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2002 DIGILAW 224 (MAD)

Premchand Ranka v. Shantha Devi Ranka

2002-03-13

P.D.DINAKARAN, S.JAGADEESAN

body2002
Judgment :- S. JAGADEESAN, J 1. O.S. No. 3210 OF 1998: — In order to avoid multiplicity of proceedings, as well as unnecessary litigation, the papers were called for from the City Civil Court, since the dispute between the parties is the same as that of the Original Side Appeal in O.S.A. No. 367 of 2001. 2. The prayer in the suit is for a mandatory injunction directing the defendant to hand over title deeds of the properties allotted to the respective shares as per the family arrangement of the partition dated 22.3.1993 and the deed of partition registered on 5.11.1993 at the office of the Sub Registrar, Periamet. 3. It is the contention of the learned counsel for the plaintiffs that the suit has been filed under the impression that the partition deed was registered whereas the learned counsel for the defendant contended that the said document was not registered. 4. When the said document was not registered, it cannot be said that the plaintiffs have got any right in the properties and also can get the copy of the registered deed or the other title deeds. 5. Today, the second plaintiff, knowing about the fact that the said partition deed was not registered, made a representation that the suit may be dismissed. He also made an endorsement in the plaint to that effect. Learned counsel for the plaintiffs also accepted the said endorsement. 6. Hence, on the basis of the said endorsement, the suit is dismissed. No costs. OSA. No. 367 of 2001: — 7. The appellant filed O.P. No. 771 of 1995 on the file of this Court for the grant of Letters of Administration on the basis of the Will and testament executed by late Misiri Bai dated 16.6.1970. Originally, this Court granted the Letters of Administration by an order dated 7.2.1996. The respondents filed Appln. No. 2987 of 2000 to stay the operation and execution of the order dated 7.2.1996 in O.P. No. 771 of 1995 and Appln. No. 2988 of 2000 for the revocation of the order dated 7.2.1996 in O.P. No. 771 of 1995 granting the Letters of Administration to the appellant. Both the applications were ordered by the learned Judge on 2.8.2001. As against the order in Appln. No. 2988 of 2000, the present appeal has been filed. 8. No. 2988 of 2000 for the revocation of the order dated 7.2.1996 in O.P. No. 771 of 1995 granting the Letters of Administration to the appellant. Both the applications were ordered by the learned Judge on 2.8.2001. As against the order in Appln. No. 2988 of 2000, the present appeal has been filed. 8. The contention of the learned counsel for the appellant is that the appellant filed O.P. No. 771 of 1995 on the basis of the Will executed by the said Misiri Bai for the grant of Letters of Administration. This Court accepted the case of the appellant and granted the Letters of Administration. The respondents herein filed Appln. NO. 2988 of 2000 for the revocation of the said letters of administration claiming that the property is a joint family property wherein the respondents are also entitled for a share. When that be so, the respondents are denying the title of the testator. Only if the respondents claim any right through the testator, then, they are entitled to maintain the application for the revocation of the Letters of Administration. When the respondents did not admit the title of the testator, it is not open to this Court to decide the question of title in the probate proceedings. It is for the respondents to file a separate suit to establish their claim. Hence, the learned Judge is not correct in going into the question of title and granting the relief to the respondents herein. 9. On the contrary, the learned counsel for the respondents contended that prior to the filing of the said Original Petition, there was an agreement between the appellant and the respondents as well as another whereunder all the parties have agreed to divide the properties and entered into a partition deed on 5.11.1993 and the same was also presented for registration. After presenting the said partition deed for registration, the appellant turned around and initiated proceedings before this Court for the grant of Letters of Administration on the basis of the will alleged to have been executed by the said Misiri Bai, the step-mother of the appellant. When the appellant agreed to divide the properties, it is not open to him to take out an application for the grant of Letters of Administration on the basis of the Will. When the appellant agreed to divide the properties, it is not open to him to take out an application for the grant of Letters of Administration on the basis of the Will. Hence, the Letters of Administration issued in favour of the appellant is liable to be set aside, as the appellants action will amount to a fraud committed on the respondents. Ultimately, the learned Judge had taken into consideration of this aspect and revoked the Letters of Administration granted in favour of the appellant. 10. We have carefully considered the above contentions of the learned counsel on either side. 11. The undisputed facts are that the appellant is the adopted son of the said Misiri Bai. The validity of the will has not been seriously challenged. The only ground of attack on the part of the respondents is that the appellant and the respondents along with another agreed to divide the properties and also entered into a partition deed on 5.11.1993, which was presented for registration. When once the partition deed was registered, undoubtedly, the respondents are the owners of the property allotted to them. Only on this basis, the claim of the respondents had been put forth. 