Joseph Easwaran Wapshare vs Shirley Katheleen Wheeler

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2284 OF 2019 (Arising out of Special Leave Petition (C) No. 22394/2016)

JOSEPH EASWARAN WAPSHARE & ORS. Appellant(s)

VERSUS

SHIRLEY KATHELEEN WHEELER Respondent(s)

J U D G M E N T

R.F. Nariman, J.

1) Nobody appears for the respondent, even though service is

complete.

2) Leave granted.

3) The present appeal arises out of a proceeding to revoke

a Succession Certificate that was granted in favour of the

appellant on 16.03.2005.

4) The appellant No.1 is the son of one Gorden Wapshare.

Gorden Wapshare had a brother called Edward Wapshare, who

married one Beatrice. Apparently, this marriage was fruitless

as there was no issues therefrom. He also had two sisters,

one of whom Miss Dorthy Wapshare was unmarried, who is since Signature Not Verified dead; and the other Miss Violet Wapshare, who was married and Digitally signed by R NATARAJAN Date: 2019.03.01 16:04:57 IST Reason: has a daughter called Ellen Mary Jackson. Gorden Wapshare was

himself married and had two sons - one of whom is the 2

appellant No.1, and the other son called Robert Babu Wapshare,

who is dead. The appellant No.1, in turn, is married and has

two sons. The respondent before us Ms. Shirley Katheleen

Wheeler is said to be the daughter of Beatrice, who, as stated

herein above, was the wife of Edward Wapshare.

5) Gorden Wapshare died on 18.01.1991. As a result, a

petition was preferred under Section 372 of the Indian

Succession Act, 1925 being O.P. No. 17 of 2005 before the

Court of Civil Judge, Nilgiris, which petition was allowed and

Succession Certificate dated 16.03.2005 granted to the

appellant. The respondent, in an application filed under

Section 383 of the Act dated 28.03.2005, applied to revoke the

Succession Certificate so granted. In this application, a

counter affidavit was filed in which it was clearly stated

that the respondent was an outsider to the Wapshare family as

she was the daughter of Beatrice and born to a second husband

and not Edward Wapshare, who was the brother of Gorden

Wapshare, as stated hereinabove.

6) An application for probate of the will of Gorden

Wapshare was moved by Beatrice in 1993, being O.P. No. 55 of

1993. Beatrice died on 29.01.1999. It may be mentioned that

this application was dismissed for non-prosecution. At no

point of time did the respondent ever apply as legal heir of

Beatrice to be substituted therein.

7) By an order dated 10.04.2006, the Sub-Court, Nilgiris,

held that the respondent, not being the daughter of Edward

Wapshare, was an outsider who could not, therefore, maintain 3

the application for revocation. The Sub-Court also decided

that, in any case, since the previous proceeding had abated,

the matter is res judicata between the parties. It then went

on to decide:

“Since the petitioners in O.P. 17/05 are the direct heirs of then deceased G.O. Wapshare; neither Ms. Ellen Mary Jackson nor her step sister the present petitioner in this application did have any right to question the Succession Certificate obtained by the petitioners in O.P. 17/2005 dated 16.3.2005. The evidence adduced on the side of the respondents in this application clearly proves that the deceased G.O. Wapshare during his life time has legally married one Valliammal and had given birth to a male child, who had been named Easwaran. The 1st respondent in this application and who in turn given a birth of 2nd and 3rd respondents in this application. Since, the 1st respondent in this application being the son of G.O. Wapshare and the 2nd and 3rd respondents being the son of the 1st respondent in this application are the direct heirs of G.O. Wapshare who are alone entitled to inherit the immoveables as well as the moveables of deceased G.O. Wapshare is completely been established by the respondents in this application. In the absence of any testament left by G.O. Wapshare the property of G.O. Wapshare will naturally go to his son Joseph Easwaran Wapshare and his sons W.E. Prince Kumar and W.E. Praveen Kumar, only when the petitioner Mary Jackson able to prove that G.O. Wapshare left a will or other testament to inherit the properties left by G.D.Wapshare, claim of the petitioner in this petition will become 4

mischievous as the petitioner in this application herself know that her step sister Ms. Ellen Mary Jackson’s claim in the previous suits O.S.No. 41/97, 42/97 and 86/96 were dismissed as abated.”

8) A revision petition was filed against the said judgment.

By the impugned judgment dated 23.03.2015, the Madras High

Court allowed the revision on only one point, namely, that the

finding of the Sub-Judge on res judicata was incorrect.

However, it noticed the arguments made by the petitioners’

counsel that, in any event, the revocation application was not

maintainable and, in any case, not being a direct lineal

descendant of Gorden Wapshare, the respondent could not, in

any event, succeed to the estate of Gorden Wapshare. The High

Court therefore, set aside the order dated 10.04.2006 and

remanded the matter to the Sub-Judge to decide the matter

afresh after hearing the parties.

