Basheer, J.@mdashThese two appeals are being disposed of by this common judgment, since they are directed against the same decree and judgment passed in a Probate proceedings u/s 276 of the Indian Succession Act, 1925 (for short ''the Act''). The court below allowed the application for issue of probate in favour of common respondent No. 1/plaintiff in respect of Ext.A2 Will executed by Ancel D''Souza.
2. M.F.A. No. 699 of 2003 is at the instance of defendant No. 2 in the suit, while M.F.A. No. 11 of 2004 is at the instance of defendant No. 3.
3. It is contended by the appellants that the court below ordered issue of probate without proper application of judicial mind and ignoring the well settled principles of law and judicial precedents.
4. Before we deal with the contentions raised by the appellants, the relevant facts, which are necessary for disposal of these cases, may be briefly noticed.
5. Ancel D''Souza, the testator, executed Ext.A2 Will on December 6, 1991. In the said Will Ancel D''Souza had nominated Mrs. Minita Daphne Netto, the plaintiff, as the executor and sole beneficiary. An immovable property, which was admittedly in the possession of Ancel D''Souza, having an extent of about 4 cents with a residential building therein, was scheduled to the Will.
6. Ancel D''Souza passed away on November 10, 1998. The plaintiff instituted an application u/s 276 of the Act with Ext.A2 Will annexed thereto, praying for an appropriate declaration and other ancillary orders. The application was resisted primarily by defendants 1 and 2, the children of Casper D''Souza (brother of Ancel D Souza). Infant Jesus Church, defendant No. 3, was impleaded in the application, since, admittedly, the subject matter of the Will belongs to defendant No. 3. The contention of defendant Nos. 1 and 2(defendant No. 1 is no more) was that Ancel D''Souza did not have any right to execute such a Will and the property scheduled in the Will is not belonged to him. It was further contended that Ancel D''Souza has no power to dispose of the property scheduled in the Will. Defendant No. 3 church also raised similar contentions.
7. The court below framed the following points for determination :-
1) Whether Ext.A2 Will was properly executed by Ancel D'' Souza while the testator was in sound state of disposing mind?
2) Whether Ext.A2 was properly proved?
3) Whether the testator had any right over the properties mentioned in the Will?
8. The plaintiff got herself examined as PW1. One of the attestors of the Will was examined as PW2. Exts. Al to A4 were also marked on the side of the plaintiff. Exts.B1 to B7 were produced by them and marked in the case. The court below, after considering the oral and documentary evidence available on record, answered the three points in favour of the plaintiff. In other words, the court below held that Ext.A2 Will was executed by Ancel D'' Souza while he was in sound state of disposing mind. It was further held that Ext.A2 Will was genuine and its execution thereof was satisfactorily proved. The court below further held that Ancel D''Souza had subsisting right over the property at the time of execution of the Will.
9. Sri. K. L. Joseph, learned counsel for the appellant/Infant Jesus Church in MFA 11/04, confines his challenge to the impugned decree and judgment on three grounds:
(a) Ext.A2 Will is not a Will as defined u/s 2(h) of the Act.
(b)Property scheduled to the Will did not belong to the testator and therefore he had no subsisting right to deal with the same.
(c)All the legal heirs of deceased Ancel D''Souza were not made parties to the application for issue of probate.
10. As regards (a), it is contended by the learned counsel that the definition clause in Section 2(h) envisages or postulates that a Will under the Act can be only with respect to a property which necessarily belongs to the testator. Section 2(h) defines Will thus:
"Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death.
11. It is not in controversy that the property in question-belonged to the appellant/ church. It is on record that Ancel D''Souza had been in occupation of the residential building in the said property for the last several years before his death. It is also on record that Ancel D''Souza had applied for purchase of Kudikidappu in respect of the said property u/s 80B of the Kerala Land Reforms Act, 1964. The said application was dismissed by the Land Tribunal. It is the contention of the appellants that the order of dismissal passed by the Land Tribunal had become final, since Ancel D''Souza had never challenged the said order before the appellate authority constituted under the Kerala Land Reforms Act. Be that as it may, the fact remains that Ancel D''Souza had been exercising his right of possession over the said property till his death. Indisputably he had been residing in the said property with the plaintiff at the time of execution of the Will. It had also come on record that two other relatives of Ancel D''Souza had also been residing with him for sometime. This being the admitted factual position, it cannot be said that Ancel D''Souza did not have some kind of subsisting right in the property which was scheduled to the Will executed by him. That late Ancel D''Souza had occupational right over the property had never been questioned by the church also. In that view of the matter, the contention raised by the appellant that Ext.A2 will not fall within the ambit of Section 2(h) of the Act cannot be sustained. The above answer will equally apply to the second contention raised by the appellant as well.
