First Appeal from Order in F.A.O. No. 230 of 2008

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** ## **&** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **FRIDAY, THE 18[TH] DAY OF AUGUST 2023 / 27TH SRAVANA, 1945** **F.A.O.NO. 230 OF 2008** **AGAINST THE ORDER DATED 16.06.2008 IN I.A.NO.963 OF 2002 IN O.P.(LA) NO.12 OF 1995 OF THE DISTRICT COURT & SESSIONS COURT,THRISSUR** ## **APPELLANTS/RESPONDENTS 8 & 9:** - **1 RAYMOND FRANCIS,CHAKKARAMAKKAL HOUSE,CHAVAKKAD VILLAGE, THRISSUR.** - **2 JOSE FRANCIS -DO-** **BY ADVS.** **V.V.ASOKAN (SR.)** **G.UNNIKRISHNAN** **T.K.SREEKALA UTHARA ASOKAN K.SANEESH KUMAR** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1, 3 TO 7:** - **1 RAYMOND, S/O JACOB, CHAKKARAMAKKAL HOUSE, CHAVAKKAD VILLAGE, THRISSUR.** - **2 JACOB -DO- DIED* LRs IMPLEADED.** - **3 ROSILY -DO-** - **4 KOCHUMARY -DO-** - **5 JOSEPHEENA -DO6 SISTER BRISJITH JOSEPH -DO7 REETHA -DO*RESPONDENT NO.2 DIED PENDING I.A. LRs. ALREADY ON THE ARRAY OF PARTIES.** 2 F.A.O.No.230 of 2008 - **8* MAGI JACOB,CHAKKARAMAKKAL HOUSE,POST GURUVAYOOR-680 101.** - **9* SISTER RUBY,HOLY FAMILY CONVENT TRIMULGHERRY, SECONDARABAD,ANDHRA PRADESH – 500 015.** - **10* RESHMI VINESH, (DIED)** W/O.VINESH JOY,KATOOKARAN HOUSE,MATTOM P.O., 680 602.** - **ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED SECOND RESPONDENT VIDE ORDER DTD.15.7.2010 IN IA 2306/2010.** - ****ADDL.R10 IS DEAD AND ADDL.R8 IS RECORDED AS THE LEGAL HEIR OF THE DECEASED ADDL.R10 VIDE ORDER DT.18/10/16 IN MEMO BEARING C.X. 868/16 DT. 25/2/16.** - **11*** VINESH JOYS, KATTOOKARAN HOUSE, MATTAM P.O., THRISSUR-680 602.** - **12*** VARSHA (MINOR AGED 6 YEARS)REPRESENTED BY GUARDIAN FATHER VINESH JOYS, KATTOOKARAN HOUSE, MATTAM P.O., THRISSUR-680 602.** - **13*** ANN KATHERINE (MINOR AGED 4 YEARS)REPRESENTED BY GUARDIAN FATHER VINESH JOYS, KATTOOKARAN HOUSE, MATTAM P.O., THRISSUR-680 602.** - *****THE LEGAL REPRESENTATIVES OF DECEASED R10 ARE IMPLEADED AS ADDL.RESPONDENTS 11 TO 13 AS PER THE JUDGMENT DATED 18.08.2023 IN F.A.O.NO.230 OF 2008.** ## **BY ADVS.** - **R1 BY SMITHA CHATHANARAMBATH** - **R1 BY GANGESH K B** - **R8 BY C.P.PEETHAMBARAN** - **R8 BY M.K.SHAJI** 3 F.A.O.No.230 of 2008 **THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR FINAL HEARING ON 18.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 F.A.O.No.230 of 2008 ## **JUDGMENT** ## P.G. Ajithkumar, J. The 1[st] respondent filed I.A.No.963 of 2002 in O.P.(LA) No.12 of 1995 before the District Court, Thrissur invoking the provisions of Section 263 of the Indian Succession Act, 1925 and Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 seeking revocation of letters of administration granted in favour of the 2[nd] respondent annexed with a copy of the Will dated 28.12.1989. That petition was allowed as per the order dated 16.06.2008. The appellants, who are respondents No.8 and 9 in I.A.No.963 of 2003 have filed this appeal under Section 299 of the Indian Succession Act. 2. This appeal was admitted on 05.09.2008. The 2[nd] respondent in the appeal expired and his legal representatives were brought on record as additional respondent Nos.8 to 10. Additional respondent No.10 expired and his legal representatives were impleaded as additional respondent Nos.11 to 13. 5 F.A.O.No.230 of 2008 3. Heard the learned Senior Counsel appearing for the appellants and the learned counsel appearing for the respective respondents. 4. Sri.Joseph, son of Chakkaramakkal Chathunny expired on 07.08.1994. One of his children Sri.Jacob filed O.P. (LA) No.12 of 1995 claiming that Sri.Joseph executed Will No.65 of 1989 dated 28.12.1989 of Chavakkad Sub Registrar’s Office and that was his last Will. The respondents therein remained ex parte. That original petition was allowed as per the order dated 25.05.1996. Sri.Jacob was the administrator. He discharged all the liabilities under the Will. He subsequently conveyed 32.09 cents of the property comprised in re-survey No.98/6 of Chavakkad Village from A-schedule item No.2 in the Will in favour of the 1[st] appellant by virtue of Ext.B2 which is sale deed dated 06.05.1998. Sri.Jacob executed on 05.07.2000 Ext.B27 sale deed conveying 84 cents of land from the aforementioned A-schedule item No.2 in the Will in favour of the 2[nd] appellant. Subsequently, the 1[st] respondent, who is the son of Sri.Jacob 6 F.A.O.No.230 of 2008 (grandson of the testator Sri. Joseph) filed I.A.No.963 of 2002 claiming that Sri. Joseph executed another Will as document No.64 of 1990 on 18.06.1990, Ext.A7, which was registered in Mundoor Sub Registrar’s Office. The 1[st] respondent sought a relief of revocation of the letters of administration issued in favour of Sri.Jacob on the grounds that the said letters of administration was obtained by concealing facts and without furnishing essential facts thereby amounting to fraud. 