Mrs. Cheryl Margurite Soggee vs Lt. Col Richar Charles Menasse on 31 October, 1996

Karnataka High Court
Mrs. Cheryl Margurite Soggee vs Lt. Col Richar Charles Menasse on 31 October, 1996
Equivalent citations: AIR 1997 Kant 175, ILR 1997 KAR 742, 1997 (1) KarLJ 49
Bench: M Chinnappa


ORDER

1. The brief facts leading to these cases are that Mrs. Hildred Joyce Faithful executed a Will dt. 17-11-87 bequeathing all her properties to the persons mentions therein. In that Will 2 persons viz. Mrs. Certrude June Dalby and Mrs. Cheryl Margurite Soggee were to be the executors of her last Will and were jointly entitled to execute and charge calculate at 3% of the gross value of her estate for administration of her estate legal fees etc. The testator died on 31-10-1988 at Bangalore. Thereafter on 22-2-89 the proposed executor filed Pro. C.P. 4/89 for grant of Probate of the Will dt. 17-11-87. In that case, the caveat was entered and the citation

was issued in Deccan Herald dt. 25-3-99. In response to this general notice also, none has come forward to oppose the grant of Probate The first executrix having died since before the filing of the Probate C. P. and as this Court felt that there is no impediment to grant the probate in favour of Mrs. Cheryl Mar-gurite Soggee — Petr. herein granted a Probate as sought for by its order dt. 16-6-89.

2. Subsequently in the month of July, 1990 one Rev. Father Benjamin Dorairaj filed a petition u/Ss. 301 and 302 of the Indian Succession Act (for short ‘the Act’) to remove from the office of the executrix and a substitute be appointed to succeed the executrix as executor or administrator to take charge of, or manage and administer the properties of the deceased on the ground that the respondent Mrs. Cheryl Margurite Soggee intends to sell the property bequeathed under the Will to a selected individual acting in collusion to share and appropriate the undisclosed balance of the real estate price which would ultimately benefit the beneficiaries under the Will of Mrs. Hildred Joyce Faithful. The said petition is registered as Prob. C.P. 4/90. The respondent therein filed objections denying all the allegations made by the petitioners. Further, it is also contended that the respondent the executrix is making all sincere efforts to secure higher price. However, this petition does not require to be considered in this case as it will have to be decided after the disposal of these two matters.

3. According to the Will, the executors amongst others were required to carry out certain things as per the wishes of Mrs. Hildred Joyce Faithful who had bequeathed amongst others as follows:

(a) 10% to Rev. Mother Provincial, Little Sisters of the poor, 15, Hosur Road, Bangalore-25 to be utilised for the use and benefit of the home for the aged;

(b) 10% to Rev. Mother Superior, Missionaries of Charity, 3, Ashoka Road, Bangalore-5 to be utilised for the use and benefit for the poor;

(c) 10% to Mother Superior, St. Michale’s

Convent, Old Madras Road, Jeevan Bhima-nagar, B’lore. 75 for the use and benefit of St. Michale’s Convent;

(d) 5% to the President, Christu Seva Samaj (Anantha Ashram) Refuge for destitutes; Opp. St. Xavier’s Boys’ High School, Shivajinagar, Bangalore I, for the use and benefit of destitutes;

(e) 5% for the Presbyter-

Presbyter-in-Charge, St. Mark’s Cathedral, No. 1 St. Mark’s Road, Bangalore for the use of St. Mark’s Charities for the poor and needy;

(f) 10% of the Bangalore Cheshire Home, 6th Mile, HAL Airport Road, Bangalore–17, to be utilised for the physically handicapped persons;

(g) 10% to the President, Bangalore Child-rens Society, 63, Richmond Road, Bangalore 25, for the use and benefit of Orphan Children;

(h) 20% to the Director, Kidwai Memorial Institute of Oncology, Hosur Road, Bangalore 29, or the use and benefit of the poor patients suffering from cancer; and

(i) 20% to the Dean, St. John’s Medical College and Hospital, Sarjapur Road, Bangalore 34, to be utilised for the poor patients suffering from cancer.

