Allowed

Azeez Mohammed v. Mr. Parameshwaran Subramani

Karnataka HC14 Dec 2023PROB.CP/23/2019

Case brief

AI extract

What is this about?

Petitioners sought revocation of ancillary letters of administration granted to a respondent, who allegedly concealed a pending suit challenging the validity of a sale deed and failed to implead the petitioners. The court set aside the previous grant and restored the petitions for a fresh inquiry.

What did the court decide?

The order dated 08.07.2016 granting ancillary letters of administration is recalled; probate petitions are restored to file for a fresh enquiry with the petitioners impleaded as parties.

Azeez Mohammed Vs Mr. Parameshwaran Subramani — Succession and Inheritance | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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PROBATE CP NO.23 OF 2019 C/W PROBATE CP NO.25 OF 2019

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IN PROB.CP NO.23/2019 BETWEEN:

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1 . MR. AZEEZ MOHAMMED SON OF LATE MOHAMMED DADA AGED ABOUT 67 YEARS

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2 . MRS FARIDA AZEEZ WIFE OF MR AZEEZ MOHAMMED AGED ABOUT 63 YEARS

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3 . MR. ADIL AZEEZ

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SON OF AZEEZ MOHAMMED AGED ABOUT 44 YEARS

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4 . MR. AZEEM AZEEZ SON OF MR AZEEZ MOHAMMED AGED ABOUT 35 YEARS

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ALL ARE RESIDING AT PRESTIGE ORCHID FLAT NO.01 AND 102, NO.37, BERLIE STREET LANGFORD TOWN, BENGALURU-560 025

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...PETITIONERS

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(BY SRI.K.N.PHANINDRA, SR.COUNSEL FOR SRI.SRIHARI A V, ADVOCATE)

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AND:

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MR. PARAMESHWARAN SUBRAMANI SON OF LATE L P AIYAR AGED ABOUT 72 YEARS, RESIDING AT NO.7/1 CAMPBELL CROSS ROAD, P O VIVEK NAGAR BENGALURU-560 047 GPA HOLDER OF MR ADRIAN SHEDDEN

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…RESPONDENT

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(BY SRI.RANJANA IYER, ADVOCATE)

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THIS PROBATE CP IS FILED U/S 263 OF THE INDIAN SUCCESSION ACT 1925, PRAYING TO REVOKE / ANNUL THE GRANT OF LETTERS OF ADMINISTRATION IN FAVOUR OF THE RESPONDENT IN RESPECT OF THE PROPERTY OF MRS. DOROTHY MAVIS SHEDDEN, THE DECEASED IN FAVOUR OF HER GRANDSON AND EXECUTOR OF HER WILL DATED 11.12.1998 VIDE ORDER DATED 01.07.2016 IN PROB CP. NO. 1/2016 (ANNEXURE-A) PASSED BY THIS HON'BLE COURT.

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IN PROB.CP NO.25/2019 BETWEEN:

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1 . MR. AZEEZ MOHAMMED SON OF LATE MOHAMMED DADA AGED ABOUT 67 YEARS

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2 . MRS. FARIDA AZEEZ WIFE OF MR AZEEZ MOHAMMED AGED ABOUT 63 YEARS

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3 . MR. ADIL AZEEZ SON OF AZEEZ MOHAMMED AGED ABOUT 44 YEARS

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4 . MR AZEEM AZEEZ SON OF MR. AZEEZ MOHAMMED AGED ABOUT 35 YEARS

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ALL ARE RESIDING AT PRESTIGE ORCHID FLAT NO.01 & 102, NO.37, BERLIE STREET LANGFORD TOWN, BENGALURU-560 025

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...PETITIONERS

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(BY SRI.K.N.PHANINDRA, SR.COUNSEL FOR SRI.SRIHARI A V, ADVOCATE)

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AND:

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MR. PARAMESHWARAN SUBRAMANI SON OF LATE L P AIYAR AGED ABOUT 72 YEARS, RESIDING AT NO.7/1 CAMPBELL CROSS ROAD, P O VIVEK NAGAR BENGALURU-560 047 GPA HOLDER OF MR ARTHUR.R.W.TOWT.

