applications are returned, to the presenter by the registrar in insolvency. in the case of applications presenting difficult or novel features, the registrar in insolvency either places the matter before the judge for his special orders, or directs the parties presenting to apply in chambers before the judge.13. he submitted that when the service had come back with the endorsement 'refused', there was nothing further to be done and following the practice of this court the papers were placed before the learned judge in chamber and the probate was granted in common form.14. it is no doubt true that probates are granted by this court in common form following the english practice for which specific provision is there in rule 33 of chapter xxxv which reads as follows:33. in cases not provided for by this chapter, or by the rules of procedure laid down in the indian succession act, ..., or the administrator-general's act, or the code, the practice and procedure of the probate division of the high court of justice in england shall be followed so far as they are applicable and not inconsistent with this chapter and the said acts.15. we shall hereafter discuss the procedure laid down in the indian succession act 1925 but regard being had to the fact that probate is granted by this court both in the common and solemn form it would be appropriate at this stage to notice the english practice in this regard. we may refer to moritirner on probate law and practice 2nd edition. at pp. 238-9 the learned author has described the practice in the words as follows:a testament may be proved in two ways, either in common form, or by form of law; which latter mode is also called the solemn form, and, sometimes, proving per testes (a).a will is proved in common form where there is no contest about the will, but the executor, without citing the parties interested and in their absence, presents it at the registry, and upon formal proof of its validity obtains the probate and seal of the court thereto (a).a will is proved in solemn form when it is propounded in an action to which the persons interested, as the widow and next-of-kin, are parties and after the proof examined and fully heated receives the sentence and decree of the court pronouncing for its validity (a).the difference in effect between these two forms of probate is, that the executor of a will proved in common form may at any time thereafter be called upon, by those whose interests are adversely affected, to prove the will in solemn form, and if he then shall fail to establish its validity the probate so granted is revoked (b). but if the will is proved in solemn form, no person who has been a party or privy to the proceedings can afterwards by any fresh citation put the executor again to proof of the will (c).16. at pp. 550-1 the learned author has further thrown light upon the practice as follows:the following persons in particular are entitled, on account of their interest, to commence an action for the revocation of probate:(1) any person entitled to share in the deceased's estate in the event of an intestacy or the representative of any such person. any such person who has acquiesced in probate of a will being taken in common form, and has even received a legacy thereunder, may still put the executor to proof of the will in solemn form (a), but he must bring into court the amount of the legacy paid to him to abide the result of the suit (b).17. the english practice referred to hereinabove was also noticed in a few judgments of this court. in the case of komollochun dutt v. nilruttun mundle reported in (1879) ilr 4 cal 360 a division bench of this court opined as follows:the probate can be revoked upon any of the grounds mentioned in section 234. the duty of the judge upon an application being made under this section somewhat depends upon what has passed on the previous grant of probate. clearly, however, the first thing for him to do is to direct notice to be given to the executor and all persons interested under the will or claiming to have any interest in the estate of the deceased. it is also clear from section 261 that the executor will be the plaintiff in the regular suit which the judge will then have to try: and the object of this is clear. it is in order to enable the judge, if he thinks proper, to call upon the executor to prove the will again in the presence of the objector, notwithstanding the prior probate, just as in england he may be called upon to prove the will in solemn form. but a discretion is left to the judge. where there had been already full enquiry as to the genuineness of the will, the judge, would probably take, as he would have a right to take, the previous grant of probate as prima facie evidence of the will, and so shift the onus on to the objector. but if there had been no previous contention, and the will had only been proved summarily, or in what is called common form in england, that is, without any opposition, and merely ex parte, to the satisfaction of the judge, who can know nothing of the circumstances or the state of the family, then he ought in all ordinary cases to have the will regularly proved afresh, so as to give the objector an opportunity of testing the evidence in support of the will before being called upon to produce his own evidence to impeach it. for example, when, as has actually happened in this case, the widow applied to have the probate revoked, the district judge rejected her application without giving any notice to any one, because she did not make a prima facie case against the will, we think that was wrong. the district judge should have summoned the executor and the other parties interested under the will and the estate of the deceased, and should, in such a case as the present, have required the executor to prove the will in the presence of the