I.P. Mukerji, J.@mdashA judgment of a Division Bench of our Court in
2. Now, this will was probated by this Court in common form, on an application filed by the executor, being the first respondent and brother of the testator, to which were annexed consent affidavits of all the heirs of the testator, who would have been entitled to succeed to his estate on intestacy. Almost one year after the grant this application was filed by two sons of the testator Bharat Kumar and Tilok Chandra, both being legatees under the will, for its revocation.
3. A passage from the above judgment is cited by the applicants to revoke the grant and to ask the executor to prove the will in Court. The passage is this:
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.
4. The contention is that it does not matter if the will had been probated in common form on the basis of the consent of the above heirs. Any such heir, at any point of time, can turn around and ask the executor to prove the will in solemn form. If that had been the ratio of the above judgment, I would have had no hesitation in revoking the grant straight away and reopening the probate proceedings. Furthermore, all probates granted on the above premises could be reopened by any disgruntled heir or a person having an interest in the estate, at any point of time. The beneficiaries of a will probated by such procedure, would be perpetually vulnerable to an order asking them to suspend their legacies, whenever one heir chose to move the Court for its revocation, no matter how distant that point of time was from the grant of probate. But, that is, not quite, in my judgment, the ratio of the judgment laid down by the Division Bench. To appreciate the ratio, the facts of that case have to be gone into.
5. The application for grant of probate was not filed with the consent of the heirs. The applicant for revocation was a resident of the U.S.A. and an heir of the deceased. A special citation was tried to be served upon her in Texas in that country. Her maid or housekeeper did not accept delivery of the special citation sent by post. The endorsement of the letter delivery person was "refused". On this basis the propounder presumed good service and further presumed consent to the grant and moved the Court accordingly. The Court proceeded on the said premise also. Since there was no objection before the Court, the proceedings were treated as uncontentious by it. It granted probate. This grant according to the practice of our Court is known as a grant "in common form".
6. Their lordships hearing that appeal discussed the authorities, both English and Indian in great detail. In the above facts and circumstances of that case their lordships were of the opinion that the grant of probate was to be set aside and the propounder be directed to prove the will in solemn form.
7. Grant of probate by this court is regulated by the Indian Succession Act, 1925 and the Original Side Rules of our High Court. The applicable provisions are those in Chapter XXXV of the rules. Section 283 of the Act, inter alia, provides that the District Judge "may if he thinks proper" issue citations calling upon all persons claiming to have any interest in the estate of the deceased. [See section 283 (c)]. There is no special provision regarding the procedure for non-contentious grants. However, chapter XXXV of our Original Side Rules talks about "non-contentious business". Rule 1 relates to this and is in the following terms:
1. Non-contentious business. - Non-contentions business shall include the business of obtaining probate and letters of administration ( with or without the will annexed, and whether general, special or limited) where there is no contention as to the right thereto, including the passing of probates and letters of administration through the Court in contentious case where the contest is terminated, and all ex parte business to be taken in the Court in matters of testacy, and intestacy, not being proceedings in any suit, and also the business of lodging caveats against the grant of probate or letters of administration.
8. The rule itself makes it clear that one could apply under that Chapter when there was no contention with regard to the will. Rule 33 is most important. It says that where the procedure is not provided by the Act and the Original Side Rules, the practice and procedure of the Probate Division of the High Court of Justice in England shall be followed. The rule makes it explicit that the practice of the English Court to be followed should not be inconsistent with the Act and the rules.
9. Since inception of this High Court a practice has developed regarding grant of probate in cases where there is no contention. Adopting the nomenclature used in England it has come to be known as a grant in common form.
10. Before I proceed to make further comments it is necessary to ascertain what is this grant in common form as known in England. Let us see what Mortimer has to say on this in "Probate Law and Practice" 2nd Edition, quoted by the Division Bench in paragraph 15 of their said judgment in
15. ...............................................
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).