5. The 2[nd] respondent Jacob resisted I.A.No.963 of 2002 by filing a counter. He denied the genuineness of Will No.64 of 1990 dated 18.06.1990 propounded by the 1[st] respondent as the last Will of Sri. Joseph. According to Sri.Jacob, Will No.65 of 1989 was the last Will executed by Sri.Joseph. 6. The appellants filed separate counter-statements wherein they reiterated the contentions of Sri.Jacob. Both of them further contended that they were bonafide purchasers for valuable consideration, and when the letters of administration which was duly issued by the District Court, 7 F.A.O.No.230 of 2008 Thrissur was live and remained binding all concerned they purchased the property from Sri. Jacob. They, thereby claimed that their title to the properties they purchased by virtue of Exts.B2 and B27 does not suffer from any infirmity. They would contend that the impugned order dated 16.06.2008 in I. A No.963 of 2002 is liable to be set aside. 7. Before the District Court, Thrissur, the 1[st] respondent adduced oral evidence of PWs.1 to 6 and produced Exts. A1 to A10. He brought on record Exts.X1 to X7 also. On the side of the respondents in I. A No.963 of 2002 Exts.B1 to B27 were marked. The 2[nd] respondent Sri. Jacob tendered oral evidence as RW1. Rws.2 to 4 were also examined. The learned District Judge considered three points namely, was the petition barred by the law of limitation, was the petition barred by _res judicata,_ and whether letters of administration issued in favour of the 2[nd] respondent was liable to be revoked. 8. The learned District Judge held that the period of limitation for filing a petition for revoking a letters of 8 F.A.O.No.230 of 2008 administration, under Section 263 of the Indian Succession Act is three years as provided in Article 137 of the Limitation Act, 1963. The letters of administration in favour of Sri. Jacob was granted on 25.05.1996; whereas I.A.No.963 of 2002 was filed only in 2002. Therefore, I.A.No.963 of 2002 was filed beyond the period of limitation. 9. The learned District Judge, however, found that Sri. Jacob who filed O.P.(LA) No.12 of 1995, came to know about Ext.A7 Will dated 18.06.1990 when the 1[st] respondent herein filed I.A.No.no.1521 of 1996 for getting himself impleaded and producing therewith a copy of Ext.A7 Will. It being a registered Will, it should have been taken as a Caveat. However, Sri.Jacob pursued O.P.(LA) No.12 of 1995 and obtained letters of administration. In that view of the matter, the court below held that there occurred fraudulent suppression of material documents. Therefore, the provisions of Section 17 of the Limitation Act was invoked to hold that the period of limitation did not begin to run. Hence it was held that I.A.No.963 of 2002 was filed well within time. The 9 F.A.O.No.230 of 2008 learned District Judge in order to arrive at the aforesaid conclusion, placed reliance on the decisions of the Apex court in **Hamza Haji v. State of Kerala and others [(2006) 7 SCC 416]** and a few other decisions. Having heard the submissions of the learned Senior Counsel appearing for the appellant and also the learned counsel appearing for the respondents, we find no reason to take a different view on the question of limitation. 10. I.A.No.963 of 2002 was filed under Section 263 of the Indian Succession Act seeking revocation of the letters of administration issued in favour of the 2[nd] respondent. Section 263 reads as follows: “263. Revocation or annulment for just cause.