widow.18. in the case of durgagati devi v. saurabini debi reported in (1906) ilr 33 cal 1001 at pp. 1007-8 the following distinction between a grant in common form and a grant in solemn form is to be found.it was further argued on the authority of the english practice as described in tristram and coote's probate practice, 13th edition p. 353, that durgapati being a party interested as reversloner in the estate of the deceased, whose interest had been adversely affected by the grant of letters of administration with the will attached made in common form, was entitled without limitation as to time to call in question the grant and put the party, who obtained it or her representative upon proof of the will in solemn form. it must, however, be observed that the practice in probate and administration suits, is in india, at least so far as mofussil courts are concerned, governed by the probate and administration act and is laid down in sections 62 to 78 of that act. until late years it had been the usual practice in the mofussil courts to proceed under section 69 of the act and to issue citations and to examine witnesses to prove due execution of the will before the grant of probate or of letters of administration with the will attached, and from the written statement filed in this case it would appear that this was the practice followed before the grant was made to umasundari. this is not quite the same as a grant of probate in common form, for the grant is made after the execution of the will has been sworn to by the witnesses to the will and the only circumstance, which distinguishes it from the grant in solemn form, is that the grant is made ex parte.19. we may at this stage also notice the commentary upon practice by n.d. bose in his law of succession, 4th edition 1957. at p. 802 the learned author commented as follows:two ways of proving a will. - a testament may be proved in two ways, either in common form, or by form of law or the solemn form this letter, mode is sometimes called procing per testes (moritimer on probate practice, p. 276). the former form is slight and summary, for ordinary and undisputed cases, whereas in the latter form which is more formal it is proved by solemn decree of the court. per sir w scott in duke of potland v. bingham. 1 hagg. cons. 158. accordingly to the english practice an executor may prove it is the former mode by presenting it before the judge, without citing the interested persons and by deposing that the document is the true, whole and last will and testament of the deceased; whereupon the judge doth anex his probate and seal thereunto. if the executor wants to prove it in solemn form he must cite all persons interested in the estate, i.e. the widow and the next-of-kin of the deceased and the will must be proved in their presence before the judge by producing witnesses. in case of sufficient proof the judge doth pronounce for the validity of the will. in proving a will in solemn form the executor is also competent to give evidence concerning the execution or validity of the will. munday v. slaughter, 2 curt. 272. when a will is proved in solemn form the executor is not compelled to prove it any more but when it is proved in common form he may be compelled to prove the same again in form of law. godolph, part i, c. 20, d. 4, cited in walker & elgood, p. 32. next of-kin are not barred by mere-lapse.of time, by acquiescence, or by the receipt of legacies, from requiring executors to prove a will in solemn form. merryweather v. turner 3 curt. 802. see also, in the goods of topping, 2 rob. 620. if the executor fails to prove it in solemn form whenever called on to do so the grant is revoked. hofiman v. norris 2 phill. 230 (n). in case of laches by the next-of-kin, the court refuses to allow him any indulgence. blake v. knight 3 curt 553. to avoid this difficulty the executor can prove a will in solemn form at the very first instance. kennaway v. kennaway 1 p. and d. 148. when it is proved in a solemn form no one who is either a party or privy to the proceedings can afterwards ask the executor to prove it in solemn form. wytcherley v. andrews 2 p. and d 327; young v. holloway (1895) p. 87. a probate of a will obtained by proving it in solemn form can be revoked only in cases of fraud in obtaining the judgment of the court and there a second will is discovered. birch v. birch 1902 p. 130 c.a.; priestman v. thomas 9 p. and d. 70, see also komollochun v. nilrutten (1879) ilr 4 cal 360; nistarini v. moyi debya (1891) 18 cal 45. in a proper case the cost of the executor in proving a will in solemn form is paid from the estate of the testator. nash v. yellcly 3 sw and tr 59. see also burls v. burls 1 p. and d. 472; wilkinson v. corefield, 6 p. and d. 27. before the passing of the hindu wills act, a hindu will was valid even without a probate,. so where it was once proved in common form, the executor could not be asked again to prove it in solemn form. in re tiruuvalier, 1 mhcr 59.in all cases. - this procedure is to be applied not only in cases of probate but in cases of all sorts of letters of administration as well as cases of revocation of probates or letters of administration.20. it would thus appear that the propounder has a choice. he may prove the will in either form but if he chooses to take a grant in common form he runs the risk of having to prove the will per testes without limitation and without any consideration of hardship. in a somewhat identical case their lordship of the privy council in the case of ramanandi kuer v. kalwati reported in (1928) 55 indian appeals 18 : air 1928 pc 2 observed as follows:it is true that thakurani kuer afterwards more or less acquiesced in the provisions of the will, and in any case took no active steps against the will so long as harangi and gyan were alive; but having regard