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…RESPONDENT

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(BY SRI.RANJANA IYER, ADVOCATE)

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THIS PROBATE CP IS FILED U/S 263 OF THE INDIAN SUCCESSION ACT 1925, PRAYING TO REVOKE / ANNUL THE GRANT OF LETTERS OF ADMINISTRATION IN FAVOUR OF THE RESPONDENT IN RESPECT OF THE PROPERTY OF MR. GEORGE REGINALD UPSHON, THE DECEASED IN FAVOUR OF THE EXECUTOR OF HER WILL DATED 24.03.2010 VIDE ORDER DATED 08.07.2016 IN PROB CP. NO. 2/2016 (ANNEXURE-A) PASSED BY THIS HON'BLE.

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THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 29.11.2023, COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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These two petitions are filed under Section 263 of Indian Succession Act, 1925 seeking revocation of letters of administration granted by this Court in C.P.Nos.1/2016 and 2/2016.

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Before I advert to the facts of the case, I deem it fit to cull out the family tree which is placed on record by the parties and the same is as under:

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Alice Victoria

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--------------------------------------------------------| | (Daughter) (Son) DOROTHY GEORGE (Died on 29.7.2004) (Died on 19.06.2012) (Will dated 11.12.1998) (Will dated 24.03.2010) | |

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(Grandson) -----------------------ADRIAN (JR.) | | (Executor) (Friend) CRYSTAL MAYES (Probate granted in ARTHUR R.W.TOWT (Also GPA Holder of Australia on 7.10.2014) (Executor) George & Dorothy) (Probate granted in | Australia on 9.8.2012) Sale Deed dated 20.04.2006 | (Azeez Mohammed his wife & children)

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It is not in dispute that property bearing Municipal No.6 (Old No.12) situated at Elysium, Moyenville Road, Langford Town, Bangalore, originally belonged to Patel Alexander Wallace, Retired Customs Officer. The said Patel Alexander Wallace and H.W.Wallace sold the same to V.G.Upshon, Retired Electrical Foreman of South Indian Railway Company vide registered sale deed dated 12.12.1941. The said V.G.Upshon bequeathed the property by executing Will on 08.10.1951 in favour of his wife Mrs.Alice Victoria Upshon. Mrs. Alice Victoria Upshon obtained letter of Administration of Will from the Court of District and Sessions Judge. Mrs. Alice Victoria Upshon sold schedule 'A' property to her children Dorothy Mavis Shedden and George Reginald Uphson vide registered sale deed dated 24.03.1971. The children of Mrs. Alice Victoria Upshon namely Dorothy Mavis Shedden and George Reginald Upshon migrated to Australia.

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The present petitioners are asserting right and title by alleging that the said Dorothy Mavis Shedden and George

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Reginald Upshon have authorized the daughter of George Reginald Upshon namely Crystal Mayes by executing GPA. The present petitioners herein contend that George Reginald executed GPA in favour of his daughter Crystal Mayes on 31.12.1981. Similarly, Dorothy Shedden also executed GPA in favour of her niece namely Crystal Mayes on 19.05.1983. The petitioners are asserting right and title based on registered sale deed executed by Crystal Mayes as a GPA holder of Dorothy Shedden and George Reginald dated 20.04.2006.

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The respondent filed two petitions seeking ancillary probate in C.P.Nos.1/2016 and 2/2016 by contending that Dorothy Mavis Shedden has executed a Will in Victoria, Australia appointing her grandson Adrian Maxwell as Executor vide Will dated 11.12.1998. The respondent also claims that George Reginald has also executed a Will appointing Arthur R.W.Towt as the Executor vide Will dated 24.03.2010.