- 1) 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 10 F.A.O.No.230 of 2008 (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or (d) the grant has become useless and inoperative through circumstances; or (e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect.” ## 11. When Section 263 of the Indian Succession Act itself provides for revocation or annulment of probate and letters of administration on certain specified grounds, a petition for that purpose shall not fall within the mischief of Section 11 of the Code of Civil Procedure, or the constructive _res judicata_ . Moreover, the 1[st] respondent was not a party to O.P.(LA) No.12 of 1995. Taking those aspects into account, the court below held that the principles of _res judicata_ did not apply to this case. There is no reason to deviate from the said finding. 11 F.A.O.No.230 of 2008 12. As rightly observed by the court below, the scope of enquiry in I.A.No.963 of 2002 was only whether the letters of administration issued in favour of Sri. Jacob annexing with a copy of Will No.65 of 1989 is liable to be revoked. The 1[st] respondent does not claim a letters of administration in respect of Ext.A7 Will and therefore such a question did not arise for consideration. However, the reason why the 1[st] respondent sought to revoke the letters of administration in favour of Sri. Jacob is the last Will of Sri. Joseph, the testator, is not Will No.65 of 89 dated 20.08.1989but, it is Ext.A7 Will dated 18.06.1990. Therefore due execution of Ext.A7 is also a fact in issue. 13. PW1, the 1[st] respondent is the legatee under Ext.A7 Will. He deposed in court about the execution of the said Will by Sri.Joseph. It is his case that PW2, who is his maternal uncle was in possession of the original Will, and therefore, he could not get the original during the pendency of O.P.(LA) No.12 of 1995 and produce it in I.A.No.1521 of 1996, which he had filed for his impleading. PWs.2 and 3 are witnesses to the execution of EXt.A7 Will. The oral testimony of PWs 2 and 12 F.A.O.No.230 of 2008 3 supported the oral testimony of PW1 in material particulars. They deposed in court regarding the attestation of Ext.A7 Will. PW6 the handwriting expert deposed in court substantiating his report in Ext.X6 that the signatures in Ext.A7 Will were put by Sri.Joseph, the testator. In the light of the said evidence and other attending circumstances, the court below held Ext.A7 to be a genuine Will executed by Sri.Joseph and it was his last Will. The further finding that Sri.Joseph had a disposing state of mind at the time of execution of Ext.A7 is supported by sufficient evidence. The oral testimony of RW1 also supported that fact. In such circumstances, we find no reason to upset the finding of the court below that Ext.A7 is the last Will executed by Sri. Joseph. Having had knowledge about that Will, Sri.Jacob had the obligation to bring that on record and explain it away before his obtaining the letters of administration in O.P.(LA) No.12 of 1995 justifies its revocation. He did not obtain its certified copy and produce in court. Hence the letters of administration issued in favour of Sri.Jacob was rightly revoked by the court below. 13 F.A.O.No.230 of 2008 14. The District Court, Thrissur after holding that the letters of administration was liable to be revoked, did not go further to consider the contentions of the appellants that they purchased properties as per Exts.P2 and P27 with sufficient _bona fides_ and for valuable consideration. The 1[st] appellant had a contention that one of the witnesses to Ext.B2 sale deed is the 1[st] respondent and therefore he is disentitled to question its validity. The 1[st] respondent stoutly denied that contention. In that context, Ext.B2 was got examined by a handwriting expert, PW6. His report pertaining to Ext.B2 is Ext.X7. PW6 opined that the signature in Ext.B2 purported to be that of the 1[st] respondent (PW1) was not of him. In the light of the categoric version of PW1 in that regard and the report of the expert, the court below held that the 1[st] respondent was not a witness to Ext.B2. Dehors that finding, validity of Exts.B2 and B27 did not get impeached. Its executant Sri. Jacob admitted the execution. A sale deed is not a compulsorily attestable document. Exts.B2 and B27 are duly registered sale deeds. 