Lynette Fernandes vs Gertie Mithias (D) By Lrs.

[Non-Reportable]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2933 OF 2010

Mrs. Lynette Fernandes ..Appellant

Versus

Mrs. Gertie Mathias since Deceased by Lrs. ..Respondents

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

This appeal arises out of Judgment dated 30 th November,

2006, passed by High Court of Karnataka, Bangalore, in

Miscellaneous First Appeal No. 2744/00 (ISA). Facts leading

to this appeal are as under:-

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 Signature Not Verified Digitally signed by ASHWANI KUMAR Date: 2017.11.09 16:51:44 IST Reason: record as respondents. Mr. Richard P. Mathias died at

Mangalore on 05.11.1959, leaving behind a Will executed by 2

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 3

herein. The judgments of the District Court and the High

Court are called in question in this appeal.

2. It would be relevant to note that the counsel for the

appellant mainly contended that the citation ought to have

been issued in the District of Chikmagalur where the

immovable property of the testator was situated; the

application for grant of probate did not disclose the names

of the appellant and her other two siblings; Mrs. Mathias

ought to have arrayed all the three children as respondents

in the application for grant of probate. The appellant also

argued that the grant of probate in favour of Mrs. Mathias

i.e. mother of the appellant was as a result of fraud played

by her on the Court.

3. Per contra, the advocate for the respondent argued

in support of the Judgment of the Trial Court as well as the

High Court. He contended that the Courts have rightly

dismissed the application filed by the appellant for

revocation of probate, inasmuch as such prayer was made

after a long period of 36 years; neither the allegation of

fraud nor the evidence in that regard was let in by the

appellant; since Mrs. Mathias was the sole beneficiary under

the Will, there is no reason for her to make her minor

children as party respondents in the application praying for 4

grant of probate; and as the parties were permanently

residing at Mangalore, no prejudice whatsoever was caused

to the parties, including the appellant for not issuing

citation at Chikmagalur, and even if citation were to be

issued at Chikmagalur the appellant would not have been

benefitted, as she was residing at Mangalore, along with her

mother and other siblings since childhood.

4. Before proceeding further, it would be relevant to

note that neither of the parties led oral evidence before the

District Judge, which means that when the application was

being heard before the District Judge for seeking revocation

of probate under Section 263 of Indian Succession Act, the

appellant did not choose to lead any evidence in support of

her case.

5. It is necessary to note the provisions of Section

263 of Indian Succession Act, which reads thus:-

“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 5

(c) the grant was obtained by means of an untrue 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 wilfully 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.”

The aforementioned provision allows revocation of grant of

probate of the Will on the existence of ‘just cause’. The

appellant seeks to bring her case within explanations (a) &

(b) to this Section, as she claims that the proceedings were

defective and that the grant was fraudulently obtained.

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 the

‘Highlands’ house 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 6

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 ‘just cause’ means and includes. As

mentioned supra, the grant of probate may be revoked or

annulled for ‘just cause’ only. The explanation to this

Section further clarifies that ‘just cause’ shall be deemed to

exist where the proceedings to obtain the grant were

defective in substance. In our opinion, a mere non-issuance

of 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 7

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 ‘just cause’. Defective 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 of probate.

In this regard, it would be relevant to note the observations

by this Court, in the case of Anil Behari Ghoshe v. Smt.

Latika Bala Dassi & Others, AIR 1955 SC 566, which reads

thus:-

“It was further argued on behalf of the appellant that the appeal should be allowed and the grant revoked on the simple ground, apart from any other considerations, that there had been no citation issued to Girish. In our opinion, this proposition also is, much too widely 8

