Full Judgment Text
2026 INSC 400
REPORTABLE
IN THE SUPREME COURT OF INDIA
(CIVIL APPELLATE JURISDICTION)
CIVIL APPEAL NO. OF 2026
(@ Special Leave Petition (C) No. 20055 of 2022)
S. LEOREX SEBASTIAN & ANR. … APPELLANTS
versus
SAROJINI & ORS. … RESPONDENTS
J U D G M E N T
VIPUL M. PANCHOLI, J.
1. Leave granted.
2. The present appeal is preferred by the appellants,
challenging the final impugned judgment and order dated
26.04.2022 passed by the High Court of Madras in C.R.P.
(PD) No. 1823 of 2021, whereby the order of the learned
Principal District Court, Coimbatore (hereinafter referred as
Signature Not Verified
“ the District Court ”), revoking grant of probate of Will dated
Digitally signed by
RAJNI MUKHI
Date: 2026.04.21
17:59:12 IST
Reason:
09.01.1976, was set aside, and restored the grant of probate
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on the ground that the testamentary jurisdiction of the Court
is limited to pronouncing upon the genuineness of the
execution of a Will and does not extend to determining the
title of the property dealt with thereunder.
FACTUAL MATRIX
3. The brief facts of the case pleaded by the parties are as under:
3.1. The appellants claim ownership and possession of
certain immovable properties (hereinafter referred as “ the suit
properties ”) situated in Mayilampatti Village, Palladam Taluk,
Coimbatore District. The suit properties originally belonged
to Eswaramurthy Gounder, who alongside his sons,
Somasundaram and Ramasamy, sold the properties to C.R.
Palanisamy Gounder and R. Manickavasagam via sale deed
dated 21.02.1976, bearing Document No. 154 of 1976.
Subsequently, appellant no. 1 and the grandfather of
appellant no. 2, purchased the properties from the legal heirs
of both C.R. Palanisamy Gounder and Manickavasagam, via
sale deeds dated 31.12.1997, bearing Document No. 1483 of
1998 & Document No. 1485 of 1998, and claim to have
enjoyed peaceful possession since.
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3.2. Eswaramurthy Gounder, passed away on 05.05.1983.
He was succeeded by five children, namely, E.
Somasundaram, E. Ramasamy, Sarojini (present respondent
no. 1), Vasanthamani (present respondent no. 2), and
Savithri (present respondent no. 3). On 21.04.2009,
approximately 26 years after the death of Eswaramurthy
Gounder, his daughter (present respondent no. 1) instituted
Probate Original Petition No. 72 of 2009 before the District
Court against her two sisters (present respondent no. 2 and
present respondent no. 3), claiming that her father executed
an unregistered Will in her favour on 09.01.1976.
3.3. Furthermore, on 29.04.2009, present respondent no. 1
instituted O.S. No. 110 of 2009 before the learned District
Munsif of Palladam, seeking a declaration of title of the suit
properties by virtue of the Will dated 09.01.1976, alongside
a relief of injunction. In response, in March 2011, the
appellants instituted O.S. No. 247 of 2011 and O.S. No. 248
of 2011 before the learned Principal Subordinate Judge,
Tirupur, seeking permanent injunction restraining the
present respondents from interfering with the peaceful
possession and enjoyment of the suit properties. On
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17.06.2011, the High Court of Madras, vide order in C.R.P.
Nos. 1726 and 1727 of 2011, directed that O.S. No. 110 of
2009 be transferred and tried jointly with the aforesaid suits
before the Principal Subordinate Judge, Tirupur.
Subsequently, the Principal Subordinate Judge, Tirupur vide
orders dated 17.11.2011 and 30.09.2011, allowed the
appellant's I.A. No. 425 of 2011 in O.S. No. 247 of 2011 and
I.A. No. 427 of 2011 in O.S. No. 248 of 2011 respectively,
thereby granting temporary injunction in favour of the
appellants.
3.4. In the meantime, the District Court, vide order dated
26.11.2009, granted probate of the Will dated 09.01.1976 in
P.O.P. No. 72 of 2009 in favour of present respondent no. 1.
When the appellants came to know about the grant of
probate, the appellants filed I.A. No. 612 of 2015 under
Section 263 of the Indian Succession Act, 1925 (hereinafter
referred as “ the ISA ”) before the District Court, seeking
revocation of the probate granted in P.O.P. No. 72 of 2009.
3.5. The District Court, upon framing of issues and
examination of witnesses, allowed I.A. No. 612 of 2015
preferred by the appellants vide order dated 30.09.2020,
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thereby revoking the probate of the Will dated 09.01.1976
granted in P.O.P. No. 72 of 2009. The District Court held that
the Will dated 09.01.1976 had not been proved in accordance
with Section 63 of the ISA, Section 3 of Transfer of Property
Act, 1882 and Section 68 of the Indian Evidence Act, 1872
(hereinafter referred as “ the IEA ”), since no attesting witness
to the Will had been examined. The present respondents also
failed to provide any satisfactory explanation as to the
custody of the Will for a period of nearly 26 years, spanning
from the death of the testator i.e., Eswaramurthy Gounder
on 05.05.1983 till its alleged discovery in March 2009. The
Court noted that the present respondent’s removal of the
original Will from the Court's custody on 23.02.2010, and the
failure to return the same, despite Court’s order dated
14.03.2019 directing the return of the original Will, was in
contravention of Section 294 of the ISA.
3.6. Furthermore, the Court noted that since the legal heirs
of the deceased sons of Eswaramurthy Gounder, namely E.
