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2011 DIGILAW 2836 (MAD)

K. Mahalakshmi (deceased) v. T. Rajasekaran

2011-06-17

V.PERIYA KARUPPIAH

body2011
JUDGMENT :- 1. This Application has been filed by the applicants seeking themselves to implead as Applicants 2 and 3 in A.No.4 of 2006 in O.P.No.418 of 2001 as proper and necessary parties and to continue the revocation proceedings in A.No.4 of 2006 in O.P.No.418 of 2001. A.No.6620/2009 This Application has been filed by the applicant, who is the first respondent in A.No.4 of 2006, seeking to re-open the evidence recorded in A.No.4 of 2006 and to recall R.W.2, Mr.S.Thangasamy to subject himself for cross-examination of the applicant/first respondent. 2. Heard Mr.T.V.Ramanujam, learned Senior Counsel appearing for Mr.T.V.Krishnamachari, learned counsel for applicants in A.No.6619/2009 and Mr.M.Kalyanasundaram, learned Senior Counsel appearing for Mr.V.Srinivasan, who is appearing for R1 and R2 in A.No.6619/2009 and applicant in A.No.6620/2009. 3. No appearance for other respondents in both the Applications. 4. Mr.T.V.Ramanujam, learned Senior Counsel, would submit in his arguments that the deceased applicant in A.No.4 of 2006, Mrs.Mahalakshmi is the sister of the second applicant and the third applicant is the husband of the second applicant. He would further submit in his arguments that the deceased Mrs.Mahalakshmi was the wife of one Mr.T.Kanakasekaran and they had no issues and the said deceased Mrs.K.Mahalakshmi was the only legal heir of her husband Mr.T.Kanakasekaran who died on 11.6.1997. He would further submit that the testamentary proceedings in O.P.No.418 of 2001 was clandestinely filed by the first respondent, as if the said Mr.T.Kanakasekaran had executed a registered Will on 18.2.1991 in favour of the respondents 1 and 2 in respect of the properties belonging to him, for issuance of probate on the said Will and the wife of the said Mr.T.Kanakasekaran, Mrs.K.Mahalakshmi (the deceased first applicant) was ranked as first respondent in the said proceedings and she was also stated to have given consent to the testamentary proceedings and accordingly the probate was ordered to be granted by this Court. He would further submit in his arguments that the said issuance of probate was based upon the consent affidavit given by the wife of the said T.Kanakasekaran, to which Mrs.Mahalakshmi herself had filed an Application in A.No.4 of 2006 to revoke the grant of probate for the reasons that the signature found in the consent affidavit said to have been given by the said Mahalakshmi was not belonging to her and the said signature ought to have been created and a forged one. He would further submit that the said application for revocation in A.No.4 of 2006 was taken up for enquiry and the evidence has also been recorded and the applicant was also examined herself and she spoke all the reasons for revocation and in the meanwhile, she died after executing a Will in favour of the applicants in respect of her property on 10.2.2003. He would also submit in his arguments that as per the bequest made in the Will dated 10.2.2003, the applicants have got every right to continue the proceedings and the revocation proceedings shall not become infructuous. He would further submit that it is not necessary to obtain a probate for being a impleaded as legal heir of deceased Mahalakshmi, since the applicants are only at the behest of contesting the proceedings on the foot of the deceased Mahalakshmi and the right over the property of Mahalakshmi could be decided after obtaining a probate. He would draw the attention of the Court to a Judgment of the Honourable Apex Court, reported in (2004) 7 SCC 505 between COMMR. V. MOHAN KRISHAN ABROL in support of his arguments. He would further cite yet another Judgment of the Honourable Apex Court, reported in (2006) 10 SCC 442 , in between BINAPANI KAR CHOWDHURY V. SRI SATYABRATA BASU. Apart from that, he would also draw the attention of the Court towards the principle settled down by the Honourable Apex Court in a Judgment, reported in (2009) 10 SCC 223 between FGP LIMITED V. SALEH HOOSEINI DOCTOR AND ANOTHER relating to applicability of Sections 211 and 213 of the Indian Succession Act, 1925. He has also relied upon the principles laid down by the Patna High Court in the Judgment, reported in AIR 1982 PATNA 208 between ARJUN PRASAD V.BITESHWAR SINGH for the proposition regarding the legacy of the testator to proceed against the L.R of the deceased testator in a testamentary proceedings. 5. The learned Senior Counsel Mr.T.V.Ramanujam would further submit in his arguments that recalling R.W.2 viz. 5. The learned Senior Counsel Mr.T.V.Ramanujam would further submit in his arguments that recalling R.W.2 viz. Mr.S.Thangasamy would arise only on the impleadment and other formalities and therefore, the applicants herein may be ordered to be impleaded as Applicants 2 and 3 in Application No.4 of 2006 in O.P.No.418 of 2001 and thereafter only the Application in A.No.6620 of 2009 could be heard after the submission of objections of the Applicants 2 and 3 as respondents in the said petition and suitable orders be passed thereafter. Therefore, he would request the Court to allow the Application in A.No.6619 of 2009 and to postpone the application in A.No.6620 of 2009 for filing objections and disposal after the impleadment of the applicants. 