11. The Supreme Court of Judicature (Consolidation) Act, 1925, Section 175, Sub section 1 of that country defines common form probate business in a similar way as non contentious business is defined in Chapter XXXV of our Original Side Rules. The definition in Section 175, Sub section 1 of the English Act is in the following terms:
''common form probate business'' means the business of obtaining probate and administration where there is no contention as to the right thereto, including the passing of probates and administrations through the High Court in contentious cases when the contest has been terminated, and all business of a non-contentious nature in matters of testacy and intestacy not being proceedings in any action, and also the business of lodging caveats against the grant of probate or administration
12. Mortimer states in Chapter II of his treatise, the Law and Practice of the Probate Division of the High Court of Justice that probate in common form is granted to the executor named in the will, or to the executor according to its tenor. The application for grant may be made through a solicitor or in person by the executor at the principal registry, or at any district probate registry. The earliest date which the probate may issue is the eighth day after the death of the testator.
13. The delay in filing an application beyond three years of the date of death has to be explained. The following requirements have to be met:
(a) The person propounding the will has to subscribe an oath that the will is the true and original last will and testament of the testator.
(b) The executor has also to swear an oath stating the name and occupation of the executor, the relationship between the executor and the testator where such relationship is not stated in the Will, the place of residence of the executor, the date and place of death of the testator and so on.
(c) An affidavit regarding the extent of the testator''s property must also be filed for use of the Commissioner of Inland revenue.
(d) If the attestation clause of the will or codicil is absent or insufficient an affidavit from at least one of the subscribing witnesses that the will was duly executed and witnessed is essential.
(e) If the will is of a blind or illiterate testator an affidavit that the will was read over to such a testator is necessary.
(f) If the testator was in a mental asylum at the time of execution of the will, evidence of the mental capacity of the testator is necessary.
(g) The probate is not signed by the judge but is signed by the Registrar under the seal of the Probate Division of the High Court.
14. Tristram and Coote in their Treatise on Probate Practice write similarly.
15. In chapter XVII of the Treatise by Mortimer he says that any person whose interest is adversely affected by a probate granted in common form, without limitation as to time may, issue a citation against the person who proved the will, calling upon him to bring in the probate and to show cause why the same shall not be revoked, and if, in the event, the will is not sufficiently proved, the probate will be revoked.
16. In other words, in England the Court believes the executor when he propounds a will as non contentions and grants probate. But it is granted on the condition that if an interested person comes forward to challenge the will, the executor is asked to prove the will in solemn form. If he cannot the grant is revoked.
17. Our original side practice has substantially adopted the above procedure. Additionally, the requirements of section 281 of the Indian Succession Act, 1925 have to fulfilled. This section provides that the application for grant of probate has to be verified by at least one of the witnesses to the effect that he was present and saw the testator affix his signature or mark to the will. This requirement is not there in the common form practice in England. In that country an attesting witness has only to make such a declaration if the attestation part of the Will is absent or is insufficient. In our country, in all cases, this declaration is necessary.
18. Moreover, probate is treated to be non contentious in our High Court, inter alia, when consent affidavits are filed by the heirs of the deceased who would have inherited the estate if he had died intestate. A new practice has now been introduced that an undertaking to the court has to be filed by the applicant for grant of probate that there are no other persons interested u/s 283(c) of the Indian Succession Act, 1925.
19. Furthermore, the uncontested probates in our High Court are signed by the Judge. It is on this basis that this court grants probate in common form. In fact our division bench in
20. It is true that in England a common form probate can be disturbed by any person interested by asking the propounder to prove the will in solemn form. But, when our practice has adopted the procedure of receiving consent affidavits from the heirs, an affidavit or declaration from an attesting witness regarding execution of the Will, an undertaking from the propounder and so on, it should not be so easy for any applicant to set aside the probate and ask the propounder to prove the will in solemn form. Certainly not, when the grant has been made interalia on the basis of a consent affidavit of an heir, and that heir without any substantial reason asks the court to reopen the grant.