4. During the pendency of this petition Lt. Col. Richard Charles Menasse (Retd.) filed Prob. C.P. 16/90 under Sec. 263 of the Act to revoke the order dated 16-6-89 in Prob. C.P. 4/89 granting a probate to respondent on the ground that the petitioner is the real brother of Mrs. Gertrude June Dalby (the first executrix mentioned in the Will who died subsequently) and the nearer relative of the deceased and the deceased Mrs. Hildred Joyce Faithful had described Mrs. Gertrude June Dalby as her cousin in her Will. It is further contended that the citation was issued to him though he is the nephew of the deceased Mrs. Faithful and that the testator died within 12 months from the date of the execution of the Will and the said Will was not deposited within six months from the date

of the execution of the said Will. On that ground he contended that the probate granted by the Court is liable to be revoked. In the meanwhile, on 2 J -3-90 the executrix filed I. A. 1 to reopen and modify the order to amend the petition. I.A. II was filed under Sec. 151, C.P.C. to reopen and modify the probate order after permitting the petr. to amend the petition as per LA. I. I.A. III came to be filed under Sec. 118 r/w. 151, C.P.C. to modify/ clearify the order dt. 16-8-89 in Prob. C.P. 4/89 to the effect that the request made by Mrs. Faithful to charitable and religious uses as per the Will dt. 17-11-87 was void and not binding on the applicants. I.A. IV was filed for an interim order staying the order dt. 16-6-89 in regard to the request made by Mrs. Faithful the deceased to charitable and religious users as per the Will dt. 17-11-89. By order dated 15-6-90 the Court passed the’ following order:

“In effect the application now made pur
porting to be under Sec. 118 of the Indian
Succession Act is for a declaration that the
Will in respect of which probate was granted
by this Court is invalid in law. Therefore, the
proper procedure is to seek revocation of the
grant in accordance with law. Therefore, the
applicants are directed to amend the applica
tion or file a fresh petition seeking revocation
of the grant.

Call this matter on 29-6-1990.”

As per this order, I.A. V came to be filed. In view of this order I.As. I to IV are deemed to have been disposed of. Therefore, only LA. V is to be considered by this Court. I.A. V came to be filed by the executrix on the ground that the bequeath made in favour of charitable institutions is hit by Sec. 118 of the Act on the ground that the testatrix died within 12 months from the date of the execution of the Will and the same was not deposited within the stipulated period. In other words, the claim of both the petitioners herein are almost on identical grounds but in addition to that the petitioner in Prob. C.P. 16/90 claims that, a citation was not issued to him.

5. Heard the learned advocates appearing for the respective parties.

6. The learned advocate for the petitioner has vehemently argued that under the Will the testatrix has bequeathed major portion of the property in favour of charitable institutions. Therefore, the requirement of Sec. 118 of the Act has to be complied with as those conditions are mandatory in nature. He further submitted that the petitioner is the legal heir of the deceased being nephew and nearer relative of the deceased. Therefore, the citation ought to have been issued in his favour. In the absence of citation the probate has to be revoked under Sec. 263 of the Act. He further submitted that there is no other nearer relative as far as the deceased is concerned. Therefore, he has interest over the property.

7. Similarly, the executrix also has raised a similar contention that she along with her sister is entitled for the properties in view of the clause contained, in the Will which reads:

“Should any of the residual bequests fail for any reason whatsoever then I direct my Executors to personally take charge of the residue of my Estate and deal with the same according to my separate instructions given to them.”

However the learned counsel for the respondent contended that the petitioner is not the nephew or nearer relative. Under the circumstances, just because the Will was not deposited within six months from the date of execution and that she died within 12 months itself is not a ground to revoke the Probate. Further, the petitioner is a distant relative and therefore, non-issuance of citation itself is not a ground to revoke the probate granted by the Court and in support of their arguments they also placed reliance on the decisions reported by the Supreme Court as well as the High Court which I will presently deal with.

8. In view of the arguments advanced by the learned advocates and also the contentions raised in the respective petitions, the following points arise for consideration:

1. Whether the petitioner is the nephew or nearer relative of the deceased?

2. Whether the Probate granted by this Court is liable to be revoked under S. 263 or

under S. 118 of the Indian Succession Act?

3. What order?

9. In this case the petitioner claims that he is the nephew of the testatrix. His name and relationship has not been mentioned in the Will: But the lst Executrix referred to in the Will is her cousin. The 1st Executrix is none other than the sister of the petitioner. The petitioner produced table of consanguinity wherein it is shown that he is the son of the cousin Mrs. Gertrude of the deceased. The Executrix is the daughter of the sister of the petitioner. In other words, niece, of this petitioner. On that ground he claimed that he
being the son of the cousin Germane is the nephew of the deceased.

10. The learned counsel for the respondent has drawn my attention to the Law of Lexicon of British India compiled land edited by P. Ramanatha Aiyar at page 868: “Nephew” defined. Act 10 1865, S. 86. The word “Nephew”, as generally used, means the children of a brother or sister. The primary meaning of ‘Nephew’ or ‘Niece’ is ‘Child of Brother or Sister’; Therefore, it is clear that the petitioner is not the nephew. However, in the alternative, he submitted that he is the nearer relative of the deceased testatrix.