Somasundaram and E. Ramasamy, who were necessary and
proper parties to the probate proceedings were not
impleaded, the probate may be revoked as per Section 263 of
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the ISA. The Court also found that the procedure under
Section 283 of the ISA for inviting objections to the probate
via public notice was not followed. Considering the same, the
Court held that the present respondents colluded together
with the intention of suppressing information regarding the
Will from interested parties in the suit properties, and
thereby cheated the Court to obtain the probate order dated
26.11.2009.
3.7. Aggrieved by the revocation of probate, the present
respondents preferred a revision petition C.R.P. (PD) No.
1823 of 2021 before the High Court of Madras, under Article
227 of the Constitution of India.
3.8. Learned Single Judge vide impugned judgment and
order dated 26.04.2022 allowed the revision petition filed by
the respondents, while setting aside the District Court’s
revocation order and restoring the probate granted in favour
of present respondent no. 1. The High Court held that
testamentary jurisdiction is confined to adjudicating upon
the genuineness of a Will and does not extend to pronouncing
upon the title of the property. The High Court found that the
District Court went beyond the scope of its jurisdiction in
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presuming that the probate deals with suit properties, while
clarifying that the mere grant of probate would not vest any
title in the legatee and that in any dispute regarding title to
the property, the same would have to be established
separately.
3.9. Aggrieved by the impugned judgment, the appellants
have preferred the present appeal.
SUBMISSIONS ON BEHALF OF THE APPELLANTS
4. Mr. Anand Padmanabhan, learned Senior Counsel and other
learned counsels appearing on behalf of the appellants,
challenged the impugned judgment, which restored the grant
of probate by setting aside the order of revocation passed by
the District Court, and made multifold submissions as
under:
4.1. Learned Counsel contended that the District Court,
upon a detailed consideration of the arguments advanced,
the evidence on record and the law governing the proof of
Will, rendered a well-reasoned judgment declaring that the
Will dated 09.01.1976 had not been proved in accordance
with law and consequently, revoked the probate granted in
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favour of present respondent no. 1. It is asserted that the
High Court erred in exercising its power under Article 227 of
the Constitution of India, without addressing any of the
specific findings or the grounds on which revocation was
sought and granted.
4.2. Learned Counsel further submitted that the proof of a
Will must ordinarily satisfy the test of the prudent mind, and
that the propounder must establish due and valid execution
of the Will. Reliance was placed on Shivakumar & Ors vs.
Sharanabasappa and Ors, [2021 (11) SCC 277] , wherein
this Court held that where the Will is surrounded by
suspicious circumstances, the propounder is bound to
remove all legitimate suspicions before the document can be
accepted as the last Will of the testator. It is asserted that
under suspicious circumstances, the true question which
arises for consideration before the Court is whether the
evidence led by the propounder of the will is such as to satisfy
the conscience of the court that the will was duly executed
by the testator.
4.3. Learned Counsel further placed reliance on Jaswant
Kaur v. Amrit Kaur, [(1977) 1 SCC 369] , to contend that
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the Will was not proved in accordance with Section 63 of the
ISA and Section 68 of the IEA. It is contended that, as held
rightly by the District Court, the validity of the Will was not
established on the grounds of respondent no. 1's failure to
examine any attesting witnesses to the Will or, in the
alternative, to offer any adequate justification for their
absence.
4.4. Learned Counsel submitted that the appellants are the
absolute owners and in peaceful possession of the subject
properties by virtue of sale deeds dated 31.12.1997. Learned
Counsel highlighted the lack of any explanation as to in
whose custody the Will remained until 21.04.2009, i.e., the
date of filing of the suit. It is further submitted that the
original Will was taken away from the Court’s custody on
23.02.2010, thereby contravening Section 294 of the ISA,
which mandates that after the Order of probate, the original
will must be kept in the custody of the court along with other
registered documents.
4.5. Learned Counsel invoked Section 263 of the ISA,
contending that the grant of probate could be revoked if
parties who should have been included were left out of the
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proceedings. It was further claimed that the sons of the
testator and the appellants, who own the property, were the
necessary parties. It is asserted that the respondents
colluded together with the intent of concealing the existence
of the disputed Will from the above parties, thereby procuring
the probate order dated 26.11.2009 by playing fraud upon
the Court with the motive of creating a cloud over the title of
the interested persons.
4.6. Learned Counsel, therefore, urged that the impugned
judgment passed by the High Court is liable to be set aside,
and the order of the District Court revoking the probate, be
restored in the interest of justice.
SUBMISSIONS ON BEHALF OF THE RESPONDENTS
5. Mr. M. A. Chinnasamy, learned counsel appearing on behalf
of the respondents, submitted that the impugned judgment
passed by the High Court is legally valid and based on a
correct appreciation of facts and law, warranting no
interference under Article 136 of the Constitution of India.
The following submissions were made on behalf of the
respondents:
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5.1. Learned Counsel submitted that the father of present
respondent no. 1, Eswaramurthy Gounder, executed an
unregistered Will dated 09.01.1976 in her favour and passed
away on 05.05.1983. Thereafter, present respondent no. 1
filed P.O.P. No. 72 of 2009 before the District Court, for the
grant of probate of the said Will, and the District Court, upon
due consideration, granted probate in her favour vide order
dated 26.11.2009. It is submitted that since the death of her
father, present respondent no. 1 has been in possession and
enjoyment of the suit properties.
5.2. Learned Counsel further submitted that after the grant
of probate, present respondent no. 1 filed O.S. No. 110 of
2009 against the parties who were illegally interfering with
her possession. It is highlighted that out of the 12 defendants
in the said suit, 11 remained ex parte , and only one
defendant came forward for settlement. Learned Counsel
pointed out that the appellants, having filed O.S. Nos. 247
and 248 of 2011 before the Sub Court, Tirupur, seeking bare
injunction restraining present respondent no. 1 from
trespassing, made no prayer whatsoever for a declaration
establishing their ownership or title over the suit properties.
