R. Banumathi, J.@mdashBeing aggrieved by the dismissal of the application in A. No. 5349 of 2008 in O. P. No. 875 of 2006 declining to revoke the Probate granted on 17.3.2008 in O. P. No. 875 of 2006, appellant has preferred this appeal.
2. O. P. No. 875 of 2006 relates to grant of Probate in respect of the last will and testament of deceased Dr. S. V. Rajalakshmi. The testatrix S. V. Rajalakshmi died on 18.1.2004 and was a spinster in her life time and she did not leave behind any Class I heirs. The deceased was survived only by Class II legal heirs. The parties are related to testatrix Dr. S. V. Rajalakshmi as under:
3. The 1st respondent filed O. P. No. 875 of 2006 for grant of Probate in respect of the last Will and testament of deceased S. V. Rajalakshmi duly executed by her on 21.1.1994. It was stated that the testatrix executed the Will in the presence of witnesses N. Gunaseelan and D. Sundaramoorthy and the Will was registered on 21.1.1994 as a document No. 5 of 1994 in the Sub-Registrar''s Office, Adayar. In the said Will, the 1st respondent was appointed as the executor. In his capacity as sole executor appointed under the Will, the 1st respondent filed O. P. No. 875 of 2006 for grant of Probate. In the said Probate, respondents 2 to 4 as well as the appellant were shown as the respondents. None of them have filed caveat or affidavit of objections in the probate proceedings. After recording evidence before the Master, O. P. was posted before the single Judge on 17.3.2008 and by the Order dated 17.3.2008, single Judge ordered grant of Probate in respect of the last will and testament of S. V. Rajalakshmi.
4. The appellant filed A. No. 5349 of 2008 for revocation of the Probate granted in O. P. No. 875 of 2006. In the application, the appellant has averred that the first attesting witness viz., Gunaseelan was incompetent to be witness and attest the Will as he was a minor at the time of execution of the Will and therefore execution of the Will is doubtful since the Will does not specify the legal requirement of attestation of the Will as required by law. It was further alleged that the Will has not been executed by S. V. Rajalakshmi voluntarily and on her own volition and therefore the appellant prayed for revocation of grant of Probate. The appellant has alleged that he has obtained birth certificate of the attesting witnesses and had also collected documents to show that the first attesting witness was only a minor and therefore he was unable to file affidavit of objections along with Caveat in the Probate proceedings and hence filed the application praying revoke grant of Probate.
5. Resisting the application, the 1st respondent has filed a detailed counter affidavit stating that the Will dated 21.1.1994 has been made voluntarily. It is further averred that the appellant having failed to file any caveat with objections within the time stipulated by law it is not open to the appellant to file application to revoke the Probate at very late stage.
6. Upon considering the contentions, by the impugned order, the learned single Judge held that P. W. 2 was aged 30 years at the time of deposing in the Court in November 2006 and that he had spoken about the execution of the Will in his presence. Pointing out that the testatrix was a Doctor by profession and after executing the Will on 21.1.1994, she died only on 18.1.2004 nearly after a period of ten years, the learned Judge held that after waiting for a period of nearly one year from the date of grant of Probate the application cannot be brought u/s 263 of the Indian Succession Act and on those findings dismissed the Application with the costs of Rs. 2,000/-.
7. Challenging the dismissal of the application, the appellant has preferred this appeal. The appellant seeks revocation of the Probate granted mainly on the following grounds:-
(i) The attesting witness -P. W. 2 - Gunaseelan was incompetent to be an attesting witness since he was born on 28.5.1977 and was aged only 16 years and 9 months on the date of the attesting the Will viz., 21.1.1994 and P. W. 2 was incompetent to be an attesting witness and the learned Judge ought to have allowed the application.
(ii) The second attesting witness Sundaramoorthy, who attested the Will, was an auto driver and the testatrix, being a Doctor by profession, would not have called a layman like an auto driver like Sundaramoorthy.
Mr. Sethuraman, the learned counsel appearing for appellant has contended that the learned Judge ought to have considered the above aspects and arrived at a conclusion that the above circumstances are suspicious and ought to have revoked the Probate granted and afforded an opportunity to the appellant to contest the Will.
8. Taking us through the typed set of papers, the learned counsel for 1st respondent Mr. Hariharan has submitted that the appellant has stood by the Probate proceedings and allowed the proceedings to be concluded and thereafter cannot be allowed to have the grant revoked or the proceedings reopened. Placing reliance upon the decision of a Division Bench of this Court in the case of
9. The relationship of the parties is not in dispute. The appellant, being brother of the testatrix, is the Class II heir. u/s 263 of the Indian Succession Act, all persons, who have an interest in the estate of the deceased and are entitled to enter caveat and oppose the grant of probate are entitled to apply for revocation of the Probate/Letters of Administration.