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The respondent filed two probate civil petitions under Section 228 by contending that the Executor moved a petition before Supreme Court of Victoria and the Supreme Court of Victoria, Australia has granted probate of Will of Dorothy Mavis on 07.10.2014. The respondent also claims that Arthur R.W.Towt who has been appointed as Executor of Will of George Reginald also applied for probate of Will from Anne Court, Australia. Based on probate issued by the Australian Court, the present respondent on the strength of GPA executed by Mr. Adrian Shedden, has filed two petitions in C.P.Nos.1/2016 and 2/2016 seeking ancillary probate in respect of Will executed by Dorothy Shedden and George Reginald.

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This Court vide order dated 08.07.2016 has allowed both the petitions and the respondent who claims to be the GPA holder of original Executor under both the Wills is granted letters of administration by this Court vide order dated 08.07.2016. The present petitioners in both these petitions

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are claiming to be the purchasers and they are tracing their right and title based on sale deed executed by the GPA holder of the original owners namely Dorothy Shedden and George Reginald who had 50% share in the properties. The petitioners are claiming that Crystal Mayes as a GPA holder of Dorothy Shedden and George Reginald has sold the entire suit property under registered sale deed dated 20.04.2006.

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Learned Senior Counsel reiterating the grounds urged in both the petitions would vehemently argue and contend that these two petitions are filed seeking grant of ancillary probate by suppressing the pendency of suit filed by the Executor through respondent herein who is the GPA holder questioning the sale deed executed by Crystal Mayes on 20.04.2006. The petitioners have also contended that suit filed by the original Executor through respondent/GPA holder is partly dismissed and the petitioners sale deed insofar as share of George Reginald is upheld while remaining half share owned by Dorothy Shedden to an extent of 50% is declared to

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be null and void and Regular First Appeals are pending before this Court. He would vehemently argue and contend that the probate proceedings initiated by the Executor before the Australian Court insofar as Dorothy Shedden's 50% is concerned, it is subsequent to filing of the suit, while the probate proceedings of George Reginald's 50% share is concerned, same is obtained in 2012. Learned Senior Counsel referring to Section 283 of Indian Succession Act would contend that respondent who is the GPA holder of the Executor has deliberately suppressed the pendency of the suit and without impleading the petitioners has applied for grant of ancillary probate.

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Learned Senior Counsel would contend that the petitioners have acquired title pursuant to registered sale deed executed by original owners namely Dorothy Shedden and George Reginald who had 50% share each and therefore, he would point out that the respondent would not have

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maintained these two petitions seeks grant of ancillary probate without impleading the petitioners herein.

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To buttress his arguments, he has placed reliance

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on the following judgments:

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1) Elizabeth Antony vs. Michel Charles John Chown Lengera - 1990 (3) SCC 333;

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2) Manibhai Amaidas Patel & Another vs. Daya Bhai Amaidas - (2005) 12 SCC 154;

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3) Basanti Devi vs. Raviprakash Ramprasad Jaiswal - 2008 (1) SCC 267;

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4) International Woolen Mills vs. Standard Wool (U.K.) Ltd. - 2001 (5) SCC 265;

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5) Alcon Electronics Pvt. Ltd. vs. Celem S.A. of FOS 34320 Roujan, France and Others - (2017) 2 SCC 253;

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6) Devika Dhamji Shah vs. Rashi Mukesh Shah - 2012 (6) MLJ 182.

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Placing reliance on the judgments cited supra, he

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would vehemently argue and contend that a person who has a

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real interest in the estate and is likely to be adversely affected

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by grant of probate is an interested party and therefore, a

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person applying for grant of probate or letters of

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administration is bound to implead the person having caveatable interest. Referring to the principles laid down by the Apex Court in the judgment cited supra, he would further contend that even a bare possibility of an interest is sufficient to be heard in a probate proceedings. Referring to these principles, he would contend that the petitioners are better placed and are asserting title over the suit property under registered sale deed for valuable sale consideration.