14 F.A.O.No.230 of 2008 ## 15. The Apex Court in **Ishwar Dass Jain (Dead) through LRs v. Sohan Lal (Dead) by Lrs. [(2000) 1 SCC** **434]** held that there is a presumption of the correctness of the endorsement on a document made by the Sub-Registrar under S.58 of the Registration Act. The Apex Court explained the said principle in **Bhagat Ram and another v. Suresh and others [(2003) 12 SCC 35]** and held that the certificate of registration under Section 60 of the Registration Act raises a presumption under Section 114, Illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. In **Jamila Begum (dead) through LRs. v. Shami Mohammed (dead) through LRs. and another [(2019) 2 SCC 727]** the said principle was reiterated. It was further held that the registration of a deed reinforces the valid execution of the deed. A registered document carries with it a presumption that it was validly executed and it is for the party challenging 15 F.A.O.No.230 of 2008 the genuineness of the transaction to show that the transaction is not valid in law. 16. There is nothing in evidence to doubt validity or genuineness of Exts.B2 and B27 sale deeds. After issuance of letters of administration in favour of Sri.Jacob on 25.05.1996 he had executed Ext.B2 on 06.05.1998 in favour of the 1[st] appellant and Ext.B27 on 05.07.2000 in favour of the 2[nd] appellant. Much thereafter, on 08.04.2002 alone, the 1[st] respondent filed I.A.No.963 of 2002 and the letters of administration was revoked. In the light of the said facts, the learned senior counsel appearing for the appellants would submit that revocation of the letters of administration does not invalidate Exts.B2 and B27, which are supported by valuable consideration as is eminently evident from its recitals itself. There is nothing in evidence to show that the transactions vide Exts. B2 and B27 are shrouded by any suspicious circumstance. Therefore the _bona fides_ of the appellants in getting those documents can not be doubted. 16 F.A.O.No.230 of 2008 17. The learned Senior Counsel by placing reliance on the decision in **Crystal Developers v. Asha Latha Ghosh [(2005) 9 SCC 375]** would submit that the subsequent revocation of letters of administration does not take away the title obtained by the appellants as per Exts.B2 and B27. 18. Section 41 of the Indian Evidence Act, 1872 declares that a probate or a letter of administration operates as a judgment in rem. Section 273 of the Indian Succession Act endorses conclusiveness to a letters of administration as long as it stands. In **Crystal Developers [(2005) 9 SCC 375]** the Apex Court held that Section 41 of the Indian Evidence Act is an exception to the general rule that a person cannot confer a better title than what he has. Therefore, the transferee has the burden to prove that the transferor was the ostensible owner and he purchased the property after taking reasonable care. We held above that the appellants purchased the properties as per Exts. B2 and B27 with _bona fides_ and for valuable information. 19. In **Crystal Developers [(2005) 9 SCC 375]** , the Apex Court further held that the title of the person who 17 F.A.O.No.230 of 2008 purchased the property from the legatee under a Will which was probated or in respect of which a letters of administration was issued confers valid title notwithstanding that the probate or letters of administration was subsequently cancelled, provided he is a bonafide purchaser for valuable consideration. Applying the said principle we are of the view that the title conveyed in favour of appellant Nos.1 and 2 by virtue of Exts.B2 and B27 sale deeds is unaffected by subsequent revocation of the letters of administration issued in favour of Sri.Jacob. 20. Accordingly, the order dated 16.06.2008 revoking the letters of administration granted in favour of the 2[nd] respondent Sri.Jacob is confirmed. However, it is declared that the revocation of the said letters of administration did not invalidate Exts.B2 and B27 sale deeds, respectively, in favour of appellants No. 1 and 2. This appeal is disposed of accordingly. ## **Sd/-** ## **ANIL K. NARENDRAN, JUDGE** **Sd/P.G. AJITHKUMAR, JUDGE** pv/dkr