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It is asserted that the appellants, even in I.A. No. 612/2015,
made no claim to ownership, and the suits filed by them
remain pending before the Sub Court, Coimbatore, till date.
5.3. Learned Counsel contended that the application for
revocation filed under Section 263 of the ISA was, on the face
of it, misconceived and legally untenable, inasmuch as the
claim raised by the appellants, namely, that they had
purchased certain property from certain vendors, is
essentially a mixed question of law and fact.
5.4. Learned Counsel further submitted that the appellants
filed O.S. No. 247 of 2011 and No. 248 of 2011 for bare
injunction only. In fact, the said suits were filed after a period
of 02 years from the grant of probate in favour of the
respondent no. 1 herein. At this stage, it is also submitted
that even I.A. No. 612 of 2015 filed by the present appellants
in P.O.P. No. 72 of 2009 is also barred by limitation.
5.5. Learned Counsel further urged that the procedure
adopted for revocation of probate was unlawful and not in
accordance with law. It is a well-settled principle of law that
if a party wishes to contest or agitate the issue of a probate
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grant, it must be done through a separate Testamentary
Original Suit as mandated by the provisions of the ISA, rather
than through a mere Interlocutory Application. Therefore, it
is contended that the appellant’s application for revocation of
probate was entirely improper and illegal.
5.6. Learned Counsel submitted that the High Court was
wholly correct in holding that the jurisdiction of a court in
testamentary proceedings is confined exclusively to
pronouncing upon the genuineness of the execution of the
Will and does not extend to adjudicating upon questions of
title to the property bequeathed thereunder.
5.7. Learned Counsel therefore urged that the High Court
has not committed any error while passing the impugned
judgment and order. Therefore, it is submitted that the
present appeal is liable to be dismissed.
ANALYSIS AND REASONING
6. Having heard the learned counsel appearing for the parties
and having gone through the provisions of law as well as the
relevant judicial decisions on the point in question, the
following facts would emerge from the record:
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6.1. It is the case of the present respondent no. 1 (Sarojini)
in the probate petition, bearing P.O.P. No. 72 of 2009, filed
by her before the District Court, under Section 276 of the
ISA, that the father of the respondent no. 1, namely,
Eswaramurthy Gounder, had executed an unregistered Will
dated 09.01.1976 in favour of the present respondent no. 1
(the petitioner of P.O.P. No. 72 of 2009). The said Will is
attested by two witnesses. Father of the present respondent
no. 1 died on 05.05.1983, and the executants never disclosed
about his Will to anybody, including the petitioner (present
respondent no. 1) and the other two respondents in the said
petition (present respondents no. 2 and 3). The description of
the properties was mentioned in the said petition, and prayer
was made to grant probate of the unregistered Will dated
09.01.1976. It is relevant to observe that in the said probate
proceedings, the present respondent no. 1 only impleaded
present respondents no. 2 and 3 as party respondents.
However, the other legal heirs, namely, two brothers of the
present respondent no. 1/their legal heirs, were not
impleaded as party respondents. It is also required to be
observed that the said probate petition under Section 276 of
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the ISA came to be filed on 21.04.2009 i.e., after a period of
33 years from the execution of the unregistered Will dated
09.01.1976.
6.2. It would further emerge that immediately thereafter i.e.
on 29.04.2009 the present respondent no. 1 filed O.S. No.
110 of 2009 against 12 defendants including one C.R.
Palanisamy Gounder and Manickavasagam. In paragraph 2
of the plaint, the present respondent no. 1 specifically
averred that deceased Eswaramurthy Gounder had 03
daughters and 02 sons as his legal heirs. During his lifetime,
deceased Eswaramurthy Gounder was with plaintiff (present
respondent no. 1), who is the first daughter and he was
looked after for about 10 years prior to his death. It is also
stated that the father of present respondent no. 1, namely,
Eswaramurthy Gounder, died on 05.05.1983. The present
respondent no. 1, further stated in paragraph 3 of the plaint
that she was under the impression that the properties
belonging to her father were available to be partitioned in
between his legal heirs till recently. But when she
approached the other legal heirs for the purpose of effecting
a partition, her brothers, namely, E. Somasundaram and E.
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Ramasamy, were evasive and reluctant to take any steps for
the legal demand of the plaintiff in this regard. It is the
specific case of respondent no. 1 in the said plaint that her
sister, namely, Savithri informed her that her father had
executed an unregistered Will on 09.01.1976 in favour of the
present respondent no. 1, and the said will was delivered to
her on 29.03.2009. It is a specific contention in the plaint
that she was told that the estate, including the suit property
of the deceased Eswaramurthy Gounder was already
encumbered in favour of third parties without the knowledge
of the plaintiff (present respondent no. 1), immediately after
the execution of the unregistered Will dated 09.01.1976, at
the instance of his sons, who wrongfully received the entire
proceedings of the sale. In paragraph 4 of the plaint, present
respondent no. 1 herein has further averred that the
deceased father of the plaintiff was not well at the time of
alleged disposal of the properties and in fact, he was forcibly
taken out of the plaintiff’s house by his sons, who obtained
his signature against his will to dispose his properties
including the suit property for which the will was executed in
favour of the plaintiff. In the said suit, the plaintiff (present
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respondent no. 1) has prayed that a decree be passed
declaring her as the absolute owner of the suit property, by
setting aside the encumbrances created after the
unregistered Will dated 09.01.1976 was executed in her
favour. It was further prayed that permanent injunction be
granted, restraining defendants from alienating the suit
property.
