2026 INSC 400 __________________________________________________________________________________________

Special Leave Petition (C) No. 20055 of 2022 Page 1

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

“the District Court”), revoking grant of probate of Will dated

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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Special Leave Petition (C) No. 20055 of 2022 Page 25

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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Special Leave Petition (C) No. 20055 of 2022 Page 26

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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Special Leave Petition (C) No. 20055 of 2022 Page 27

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 28

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 29

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 30

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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Special Leave Petition (C) No. 20055 of 2022 Page 31

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 32

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 33

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 34

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 35

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 36

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 37

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 38

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

21

st

APRIL, 2026