11. It is well settled law that the word ‘near relative’ means ‘legitimate relative’. The word has no application to relationship by marriage. The object of Sec. 118 of the Act is to prohibit the death bed bequest to religious or charitable uses by the persons having near relations such as father, mother, son, daughter, grandson, grandmother, grandfather, granddaughter, brother, sister, nephew, niece, except under the conditions imposed by. the section. Therefore, it is clear that Sec. 118 of the Act refers to persons who come within the relationship, only the near relatives mentioned above and none other. Under the circumstances, the first contention of the petitioner that he is either the nephew or the nearer relative has to be rejected. Similarly, the Executrix and her sister also cannot be treated as the nieces of the deceased. In other words, they are not the nearer relations than the petitioner himself.

12. With this background, it is now necessary to consider the second point. According to the petitioner he is the sole surviving legal/ heir of the deceased testator. Therefore, citation should have been taken to him under the probate proceedings. It is no doubt true citation was not issued to him. He claims that
during the relevant period he was in Australia. Hence he could, not know about the Will executed by Mrs. Faithful and the pending probate proceedings. The citation was published as stated earlier in the Deccan Herald as per the order of the Court. Obviously, he had not seen the paper publication. But the fact remains that the 1st executrix is none other than, the own sister and the 2nd executrix is her daughter and the niece of the petitioner. Therefore, in all probability as pointed out by the learned counsel for the respondents, the petitioner should have known about the probate proceedings. He has not made any allegation against his. sister or the executrix in this case. Under the circumstances, if he is so related as claimed by him, he would have been informed about this probate proceedings by his sister. Even accepting for the sake of arguments that he was not informed, what would be the consequence of non-issuance of citation to him, would be the question.

13. The scope of Sec. 263 of the Act came up for consideration in Yuvrani Tank Rajes-wari Devi v. Harilal, , where it was decided that the only question to be canvassed before order for revocation for grant of probate can be made is whether the will was a forged one or not. The section deals with the circumstances in which a probate or letters of administration once issued can be revoked. The grounds enumerated in the explanation are exhaustive and not merely illustrative. The section invests the Court with discretion to revoke a grant of probate or letters of administration, but such discretion should be exercised judicially and not in an arbitrary fashion, a clear case of just cause must be established before invoking the aid of the Court to revoke the grant. It is only under the provisions of this section and on the grounds’ enumerated therein that an application for revocation of

probate or letters of administration can be made. The revocation of grant can be a allowed only upon strict proof of any of the circum-stances mentioned in the section, As stated earlier, the petitioner has raised as first ground that citation was not issued.

14. In , Anil Behari Ghosh v. Smt. Latika Bala Dassi. Their Lordships have held.

“The omission to issue citations to persons
who should have been apprised of the probate
proceedings may well be in a normal case a
ground by itself for revocation of the grant.

But this is not an absolute right irrespective of
other considerations arising from the proved
facts of a case: The law has vested it judicial
discretion in the Court to revoke a grant
where the Court may have prima facie reasons
to believe that it was necessary to have the will
proved afresh in the presence of Interested
parties.

The Supreme Court was not satified that
in all the circumstances of the present case just
cause for the annulment of the grant of
probate within the meaning of S. 263 of the
Act had been made out.

The annulmentt of the grant of probate is a
matter of substance and not of mere form.

The Court may refuse to grant annulment ,in
cases where there is no likelihood of proof
being offered that the will admiited to probate
was either not genuine or had not been validly
executed.

Where, as in the present cases, the validity
or genuineness, of the will has not been
challenged it wou]d serve no useful purpose to
revoke the grant and to make the parties go
through the mere formality of proving the will
again.

Under the circumstances of the present case
the omission of citation has had no effect on
the regularity of the proceedings resulting in
the grant of 1921.

In this case as stated. above, the petitioners
and executors have failed to establish that they are either nephew or niece or the near
relatives. They have not contended in that petition that the Will is a forged one or

that the testator was not in sound state of mind. In other words, the validity of the Will have not been questioned on any, other ground, except the ground found under Section 118 of the Act. In view of this, it is now necessary to find out as to whether this Will in invalid or
void as the requirement of Section 118 of the
Act was not satisfied.

15. Section 118 of the ‘Act reads as
follows:

“Bequest to religious or charitable uses.