10. Under order 25 Rule 51 of the Madras High Court Original Side Rules, any person intending to oppose the issue of a grant of Probate or Letters of Administration must either personally or by his advocate file a caveat in the Registrar''s Office in Form No. 69. Under Order 25 Rule 52, the affidavit in support of the caveat shall be filed within eight days of the Caveat being filed. Such affidavit shall state the right and interest of the caveator and the grounds of the objections to the application. Under Rule 25 Rule 55, upon the affidavit in support of the caveat being filed, the proceedings shall be numbered and registered as a suit in which the petitioner shall be the plaintiff, and the caveator shall be the defendant.
11. Under Order 25 Rule 57 of Original Side Rules, in a probate, the party opposing a Will may, with his affidavit, give notice to the party setting up the Will that he insisted upon the Will being proved in solemn form of law, and only intends to cross examine the witnesses produced in support of the Will, unless the Court shall be of opinion that there was no reasonable ground for opposing the Will.
12. Order 25 Rule 62 stipulates that if subsequent to the grant of Probate or Letters of Administration, any person interested in the property of the deceased desires that the Will may be proved in solemn form or that the said grant may be revoked, he shall file an affidavit setting out the grounds therefor.
13. Where a person, who after being served with notice or otherwise takes notice in the Probate proceedings should file an affidavit within eight days. If he fails to do so, he cannot take advantage of his default and subsequently come forward with an affidavit and ask for petition to be registered as a Suit. A person, who failed to file the affidavit under Order 25 Rule 52 cannot resort to Order 25 Rule 62. In the instant case, if the appellant, having entered appearance in the probate proceedings, has not chosen to file any caveat and thereafter cannot seek to revoke the Probate. When he participated in the proceedings, in normal circumstances, appellant cannot maintain an application to revoke the Probate. But if the appellant makes out a case bringing home the circumstances that the appellant believed that the Will was not genuine had not come to his knowledge till the grant of Probate, he can file the petition for revocation. But in the case on hand, the appellant has not made out any such circumstances. On the other hand, the facts and circumstances clearly show that the appellant was well aware of the Will executed by the testatrix and that the Will was with the custody of the 1st respondent.
14. The learned counsel for appellant submitted that when the appellant has raised serious doubts as to the genuineness of the Will, learned Judge ought to have held that the appellant has made out a ''just cause'' within the meaning of Section 263 Explanation (b) and therefore the Probate ought to have been revoked. Further case of appellant is that when proper attestation of the Will has not been proved, the Probate granted is "Defective in substance" and therefore the citation issued ought to be revoked. In support of his contention, the learned counsel placed reliance upon a decision of the Supreme Court in the case of
... 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 as 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 case we are not satisfied in all the circumstances of the case that just cause within the meaning of S. 263 had been made out.
15. In the above decision, 27 years had elapsed after the grant of Probate and insptie of the knowledge of the grant, Girish did not take steps to have the grant revoked. In the said factual scenario, the Supreme Court held omission of issuance 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.
16. The above decision is of no assistance to the appellant. The Supreme Court clearly held that the omission to issue citations to persons who have been apprised of the Probate proceedings may be a ground for revocation of the grant in a normal case; but this is not an absolute right irrespective of other considerations arisen from proved facts of the case. As pointed out earlier, the appellant was well aware of the Will executed by the testatrix and that the Will was with the custody of the 1st respondent.
17. In fact, before filing of O. P. No. 875 of 2006, the appellant himself had filed application - A. No. 1315 of 2006 referring to the Will executed by Dr. S. V. Rajalakshmi and seeking to issue a citation to the 1st respondent to bring the Will of S. V. Rajalakshmi to the Court. In the said application, the appellant clearly averred that the 1st respondent is in possession of the Will of the testatrix and sought for a direction to the 1st respondent to produce the Will before the Court. In the said application, on 19.12.2006, the 1st respondent had filed an affidavit stating that he has also filed the petition in O. P. No. 875 of 2006 for Probate and that the Will had already been placed before the Court. Thereafter the said application - A. No. 1315 of 2006 came to be closed. The appellant entered appearance in O. P. No. 875 of 2006 and had obtained copies of the Petition and documents filed in Probate O. P. filed in the year 2006 itself. Thereafter the appellant did not file any caveat and objections to the Will put for Probate.
18. By perusal of the cause list, it is seen that O. P. was posted before the single Judge on 6.3.2008 (as Item No. 16) and the O. P. was directed to be posted before the Master for recording evidence. The Probate O. P. was listed before the Master''s Court on 12.03.2008 (as Item N0. 98). After completion of recording evidence, the matter was again listed before the Court on 17.03.2008 (as Item No. 125) and Probate was granted. By perusal of the cause list, it is seen that the appellant, who was the 4th respondent, was represented by his counsel M/s. K. V. Rajan and K. Suresh Kumar. When the appellants had entered appearance in the Probate Proceedings and allowed the proceedings to be concluded, the appellant cannot afterwards seek to have the grant revoked or the proceedings reopened.