6.3. On 26.11.2009, the District Court granted probate of the
unregistered Will dated 09.01.1976 in P.O.P. No. 72 of 2009
in favour of the present respondent no. 1.
6.4. Thereafter, present appellant no. 1 filed O.S. No. 247 of
2011 against present respondent no. 1 in which he has
specifically averred that the scheduled property in the suit
filed by him as well as other properties originally belong to
one C.R. Palanisamy Gounder and Manickavasagam. They
purchased the suit property vide registered sale deed dated
21.02.1976 bearing Document No. 154/1976 and,
thereafter, appellant no. 1 purchased the suit property vide
registered sale deed dated 31.12.1997 bearing Document No.
1483/1998.
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6.5. Appellant no. 2 filed a similar suit being O.S. No. 248 of
2011, wherein also appellant no. 2 has made a similar type
of averment that suit property was purchased by C.R.
Palanisamy Gounder and Manickavasagam by registered sale
deed dated 21.02.1976. It is further stated that C.R.
Palanisamy Gounder died, leaving his wife Saraswathi, two
sons, namely the said Manickavasagam and C.P.
Mahalingam, and two daughters, namely Maheswari and
Radhamani. After the death of C.R. Palanisamy Gounder, all
legal heirs jointly sold the suit property in favour of one
Stephen Mariadass (paternal grandfather of appellant no. 2).
It is also said that his paternal grandfather executed a Will
dated 22.02.2003 in favour of appellant no. 2 and thereafter
died on 22.06.2003. Appellant no. 2 has claimed right, title
and interest in the suit property and therefore filed the suit
against the respondent no. 1 herein.
6.6. At this stage, it is also relevant to observe that the
appellants filed I.A. No. 612 of 2015 in P.O.P. No. 72 of 2009,
under Section 263 of the ISA for revocation of the probate.
6.7. The District Court after considering the record as well
as submissions by learned advocates appearing for the
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parties, passed a detailed order dated 30.09.2020, by which
I.A. No. 612 of 2015 filed by the appellants came to be allowed
and the order of probate granted in favour of present
respondent no. 1 was revoked.
6.8. Respondent no. 1 herein, therefore, being aggrieved and
dissatisfied with the aforesaid order, preferred C.R.P. (PD) No.
1823 of 2021 before the High Court. The High Court, by the
impugned order dated 26.04.2022, set aside the revocation
order passed by the District Court.
6.9. Thus, from the aforesaid factual aspects culled out from
the documents placed on record in the present appeal, it is
revealed that, as per the case of respondent no. 1 herein, her
father executed an unregistered Will dated 09.01.1976 in her
favour. Further, the father of present respondent no. 1
executed a sale deed in favour of one C.R. Palanisamy
Gounder and Manickavasagam on 21.02.1976 i.e. after the
alleged execution of the Will in favour of present respondent
no. 1. Thus, it can be said that the executant of the Will i.e.
the father of the present respondent no. 1, after execution of
the Will in favour of present respondent no. 1, himself has
sold the property vide registered sale deed dated 21.02.1976.
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Thereafter, appellant no. 1 purchased the suit property by
registered sale deed dated 31.12.1997 from C.R. Palanisamy
Gounder and Manickavasagam. Similarly, paternal
grandfather of appellant no. 2 also purchased part of the suit
property by registered sale deed dated 31.12.1997 from the
aforesaid two persons. It is the specific case of present
respondent no. 1 that her father died on 05.05.1983, i.e.,
much after the execution of the registered sale deed in favour
of the concerned parties.
6.10. It is not in dispute that while filing P.O.P. No. 72 of
2009, the present respondent no. 1 had impleaded only her
two sisters, namely, Vasanthamani (present respondent no.
2), and Savithri (present respondent no. 3) as party
respondents. It is also not in dispute that respondent no. 1
herein did not implead her two brothers/their legal heirs as
party respondents while filing the probate petition under
Section 276 of the ISA on 21.04.2009. There is no reference
with regards to her two brothers or execution of sale deeds,
with regard to the properties mentioned in the said petition
executed by her father. Further, surprisingly, after a period
of 08 days only, the suit bearing O.S. No. 110 of 2009 was
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filed by present respondent no. 1, wherein she has made
averments in paragraphs 2, 3 and 4 of the plaint, as
discussed hereinabove. Thus, from the pleadings of present
respondent no. 1 in the aforesaid two proceedings, it is clear
that she did not disclose the correct aspects and suppressed
the relevant facts while filing the petition for the grant of
probate on 21.04.2009.
7. Keeping in view the aforesaid factual aspects, the relevant
provisions of the ISA are required to be referred to as under:
(i) Section 263 of the ISA provides as under:
“ 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
(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 wilfully and
without reasonable cause omitted to exhibit an inventory or
account in accordance with the provisions of Chapter VII of this
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Part, or has exhibited under that Chapter an inventory or account
which is untrue in a material respect.
Illustrations
(i) The Court by which the grant was made had no jurisdiction.
(ii) The grant was made without citing parties who ought to have
been cited.
(iii) The will of which probate was obtained was forged or
revoked.
(iv) A obtained letters of administration to the estate of B, as his
widow, but it has since transpired that she was never married to
him.
(v) A has taken administration to the estate of B as if he had died
intestate, but a will has since been discovered.
(vi) Since probate was granted, a later will has been discovered.
(vii) Since probate was granted, a codicil has been discovered
which revokes or adds to the appointment of executors under the
will.