No man having a nephew or nice or any nearer relative shall have, power to, bequest
any property to religious or charitable uses,
except by a will executed not less than twelve
months before his death and deposited within
six months from: its execution in sorue place
provided by law for the safe custody of the
wills of living persons.”

in AIR 1943 Bom 317 Bai
Cunsetbai C. Dossabhoy v. Bai Hamabai Jahangir Wadia the Division Bench of the Bombay High-

Court has held :

‘”Any bequest to charity is vord under
Section 118 unless the conditions laid, down
therein are complied with. The beqest may
He a direct bequest or contingent bequest. So.

long as it is a bequest to charity the words
used in Section 118 are wide enough to make
it applicable to bequests of any kind. But
before a bequest to charity can be held to be
good under Section 118, the following condi
tions must be fulfilled:

(1) the testator has nephew or niec or any nearer relative and he is alive at the time of the death of the testator; (2)the will, must be executed not less than 12 months before the death of the testator; and (3) it must be deposited within six months from its execu-tion in some place provided by law.”

As stated earlier, admittedly the testator died within 12 months from the date of the exccution of the Will, i.e. on 31-10-1988 exactly 11 months and 14 days from the execution of the Will. The Will was never deposited muchless within 6 months; from it execution in some place provided by law. It is also not in dispute that the major portion

of the property has been bequeathed in favour, of charity as referred to above. The Madras High Court in a decision reported in (1993) ILR 26 Mad 532, Administrator-General of Madras v. Simpson held:

“By Section 105 of the Indiart Succession
Act, no man having a nephew or niece or any
“nearer relative” shall have power to the
queath any property to charitable uses, except
by will execute not less than twelve months;

before his death and deposited as by the
section is provided. A testator by his Will
bequeathed property to charitable, uses, and
died two days thereafter leaving ‘a’ widow
surviving him. On a question being raised as’
to the validity of the bequest:

Held, that the bequest wafi valid. The term “relative” in Section 105 of the Succession, Act refers to kindred only, as set forth in the table of consanguinity annexed to Section 24, of the Act, and has no application to any relationship by marriage.”

“The prohibition for” bequests to religious or charitable uses applies only if the testator has nephews, nieces or nearer relations. The expression nephews and nieces denotes that if relations remoter than these only survive the, testator the bequest to charity will be valid. Nephews and nieces are blood relations so are nearer relations, such as mother, father, grandmother, grandfather, brother, sister, son, daughter grandson’ and granddaughter.”

(See Para’s Diwan (1991) Edition—;

Page 493):

“……. But a person, who claims adversely to
the deceased any property as part, of the Estate of the deceased has no locus standi to – apply for revocation for the simple reason that in probate proceedings the Court is’ concerned, only with the questions whether the Will set up is genuine and who is the person entitled to the probate or Letters of Administration.”

(See 17 Cal 47 : (1974) 40 ALT 843).

16. I have already discussed about the relationship of the petitioner with the deceased. According to Section 118 of the Act if

any one of the condition is not satisfied, the Will becomes void. But that question would arise only if nephew, niece or nearer relatives are alive, and for other reasons. I have already come to the conclusion that the petitioner, and the executrix are not nephew, niece or nearer relative. On the other band they are distant relatives and they cannot invoke or seek assistance of Section 118 of the Act to question the validity of the; Will.

17-18. The learned counsel for the petitioner vehemently argued that the petitioner is the only nearer relative alive as on that date. Therefore, he has locus standi to question the Will executed by the testator to charity. This argument; is unsustainable in view of the fact that the petitioner and the executrix do not come within the purview of nephew, niece or nearer relatives. Therefore, the non-deposit of the Will within six months in same place provided by law and that the Will must be executed not less than 12 months before the death of the- testator would not arise. As stated earlier, the object of Section 118 of the Act is to prohibit death-bed bequeath to charitable uses by the persons having near relatives?

19. At the time of argument, it was suggested to the petitioner and also the respondent to find out as to whether any nearer relatives are alive. However, the respondent being a charitable institution was not aware of the relationship of the deceased with any other persons. However, the petitioner stated that there is no other nearer relative than himself alive as far as the deceased testatrix is concerned. While discussing the relationship of the petitioner and the esecutrix with the deceased, I have already come to the conclusion that they do not come within the purview of relations referred to in Section 118 of the Act. Therefore, both of them have no locus standi to question the validity of the Will on the ground that the deceased died within 12 months from the date of execution of the said Will and it was not deposited as provided under law, etc. cannot be made available to the petitioner. Under the circumstances, I hold that omission to issue citation to the petitioner is not

|a ground by itself for revocation of the Will. 20. Therefore, it is abundantly clear that for the reasons stated, if the Will cannot be held to be void, in view of the fact that there lived no nephew, niece or nearer relatives of the deceased; for mere want of citation to the petitioner, the probate cannot be revoked.

21. For the foregoing reasons, I answer point Nos. 1 to 3 in the negative. In the result therefore, I proposed to pass the following:’

ORDER

I.A.V. in Prob. C.P. No.4/89 and Prob
C.P. 16 90 are dismissed.

No order as costs.

22. Application dismissed.

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