Research › Search › Judgment

Madras High Court · body

2009 DIGILAW 2321 (MAD)

N. Sthirasundari & Another v. V. Kalyani & Others

2009-07-13

K.CHANDRU

body2009
Judgment :- Heard Mr.K.M.Vijayan, learned Senior Counsel for the applicants and Mr.R.Yashod Vardhan, learned Senior Counsel appearing for the respondents. 2.The Testatrix, who served as an high ranking Civil servant in the Central Government and the wife of a freedom fighter Late N.Krishnaswamy, (who was incarcerated along with the freedom fighter like Sri.Jamanlal Bajaj), left a Will on her own accord and bequeathed substantial portion of the properties to the Cancer Institute at Chennai. The executors of the Will filed a Original Petition before this court for the grant of probate as soon as the death of the testatrix on 19. 2005. The O.P. which was presented before this Court on 12. 2005 was admitted on 23. 2006. On notice, the respondents 1, 4 and 5 have filed consent affidavits, expressing no objection to the grant. 3. Insofar as the applicants are concerned, they were served on 11.04.2006. Thereafter, when the matter came up on 10.07.2007, this Court directed to print the name of the two applicants, who had filed the caveat before this Court and the matter was directed to be posted on 12.07.2007. It was stated that their counsel M/s.R.Suresh Kumar and R.Sivakumar have filed a caveat on behalf of the applicants. When the matter came up again on 16.07.2007, this Court directed the name of R.Sivakumar, counsel for the respondents 2 and 3 to be printed and the matter was directed to be posted on the week next. Accordingly, the matter came up on 23.07.2007. This Court recorded that the counsel for respondents 2 and 2 who have filed caveat was absent and it was further directed to be adjourned to next week. This matter was finally listed on 31.07.2007. 4. This Court by an order dated 31.07.2007 granted the Probate, which was issued on 11.09.2007. In paragraph 5 of the said order, it was recorded as follows: "5. Although a caveat has been entered on behalf of the second and third respondents, in the absence of any satisfaction of the provisions contained in Rule 54 of Order 25 of the Original Side Rules by filing necessary affidavit, the caveat stands discharged. In any event, as per Rule 56 of order 25 of the Original Side Rules, the caveat shall remain in force only for a period of six months. There is also no appearance by the counsel on behalf of the second and third respondents." 5. In any event, as per Rule 56 of order 25 of the Original Side Rules, the caveat shall remain in force only for a period of six months. There is also no appearance by the counsel on behalf of the second and third respondents." 5. It is against the grant of Probate, these two applications were filed one for the revocation of the probate and the other for the stay of all further proceedings. The first applicant is 87 years old and the second applicant is 80 years old as on date. 6. In the affidavit filed in support of the applications, it was stated that the counsel for the applicants negotiated for a settlement and the talks were in progress. The first settlement talk was held during the last week of May 2006. During the entire period, the applicants counsel were not kept aware of the proceedings before this Court. It was only on 21.09.2007 they came to know about the grant of probate. They have stated that since they were under a bonafide belief that negotiations were on, there would not be any proceedings. Even when this Court directed the name of the caveators counsel to be printed in the cause list, instead of printing the names of both counsels i.e. Mr.R.Suresh Kumar and Mr.R.Sivakumar, the cause list contained only the name of Mr.R.Sivakumar. Hence the matter was not noticed by their counsel. It was also stated that they have a caveat interest in the proceedings in as much as that during the life time of Late T.S.Savithri, she had not created any Will and the signature found in the Will was not that of hers. 7. On notice from this Court, the respondent/original petitioners have filed a counter affidavit resisting the ordering of the application. In the counter affidavit dated 010. 2007, the entire events have been set out chronologically. It was denied that there were any malafide motive in keeping the counsels for the applicant not informed. Despite the name of the counsel shown in the cause list, it was applicants counsel who did not appear. It was also stated that as required under Order 25 Rule 52, no affidavit has been filed within eight days from the date of lodging of the caveat. The allegations that the Will was not that of Late Savithri was denied. Despite the name of the counsel shown in the cause list, it was applicants counsel who did not appear. It was also stated that as required under Order 25 Rule 52, no affidavit has been filed within eight days from the date of lodging of the caveat. The allegations that the Will was not that of Late Savithri was denied. The details regarding the disposal of the immovables were also furnished in the counter affidavit. 8. It must be stated that the applicants have filed the present applications after replacing the earlier counsel. There is no affidavit from the counsels originally engaged for filing the caveat to substantiate their averments. 