S.263 Indian Succession Act | Beneficiary Of Will Bound To Prove Contention Of Improper Service Of Notice Of Probate Proceedings: Karnataka High Court

The Karnataka High Court has ruled that the burden is on the beneficiary of the will to substantiate the contention of no proper service of notice of probate proceedings on the persons who should have been apprised.

Justice H P Sandesh thus allowed the appeal challenging the order of the trial court which dismissed her petition filed under Section 263 of the Indian Succession Act, seeking to revoke the probate granted in favour of the respondents.

“The burden is on the respondents to substantiate the contention of proper service, since the person who asserts the same has to be proved.”

The primary contention of the appellant was that the Court below erred in concluding that the appellant had been served notice personally. There was no documentary evidence on record to show the personal service of notice. It was also argued that drawing of inference of personal service of notice on the basis of the entry in the order sheet was improper and unsustainable in law.

Secondly, it was contended that the citation of the probate proceedings was taken out in a newspaper which does not have proper circulation. Thus, it cannot be held that the requirement of law has been complied with.

The other contention raised was that the respondents have obtained the probate by suppression of material facts and the executant of the will was not in a position to execute any will before his death and as of the date of the alleged execution of the will, he was 84 years old and he was not in physically fit condition.

It was argued that the appellant was looking after the Testator being the youngest daughter and that her father did not have any capacity to execute the will anytime subsequent to the period of 1971-72 and probate was obtained fraudulently by concealing the material facts.

The respondents opposed the plea saying that the probate proceedings notice was served personally on 24.01.1984. Further, it was said the Will was executed in 1973 and the bond was executed in 1974 by the executant. It was further submitted that the petitioner has not stated anything about the testamentary capacity in the evidence and has not made out any grounds to set aside the impugned order.

Findings:

The court while addressing the contention of the appellant that she has not been served notice personally noted that on perusal of the Trial Court order sheet, there is a reference that notice was served personally on 24.01.1984 and the said reference is only an endorsement.

“No doubt there is an endorsement on the order sheet, that it was served personally. But, no document is placed by the respondents before the Court that it was served personally. No documentary evidence to show that personal service of notice. Even the respondent neither produced the copy of the notice which was served on the appellant nor produced any acknowledgement for having served notice as contended by the respondents that it was personally served.”

The bench rejected the respondents' contention that the Court has to draw an inference for personal service of the notice on the basis of the entry in the order sheet.

“No doubt the Court can draw an inference, but in the case on hand, it is the contention that no such notice was served and also not produced any document by the respondent that notice was served on the appellant herein and also no acknowledgment is produced, when such being the case, drawing of inference is improper and the same is also not sustainable in the eye of law, since the same is not substantiated by producing any material.”

It was also observed that when the appellant took the specific ground in the petition of no such proper service of notice, the Trial Court ought to have accepted the contention, only relying upon the ministerial entry in the order sheet that there is a service of notice and the same is not supported by any document in the evidence. Hence, it was found that the Trial Court had committed an error in coming to the conclusion that there is a proper service.

Regarding the contention of the appellant that no proper citation of probate proceedings was taken out in a newspaper with a limited circulation, the bench said,

“The very purpose and object of taking out the citation is to give notice to the persons who are interested to appear and object the same. But, the categorical admission is given by RW1 that citation was taken out and the same will be circulated to the subscribers only, the same cannot be a proper service and the circulation is only among the subscribers.”

Referring to the Supreme Court judgment in Basanti Devi V/s Ravi Prakash Ram Prasad Jaiswal, the bench held,

“Non issuance of proper citation can maintain the revocation of application and in the case on hand also though citation was taken out and the same was taken in weekly magazine and that too only circulated among the subscribers and the same is not a proper citation. On the second ground also impugned order of the Trial Court is not sustainable in law.”

Further, the court held that the Trial Court committed an error in coming to the conclusion that there was a delay and latches on the part of the appellant.

“When the appellant specifically contended that no proper service and no proper citation was taken out and merely notice was given in the month of November, 1995 and the petition was filed in the month of January 1998 itself within a period of three years from the date of knowledge also. Hence, the very finding of the Trial Court that there is latches on the part of the appellant is also erroneous and ought not to have made such an observation while dismissing the petition.”

Accordingly, it allowed the appeal, setting aside the order of the trial court and remitting the matter. The parties were directed to appear before the District Court without expecting any notice on 05.10.2023 and the Trial Court was also directed to dispose of the same within six months from 05.10.2023. The respective counsels and parties are also directed to assist the Trial Court in the disposal of the same within a stipulated time.”

Case Title: Mrs. Eulalia Sequeira Nee Menezes and Cyril Anthony Menezes & Others.

Appearance: Advocate Vijay Krishna Bhat M for Appellant.

Advocate Ganesh Bhat Y H for R1(a) & R4(e).

Advocate K.Sanath Kumar Shetty for R4(f).

Citation: LiveLaw (Kar) 353

Case No: M.F.A. NO.12112/2007

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