R SIVAGNANAM Vs. P K SADANANDA MUDALIAR

JUDGEMENT

(1.) THIS appeal is directed against the order of N. S. Ramaswami, J. in Application no. 329 of 1972 in T. O. S. No. 2 of 1967. The facts leading to the subject-matter may be succinctly stated thus:

(2.) ONE Thangavelu Mudaliar died leaving behind him a will duly executed by him in proper form. He died in Aug. 1956, leaving behind him his daughter krishnaveni Ammal, Krishnaveni Ammal had two children -- Sadanandam, a son, and Saraswathi Ammal a daughter. It is common ground that Sadanandam was named as the executor under the will and he sought for probate in the usual course and in the common form. Originally the proceedings came up before Ganapatia Pillai, J. who, after having been satisfied that a grant could be made in the common form, was about to issue it, when he was interdicted by caveat proceedings. Krishnaveni Ammal filed a caveat as an interested person, and thereafter the proceedings were converted into a suit, T. O. S. No. 2 of 1957. On a verification of the record, we find that in the course of the proceedings two witnesses were examined. P. W. 1 was Sadanandam, the propounder of the will, and P. W. 2 was Swaminatha Achari, one of the attestors to the will, who also filed, along with the application for the issuance of the probate, the supporting affidavit so as to enable the propounder to obtain a probate after proof of the will in the common form. But, at that juncture, it appears that Krishnaveni Ammal withdrew her caveat. In those circumstances ganapatia Pillai, J. observed -- both sides agree that the probate asked for could be issued. . . . . . . . . He imposed certain conditions for the issuance of the probate. His order is dated 22-1-1960. Nearly 12 years thereafter Saraswathi ammal's son one Sivagnanam filed the present application for the revocation of the grant in favour of Sadanandam. According to the applicant, who is the appellant before us, the grant of the probate was defective inasmuch as all the persons interested in the grant were not before the Court. Secondly, he would say that the grantee did not pay the probate duty in time and when he sought the indulgence of the Court for excusing the delay in making payment of such probate duty, he made a false allegation and that averment, which is admittedly false, by itself would enable him to obtain a reversal of the grant under Section 263 (c) of the Indian succession Act. Thirdly, the contention was that the inventory was not filed toy the grantee of the probate as directed by the Court and this inaction on the part of Sadanandam is another matter which ought to be taken into consideration for the revocation of the grant and that this is possible under Section 263 (e) of the Indian Succession Act.

(3.) THIS application was resisted on the ground that there was no defect in the procedure and that the alleged false allegation was not at a time when the grant of probate was sought for and that the delay in filing of the inventory was excused by this Court by an order of Maharajan, J. , and therefore, the three grounds on which revocation of the grant was sought by the applicant are unsustainable as not being available to him.