(viii) The person to whom probate was, or letters of administration
were, granted has subsequently become of unsound mind. ”
(ii) Section 283 of the Act provides as under:
“ 283. Powers of District Judge.—(1) In all cases the District Judge
or District Delegate may, if he thinks proper.—
(a) examine the petitioner in person, upon oath;
(b) require further evidence of the due execution of the will or the
right of the petitioner to the letters of administration, as the case
may be;
(c) issue citations calling upon all persons claiming to have any
interest in the estate of the deceased to come and see the
proceedings before the grant of probate or letters of
administration.
(2) The citation shall be fixed up in some conspicuous part of the
courthouse, and also in the office of the Collector of the district
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and otherwise published or made known in such manner as the
Judge or District Delegate issuing the same may direct.
(3) Where any portion of the assets has been stated by the
petitioner to be situate within the jurisdiction of a District Judge
in another State the District Judge issuing the same shall cause
a copy of the citation to be sent to such other District Judge, who
shall publish the same in the same manner as if it were a citation
issued by himself, and shall certify such publication to the District
Judge who issued the citation. ”
8. Thus, from the provision contained in Section 263 of the ISA,
it transpires that powers are given to the District Court to
revoke or annul probate or letters of administration for just
cause. Further, the explanation of the said provision
stipulates that just cause shall be deemed to exist under
certain circumstances mentioned in the said explanation.
Clause (b) of the explanation specifically provides that the
grant was obtained fraudulently by making a false suggestion
or by concealing from the Court something material to the
case. Certain illustrations are also given in Section 263 of the
ISA. Illustration (ii) provides that the grant was made without
citing parties who ought to have been cited.
9. Similarly, Section 283 of the ISA gives certain powers to the
District Court, which includes the issuance of citations
calling upon all persons claiming to have any interest in the
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estate of the deceased to come and see the proceedings before
the grant of probate or letters of administration.
10. At this stage, we would also like to refer to relevant decisions
on the subject. In the case of Basanti Devi v. Ravi Prakash
Ram Prasad Jaiswal , (2008) 1 SCC 26 , this Court has
observed in paragraphs 23 and 24 as under:
“ 23. In Chiranjilal Shrilal Goenka v. Jasjit Singh whereupon
again Mr Bhatt relied upon, this Court held: (SCC pp. 519-20,
para 20)
"20. On a conspectus of the above legal scenario we
conclude that the Probate Court has been conferred with
exclusive jurisdiction to grant probate of the will of the
deceased annexed to the petition (suit); on grant or refusal
thereof, it has to preserve the original will produced before
it. The grant of probate is final subject to appeal, if any, or
revocation if made in terms of the provisions of the
Succession Act. It is a judgment in rem and conclusive and
binds not only the parties but also the entire world. The
award deprives the parties of statutory right of appeal
provided under Section 299. Thus the necessary conclusion
is that the Probate Court alone has exclusive jurisdiction
and the civil court on original side or the arbitrator does not
get jurisdiction, even if consented to by the parties, to
adjudicate upon the proof or validity of the will propounded
by the executrix, the applicant. It is already seen that the
executrix was nominated expressly in the will and is a legal
representative entitled to represent the estate of the
deceased but the heirs cannot get any probate before the
Probate Court. They are entitled only to resist the claim of
the executrix of the execution and genuineness of the will.
The grant of probate gives the executrix the right to
represent the estate of the deceased, the subject-matter in
other proceedings. We make it clear that our exposition of
law is only for the purpose of finding the jurisdiction of the
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arbitrator and not an expression of opinion on merits in the
probate suit."
24. It is now well settled that an application for grant of probate
is a proceeding in rem. A probate when granted not only binds all
the parties before the court but also binds all other persons in all
proceedings arising out of the will or claims under or connected
therewith. Being a judgment in rem, a person, who is aggrieved
thereby and having had no knowledge about the proceedings and
proper citations having not been made, is entitled to file an
application for revocation of probate on such grounds as may be
available to him. We are, therefore, of the opinion that the
application for revocation of the grant of probate should have
been entertained. ”
11. From the aforesaid decisions, it can be said that the grant of
probate is a judgment in rem and conclusive and binds not
only the parties but also the entire world and therefore, a
person who is aggrieved thereby and had no knowledge about
the proceedings and proper citations having not been made,
is entitled to file an application for revocation of probate on
such grounds as may be available to him.
12. In the case of Krishna Kumar Birla v. Rajendra Singh
Lodha, (2008) 4 SCC 300 , this Court has observed in
paragraphs 84 and 86 as under:
“ 84. Section 283 of the 1925 Act confers a discretion upon the
court to invite some persons to watch the proceedings. Who are
they? They must have an interest in the estate of the deceased.
Those who pray for joining the proceeding cannot do so despite
saying that they had no interest in the estate of the deceased.
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They must be persons who have an interest in the estate left by
the deceased. An interest may be a wide one but such an interest
must not be one which would not (sic) have the effect of
destroying the estate of the testator itself. Filing of a suit is
contemplated inter alia in a case where a question relating to the
succession of an estate arises.
……
86. The propositions of law which in our considered view may be
applied in a case of this nature are:
(i) To sustain a caveat, a caveatable interest must be shown.
(ii) The test required to be applied is: Does the claim of grant
of probate prejudice his right because it defeats some other
line of succession in terms whereof the caveator asserted
his right?