9) Mr. R. Anand Padmanabhan, learned counsel appearing on

behalf of the appellants, has painstakingly taken us through

the record and has referred to the various provisions of the

Indian Succession Act. It is necessary to first set out

Section 372 of the said Act, under which an application for a

Succession Certificate has to be made. Section 372 reads as

follows:

“372. Application for certificate.- (1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 5

1908 (5 of 1908) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:-

(a) the time of the death of the deceased;

(b) the ordinary residence of the deceased at the time of his death and, if such residence was not within the local limits of the jurisdiction of the Judge to whom the application is made, then the property of the deceased within those limits;

(c) the family or other near relatives of the deceased and their respective residences;

(d) the right in which the petitioner claims;

(e) the absence of any impediment under section 370 or under any other provision of this Act or any other enactment, to the grant of the certificate or to the validity thereof if it were granted; and

(f) the debts and securities in respect of which the certificate is applied for.

(2) If the petition contains any averment which the person verifying it knows or believes to be false, or does not believe to be true, that person shall be deemed to have committed an offence under section 198 of the Indian Penal Code, 1860 (45 of 1860).

(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.”

Equally, if such certificate is to be revoked it can be so

revoked if any of the grounds under Section 383 are made out.

Section 383 of the Act is set out herein below:

“383. Revocation of certificate.- A certificate 6

granted under this Part may be revoked for any of the following causes, namely:-

(a) that the proceedings to obtain the certificate were defective in substance;

(b) that the certificate was obtained fraudulently by the making of a false suggestion, or by the concealment from the Court of something material to the case;

(c) that the certificate was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant thereof, though such allegation was made in ignorance or inadvertently;

(d) that the certificate has become useless and inoperative through circumstances;

(e) that a decree or order made by a competent Court in a suit or other proceeding with respect to effects comprising debts or securities specified in the certificate renders it proper that the certificate should be revoked.”

At this juncture, it is important to set out Section 33 (a)

which reads as follows:

“33.(a) if he has also left any lineal descendants, one-thirds of his property shall

belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained;”

The expression “lineal descendant” has reference to Section 25

of the Act which is set out herein below:

“25. Lineal Consanguinity.- (1) Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, 7

grandfather and great-grandfather, and so upwards in the direct ascending line, or between a man and his son, grandson, great-grandson and so downwards in direct descending line.

(2) Every generation constitutes a degree, either ascending or descending.

(3) A person’s father is related to him in the first degree, and so likewise is his son; his grandfather and grandson in the second degree; his great-grandfather and great-grandson in the third degree, and so on.”

A reading of the aforesaid provisions of the Succession Act

make it clear that a Succession Certificate can be granted in

an application in which necessary particulars are set out as

mentioned in Section 372. There is no dispute that the

application made by the appellant set out the aforesaid

particulars. Under Section 383, the Certificate so granted

could only be revoked for the reasons set out in the said

Section. It will be noticed that revocation cannot be granted

unless anyone of sub-sections (a) to (e) of Section 383 is

satisfied, which is not the case on facts in this appeal. It

is clear therefore, that on this ground alone, the learned

Sub-Judge was justified in refusing to revoke the Succession

Certificate so granted. Even otherwise, it is clear that the

respondent has nothing whatsoever to do with the Wapshare

family. This becomes clear from her averment in her Section

383 application in which, in para 1, she stated:

“1. The Petitioner is Mrs. Shirley Katheleen Wheeler w/o late Mr. A.J. Wheeler and Daughter of 8

Late Mrs. Beatrice Wapshare, Christian aged about 68 years, a British Citizen and permanent resident at 43, Cuttons Corner, Hemblinton, Norfolk-NR 134 PS, England, United Kingdom, and presently at Compton Estate, Naduvattam Post, Udhagamandalam in the District of Nilgiris.”

10) It will be noticed that the respondent describes herself

as the wife of the late A.J.Wheeler and daughter only of the

late Beatrice Wapshare. Edward Wapshare’s name is conspicuous

by its absence, making it clear that she was, by no means, a

lineal descendant of Edward Wapshare and therefore, had

nothing whatsoever to do with the Wapshare family. Apart from

this, since Gorden Wapshare died intestate, the will being set

up in the application for probate having abated, Section 33(a)

makes it clear that the intestate’s property goes only to his

widow and his lineal descendants. The appellant is today the

only living lineal descendant, together with his two sons, of

Gorden Wapshare. This would again make it clear that, in any

event, the respondent would have no interest whatsoever

either as a member of the Wapshare family or as a lineal

descendant in setting aside the Succession Certificate so

granted as she is neither a family member nor a lineal

descendant as has been held herein above. It may only be

added that the High Court was correct in setting aside the

Sub-Judge’s order on his finding on res judicata, but that was

not the end of the matter. The High Court ought to have gone

into the other two grounds, which found favour with the sub-

Judge, which it did not do.

9

11) This being the case, we set aside the judgment of the

High Court and restore that of the learned Sub-Judge.

12) Accordingly, the appeal is allowed.

.......................... J.

(ROHINTON FALI NARIMAN)

.......................... J.

(VINEET SARAN) New Delhi;

February 26, 2019.