stated. Section 263 of the Act vests a judicial discretion in the court to revoke or annul a grant for just cause. The explanation has indicated the circumstances in which the court can come to the conclusion that "just cause" had been made out. In this connection the appellant relied upon clause (a) quoted above which requires that the proceedings resulting in the grant sought to be revoked should have been "defective in substance". We are not inclined to hold that they were "defective in substance". "Defective in substance" must mean that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. If there were any suggestions in the present proceedings or any circumstances were pointed out to show that if Girish had been cited he would have been able to enter a caveat, the absence of citation would have rendered those proceedings "defective in substance". It may be that Girish having been found to have been the next reversioner to the testator's estate in case of intestacy and on the assumption that Charu had murdered the testator, Girish might have been entitled to a revocation of the grant if he (1) 10 C.L.J. 263 at p. 273. (2) I.L.R. 33 Cal. 1001, had moved shortly after the grant of the probate on the simple ground that no citation had been issued to him. The omission to issue citations to persons who should have been apprised of the probate proceedings may well be in a normal case a ground by itself for revocation of the grant. But this is not an absolute right irrespective of other considerations arising from the proved facts of a case. The law has vested a judicial discretion in the Court to revoke a grant where the court may have prima facie reasons to believe that it was necessary to have the will proved afresh in the presence of interested parties. But in the present 9

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 testator's 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 grant.”

Moreover, 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 appellant throughout.

7. The appellant relied upon the judgment in the case

of Mt. Sheopati Kuer v. Ramakant Dikshit and Ors., AIR 10

1947 Patna 434, where it was held that any interested

party, including the minor daughter of the person seeking

revocation of the probate, ought to be served with a citation.

However, the appellant has omitted to note the following

paragraph in the very judgment which reads thus:-

“9. Now, comes the main question whether in the circumstances mentioned above, there is just cause for revoking the grant, It has been very strenuously contended on behalf of the appellant that absence of citation on her at once brings her case within illustration (ii) of the section and it must be held that the proceedings to obtain the grant were defective in substance, once that is held, the grant must be revoked. Learned Counsel for the appellant has placed very great reliance on the decision of their Lordships of the Judicial Committee in RamanandiKuer v. Mt. KalawatiKuer A.I.R. 1928 P.C. 2 and also on HaimabutiMitra v. Kunja Mohan Das AIR1931Cal713. I shall presently consider these decisions in detail. On behalf of the respondents, it has been contended with equal vehemence that the mother was the natural guardian of the appellant at the time; she appeared in the case and contested the grant right up to the High Court; there is nothing in the record to show that she acted injuriously to the appellant or that her interest was adverse to that of the minor; therefore, she effectively represented the appellant in the probate proceedings, and it cannot be said that the defect arising out of the absence of citation was a defect of substance, which alone can be a ground for revocation. Apart from authority, which I shall presently discuss and which also (in my opinion) is in favour of the view I am about to express, I fail to 11

see how a proceeding can be said to be defective in substance, when the natural guardian of the minor has appeared and has contested the grant right up to the High Court. The position, no doubt, will be different if the natural guardian is under the influence of the propounder of the will or puts up a nominal contest or does not appear at all or her interest is adverse to that of the minor. In those and other like circumstances, the absence of citation on a person, who ought to have been cited, will no doubt be a defect of substance which shall be deemed to be a just cause as is mentioned in the explanation to Section

268. In a case, however, where the person, who could under the law appear on behalf of the minor, did appear and contest the grant as hard as she could, right "up to this Court, it cannot be said that the proceedings were defective in substance, and the grant should be revoked.”

8. The appellant also relied upon in the case of

Dwijendra Nath Sarma Purkayastha v. Golok Nath Sarma

Purkayastha, AIR 1915 Calcutta 393, wherein the notice in

probate proceedings was improperly served on the minor. In

the said matter, the mother of the minor was also a minor

and in that context the Court concluded that the service was

improper and hence grant of probate was bad in law. In the

case of Walter Rebells v. Maria Rebells, 2 CWN 100 and

Haimati Bati Mitra v. Kunja Mohan Das, 35 CWN 387, the

Courts had held that the minors should be represented by

guardians when their interests are at stake. In both of these 12

matters, minors were named as beneficiaries in this Will and

hence their interest was at stake. Consequently service on

them was essential. In the 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 so appointed.