(iii) It is a fundamental nature of a probate proceeding that
whatever would be the interest of the testator, the same
must be accepted and the rules laid down therein must be
followed. The logical corollary whereof would be that any
person questioning the existence of title in respect of the
estate or capacity of the testator to dispose of the property
by will on ground outside the law of succession would be a
stranger to the probate proceeding inasmuch as none of
such rights can effectively be adjudicated therein. ”
13. In the case of G. Gopal vs. C. Bhaskar and Ors, 2008 (10)
SCC 489 , this Court has observed in paragraph 5 as under:
“ 5. The only question that was agitated before us by Mr
Thiagarajan, learned counsel appearing for the appellant
challenging the judgment of the High Court revoking the probate
granted in respect of the will executed by the testator, was that
the respondents having no caveatable interest in the estate of the
deceased, the application for revocation filed by them could not
be allowed. We are unable to accept these submissions made by
Mr. Thiagarajan, learned counsel appearing on behalf of the
appellant only for the simple reason that admittedly the
respondents were grandchildren of the testator and they have
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claimed the estate of the deceased on the basis of a settlement
deed executed by the testator himself which admittedly was
revoked by the testator. That being the position, we must hold
that the respondents had caveatable interest in the estate of the
testator and, therefore, they are entitled to be served before the
final order is passed. It is well settled that if a person who has
even a slight interest in the estate of the testator is entitled to file
caveat and contest the grant of probate of the will of the testator. ”
14. From the aforesaid decision rendered by this Court, it can be
said that if a party has a caveatable interest in the estate of
the deceased, it is entitled to be served before the final order
is passed. Further, if a person who has even a slight interest
in the estate of the testator, he is entitled to file a caveat and
contest the grant of the probate of the will of the testator.
15. At this stage, we may refer to the decision rendered by the
High Court of Madhya Pradesh in the case of Banwarilal vs.
Kusum Bai and Others , 1972 SCC OnLine MP 55 . The
Madhya Pradesh High Court has observed as under:
“…………………… It is well established that any interest, however
slight, and even the bare posibility of an interest, is sufficient to
entitle a party to oppose a testamentary document. So, a
transferee from heirs at-law, acquiring an interest in the testator's
estate, by reason of a mortgage or sale, can, when a will is set
up in opposition of his interest apply for revocation of the probate
of the will. [See : Komallochun Dutt v. Nilruttun Mundle; Muddun
Mohun Sircar v. Kali Churn Dey; Lalit Mohan v. Navadip
Chandra; Mokashadayini Dassi v. Karnadhar Mandal;
and Promod Kumar Roy v. Sephalika Dutta]. The underlying
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Special Leave Petition (C) No. 20055 of 2022 Page 27
principle was stated by Mookerjee, J. in Mokashadayini
Dassi v. Karnadhar Mandal (supra) in these words:
“This is in accord with the principle adopted in the case
of Lindsay v. Lindsay where it was ruled that the person
entitled to intervene in a proceeding for revocation of Letters
of Administration or probate need not show that he had an
interest in the estate of the deceased at the time of his
death; an interest acquired subsequently by purchase of a
part of the estate is sufficient. Consequently, if it is
established that the appellants have acquired by purchase
an interest in the properties left by the deceased, they were
entitled to be heard in the proceedings for grant of probate.
There is thus ‘just cause’ for revocation of the probate within
the meaning of Section 50, Probate and Administration Act.”
A purchaser who acquires an interest in the estate of the testator,
by reason of a transfer by the heirs at-law after his death, is,
therefore, entitled to citation, because he is a person “who ought
to have been cited” as contemplated in Illustration (ii) to section
263 of the Act, which reads as follows:
“The grant was made without citing parties who ought to
have been cited.”
The Illustration refers not merely to compulsory cases, i.e., where
it is imperative on the Court to issue a special citation, as on the
executors under section 229 of the Act, but refers also to cases
where the grant is made without citing the person who ought, in
the opinion of the Court, to have been cited. Section 283(1)(c)
contemplates issue of citation calling upon all persons claiming to
have any interest in the estate of the deceased to come and see
the proceedings before the grant of probate or letters of
administration. There are three decisions of the Privy Council on
the point. In Rajah Nilmoni Singh Deo Bahadoor v. Umanath
Mookerjee, their Lordships stated that if a person is complaining
that he has, in fact, been defrauded he is one of the persons who
is injured by the fraud alleged and he is entitled to have his
redress by applying to revoke the probate and thereby cause the
fraud to become inoperative. Following that decision, their
Lordships in Sarala Sundari Dassya v. Dinabandhu Roy
Brajaraf Saha (Firm) reiterated:
“If he had not such a right as that, it is very difficult to know
what right a creditor in those circumstances, or a person
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Special Leave Petition (C) No. 20055 of 2022 Page 28
injured by the fraud, could have, otherwise the probate
would stand and he would be affected by the probate which
had been obtained ex hypothest fraudulently……”
In Ramanandi Kuer v. Mt. Kalawati Kuer, the minor daughter of
the testator applied for revocation and their Lordships found that
the service of notice on her mother was defective. There, before
the grant of probate some kind of formality was gone through on
the occasion when service of notice was said to have been
effected, but it was not such as would give to the person alleged
to have been served, an opportunity either to oppose the grant of
probate or to require the will to be proved in her presence. Their
Lordships held that the service, if any, was of no greater effect in
law than personal service on an infant of tender years, and the
proceedings were, therefore, defective in substance. S.K. Das, J.
(speaking on behalf of a Division Bench) in Mt. Sheopati
Kuer v. Ramakant Dikshit has stated that absence of citation on
a person who ought to have been cited would, no doubt, be a
defect of substance which will be deemed to be “just cause” as
contemplated by illustration (ii) to section 263 of the Act. We have
also the weighty observations of P.N. Mukerjee, J., speaking for
a Division Bench, in Pramode Kumar Roy v. Sephalika Dutta to
the same effect. We are in respectful agreement with the views
expressed in all these cases.