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He would further contend that the petitioners who

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have acquired valid right and title deserve a fair opportunity to contest the probate proceedings to demonstrate that the probate granted by a Foreign Court is not in accordance with law. Referring to Section 13 of CPC, he would contend that had respondent impleaded petitioners, they could have very well demonstrated that probate granted by the Australian Court does not satisfy the ingredients of Section 13 of CPC.

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Placing reliance on the judgment rendered by the Maharashtra High Court in the case of Devika Dhamji Shah vs. Rashi Mukesh Shah (supra) , he would vehemently argue and contend that that ancillary probate granted in India cannot be sustained if the foreign court failed to consider mandatory provisions of Indian law while granting probate. On these set of grounds, he would contend that ancillary probate granted by this Court needs to be revoked and the civil petitions filed in C.P.Nos.1/2016 and 2/2016 are to be heard afresh by affording opportunity to the petitioners herein.

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Per contra, learned counsel appearing for the respondents would contend that if letters of administration is not issued, the Executor's right will be seriously prejudiced and they will not be able to contest the Regular First Appeals arising out of O.S.No.26280/2014 which is pending consideration before the Division Bench of this Court. She has also strongly resisted the petition for revocation on the ground that revocation is not sought within three years from the date

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of grant of letters of administration. Reliance is also placed on the judgment rendered by Bombay High Court in the case of

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Ramesh Nivrutti Bhagwat vs. Dr. Surendra Manohar Parakhe¹ . Referring to the judgment rendered by the Calcutta High Court in the case of Abhiram Dass vs. Gopal Dass² , she would vehemently argue and contend that a person disputing the right of the testator cannot be regarded as having interest in the estate of the deceased. She would contend that such assertion would amount to assertion of adverse interest. Reliance is also placed on the judgment rendered by the Bombay High Court in Pirojshah Bikhaji and Others vs. Pestonji Meswanji³ . Placing reliance on the said judgment, she would contend that a person who wishes

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to come in as a caveator must show some interest in that estate. Referring to the law laid down by the Apex Court in

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the case of Kanwarjit Singh Dhillon vs. Hardyal Singh

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1 2007 SC Online Bom 1506 (DB)

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2 (1890) ILR 17 Cal 48 (DB)

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3 (1910) 12 Bom LR 366

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Dhillon and Others⁴ , she would contend that probate Court is not competent to determine the question of title to the suit properties. Reliance is also placed on the judgment rendered by the Apex Court in the case of Krishna Kumar Birla vs. Rajendra Singh Lodha⁵ . Referring to the principles laid down in the said judgment, she would vehemently argue and contend that a person questioning the grant of probate and seeking revocation must establish that he has an interest which would have the effect of destroying the estate of the testator itself. She would further point out that any person claiming interest adverse to the testator cannot maintain an application before the probate Court and his remedy is elsewhere.

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Heard learned Senior Counsel appearing for the petitioners and learned counsel appearing for the respondent.

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4 (2007) 11 SCC 357

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5 (2008) 4 SCC 300

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Before I examine the rights of petitioners herein in seeking revocation of the probate granted by this Court, it would be necessary to cull out the observations made by this Court while granting probate. Para 18 and 19 of the order dated 08.07.2016 would be relevant and the same is culled out as under:

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"18. In view of the aforesaid legal position and there being no objection from any quarter, this Court considers it fit and proper to grant the Letter of Administration to the present petitioner Mr Parameshwaran Subramani in respect of the property of Mrs Dorothy Mavis Shedden, the deceased in favour of her grandson and Executor of her Will dated 11.12.1998 in favour of Mr Adrian Maxwell Kenneth Shedden (Jr.) in respect of half of the property in question situate at New No.6, (Old No.12), Elysium, Moyenville Road, Langford Town, Bangalore 25. The petitioner will furnish the inventory and the accounts in respect of the said administration in terms of S.291 of the Act quoted above and shall also furnish the bond to the satisfaction of the Registrar General of this Court in view of Rule 17 of the 'Rules Governing Probate & Administration Matters, 1964' (Notification No.SPL 327/63 dated 13.7.1964) which were notified in exercise of powers conferred by S.129 of the CPC, 1908 by Karnataka High Court. The said Rule is quoted below for ready reference:

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17. Administration Bond:-

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An administration bond shall be in Form No.9. The Registrar shall, subject to the approval of the Court, determine the actual amount of

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security to be given and may examine the proposed sureties as to their properties and liabilities and for this purpose may direct notice to issue to the proposed sureties and adjourn the further hearing of the application to a fixed day by passing and order in Form No.10. The proposed administrator and his sureties when approved by the Court, shall execute the administration bond before the Registrar or other officer authorized to take affidavits. The bond shall be filed in Court not less than three days before the adjourned hearing.

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19. The petitioner shall also preserve and maintain the said property for the benefit of the Executor of the Will, Mr Adrian Maxwell Kenneth Shedden (Jr.) and the Executor of the Will shall be entitled to the said property and any accretion thereto and the proceeds in case he decides to dispose of the said property through the petitioner who would administer the said Will of the deceased in India and he shall also be liable to account the proceeds of the income and sale proceeds of the property situate in the State of Karnataka as directed by the Executor of the Will of deceased Mrs Doroty Mavis Shedden."

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The suit filed by the executor through respondent in O.S.No.26280/2014 is decreed in part. The suit filed by plaintiff No.2 therein is decreed and the power of attorney dated 19.05.1983 executed by Dorothy Shedden in favour of Crystal Mayes is held to be ineffective on account of death of the principal namely Mrs.Dorothy Shedden and therefore, the

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sale deed insofar as Dorothy Shedden's share is concerned is held to be null and void and the same is pending consideration before the Division Bench of this Court. Insofar as GPA in favour of Crystal Mayes executed by George Reginald to the remaining extent of half share, the sale deed is held to be valid. It appears both the parties have preferred Regular First Appeals and the same are pending before the Division Bench of this Court.

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In the light of the culled out paragraph 18 of the order passed by this Court in granting ancillary probate is looked into, this Court has proceeded to grant letter of administration having found that there is no contest and objection from any quarters. The present petitioners are asserting title based on GPA executed by Dorothy Shedden and George Reginald who have 50% share each in favour of one Cystral Mayes. Therefore, the petitioners herein are tracing their right and title through the original owners based on GPA. Therefore, what can be inferred is that petitioners

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herein are asserting that they have acquired title based on registered sale deed for valuable sale consideration which is pending consideration before the Division Bench of this Court. Therefore, the contention of respondent that the petitioners are asserting interest adverse to the testator cannot be acceded to. They have not set up an adverse title to that of the original owners but they are tracing their title through GPA alleged to have been executed by the original owners namely Dorothy Shedden and George Reginald.

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If these significant details are looked into, then the question that requires consideration is as to whether the petitioners seeking grant of letters of administration without impleading the petitioners needs revocation. Admittedly, grant of letters of administration was made without citing the present petitioners as parties who ought to have been cited as respondents. The citations taken is in the name of agent and not in the name of the original executors. If respondent through executors had already filed a comprehensive suit in

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O.S.No.26280/2014 and has questioned the validity or otherwise of sale deed executed by the original owners through GPA, the filing of the petition seeking grant of ancillary probate needs to be examined as to whether the same is filed by concealing material facts in pursuit of obtaining probate.

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Concealing material facts in the pursuit of obtaining probate is not only legally frowned upon but also constitutes a grave transgression. This principle aligns with the broader ethical and legal duty to ensure that the court is apprised of all pertinent information, allowing it to make informed decisions regarding the issuance of citations. Failure to fulfill this duty may undermine the integrity of the probate process and compromise the interests of parties with legitimate claims. Furthermore, the nexus between the concealment of material facts and the ground for revocation of probate is rooted in the need for probate orders to be founded on genuine and complete information. Section 283(1)(c) explicitly mandates

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the issuance of citations to interested persons, and any deliberate concealment undermines the fairness and efficacy of this process. Therefore, a probate obtained through such concealment stands vulnerable to revocation, as it represents a violation of the trust reposed in the probate proceedings and compromises the very essence of due process.