9. Mr.K.M.Vijayan, learned Senior Counsel appearing for the applicants submitted that since the name of one of the counsel, who had filed vakalat was not shown in the cause list released by the Registry, the entire probate proceedings stands vitiated. He also submitted that there was definite direction by this court to print the names of both the counsels. But the same was not done. In the order sheet entry, dated 10.07.2007, there was a direction to print the names of all the three counsels, who lodged caveat. In a further order, dated 17. 2007, as noted in the docket, there was only a direction to print the name of one of the counsel Mr.R.Sivakumar in the cause list, which admittedly was printed. 10. The learned Senior Counsel submitted that the absence of a counsel due to the reason that his name was not found shown in the cause list released by the Registry is a valid reason for non participation in the proceedings and courts have come to the rescue in such a situation. He relied upon the judgment of the Supreme Court in Swarth Mahto and another vs. Dharmdeo Narain Singh reported in (1972) 2 SCC 273 , wherein he referred to the following passages found in paragraphs 4 and 6 of the said judgment, which are as follows: "4. ...If the name of the advocate who appears in the case is not shown, there would be good reason to think that he had no notice of the case being posted for hearing. Therefore, when an application is later made by the parties who were not heard, it would be an exercise of sound discretion if an opportunity is given to the party who is not heard. 6. Therefore, when an application is later made by the parties who were not heard, it would be an exercise of sound discretion if an opportunity is given to the party who is not heard. 6. ...If after filing his appearance, his name is not shown in the cause list, there was every possibility of Shri Verma not becoming aware of the fact that the appeal had been placed on board for hearing. The learned Judge has come to the conclusion that the application for rehearing of the appeal was not maintainable on the ground that no opportunity had been denied to the appellants of being heard. We are unable to see how it could be said in the circumstances of this case that a fair and reasonable opportunity had been given to the appellants before they were convicted. If by mistake of the court or its Office, the appellants who were respondents in that case were not informed of the date of hearing, it will be unreasonable to hold that an opportunity had been given to them, merely because notice had been issued to them of the appeal some 2-1/2 years earlier. The very idea behind publishing the cause list is to give notice to advocates and the parties that the case in which they were concerned was going to be heard on or after a particular day. Where no such notice had been given, it will be idle to say that no opportunity had been denied." 11. He further placed reliance upon a decision of the Supreme Court in G.Raj Mallaiah and another Vs. State of A.P. reported in (1998) 5 SCC 123 for the very same proposition and relied upon the following passages found in paragraphs 5 and 6 of the said judgment, which are as follows: "5. It is no doubt true that it is open to the court to dispose of an appeal on merits even in the absence of the learned counsel appearing for the parties when the case is set down for hearing and the advocate or the party concerned does not appear. It is no doubt true that it is open to the court to dispose of an appeal on merits even in the absence of the learned counsel appearing for the parties when the case is set down for hearing and the advocate or the party concerned does not appear. However, when the learned counsel could not appear before the court not on account of the fault either of the appellant or the advocates themselves, but on account of mistake committed by the Registry of the High Court in not showing the names of the counsel in the cause list properly and the counsel not being aware of the listing of the case before the court in such a matter we do not think that the principle should be extended. 6. ... In the present case the case was set down for hearing on different dates without notifying the names of the advocates appearing for the appellant, but showing the name of the advocate who had retired from the case. Therefore, it could not be stated that the appellant or his advocate had notice of hearing of the case on the dates set down for hearing. Hence, we must hold that the decision in the case without hearing the appellants or their advocate has resulted in miscarriage of justice and the principle stated in the decision in Bani Singh v. State of U.P. does not come in the way of the view we have expressed in this case." 12. These two decisions arose out of Criminal Procedure Code. He also relied on a decision of the Supreme Court in Hari Shankar Vs. Gobind Parshad Jagdish Parshad and others reported in (2001) 10 SCC 301 which arose out of rent control proceedings and placed reliance upon paragraphs 6 and 7 of the said judgment, which are as follows: "6.The short question that arises for consideration is: whether not showing the name of the advocate for the appellant herein in the “cause list” is a sufficient cause to set aside the ex parte decree under Order 9 Rule 13 of