12. In answer to the contention raised by the appellant as regards the rejection of the claim for Kudikidappu, it is pointed out by the learned counsel for respondent/plaintiff that in Ext.A3 order passed by this court in C.R.P.NO. 2765/98, it had been categorically made clear that the right of the respondent had been safeguarded and it had been held that it would be open to the respondent/plaintiff to agitate her right as regards Kudikidappu in other independent proceedings.
13. As regards third contention, it may at once be noticed that defendants 1 and 2, the children of Casper D''Souza, the brother of Ancel D''Souza had been contesting the case before the trial court. One of them namely Margaret Bernadita is the appellant in MFA 699/03. These defendants had never raised a contention that the application filed by the plaintiffs for grant of probate was bad for non-joinder of necessary parties. More importantly Ancel D'' Souza died issue less. According to the plaintiff, she had been living with Ancel D''Souza for a large number of years and in fact she had been looking after him. The testimony of PW1 in this regard was not seriously challenged or disputed.
14. We have carefully perused the oral testimony of PW1 and PW2, one of the two attestors of the Will. We have no hesitation to hold that the evidence adduced by the plaintiff will undoubtedly show that deceased Ancel D''Souza had executed the Will in a sound state of disposing mind. In this context, it may also be noticed that the defendants had never disputed execution of the Will. They had also no case that Ext.A2 was not genuine. The court below had adverted to all the above aspects, particularly, the evidence of PW2 in this regard.
15. Having carefully perused the entire materials available on record, we do hot find any reason to interfere with the finding entered by the court below as regards genuineness and execution of Ext.A2 Will. As has been noticed already, Ancel D''Souza had executed the Will in the year 1991. He passed away in 1998, seven years after the execution of the Will. This also is a very strong circumstance to indicate that Ext.A2 Will was genuine and Ancel D''Souza had executed the same with a free disposing mind.
16. The next contention raised by the appellants is that Ext.A2 Will cannot be treated as a document which will confer any benefit on the plaintiff eventhough she has been named as the beneficiary. It is further contended by the learned counsel for the appellant that the court below had not considered the question whether the testator had any right or title over the property scheduled to the Will.
17. Sri. N. Subramaniam, learned counsel for respondent/complainant, submits that the above contention is wholly untenable and apparently against the well settled principles of law and judicial precedents. Learned counsel invites our attention to one of the earliest decision on the point in Abhiram Dass v. Gopal Dass [ILR (1889-90) 17 Cal 48]. It is true, that the above decision was rendered while considering Sections 69 and 86 of the Probate and Administration Act (V of 1881). In the above decision, their Lordships laid down that
a person not claiming any of the property of the testator, but disputing the right of the testator to deal with certain property as his own, has no such an interest in the estate of the testator as entitles him to come in and oppose the grant of probate.
18. This decision was referred to by their Lordships of the Supreme Court in
19. It has been further held by the apex court in Krishna Kumar''s case (supra) that a person aggrieved by grant of probate has to necessarily take recourse to the provisions contained in Section 263 of the Act.
20. In this context, it will be profitable to refer to Section 263 of the Act which deals with revocation or annulment of grant of probate or letters of administration for just cause. The above Section enumerates and explains just cause as hereunder:
(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
(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 willfully 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.
21. Learned counsel for respondent has invited our attention to yet another decision of their Lordships of the Supreme Court in Babulal Khandelwal & others v. Balkrishan D. Sanghvi and others [2008 (4) CCC 257 (SC)]. In this decision also, it has been reiterated by the apex court that probate court does not decide any question of title or even the existence of the property itself. In this case their lordships had referred to several earlier decisions on the point including Krishna Kumar Birla (supra).
22. In yet another earlier decision in
The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.
23. Per contra, it is contended by Sri. Joseph, learned counsel for the appellant, that the Probate Court can in appropriate cases look at the competence and authority of the testator to deal with his property through a Will. In this context, learned counsel lays heavy emphasis on a decision of their Lordships of the Supreme Court in
When an assignment or transfer is made in contravention of statutory provisions, the consequence whereof would be that same is invalid and thus, being opposed to public policy the same shall attract the provisions of Section 23 of the Indian Contract Act.
24. The other decision pressed into service by the learned counsel for the appellants is Subhadra Rani v. Sheiry Weigal Nain [2005 (2) KLT Short Notes page 53 (SC)]. In this decision their Lordships have only laid down that the moment the probate is granted it will relate back from the date of death of the testator and all property will be vested in the person in whose favour the probate was granted. We are afraid the above two decisions relied on by the learned counsel for the appellants will not be of any assistance to the appellants. In view of the discussion made above, we have no hesitation to hold that the finding entered by the court below does not call for any interference. We are satisfied that the court below had come to the right conclusion as regards the genuineness and execution of the Will. Further, the three points raised by the appellants are wholly untenable that the testator was not competent to execute the Will in respect of the property scheduled in the Will could not also be entertained.