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If respondent based on authorized executors of the

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Will has instituted comprehensive suit questioning the sale deed in favour of the respondent, he was required to array the present petitioners while filing C.P.Nos.1/2016 and 2/2016. The respondent was duty bound to disclose all relevant facts. For the reasons best known to the respondent, though these two petitions are filed pending consideration of the comprehensive suit, probate is obtained by taking citations which is also found to be defective.

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My findings regarding maintainability of revocation of ancillary probate:

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The respondent has filed two petitions seeking

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grant of letters of administration based on probate granted by the Australian Court. The probate granted by the Australian Court is in respect of properties situated at India. Section 14 of CPC provides that when a foreign judgment is relied upon, the production of copy of judgment duly authenticated is presumptive evidence that the Court which pronounced it had jurisdiction unless the contrary appears on the record but that the presumption may be displaced by demonstrating that the probate proceedings are not conducted in the manner known to Indian law. A foreign judgment must in order to operate as

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res judicata should be on merits and at the same time has to be obtained by complying the requisite Indian laws. It is equally trite law that foreign judgment is not enforceable in India if it has not been passed on merits. The burden of proving that decree is not on merits would be on the party alleging it. Therefore, petitioners have got every right and locus to seek revocation as they were denied a fair opportunity

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to make out a case under Section 13 of CPC. The petitioners herein have every right to demonstrate that the probate issued by the Australian Court is not in accordance with law.

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In the realm of probate law, an ancillary grant is often sought in one jurisdiction to complement an original grant obtained elsewhere. The conventional understanding is that the ancillary grant remains intact unless and until the original grant is revoked. However, this general principle encounters a deviation when the probate granted by a foreign court is not recognized as conclusive between the parties in India. Therefore, the efficacy of a foreign probate decree in India hinges on various factors, including reciprocity agreements and compliance with Indian legal principles. Unless foreign grant meets all the criterias under Indian Law, the general view that ancillary grant is immune from revocation until the original grant is not revoked is not absolute. This exception acknowledges that the validity and conclusiveness of a foreign probate decree are distinct

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considerations from those governing the ancillary grant. Therefore, ancillary grant's fate becomes contingent not only on the status of the original grant but also on the extent to which foreign probate is recognized and accepted within the Indian legal framework.

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For a foreign Will to be enforced in India, apart from being executed as per the laws of such country, it has to be validated on two-fold basis. At the first stage, a probate has to be obtained from the concerned Court or authority in the Foreign country; such order granting a probate must contain the following observations by the concerned Court of authority: that the testator has validly signed the Will and that there are no doubts/suspicions/uncertainties as to the signature of the Testator on the Will; that the Will is executed by a person competent to make the Will and is free from fraud, coercion and undue influence; that atleast one witness has signed the Will in the presence of the Testator.

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The judgment rendered by a foreign court should

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also indicate that original Will was submitted and has been retained by the Court or authority in the foreign country and the certified copy thereof is to be issued to the applicant/beneficiary. It is equally trite law that a foreign judgment would not be conclusive if it refuses to recognize the applicable law of India or is under breach of any law enforced in India. Therefore, petitioners who are asserting that the testator through a GPA holder has already meddled with the property and therefore Will, if any, is of no consequence are entitled to be heard before granting ancillary probate. Without expressing any opinion on the right and title of the petitioners which is now seized before the Division Bench, this Court is more than satisfied that petitioners have not only caveatable interest but have substantial interest. Petitioners are entitled to rebut presumption evidence of probate granted by the Australian Court. Therefore, they are entitled for revocation of probate and civil petitions filed in C.P.Nos.1/2016 and 2/2016

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are liable to be restored on file and needs a fresh enquiry at the hands of this Court.

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