Case Note & Summary
The present appeal arises from a dispute over the grant of probate of a Will dated 09.01.1976 allegedly executed by Eswaramurthy Gounder in favour of his daughter, (respondent no. 1). The appellants, claim ownership and possession of the suit properties through purchase from the legal heirs of the original purchasers, who had bought the properties from Eswaramurthy Gounder and his sons via a sale deed dated 21.02.1976. Eswaramurthy Gounder died on 05.05.1983. On 21.04.2009, respondent no. 1 filed Probate Original Petition No. 72 of 2009 before the District Court, Coimbatore, seeking probate of the Will. The District Court granted probate ex parte on 26.11.2009. Subsequently, respondent no. 1 filed a suit for declaration of title and injunction. The appellants, upon learning of the probate, filed an application under Section 263 of the Indian Succession Act, 1925 for revocation of probate. The District Court, after framing issues and examining evidence, allowed the revocation by order dated 30.09.2020, holding that the Will was not proved in accordance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, as no attesting witness was examined; that there was no explanation for the Will's custody for 26 years; that the original Will was removed from court custody in violation of Section 294 of the Indian Succession Act, 1925; that necessary parties (legal heirs of the testator's sons and the appellants) were not impleaded; and that the procedure under Section 283 for public notice was not followed, indicating collusion and fraud. The respondents challenged this revocation before the High Court of Madras in C.R.P. (PD) No. 1823 of 2021. The High Court, by judgment dated 26.04.2022, allowed the revision and restored the probate, holding that testamentary jurisdiction is limited to pronouncing upon the genuineness of execution of a Will and does not extend to determining title, and that the District Court exceeded its jurisdiction. The Supreme Court, in appeal, examined the scope of testamentary jurisdiction and the grounds for revocation. The Court held that the High Court erred in limiting the testamentary court's role to mere execution; the court must examine due execution and remove suspicious circumstances. The Supreme Court found that the District Court had correctly identified multiple irregularities: non-examination of attesting witnesses, lack of explanation for custody, removal of the original Will from court custody, non-joinder of necessary parties, and failure to issue public notice. The Court held that these grounds justified revocation under Section 263 of the Indian Succession Act, 1925. The Supreme Court also noted that the High Court, in its revisional jurisdiction under Article 227, could not re-appreciate evidence and substitute its findings without addressing the specific grounds of revocation. Consequently, the Supreme Court set aside the High Court's judgment and restored the District Court's order revoking the probate.
Headnote
A) Succession Law - Probate - Scope of Testamentary Jurisdiction - Section 63, Indian Succession Act, 1925; Section 68, Indian Evidence Act, 1872 - Testamentary court must examine due execution of Will and remove suspicious circumstances, not merely pronounce on genuineness of execution - High Court erred in holding that jurisdiction is limited to execution only - Held that the District Court correctly examined non-compliance with statutory requirements for proof of Will (Paras 12-18). B) Succession Law - Revocation of Probate - Grounds - Section 263, Indian Succession Act, 1925 - Revocation is permissible for non-joinder of necessary parties, non-compliance with procedural requirements like public notice under Section 283, and fraud on court - Held that the District Court rightly revoked probate on these grounds (Paras 19-24). C) Evidence Law - Proof of Will - Attesting Witness - Section 68, Indian Evidence Act, 1872; Section 63, Indian Succession Act, 1925 - Propounder must examine at least one attesting witness to prove due execution - Failure to do so without adequate justification renders Will unproved - Held that the District Court correctly found that no attesting witness was examined and no explanation was given (Paras 13-15). D) Succession Law - Custody of Will - Section 294, Indian Succession Act, 1925 - Original Will must remain in court custody after probate - Removal without court permission and failure to return is a serious irregularity - Held that the District Court rightly considered this as a suspicious circumstance (Paras 16-17). E) Civil Procedure - Revisional Jurisdiction - Article 227, Constitution of India - High Court cannot re-appreciate evidence in revision and must confine to jurisdictional errors - Held that the High Court exceeded its jurisdiction by reversing well-reasoned findings of the District Court (Paras 25-27).
Issue of Consideration
Whether the High Court was justified in setting aside the revocation of probate on the ground that testamentary jurisdiction is limited to pronouncing upon the genuineness of execution of a Will and does not extend to determining title, and whether the District Court's findings on non-compliance with Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, and other grounds for revocation under Section 263 of the Indian Succession Act, 1925, were sustainable.
Final Decision
The Supreme Court allowed the appeal, set aside the impugned judgment of the High Court of Madras dated 26.04.2022, and restored the order of the District Court, Coimbatore dated 30.09.2020 revoking the probate of the Will dated 09.01.1976 granted in P.O.P. No. 72 of 2009.
Law Points
- Testamentary jurisdiction extends to examining due execution of Will under Section 63 of Indian Succession Act
- 1925 and Section 68 of Indian Evidence Act
- 1872
- including removal of suspicious circumstances
- revocation of probate under Section 263 of Indian Succession Act
- 1925 is permissible for non-joinder of necessary parties
- non-compliance with procedural requirements
- and fraud on court
- High Court's revisional jurisdiction under Article 227 is not to re-appreciate evidence but to correct jurisdictional errors.
