P HALPHONSO Vs. C FDE COSTA

JUDGEMENT

(1.) The appellant filed Miscellaneous Case No. 78 of 1953 in the Court of the District Judge, Civil Station, Bangalore, for revocation of the probate granted to the first respondent on 1-8-1953 in respect of the will and codicil executed by the petitioner's mother Mrs. Florence Emellia Alphanso on the ground that the executor (Respondent No. 1) had sold the only immovable property comprising the estate fraudulently and collusively for a nominal sum of Rs. 20,400/- though in, fact the property was worth more than Rs. 30,000/-. Respondent No. 2 is the purchaser of the property. The respondents 1 and 2 questioned the maintainability of the application alleging that the ground mentioned in the petition for the revocation of the grant did not all within the scope of Section 263 of the Indian Succession Act, 1925. The learned District Judge upheld the contention of the two respondents and dismissed the application with costs.

(2.) The sole point raised by Sri Govindaraju en behalf of the appellant for our consideration is whether the ground mentioned in the petition would fall within Clause (d) of the explanation to Section 263 of the Succession Act 1925 (hereinafter called the Act). It is not disputed that respondent No. 1 has sold the immovable property bearing No. 8, Bride Street Civil Station, Bangalore, as executor, to respondent No. 2 for a sum of Rs. 20,400/- under a registered sale deed. The first two respondents have denied the allegation of fraud and collusion. For the purpose of the decision of the technical point it has been assumed by the Court below that the alienation of the property by the executor was fraudulent and collusive. So, in substance, the point for consideration would be whether the probate can be revoked on the ground that the executor has alienated the property fraudulently and collusively. Section 263 of the Act lays down that the grant of probate or letters of administration may be revoked or annulled for just cause. The explanation to that Section reads as follows:

(3.) It is in the light of these provisions that we have to ascertain whether the fraudulent and collusive alienation as alleged by the petition attracts the application of Clause (d) of the explanation to Section 263, so as to conclude that 'the grant has become useless or inoperative through circumstance'. The explanation is followed by eight illustrations elucidating the scope of the clauses of the explanation. Briefly, the substance of the illustrations would go to show that the grant of a probate may be revoked if it is found that the Court which had granted it had no jurisdiction, that the grant was made without the necessary parties on record or on the basis of a forged or revoked will or that the person obtaining the grant claimed a status which had been subsequently discovered to be false, or a later will or codicil revoking or adding to the appointment of the executors under the will, had been discovered. The 8th illustration which throws some light on the point at issue reads 'that the person to whom a probate was or the letters of administration' were granted has subsequently become of unsound mind'. Naturally Clause (d) contemplates circumstances on account of which the grant has become useless, i.e., cannot be used by the grantee and has therefore become ineffective. Since the proper administration of the estate and the interest of the parties beneficially entitled is the main concern of the Court, the clause can be invoked in such cases where the administrator has become 'incapable of acting by reason of insanity or ill health'. In the Estate of Galbraith, (1951) 2 All E R 470, the probate was revoked on the ground that the two surviving executors were unable to perform the duties by reason of advanced age and physical and mental infirmity.