9. The appellant further contended that the probate

was granted to Mrs. Gertie Mathias in ‘common form’ and

not in ‘solemn form’ and thus, it is open to challenge such a

grant of probate. Such argument may not arise in this

matter. In England, common form of grant of probate is a

matter of right in the absence of all other interested parties,

but there is no such right for any applicant who seeks a

grant of probate in India. A party seeking the revocation of

grant of probate cannot later resort to English law and

contend as mentioned supra. The Calcutta High Court in

Southern Bank Ltd. v. Kesardeo Ganeriwalla, AIR 1958 Cal

377 observed that there is no system in India like the

English common form procedure, as the system of grant of 13

probate in India does not contain ‘the reason which fortifies

the existence of the English rule’, namely that in England

there is no judicial determination of the right to probate. In

India, judicial determination is a matter of course. Thus, we

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.

14

10. Coming to the second ground for just cause,

re-allegation 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 of proof.

In the absence of any evidence on record showing

prejudice because of non issuance of citation at 15

Chikmagalur, and in the absence of any evidence - much less

cogent evidence - to 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, the appellant’s

application for revocation of grant of probate was highly

belated. The District Court as well as the High Court is

correct in holding that the appellant’s application 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 in hand. Article 137

reads thus:-

Article Description of Period of Time from application Limitation which period begins to run

137. Any other Three years When the application for right to apply which no period of accrues limitation is provided elsewhere in this division.

16 This Court in Kerala State Electricity Board, Trivandrum v.

T.P. Kunhaliumma, AIR 1997 SC 282 has held that any

application under any Act, including a Writ Petition under

any Special Act will fall under within Article 137 of the

Limitation Act and have a limitation period of three years.

“22. The changed definition of the words "applicant" and "application" contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityanada Joshi's case (supra) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case (supra) where this Court construed Article 137 to be referable to applications under the Civil Procedure Code. Article 137 includes petitions within the word "applications." These petitions and applications can be under any special Act as in the present case.

23. The conclusion we reach is that Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case (supra) and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the CPC. The petition in the present case was to the District Judge as a court.

17 The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act.” The aforementioned dictum is reiterated in the

case of Krishna Kumar Sharma v. Rajesh Kumar Sharma,

(2009) 11 SCC 537. The Indian Succession Act is a special

law and the ratio of the above judgment is squarely

applicable to the present case.

12. However, the appellant relied upon the judgment B.

Manjunath Prabhu & Others v. C. G. Srinivas & Others, AIR

2005 Kant 136, to argue that Article 137 does not apply to

application for grant of probate and sought to apply it to the

present case of application for revocation of grant. The High

Court of Karnataka while passing the aforementioned

judgment relied upon the judgment of Madras High Court in

the case of S. Krishnaswamy v. E. Devarajan, AIR 1991 Mad

214. In these judgments, the High Courts have observed

that in the application filed for grant of probate or Letters of

Administration, no right is asserted or claimed by the

appellant. The applicant only seeks recognition of the Court

to perform a duty. By the proceedings filed for grant of

probate or Letters of Administration, no rights of the

applicant are settled or secured in the legal sense. The 18

author of the testament has cast a duty with regard to the

administration of his estate, and the applicant for probate

only seeks the permission of the Court to perform that duty.

The duty is only moral and not legal. There is no law which

compels the applicant to file the proceedings for probate or

letters of administration. Based on these observations, the

Courts have ruled that it would be very difficult to hold that

the proceedings for grant of probate come within the

meaning of an application under Article 137 of the

Limitation Act, 1963. The Judgment of the Madras High

Court, mentioned supra, is considered by this Court in

Kerala State Electricity Board, Trivandrum v. T.P.

Kunhaliumma, AIR 1997 SC 282, cited supra. In our

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 High Court’s cannot 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 19

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 remained un-challenged until 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.

14. Under these circumstances, the District Court as

well as the High Court is justified in dismissing the 20

application of the appellant for revocation of grant of

probate. The judgments of the District Court and the High

Court are hereby confirmed. Accordingly, this appeal stands

dismissed.

….………………………………J. [Arun Mishra]

………………….………………J. [Mohan M. Shantanagoudar]

NEW DELHI;

November 08, 2017.