the Civil Procedure Code. 7. It is a general practice in the High Courts that the advocates identify their case in the “cause list” of the day. 7. It is a general practice in the High Courts that the advocates identify their case in the “cause list” of the day. An advocate’s non-appearance in a case when the case is taken up on the ground that his name was not shown in the “cause list” is indeed a sufficient cause. (See G. Raj Mallaiah case.) However, the High Court remarked that the advocate did little more than filing the vakalatnama and that the appellant was negligent and cavalier in prosecuting his case. In our view those remarks would be relevant in a case where in spite of showing the name in the “cause list” the advocate did not appear. In a case where the name has not been shown in the “cause list” the petitioner or his counsel cannot be found fault with for non-appearance. In this view of the matter, we set aside the order under challenge and restore the second appeal to the file of the High Court, to be heard and decided afresh, in accordance with law." 13. There is no quarrel with the propositions laid down in these three decisions cited by the learned Senior Counsel. But, in the fact situation, one of the counsel name, which was directed to be printed in the cause list, was also printed. Despite such name being found, the counsel did not appear. Therefore, these decisions have no relevance to the facts on hand. Even the absence of the counsel was not supported by any affidavit from the then counsel on record. It must be noted that though a caveat was lodged by the applicants, they have not filed any affidavit within 8 days in terms of Order 25 Rule 52 of the Original Side Rules and the caveat itself was allowed to be lapsed. Therefore, by filing an application of this nature, they cannot dislodge the probate granted already. 14. To counter this objection, the learned Senior Counsel relied upon the Division Bench judgment of this court in CT.Ramasamy Vs. SP.Kaveri Achi reported in 2002-4-LW-681. In that case, the Division Bench, after analyzing the relevant rules applicable to the probate proceedings incorporated in the Original Side Rules of the Madras High Court, in paragraph 12 framed the following two questions for consideration: "12. SP.Kaveri Achi reported in 2002-4-LW-681. In that case, the Division Bench, after analyzing the relevant rules applicable to the probate proceedings incorporated in the Original Side Rules of the Madras High Court, in paragraph 12 framed the following two questions for consideration: "12. The question for consideration in this appeal are: .(i) Whether by virtue of the expiry of the Caveat filed by the respondent on 27. 2001 on the expiry of six months period as contemplated under Rule 56 of Order XXV of the Original Side Rules, the application for condoning the delay in filing the affidavit is not maintainable? .(ii) Whether the court has jurisdiction to condone the delay during the life time of the Caveat even though the period fixed under the Rules for filing such affidavit expired?" 15. In answer to the said queries, in paragraph 17, the Division Bench observed in the following lines:- "17. The next question arises for consideration is whether the respondent who has been invited to the court through the notice served on her in the main O.P can be driven away without giving any opportunity to defend the claim of the appellant; especially when the notice is sent to her only for the purpose of answering the claim of the appellant. The purpose of filing the Caveat and the filing of the affidavit in support of the Caveat is contemplated in Rule 55 of Order XXV of the Original Side Rules. As per the said Rule, upon the affidavit in support of the caveat being filed, the proceedings shall be numbered and registered as a suit in which the petitioner in the main O.P shall be the plaintiff and the caveator shall the defendant. As per the said Rule, upon the affidavit in support of the caveat being filed, the proceedings shall be numbered and registered as a suit in which the petitioner in the main O.P shall be the plaintiff and the caveator shall the defendant. The testamentary proceedings being summary in nature, when an objection has been filed putting forth interse claim, then the nature of the proceedings is being changed into an ordinary suit and the O.P is converted into T.O.S. Admittedly Rules 51 to 57 of Order XXV of the Original Side Rules which relates to the filing of the caveat and the affidavit in support of the caveat, either before filing the O.P or after the filing the O.P. as well as after the receipt of the notice in the O.P. do not prescribe any time limit for filing the caveat by the caveator where an application has already been made for the grant of probate or letters of administration. In fact Rule 56 of Order XXV gives the liberty to the caveator to renew the caveat from time to time. The renewal arises if the application is filed before the expiry of the earlier caveat. If no application is made for renewal and the caveat is of no effect by virtue of the expiry of the period, then there is no bar under the procedural law for the caveator or the respondent in the application for the grant of the probate or letters of administration from filing a fresh caveat; especially in the absence of any time limit for the same." 16. However, it must be noted that as can be seen from paragraph 20 of the said judgment, the said application was filed even during the pendency of the OP and therefore, the court held that the order of the single Judge in refusing to entertain the application filed with an application for condonation of delay of 229 days in filing the affidavit in support of the caveat was set aside. That is not the case before this Court. 