12. Now, it is for us to consider as to whether the respondents have got any right or title over the disputed property? 13. The respondents claimed the right in the property only on the basis of the partition deed 5.11.1993. It is the contention of the learned counsel for the respondents that the said partition deed was registered. In spite of his best efforts, the respondents could not get the copy of the said registered partition deed. Hence, they initiated various proceedings also for obtaining the certified copy and ultimately, they failed. When once the partition was entered into between the parties, and the respondents right as well as interest in the property are admitted, the Letters of Administration granted in favour of the appellant cannot be sustained. 14. Learned counsel for the appellant represents that the said partition deed was not at all registered. Though the document was presented for registration, subsequently, the said document was withdrawn. Hence, when the partition deed was not registered, the respondents cannot have any right or claim over the property. 14. Learned counsel for the appellant represents that the said partition deed was not at all registered. Though the document was presented for registration, subsequently, the said document was withdrawn. Hence, when the partition deed was not registered, the respondents cannot have any right or claim over the property. In fact, in W.P. No. 11488 of 1998, the learned Judge recorded the statement of the learned counsel for the appellant herein about the withdrawal of the document from the registration and dismissed the said writ petition. When that be so, there cannot be any dispute that the partition deed was not registered. Consequently, in the absence of any right or title over the property under dispute, it is not open to the respondents to seek for the revocation of Letters of Administration. 15. From the above narrated arguments, it is clear that the partition deed dated 5.11.1993 said to have been executed by the appellant as well as the respondents along with another was not registered. When once it is admitted that the respondents claimed title over the property under dispute only through the said partition deed, definitely, the non-registration of the same will dis-entitle them from putting forth their claim. However, it does not mean that they cannot enforce their right against the respondents pursuant to the settlement said to have taken place. 16. In the proceedings of the Letters of Administration, as held by various judgments of this Court as well as the Apex Court, the question for consideration is only with regard to the validity and genuineness of the Will executed by the testator. In this proceedings, it has been further held that it is not open to the Courts to enter into the disputed question of title and if there is any dispute between the parties with regard to the title, the same should be relegated to a separate proceedings. It may be worth-while to refer the judgment in the case of Ishwardeo Narain Singh v. Kami a Devi ( AIR 1954 SC 280 ) wherein the learned Judges held as follows: “The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is no within the purview of the Probate Court. It is surprising how this elementary principle of law was overlooked by both the Courts below.” 17. It is unnecessary for us to multiply the citations, when the Apex Court has laid down the principle that the party, who wants to revoke the Letters of Administration cannot do so, unless he establishes, prima facie, the title or right over the property, which is the subject matter of the will or the testament. In this case, as already stated, when the partition deed relied upon by the respondents was not registered, and when, admittedly, the property stood in the name of the testator, it is not open to the respondents to file the application for the revocation of the Letters of Administration. The learned Judge proceeded on the basis that under the partition deed, the respondents are having some title or right over the property under dispute and as such, the appellant ought to have shown them as the respondents in the Original Petition. The failure to do so vitiates the entire proceedings of the issue of Letters of Administration. We are unable to agree with the view taken by the learned Judge for the reasons stated above. Hence, we are of the view that the order of the learned Judge revoking the Letters of Administration issued in favour of the appellant is liable to be set aside. 18. Accordingly, the Original Side Appeal is allowed. Appln. No. 2988 of 2000 in O.P. No. 771 of 1995 stands dismissed. No costs. Consequently, the above CMP is dismissed as unnecessary. 19. Before parting with the case, we would like to point out that the order in the probate proceedings will not be a bar for the respondents to establish their title, if they desire to do so in a separate proceedings. We may be fortified in our view by the judgment in the case of Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai ( AIR 2000 S.C. 2301 = 2000 3 L.W. 247) wherein the learned Judges held as follows: “Any decision made in proceeding under Section 372, for the grant of succession certificate under the Indian Succession Act, would not bar any party to the said proceeding to raise the same issue in a subsequent suit. The decision in succession certificate proceeding does not operate as res judicata.” Hence, it is always open to the respondents to go for a separate proceedings to establish their title.