to all the circumstances, their lordships are unable to draw any inference therefrom adverse to the plaintiff. and as against the difficulties in the defendant's way by reason of lapse of time, death of parties and witnesses and the destruction of records, it has to be remembered that much of it might have been avoided by prudent action on the part of the propounder, e.g. by taking proper and necessary steps to have the will proved per testes in the presence of an independent guardian for the infant daughter.21. it follows therefore that when the will has been probated only in common form an heir in case of intestacy even after acquiescing in the legacy may as a matter of right call upon the propounder to prove the will. evidently, when the state of law is this, the letter dated 14th march, 2001 strongly relied upon by mr. kapoor cannot really make any difference. therefore, the revocation of grant is unexceptionable. all that would now happen is that the propounder would be required to prove the will per testes.22. under section 268 of the indian succession act the proceedings of court, in relation to the granting of probate and letters of administration, are required to be regulated by the code of civil procedure. section 283 provides for the powers of the district judge.23. under section 283(1)(c) a discretion has been vested in the court as regards issuance of citations. court may not think it necessary to issue citation in all cases. and this is the reason why revocation of grant has been made to depend by the legislature under section 263 on a mere just cause. statutory illustration (ii) goes to show that an ex parte grant can be revoked because it was ex parte. therefore, the vulnerability of a grant in common form needs no further illustration. the position would have been different if the appellant had proceeded to prove the will per testes after the registered envelope containing the citation came back unserved with the remark 'refused'. we cannot speculate but in that case court might or might not have been satisfied with the service. since that course was not followed and the grant was obtained only in a common form the appellant cannot be heard to say that there is a presumption that the respondent had been served. we already have noticed that a person entitled to a share in the deceased's estate in the event of an intestacy or the representative of any such person who has acquiesced in probate of a will being taken in common form, and has received a legacy thereunder, may still put the executor to proof of the will in solemn form provided he brings into court the amount of the legacy paid to him.(b) the next reason why we are not inclined to interfere is the following allegations to be found in the application for probate:2. on 10th february, 2004 the said deceased died at north hills hospital, texas after having made and published his last will and testament on 29th august, 2000 in english language and character of the deceased. the said original will dated 29th august, 2000 has been lost and/or misplaced from the custody of your petitioner and as such your petitioner is unable to produce the original will with this petition. however, your petitioner undertakes before this hon'ble court that the original will will be produced as and when it will be made available. a duplicate copy of the said will dated 29th august, 2000 duly certified to be true copy by notary public is annexed hereto and marked with letter 'a'. xerox copy of the death certificate dated 12th february, 2004 is annexed hereto and marked with letter 'b'.24. the case of the propounder thus is that the original will has been lost. there is no allegations in the application that the will was lost subsequent to the death of the testator. in such a case presumption under section 70 arises about revocation of the will. mr. kapoor submitted on the basis of high authority in the case of durga parshad v. debi charan reported in : [1979]1scr873 that the presumption under section 70 is rebuttable by the slightest possible evidence. even assuming what mr. kapoor submitted to be correct, that slightest evidence was not taken in this case prior to granting the probate.(c) the appellant applied for probate on 8th april, 2004 and obtained the same in common form on 23rd september 2004. he admittedly became aware on 26th july, 2004 that his sister the respondent herein had applied for letters of administration in case of intestacy on 20th july, 2004 in the court at texas. the administrator temporary appointed in that proceeding got in touch with the appellant and made diverse enquiries. the appellant was obliged to disclose this subsequent fact under section 279 of the indian succession act because an allegation to the contrary made in paragraph 11 of the application for probate ceased to be true. similarly the allegation made in paragraph 7 that his sister had no objection to the grant also ceased to be true which was never disclosed to the court.(d) lastly we cannot also proceed on the basis that the existence of the codicil, regarding which the learned judge has made certain observations, can be ruled out at this stage regard being had to the fact that the application for probate was made on 8th april, 2004 and the copy containing a reference to the codicil was given to the administrator temporary on or after 26th july, 2004. we should not however be deemed to have expressed any opinion either way. we are only indicating reasons why we are not inclined to interfere with the impugned order.25. we therefore are satisfied that there was just cause for revocation of the grant and there is no scope to interfere with the order under appeal. the appeal is as such dismissed.26. there shall however be no order as to costs.27. xerox certified copy be issued expeditiously if applied for.