How to get the Probate of a Will revoked ? (March 2023) скачать в хорошем качестве

How to get the Probate of a Will revoked ? (March 2023)

#Will #Probate #Revocation_of_probate #supremecourtofindia Free Legal advice to solve your day to day legal problem. Better legal information to enrich your legal outlook. Legal discussion to improve your legal understanding. An informed discussion on recent and important judgment of Supreme Court & High Courts for lawyers and laymen. We discuss the proposition of law laid down by the Court in the backdrop of the facts and the relevant provision of laws. Mr. Richard P. Mathias died at Mangalore on in 1959. He had executed a Will bequeathing all his assets to his wife Mrs. Gertie Mathias. She got probate in 1960 from District Court. 3 minor children. Daughter Lynette (the appellant) attained majority in 1965 but filed Partition suit in 1995, claiming 1/4th share of the properties referred to in the Will of her father. Lynette : In 1996 filed for renovation of probate after 36 years of probate. District Judge dismissed the application both on merits as well as on grounds of limitation. The appeal in High Court was also dismissed. Lynette Fernandes vs Gertie Mithias (D) By Lrs. Dt: 8 November, 2017 Main arguments before SC: 1. The citation in Manglore but property in Chikmagalur. 2. The application for grant of probate did not disclose the names of Lynette and her other two siblings. So Fraud Relevant law: Section 263 of Indian Succession Act: Revocation or annulment of probate for just cause. Just cause is explained as substantial defect in proceeding, fraud, concealment of material information, grant has become useless or inoperative, & omission of inventory or account. Bench: Justice Arun Mishra & Justice Mohan Shantanagouder Author: Justice Mohan Shantanagouder The Will executed by Mr. Richard P. Mathias in favour of Mrs. Gertie Mathias has remained unquestioned. SC said: a mere non-issuance of citation at Chikmagalur where the property is situated does not amount to rendering the proceedings defective in substance. No Prejudice. Lynette was all along residing in Manglore. May be procedural irregularity. SC referred the case of Anil Behari Ghoshe v. Smt. Latika Bala Dassi & Others, AIR 1955 SC 566, which reads thus:-Defective in substance" must mean somethng substantially affect the regularity and correctness of the previous proceedings. Revocation by court if believed that it was necessary to have the will proved afresh in the presence of interested parties. Mrs. Gertie Mathias was the only beneficiary and will is unquestioned. No pleading of fraud and no evidence is adduced by Lyetten to prove fraud. The signature of Mr. Richard P. Mathias on the Will has not been challenged. General allegations are insufficient. So allegations of fraud is bald allegation. Mere bald pleading will not help her in the absence of proof. LIMITATION IN REVOCATION APPLICATION: As there is no provision under the Limitation Act specifying the period of limitation for an application seeking revocation of grant of probate, Article 137 of Limitation Act will apply to the case in hand. In Article 137 the time begin to run when the right to apply accrues. The  Article 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. The petition in the present case was to the District Judge as a court. SC in Krishan Kumar Sharma Vs. Rajesh Kumar Sharma (2009) 11 SCC 537 held that the petition is an application falling within the scope of Article 137 of the 1963 Limitation Act. The grant of probate is a judgment in rem. If the probate is granted, the same operates from the date of the grant of the probate for the purpose of limitation under Article 137 of the Limitation Act in proceedings for revocation of probate. In this case the three years limitation as prescribed under Article 137 runs from the date of the appellant attaining the age of majority i.e. three years from 09.09.1965. But it was challenged in 1996, i.e., a good 31 years after she attained majority. SC held that the revocation application is beyond the limitation. Accordingly, the appeal was dismissed.