17. On the contrary, the applicants have filed a caveat, but did not take any steps to file any affidavit in terms of Order 25 Rule 52 of the Original Side Rules either on time or after taking leave of this court to file it beyond stipulated time. 18. That is not the case before this Court. 17. On the contrary, the applicants have filed a caveat, but did not take any steps to file any affidavit in terms of Order 25 Rule 52 of the Original Side Rules either on time or after taking leave of this court to file it beyond stipulated time. 18. Mr.R.Yashod Vardhan, learned Senior Counsel appearing for the respondents countered these submissions, by relying upon the decision of the Calcutta High Court in In the Goods of Nanda Lal Sett, (deceased) reported in AIR 1955 Calcutta 88. He relied upon the passage found in paragraph 8 to show that if an affidavit is not filed within the time prescribed in the Rule, the caveat itself is liable to be discharged. He relied upon the following passage found in paragraph 8 of the said judgment, which may be usefully extracted below: "8. There is no procedure under the Indian Succession Act requiring an affidavit in support of the caveat to disclose the grounds of objection to the grant. This is where the procedure relating to grant of probate in this High Court is different from that under the India Succession Act. Under the Rules of the Original Side of the High Court the caveator has to file an affidavit which must not only disclose his right and interest in the estate of the deceased testator, but also the grounds of objection. The penalty for not making the requisite affidavit within the time specified by the rules is discharge of the caveat itself. ..." 19. The learned Senior Counsel also submitted that every application for revocation of probate need not be treated as suit as contemplated under Section 295 and the present application is devoid of merit. He also relied upon the following passage found in paragraph 7 of the judgment of the Supreme Court in Nalini Navin Bhagwati and others vs. Chandravadan M.Mehta reported in AIR 1997 SC 1055 , which reads as follows: "7. ... it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as contemplated under Section 295 of the Act. ... it is not necessary that the application for revocation of the probate or letter of administration would be treated as a suit as contemplated under Section 295 of the Act. If the contention of Shri Puri merits acceptance, then any proceedings under the application to revoke the probate or letter of administration should be treated as a suit: the applicant cannot prove the Will and at the same time cannot contend that the Will was not validly executed. Therefore, it would be self-contradictory to adopt such a procedure. Accordingly, we are of the view that the procedure required under Section 295 need not be adopted for disposal of the application filed under Section 263 for revocation of the probate or the letter of administration. It would be treated as miscellaneous application and disposed of as indicated earlier according to the given fact-situation. In fact, the Bombay High Court came to consider the question, not directly on this issue but in an analogous situation in Narbheram Jivram Purohit v. Jevallabh Harjivan. Therein, the learned Single Judge had held that the proper procedure for revocation of probate granted by the High Court is by way of a petition filed in the testamentary and intestate jurisdiction of the court, and not by way of suit in its Ordinary Original Civil Jurisdiction. In other words, the court indicated that it need not be treated as a suit on the original side of the court but it could be disposed of as an application independent of the suit. Thus, we hold that the High Court was clearly in error in reaching the conclusion that it should be treated as a suit and disposed of under Section 295." 20. In the light of the rival submissions, it has to be seen whether the applicant had made out a case for entertaining their prayer. 21. The Supreme Court in Gurdial Kaur and others Vs. Kartar Kaur and others reported in 1998 (2) MLJ (SC) 128 dealt with the circumstances under which a Will can be attacked on suspicious circumstances as well as as to whom the onus lay for proving the same. 21. The Supreme Court in Gurdial Kaur and others Vs. Kartar Kaur and others reported in 1998 (2) MLJ (SC) 128 dealt with the circumstances under which a Will can be attacked on suspicious circumstances as well as as to whom the onus lay for proving the same. The following passages found in paragraphs 3 and 4 of the said judgment may be usefully extracted below: "3.The law is well-settled that if there is suspicious circumstance about the execution of the Will, it is the duty of the person seeking declaration about the validity of the Will to dispel such suspicious circumstances. In this