JUDGMENT
K.A. Abdul Gafoor, J.
1. The appellant did not succeed in an application filed under Section 263 of the Indian
Succession Act, 1925, hereinafter referred to as “the Act”, to get letters of
administration issued in O.P. (LA) No. 152/88 revoked. The petition was dismissed
as not maintainable. Therefore, this appeal.
2. Few facts are necessary to easily understand the controversy involved in this case. One Krishnan Bhaskaran went abroad to Singapore and settled there. He acquired properties in Singapore as well as in Thiruvananthapuram District including certain bank deposits. He was unmarried. He died in Singapore on 10.8.1985, while in hospital. The only surviving legal heirs are the appellant herein, the direct sister and the second respondent, his direct brother.
3. A person claiming to be the power of attorney holder of the first respondent, attempted to trespass into the properties held by the deceased in Trivandrum and enjoyed by the appellant. The claim was that the first respondent had been a legatee in terms of a Will executed by the deceased in Singapore and the first respondent had obtained a probate from the court in Singapore. Therefore, he did have the right over
the property. This was resisted and it gave rise to O.S. No. 62/86 on the file of the Munsiff’s Court, Varkala at the instance of the appellant where the first respondent herein through his power of attorney was impleaded. Later, it is disclosed that the first respondent himself filed another suit, O.S. No. 92/86 in the same court claiming declaration of title over the immovable properties stated to be enjoyed by the appellant herein on death of her brother at Singapore, making the appellant a party. The former suit was being resisted by the first respondent on the strength of the Will stated to be executed by the deceased and got probated by the first respondent. The trumpcard in the suit filed by the 1st respondent was also this Will and the probate obtained from the Singapore Court. That Will was disputed by the appellant, who figured as a defendant in O.S. No. 92/86. It was while such controversy centered around the said Will and its probate was going on in the Munsiff’s Court, the first respondent, the plaintiff in O.S. No. 92/86, filed O.P.(LA) No. 152/88 before “the District Court, Thiruvananthapuram, seeking letters of administration, in terms of Section 228 of the Act. In the said petition, no respondent had been impleaded and the petition discloses that there were no respondents. Later, letters of administration was granted by that District Court. It was produced in O.S. No. 92/86. It was at that time the appellant/defendant in the suit came to know of the existence of letters of administration. Thereupon, the appellant moved an application under Section 263 of the Act. Invoking the ground available under Explanations (a) and (b) of the said Section to get the letters of administration revoked. A contention was raised before that court that such a petition was not maintainable at all. The letters of administration already granted was not in terms of Section 232. It did not cover the entire properties forming the subject matter of the Will. It was also contended that the provision in Section 263 was not available to revoke letters of administration granted in respect of a Will executed and probated from a foreign court and that the general provision contained in Section 263 for revocation of letters of administration was not available in respect of the letters of administration granted under Section 228 of the Act. These contentions were found in favour of the first respondent, the legatee, by the District Court and the application under Section 263 was dismissed. Therefore this appeal.
4. Section 228 reads as follows:
228. Administration with copy annexed, of authenticated copy of Will proved abroad:-
When a Will has been proved and deposited in a Court of competent jurisdiction situated beyond the limits of the State whether within or beyond the limits of India and a properly authenticated copy of the Will is produced, letters of administration may be granted with a copy of such copy annexed”.
5. It is invoking this provision that the first respondent filed O.P. (LA) No. 152/88 and obtained letters of administration confined to the certificate of deposit at United Commercial Bank, Thiruvananthapuram, even though the Will as well as the probate certificate did cover several other properties including certain immovable properties in Thiruvananthapuram District.
6. Section 263 of the Indian Succession Act with the relevant explanations reads as follows:
“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…..”
The 2nd of the illustrations given under the Section also have some relevance. It reads: (ii) The grant was made without citing parties who ought to have been cited.
Thus, a reading of Section 263 and its explanation and illustrations shows that grounds available in terms of the said provisions to get a probate revoked does not differentiate between an application under Section 228 concerning a foreign Will and a proceedings under Section 232 or any other provisions. In other words, the revocation referred to in Section 263 is available in all types of cases where letters of administration had been granted. Therefore, Section 263 can be invoked by a party to get, on proper grounds, letters of administration granted under Section 228 also revoked. Therefore, the conclusion arrived at by the court below that the provision in Section 263 is not applicable, in the case of letters of administration granted under Section 228, cannot be sustained any more.
7. Even otherwise, on fairness also, we feel that the appellant has disclosed sufficient grounds to be considered on merit by the District Court, rather than dismissing his application at the threshold on the ground of maintainability, because the first respondent who applied for the letters of administration was very well aware from O.S. No. 62/86 where she figured as a defendant and in O.S. No. 92/86 where she figured as plaintiff, that the appellant had been agitating against the Will and the claims raised based thereon. It is subsequent to the filing of these suits, that O.P.(LA) No. 152/88 had been moved by the first respondent. In such circumstances, it was, in fairness, incumbent upon the first respondent to disclose the name of the appellant in the said application for letters of administration. Even if the name of the appellant herein had not appeared in the Will; in two proceedings already instituted in a competent court, viz., Munsiff’s Court, Varkala, he was very much fighting against the Will. The first respondent has knowledge of this dispute. He was, therefore, bound to disclose it in O.P. (LA) No. 152/88. We have not been shown any averment in the petition for letters of administration in that regard. Thus the respondent had, in the proceedings leading to issue of letters of administration suppressed certain relevant facts and did not cite the “parties who ought to have been cited” as mentioned in illustration No. (ii) under Section 263 of the Act.
8. As already mentioned above, in O.P. (LA) No. 152/88 filed by the first respondent, it was mentioned that there was no respondent in that petition. But the first respondent cannot contend that there were no legal respondents of the deceased, living in India, especially, when he was aware of it through the pleadings in O.S. No. 62/86 and O.S. No. 92/86. Rules issued under the Indian Succession Act contains detailed procedure in respect of the proceedings for issuance of letters of administration. Rule 8 thereof reads as under:
“Application for Letters of Administration:- An application for Letters of administration with the Will annexed shall be made by petition in Form No. 4 and shall set out the names and address of the legal representatives of the deceased, unless dispensed with by the Court.”
Form No. 4 vide item No. 9 thereof indicates the liability of the applicant seeking letters of administration to disclose surviving legal heirs that the deceased had left. It seems that the application was also not in the form prescribed as per Civil Rules of Practice disclosing the relevant materials. The illustrations under Section 263 makes it clear that the sufficient ground for revocation or annulment of letters of administration includes that “the grant was made without citing parties who ought to have been cited”. As per the Civil Rules of Practice the appellant herein was a necessary party who ought to have been cited in an application under Section 228 of the Act. The respondent did not thus cite the parties as enjoined in the statute. Thus, there was absence of the necessary parties who ought to have been impleaded in terms of the statute. When the respondent did not adopt the statutory form to apply for and did not disclose the details of the legal representatives of the deceased on which he had knowledge, it has to be held that the petition was defective. The details of the legal representatives of the deceased are really material facts. As it has been withheld from the court, there was concealment of certain material to attract Clause (b) of Explanation to Section 263 to be gone into while considering the application I.A. No. 444/90 seeking revocation of the letters of administration. The decision in Varghese v. Oommen (1994 (2) KLT 620) has no application in this case.
Therefore, we set aside the impugned order and direct the District Court, Thiruvananthapuram to consider I.A. No. 444/90 on merit as it is maintainable in law.
Parties shall appear in the District Court to receive notice on 21.11.2002. The office shall transmit the lower court records immediately.