19. Be that as it may, the suspicion raised by the appellant is that P. W. 2 - Gunaseelan, who was an attesting witness was born on 28.05.1977 and on the date of attesting the Will on 21.1.1994, he was only 16 years and 9 months and a minor could not have attested the Will, it is a suspicious circumstance regarding the genuineness of the Will.
20. Drawing our attention to the birth certificate of Gunaseelan produced by the appellant, learned counsel for the appellant contended that the birth certificate would clearly show that P. W. 2 - Gunaseelan was born on 28.05.1977 and that at the time of attesting the Will, he was only aged 16 years and 9 months and there cannot be a valid attestation by a minor. By perusal of the Birth Certificate, it is seen that names of father and mother are stated as "NANDHAGOPAL" and "GOWRI". But the name of the child is not stated and only stated as a ''male child''. In the absence of name given in the birth certificate, the birth certificate produced in the typed set of papers cannot be correlated to Gunaseelan. In any event, O. P. No. 876 of 2006 was pending from 2006 and it was posted before the Court on 6.3.2008 and thereafter before the master''s Court on 12.03.2008. In the affidavit of the attesting witness filed in November 2006, the age of the attesting witness is stated as 30 years. If really the appellant had any doubts about the age of the attesting witness, having entered appearance through the counsel, the appellant should have raised objection at the relevant time.
21. The learned counsel for the appellant nextly contended that the age of the attesting witness was suppressed from the Court and the Probate was obtained virtually by concealing material fact and therefore the Probate granted is liable to be revoked u/s 263 Explanation clause (b). Various clauses in the Explanation of Section 263 enumerates the circumstances under which the Probate or Letters of Administration may be revoked for a just cause. Section 263 gives a discretion to the Court in the matters of revocation. That discretion has to be judicially exercised having regard to the facts of each particular case. The registered Will was attested by P. W. 2 - Gunaseelan. The attesting witness was duly examined. The affidavit of the attesting witness was filed in November 2006, wherein his age was stated as 30 years. It cannot be said that there was concealment of a material fact and "just cause'' existed to revoke the Probate.
22. Section 2(e) of the Indian Succession Act contains the definition for "minor", which means "any person, who has not attained his majority within the meaning of Indian Majority Act, 1875 and any other person, who has not completed the age of eighteen years. "
23. Learned counsel for the appellant has contended that as per section 59 of the Indian Succession Act, which deals with "persons capable of making Wills", every person of sound mind not being a minor may dispose of his property by Will. It was further submitted that when there is a disqualification for a minor to dispose of the property by a Will, a minor is not competent to attest a Will. The learned counsel would further submit that u/s 63 of the Indian Succession Act, for the purpose of valid attestation, it is absolutely necessary that the attesting witness should either sign or affix his thumb impression or mark himself. Placing reliance upon a decision of
24. Contending that proof of execution includes proof of attestation, reliance was placed by the learned counsel upon a decision of the Supreme Court in
25. The ratio of the above decision cannot be applied to the case on hand. To prove the execution of the Will, attesting witness - P. W. 2 - Gunaseelan was examined, who had spoken about the execution of the Will by the testatrix and P. W. 2''s attestation. When P. W. 2 was in the box, the appellant had the opportunity to cross examine the witness and to bring about the required points. Having missed the opportunity, the appellant cannot harp upon the competency of P. W. 2 or the value to be attached to the evidence of P. W. 2.
26. The learned counsel would further submit that without properly appreciating purport of Section 63, the learned single judge side-tracked the issue by referring to the competency of a child witness and evidentiary value of child witness in the criminal proceedings, which is not at all relevant to the point in issue. Of course, while considering this point, the learned single judge referred to Section 118 of Indian Evidence Act and the competency of a child witness and also the value to be attached to the evidence of a child witness. In that process, the learned single judge referred to the decisions of
27. In the facts and circumstances of the case, we do not propose to go into the larger issue as to whether a person, who has not completed the age of 18 years, is competent to attest the Will or not. Suffice to note that there is no specific bar disqualifying a minor from attesting the Will. We are of the view that if it is brought out in evidence that the attesting witness had the mental maturity and also understood the nature of the document, there is no impediment to rely upon the said evidence. In the facts and circumstances of the case, the appellant, having stood by and allowed the proceedings to conclude, cannot seek to revoke the probate proceedings raising doubts about the competency of P. W. 2 -Gunaseelan. The alleged suspicious circumstances raised by him cannot repel the evidence adduced by the 1st respondent in proving the Will. Nor can they be said to be suspicious circumstances raising doubts about the execution of Will. Learned single judge rightly held that the appellant, being edged out of the benefits from the Will, cannot bring the petition u/s 263 of the Indian Succession Act. We do not find any reason to interfere with the impugned order of the learned single judge and this appeal is bound to fail.
28. In the result, the Original Side Appeal is dismissed. However, there is no order as to costs.