connection, reference may be made to the decision of this Court in Rani Purnima Debi and another v. Kumar Khagendra Narayan Deb and another, A.I.R. 1962 S.C. 567 : (1962) 1 S.C.J.725: (1962) 1 M.L.J. (S.C.) 27: (1962) 3 S.C.R. 195 . It has been held in the said decision that if a Will being registered and having regard to the other circumstances, is accepted to be genuine, the mere fact that the Will is a registered Will it will not by itself be sufficient to dispel all suspicions regarding the validity of the Will where suspicions exist. It has been held that the broad statement by witness that he had witnessed the testator admitting execution of the Will was not sufficient to dispel suspicions regarding due execution and attestation of the Will. It has been specifically held that registration of the Will by itself was not sufficient to remove the suspicion. Relying on an earlier decision of this Court reported in H.Venkatachala v. B.N.Thimmajamma, A.I.R. 1959 S.C. 443, it has been held in the said decision that where the propounder was unable to dispel the suspicious circumstances which surrounded the question of valid execution and attestation of the Will, no letters of administration in favour of the propounder could be granted. 4. The law is well-settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free violation of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance the obligation is cast on the propounder of the Will to dispel suspicious circumstance. ...." .22. Merely because the testatrix had excluded the right to succeed to the estate of the testatrix on a claim of reversionary right under the Hindu Succession Act, that itself cannot be a ground for doubting the Will. In the present case, the OP was filed by the younger sister of the Testatrix along with her husband and daughter. The present applicants are the two elder sisters of the testatrixs predeceased husband. Even one of the sister N.Alamelu (R1) in the O.P. had filed her consent affidavit for the grant of probate. In this context, it is necessary to refer to the judgment of the Supreme Court in Krishna Kumar Birla Vs. Rajendra Singh Lodha and others reported in (2008) 4 SCC 300 , wherein the prejudice arguments were rejected. The following passage found in paragraph 187 of the said judgment may be usefully extracted below: ."187. ...Why an owner of the property executes a will in favour of another is a matter of his/her choice. One may by a will deprive his close family members including his sons and daughters. She had a right to do so. The court is concerned with the genuineness of the will. If it is found to be valid, any further question as to why did she do so would be completely out of its domain. A will may be executed even for the benefit of others including animals...." .23. In the present case, the testatrix was a retired Civil servant and held a senior position and she had bequeathed substantial portion of the property to charitable purpose. She had made conscious decision to part with the properties. Unless there are unimpeachable grounds set out and substantial caveat interest is shown, this Court cannot, on mere asking for it will set aside a grant of probate, which was otherwise validly granted by the court in accordance with law. In a similar context, a Division Bench of this court in the case relating to K.Sadagopan Vs. K.Yamunan reported in 2002 (2) CTC 641 , in paragraph 18 observed as follows: ."18. In a similar context, a Division Bench of this court in the case relating to K.Sadagopan Vs. K.Yamunan reported in 2002 (2) CTC 641 , in paragraph 18 observed as follows: ."18. In the matter of writing wills, the language employed in making known ones intention, the brevity or the proloxity in making that intention known, the things to which reference is made or omitted, are all matters entirely for the testator to decide. The law does not prescribe a standard format which every testator should comply with when he or she writes a will. All that the law requires is that the will be executed by the testator when he is in a fit and disposing state of mind; that the will record his intention and that such a will be attested. The requirements of law were fully met when the testator executed the will and had the same attested." 24. The absence of the counsel on the hearing of the probate cannot be condoned. In the same way, there is no substantial caveat interest expressed by the applicants so as to throw any suspicion on the will executed by the testatrix. Merely because there are negotiations which run parallel to the court proceedings between some of the parties, that itself cannot be a ground to doubt the Will. The applicants, who have lost their right to file an objection after being notified by this court, cannot maintain the present applications as the second opportunity for revoking the probate and that too by allegations which are not germane to such proceedings. 25. In the light of the same, both the applications stand dismissed with cost. The applicants are directed to pay a sum of Rs.5000/-(Rupees five thousand only) to the Cancer Institute, Adyar, Chennai, since for the very same purpose, a substantial portion of the testatrixs property was also gifted and similar exercise was done by the Supreme Court in K.K.Birlas case (cited supra, Paragraphs 198 and 199).