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[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

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

This appeal arises out of Judgment dated 30th 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

record  as  respondents.   Mr.  Richard  P.  Mathias  died  at

Mangalore on 05.11.1959, leaving behind a Will executed by

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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

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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 application  

Period  of Limitation

Time  from which  period begins to run

137. Any  other application  for which no period of limitation  is provided elsewhere  in  this division.  

Three years When  the right to apply accrues

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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.

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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

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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

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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

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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.