We are satisfied that the grant was procured by fraud. The record
of probate case No. 5 of 1958 is before us. The propounder in her
application had only impleaded Deoraj and Mst Vidyawati, i.e.,
the heirs at-law. At the time when the application was made, she
was aware that the heirs at-law of the testatrix had sold the
property dealt with in the will to the appellant on the footing that
the testatrix had died intestate, and she fraudulently suppressed
this fact. There was thus substantial defect in the procedure
when the grant was made, and the grant is therefore, liable to be
set aside. The fact of the will by the heirs at-law was something
“material” to the case within the meaning of section 263 of the
Act, for that fact, if disclosed, would have been material for the
probate Court in consideration of the question as to whether a
special citation was to be issued upon the appellant in view of
section 283(1)(c) of the Act. [See: Mohammad Ibrahim
Midda v. Bhola Nath Lahari and Promode Kumar
Roy v. Sephalika Dutta (supra)]…………………. ”
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Special Leave Petition (C) No. 20055 of 2022 Page 29
16. Thereafter, in the case of Seth Beni Chand v. Kamla
Kunwar & Ors. , (1976) 4 SCC 554 , this Court had an
occasion to consider the aforesaid decision rendered by the
High Court of Madhya Pradesh in the case of Banwarilal
(Supra) . This Court has observed in paragraph 13 as under:
“ 13. The only argument advanced by Mr Jain to which reference
need be made is that even alienees are entitled to citations in
probate proceedings and in the absence of such citations the
grant of probate is vitiated. In support of this submission reliance
is placed on a judgment of the Madhya Pradesh High Court in
Banwarilal Shriniwas v. Kumari Kusum Bai [AIR 1973 MP 69 :
1972 Jab LJ 862]. It was held in that case that any interest,
however slight, and even the bare possibility of an interest is
sufficient to entitle a party to oppose the grant of probate. A
purchaser, therefore, who acquires an interest in the estate of the
testator by reason of a transfer by his heirs must be cited in
testamentary proceedings. We will assume without affirming that
this is the true position in law but the important distinction is that
the alienee in the instant case is a transferee pendente lite who
purchased some of the properties included in Jaggo Bai's will
while the letters patent appeal was pending in the Allahabad
High Court. In the very nature of things no citation could be issued
to him prior to the commencement of the probate proceedings. In
fact, we felt that the alienee has no right to be heard in this
appeal. Nevertheless, we heard his counsel on the point whether
the executrix has established the will. One reason why we heard
the alienee is that he should not be able to raise any objection
later that the decision in these proceedings is for some reason or
the other not binding upon him. ”
17. Again, in the case of Sunil Gupta v. Kiran Girhotra, (2007)
8 SCC 506 , this Court has referred to the decisions rendered
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in case of Seth Beni Chand ( Supra ) as well as Banwarilal
(Supra) and thereafter observed in paragraph 18 as under:
“ 18. In Seth Beni Chand [(1976) 4 SCC 554] whereupon reliance
has been placed by Mr Ramachandran, this Court was
considering an argument as to whether alienees of properties are
entitled to citation in probate proceedings. This Court proceeded
on the assumption that Banwarilal Shriniwas [AIR 1973 MP 69]
lays down the correct law. But even therein a distinction was
made stating that the alienee was a transferee pendente lite. The
said decision, therefore, is an authority for the proposition that no
citation need be issued to any person who had no right to the
property prior to the commencement of the probate proceedings.
This Court in no uncertain term opined that the alienees had no
right to be heard in the appeal. The said decision, therefore, runs
counter to the submission of Mr Ramachandran. ”
18. In the case of Swaminathan and Others vs. Alankamony
(Dead) Through Lrs, 2022 SCC OnLine SC 539 , this Court
has observed as under:
“6. As per Section 263, the grant of Letters of Administration may
be revoked for “just cause”. Explanation (a) under Section 263
states that just cause shall be deemed to exist where the
proceedings were defective in substance. Illustration (ii) under
Section 263 deals with a case where “the grant was made
without citing parties who ought to have been cited”.
7. It may be of interest to note that some of the colonial statutes
contain Illustrations which form part of the statutes themselves.
The Indian Succession Act, 1925 is one such enactment. ”
19. From the aforesaid decisions rendered by this Court, it can
be said that grant of probate is a judgment in rem and it binds
not only the parties, but also the entire world. Further, the
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Special Leave Petition (C) No. 20055 of 2022 Page 31
citations are required to be issued to the parties who have an
interest in the estate of the deceased. Further, the High Court
of Madhya Pradesh in the case of Banwarilal (Supra) has
specifically observed on the basis of decisions rendered by
this Court and the Privy Council that any interest, however
slight, and even the bare possibility of an interest, is
sufficient to entitle a party to oppose a testamentary
document. Thus, a transferee from heirs at-law, acquiring an
interest in the testator's estate, by reason of a mortgage or
sale, can, when a will is set up in opposition of his interest,
apply for revocation of the probate of the will. It has been held
that a purchaser who acquires an interest in the estate of the
testator, by reason of a transfer by the heirs at-law after his
death, is, therefore, entitled to citation, because he is a
person “who ought to have been cited” as contemplated in
Illustration (ii) to Section 263 of the ISA.
It is relevant to observe at this stage that in the case of
Seth Beni Chand ( Supra ) , this Court has referred to the
aforesaid decision of the High Court of Madhya Pradesh and
observed that even assuming without affirming that the same
is the true proposition of law; on facts, this Court has
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Special Leave Petition (C) No. 20055 of 2022 Page 32
distinguished the case of Banwarilal (Supra) by observing
that in the said case alienee is the transferee pendente lite
who purchased some of the properties while letters patent
appeal was pending before the concerned High Court. Even,
thereafter, in the case of Sunil Gupta ( Supra) this Court has
once again referred to the decision in the cases of Seth Beni
Chand ( Supra ) as well as Banwarilal (Supra) . This Court
has observed that it is an authority for the proposition that
no citation needs to be issued to any person who had no
interest in the property, prior to the commencement of the
probate proceeding.