21. It is true that Mortimer in Chapter IX says that mere acquiescence of a "next to kin" is no bar to his asking the executor to prove the will in solemn form. But rights under the will can be waived. He writes the following:
Mere acquiescence on the part of a next-of-kin in an executor taking the probate of a will in common form is no bar to his afterwards calling in such probate, and putting the executor to proof of that will per tests (d). Nor is acquiescence a bar even though accompanied by the receipt of a legacy under the very will afterwards sought to be contested (e); but before being permitted to contest the will, the legatee must bring his legacy into Court (f). There are circumstances, however, in which long acquiescence accompanied by acts done by the next-of-kin under the will, have been held to amount to such a waiver of his rights as to preclude his from contesting the will, though proved only in common form, if there appears to be no reasonable ground for doubting its genuineness and validity (g).
22. Such a grant is not infallible. It can be reopened. The categories or situations when the court will permit reopening of the grant may not be closed. To reopen a grant obtained on interalia the consent of the applicant, he has to show that such consent was vitiated by forgery or fraud or undue influence or coercion or illegality or mistake and like circumstances.
23. In fact the Supreme Court in
24. The circumstances shown in this application do not satisfy such a test as I will try to show in the subsequent paragraphs.
25. The first and second petitioners and the fourth respondent are the sons of the testator. The fifth respondent is his only surviving daughter. These persons would have been the only heirs of the testator had he died intestate under the Hindu Succession Act, 1956. The first respondent is the executor named in the will. He is a brother of the deceased. The second respondent is the daughter of the fourth respondent. The third respondent is his daughter-in-law.
26. The case in this application for revocation of grant runs like this. In 2006 the first respondent told the petitioners about the last will and testament of the deceased dated 12th June, 2002. The executor asked the petitioners to sign, inter alia, on papers which contained a declaration or statement dated 14th May, 2007 that the petitioners had no objection to the grant of probate. In good faith the petitioners had signed those papers. They did so without even seeing the will.
27. The testator had made an earlier registered will on 4th December, 2001. The later will and testament dated 12th June, 2002 was written in legal language. The two attesting witnesses were the chauffer of the deceased and liftman of premises No. 11/1 Heysham Road, Kolkata - 20. The deceased was the owner of 11/1 Heysham Road, Kolkata. By the later will the executors were inter alia directed to sell off this property except two flats therein, namely, Flat No. 11 on the fifth floor and flat No. 9 on the third floor. The sale proceeds were to be donated to a maternity hospital in the memory of the testator''s mother to be set up in the city of Ahmedabad, in the State of Gujrat to be managed by the second respondent, the daughter of the fourth respondent and the third respondent, the daughter-in-law of the fourth respondent.
28. According to the applicants, the third respondent is merely a bachelor of arts and has shifted to Australia with her husband.
29. At the date of alleged execution of the will the deceased was 88 years of age and in failing health.
30. It is submitted that the declaration of attestation dated 14th May, 2007 to the last will and testament dated 12th June, 2002 is of one witness only. That witness is Sambhu Roy. The declaration by the other witness Bhibash Roy is not there. It is said that the requirement of Section 63 (c) of the Indian Succession Act, 1925 is not met. This point was not taken in the application for revocation.
31. Next, it was argued that Shambhu Roy was the chauffeur of the deceased and signed in Hindi. Next it was contended that the will was registered. By the endorsement on the will at the back of the first page made for registration purposes, only the signature of Shambhu Roy appeared and not that of the other witness. Therefore only one witness was present at the time of registration of the will. So necessarily there was no valid execution of the will u/s 63 of the said Act. Neither was this point taken in the application. However, I propose to deal with both points.
32. One is the substantive requirement of law. It is provided in Section 63 of the Indian Succession Act, 1925. It provides that the will should be attested by two or more witnesses. Each of the witnesses should have seen the testator sign the will. Each of the witnesses should have signed the will in the presence of the testator.