20. Thus, from the aforesaid decisions rendered in the case of
Banwarilal (Supra) by the High Court of Madhya Pradesh
and this Court in the cases of Seth Beni Chand (Supra) and
Sunil Gupta (Supra) , it can be said that an alienee who has
acquired an interest in the estate of the deceased, prior to the
filing of the probate proceedings, is an interested party.
21. In the present case, it is revealed from the record that on
09.01.1976, the unregistered Will was executed in favour of
present respondent no. 1 by her father and immediately
thereafter, the executant of the said Will i.e. father of present
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Special Leave Petition (C) No. 20055 of 2022 Page 33
respondent no. 1, himself sold the property during his
lifetime on 21.02.1976 to one C.R. Palanisamy Gounder and
Manickavasagam and thereafter the aforesaid two persons
sold the property in favour of the appellant no. 1 and paternal
grandfather of appellant no. 2 on 31.12.1997 . Thereafter, the
probate proceedings were filed only on 21.04.2009. Further,
in the said probate proceedings filed under Section 276 of the
ISA by present respondent no. 1, she had not joined her two
brothers/their legal heirs, as well as the present appellants
as party respondents. No citations were issued to them. Once
again, at the cost of repetition, it is relevant to observe that
in O.S. No. 110 of 2009 filed by the present respondent no. 1
on 29.04.2009 (within a period of 08 days only from filing of
the probate proceedings), she herself has averred in the
plaint that her two brothers were not inclined to partition this
property and she came to know that her two brothers had
forcibly taken out her father and obtained his signature
against his will to dispose of his properties, including the suit
properties, for which the Will was executed in favour of her.
Thus, from the aforesaid averment itself it is clear that
present respondent no. 1 was aware about the execution of
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Special Leave Petition (C) No. 20055 of 2022 Page 34
the sale deed by her father in favour of third parties with
regard to the suit property for which the Will was executed in
her favour. However, her defence in the said plaint was that
the signature of her father was obtained by her two brothers
forcibly.
22. Thus, looking to the aforesaid facts and circumstances of the
case, we are of the view that the respondent no. 1 ought to
have impleaded the present appellants, as well as her two
brothers/their legal heirs as party respondents in the
probate proceedings filed under Section 276 of the ISA and
that the District Court was required to issue citations in
favour of the aforesaid persons.
23. At this stage, it is required to be observed that the learned
District Court, while revoking the order of grant of probate,
has discussed in detail the contention raised by the present
respondent no. 1 with regard to limitation. After considering
the factual aspects and after perusing the proceedings, the
District Court has rightly observed that the appellants herein
have filed I.A. No. 612 of 2015 within the period of limitation.
The District Court has dealt with said aspects in paragraphs
36 to 40 of the order dated 30.09.2020, while revoking the
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Special Leave Petition (C) No. 20055 of 2022 Page 35
grant of probate. We are of the view that the District Court
has rightly held that I.A. No. 612 of 2015 was filed by the
appellants herein within the period of limitation.
CONCLUSION
24. We have gone through the impugned order passed by the
High Court. From the impugned order passed by the High
Court, it transpires that the High Court has not at all dealt
with the provisions contained in Sections 263 and 283 of the
ISA. From the aforesaid discussion made by us in this
judgment, it is clear that the respondent no. 1 herein,
without joining her two brothers/their legal heirs and the
present appellants, filed the petition for grant of probate. It
is further revealed that the said petition was filed on
21.04.2009. Further, the respondent no. 1 filed O.S. No. 110
of 2009 on 29.04.2009 i.e. after a period of 08 days only. The
averments made in paras 2, 3 and 4 of the plaint disclosed
that the respondent no. 1 was aware about the transfer of the
suit property, by the executant of the Will (father of the
respondent no. 1), soon after the Will was executed in favour
of respondent no. 1. Despite which, she did not implead her
two brothers/their legal heirs and the present appellant as
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Special Leave Petition (C) No. 20055 of 2022 Page 36
party respondents in the said proceedings. Thus, it can be
said that the respondent no. 1 herein obtained the order of
grant of probate in her favour by suppressing material facts,
and no citations were issued to the brothers of the
respondent no. 1/their legal heirs and the present
appellants, before the grant of probate. Hence, the District
Court was justified in revoking the order of grant of probate
in favour of respondent no. 1.
25. Accordingly, we are of the view that the High Court has
committed grave error while setting aside the order passed
by the District Court. Hence, the impugned order is required
to be quashed and set aside.
26. As a result, the impugned order dated 26.04.2022 passed by
the High Court in C.R.P. (PD) No. 1823 of 2021 is hereby set
aside.
27. At this stage, it is clarified that in the present judgment we
have considered the issue of grant of probate and the
revocation thereof and, therefore, the concerned Civil Court
shall decide the civil proceedings pending before it in
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Special Leave Petition (C) No. 20055 of 2022 Page 37
accordance with law, without being influenced by any of the
observations made in the present judgment.
28. Accordingly, this appeal is allowed.
29. However, there shall be no order as to cost.
30. All pending applications/interlocutory applications, if any,
are also disposed of.
............................................J.
[UJJAL BHUYAN]
............................................J.
[VIPUL M. PANCHOLI]
NEW DELHI
st
21 APRIL, 2026
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