33. The other is the procedural requirement. It is contained in Section 281 of the said Act. The application for grant of probate should be verified by at least one witness. This Section further goes on to clarify that such verification is necessary when the witness can be procured. Therefore, the objection to filing of a declaration by one attesting witness only has got no substance whatsoever. An attestation by one of the witnesses sufficiently complies with the requirement of Section 281. Attestation by two witnesses or more witnesses is not at all necessary. Moreover, when Section 281 provides that such an attesting affidavit should be affirmed by at least one witness and that too when the witness is procurable goes to show that if a witness is not available such declaration may not be filed. Secondly and more importantly it shows that the requirements of this section are directory and not mandatory.
34. The substantive law requirement of section 63 would become relevant if the will was proved in solemn form. On the face of the will it appears that it is attested by two witnesses. The executor was not called upon to prove the will in solemn form.
35. The second point is regarding absence of one of the witnesses at the time of registration. Such presence, in my opinion is not at all mandatory. Section 27 of the Registration Act, 1908 provides that a will may be tendered for registration at any point of time, irrespective of the time frame provided in Section 23 for registration of other documents. Secondly a will, u/s 32 of the Act may be presented for registration by the executant. Here it was so presented. The requirements of registration were met. Absence of the other witness at the time of registration cannot point to the invalidity of the will. It is perfectly possible for the testator to execute a valid will, attested by two witnesses at home and thereafter register it in the registration office in the absence of both the witnesses or either of them. Here one witness was present at the registration office. This neither invalidates nor tends to point towards invalidation of execution and registration of the will.
36. These technical points cannot be taken by an heir or legatee who had consented freely to the grant in common form. Such consent, as I have held earlier can be vitiated by fraud, coercion, undue influence, illegality, mistake and like circumstances. None of the above grounds or any similar ground is raised here. Such a consenting heir and legatee cannot at a later point of time turn around and challenge the will on the ground of procedural defects in its execution and registration. Moreover, in my opinion, in the above circumstances the applicants have waived their rights to challenge the will. There is also no justification for the applicants to refer to the earlier will of the testator dated 4th December, 2001. The will of 12th June, 2002 specifically revokes this will. Furthermore, I do not think it proper to exercise my discretion in this case to revoke the probate. (See
37. The last ground is that the will is void. Clause (vi) of the will is challenged. It is in the following terms:
(vi) I direct my executors to donate the total realisation from the above sale proceeds to donate for a Maternity Hospital in the kind Memory of my mother DIWALIBEN KALIDAS SAYANI to be Maternity Hospital in the town of Ahmedabad state of Gujrat and to be managed by my grand daughter Dr. Suchi M. Sayani daughter of my son Mukund Ray A. Sayani, and my grand daughter in law Nilu R. Sayani - wife of my grand son Ruchir M. Sayani both as attorney of the said Maternity Hospital.
38. It is contended that it does not express any definite intention. Hence it is void for uncertainty.
39. I refuse to believe that this part of the bequest does not express any definite intention. The will has not been drafted in the precise words of a lawyer. But there is no dearth of expressed intention. The executors are required to sell the property in Kolkata, except two flats therein. The sale proceeds would have to be donated to a maternity hospital raised in the memory of the testator''s mother, in Ahmedabad in the State of Gujarat. This hospital is to be managed by the second respondent being the daughter of the fourth respondent and the testator''s grant daughter and the third respondent being the daughter in law of the fourth respondent. By using of the word "manage" the testator meant "control". Therefore, a hospital had to come up which was to be controlled by the said two respondents. The money had to go to this hospital. There is no uncertainty in this part on the will. Therefore, this point is rejected.
40. All grounds in support of this application fail. This application is dismissed. No order as to costs.
41. Urgent certified photocopy of this judgment and order, if applied for, to be provided upon complying with all formalities.