6. The learned Senior Counsel Mr.M.Kalyanasundaram would submit in his arguments that the claim of the applicants to substitute themselves in the place of Mrs.K.Mahalakshmi, the applicant in A.No.4 of 2006, to revoke the probate order granted in favour of the respondents 2 and 3 cannot be sustained in view of the provisions of Section 213 of the Indian Succession Act, 1925. He would further submit that the Applicants are claiming to be the legatees of deceased Mahalakshmi and they have to establish the truth and genuineness of the Will stated to have executed by the said Mahalakshmi and thereafter only they could have been impleaded as legal representatives of deceased Mahalakshmi. He would also submit in his arguments that the right in the properties will devolve upon the legatees only after the confirmation of its truth and validity before the Court of law in the testamentary proceedings only the right to sue for the applicants would accrue. He would further submit that the applicants have admittedly stated in the affidavit that they are taking steps to get the Will executed by deceased Mahalakshmi, probated and therefore, there is no probate on the said Will till today and in the circumstances, the applicants are not entitled to be substituted in the place of Mahalakshmi to continue the proceedings. He would further submit that the applicants have admittedly stated in the affidavit that they are taking steps to get the Will executed by deceased Mahalakshmi, probated and therefore, there is no probate on the said Will till today and in the circumstances, the applicants are not entitled to be substituted in the place of Mahalakshmi to continue the proceedings. He would refer to the Judgments of the Honourable Apex Court as cited by the learned Senior Counsel appearing for the applicants and argue that the Judgments reported in (2006) 10 SCC 442 , between BINAPANI KAR CHOWDHURY V. SRI SATYABRATA BASU and (2009) 10 SCC 223 between FGP LIMITED V. SALEH HOOSEINI DOCTOR AND ANOTHER would apply to the facts and circumstances of the case and thereby Section 213 of the Indian Succession Act, 1925 would be applicable for the cases coming under the inheritance of property through testaments. He would further submit that the applicants are not the legal heirs of the deceased Mahalakshmi, but for the Will executed by the said Mahalakshmi, and therefore they are also not entitled to pursue the matter on the death of the deceased Mahalakshmi. He would also submit in his arguments that the application for impleadment is a pre-mature one and the applicants are entitled to be substituted in the place of Mahalakshmi only after obtaining the probate as per the terms of the Will. He would also submit in his arguments that the Application in A.No.4 of 2006 has been filed by the first respondent in A.No.6619 of 2009 for recalling R.W.2 viz. Mr.S.Thangasamy for eliciting certain facts. He would further submit that when the application for impleadment of the applicants in A.No.6619 of 2009 is dismissed, there is no necessity for keeping the Application in A.No.4 of 2006 pending and it cannot be proceeded further without examining RW.2 viz. S.Thangasamy and therefore, he would request the Court to dismiss the application in A.No.6619 of 2009 and to pass appropriate orders in the application in A.No.6620 of 2009. 7. I have given anxious consideration to the arguments advanced on either side. 8. S.Thangasamy and therefore, he would request the Court to dismiss the application in A.No.6619 of 2009 and to pass appropriate orders in the application in A.No.6620 of 2009. 7. I have given anxious consideration to the arguments advanced on either side. 8. The indisputable facts are that in a testamentary proceedings filed in O.P.No.418 of 2001 filed by the respondents 1 and 2, seeking for the grant of probate on the foot of the Will said to have been executed by one Mr.T.Kanakasekaran, the probate order was granted on the consent given by respondents 1 to 4 in the said petition. The first respondent, who was the widow of the testator, had raised objections that the said proceedings was clandestinely filed by the respondents 1 and 2 and the signature in the consent affidavit is not hers and it was a fabricated one and on those objections, she filed application for revocation of probate granted by this Court in O.P.No.418 of 2001. The said application has been numbered as A.No.4 of 2006 and the evidence of both sides have been examined. During the pendency of the said application in A.No.4 of 2006, the applicant in A.No.4/2006 viz. Mrs.K.Mahalakshmi (who was ranked as the first respondent in O.P.No.418/2001) died. The applicants in A.No.6619 of 2009 have claimed that the said Mahalakshmi had executed a Will in their favour and therefore, they are entitled to prosecute the application and therefore, it cannot be considered that the said application is ordered as become infructuous. 9. The only contention raised by the respondents 1 and 2 would be that the applicants are not legal heirs as per the Hindu Succession Act to enter themselves as the legal representatives of the deceased applicant and they are claiming the legacy through a Will executed by the deceased applicant on 10.2.2003 and the right claimed under the Will would be available to them only on the approval given by the Court in either probate or letters of administration proceedings. For that, it was relied upon the provisions of Section 213 of the Indian Succession Act, 1925, which would run thus: "213. For that, it was relied upon the provisions of Section 213 of the Indian Succession Act, 1925, which would run thus: "213. Right as executor or legatee when established.- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in Indian has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. (2) This section shall not apply in the case of wills made by Muhammadans [or Indian Christians], and shall only apply- (i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and (ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Court at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits." 10. However, it has been submitted by the learned Senior Counsel Mr.T.V.Ramanujam that the provisions of Section 213 of the Indian Succession Act, 1925 is not applicable to the present case since the applicants have not asked for any right in the property, but they are claiming only to substitute themselves as applicants to prosecute the Application No.4 of 2006. In the Judgment of the Honourable Apex Court cited by him, reported in (2004) 7 SCC 505 in between COMMR. V. MOHAN KRISHAN ABROL, it has been laid down as follows:- "10. A bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the Will. In the case of Kulwanta Bewa v. Karam Chand Soni it has been held that Section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Kulwanta Bewa v. Karam Chand Soni it has been held that Section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v. Supramanian Chetty the Privy Council has held that an executor derives his title from the Will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator. For purposes of deciding this matter, Section 336 of the Act is also relevant as it provides for assent of the executor to the legacy after the death of the testator. It provides that an executor gets divested of his interest as an executor from the death of the testator when he assents to a specific legacy. Section 213 acts as a bar to the establishment of rights under the Will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an executor or a legatee under Will is sought to be established. However, an unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings. ...." 11. In the said Judgment, it has been laid down that the legatees who are vested with the right can act on behalf of the testator but the right over the property will be confirmed on the grant of probate or letters of administration only. In the later Judgment of the Honourable Apex Court, reported in (2006) 10 SCC 442 , in between BINAPANI KAR CHOWDHURY V. SRI SATYABRATA BASU, it has been laid down as follows: "5. ... Section 213 does not come in the way of a suit or action being instituted or presented by the executor or the legatee claiming under a Will. Section 213, however, bars a decree or final order being made in such suit or action which involves a claim as an executor or a legatee, in the absence of a probate or letters of administration in regard to such a Will. Section 213, however, bars a decree or final order being made in such suit or action which involves a claim as an executor or a legatee, in the absence of a probate or letters of administration in regard to such a Will. Where the testator had himself filed a suit (seeking a declaration and consequential reliefs), and he dies during the pendency of the suit, the executor or legatee under his Will, can come on record as the legal representative of the deceased plaintiff under Order 22 Rule 3 CPC and prosecute the suit. Section 213 does not come in the way of an executor or legatee being so substituted in place of the deceased plaintif, even though at the stage of such substitution, probate or letters of administration have not been granted by a competent court." 12. Still, a later Judgment of the Honourable Apex Court, reported in (2009) 10 SCC 223 in between FGP LIMITED V. SALEH HOOSEINI DOCTOR AND ANOTHER has also affirmed the position of law. The relevant portion would be as follows: "46. In this connection, we must see the distinction between Sections 211 and 213 of the Succession Act. Under Section 211 of the said Act, the executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such. Here the legal representatives will have the same meaning as has been given in Section 2(11) of the Code of Civil Procedure. Section 2(11) of the Code of Civil Procedure provides as under: "2.(11) 'legal representative' means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued." 47. Therefore, it is Section 211 and not Section 213 that deals with the vesting of property. This vesting does not take place as a result of probate. On the executor's accepting his office, the property vests on him and the executor derives his title from the will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. This vesting does not take place as a result of probate. On the executor's accepting his office, the property vests on him and the executor derives his title from the will and becomes the representative of the deceased even without obtaining probate. The grant of probate does not give title to the executor. It just makes his title certain. ..... 52. Even if the will is not probated that does not prevent the vesting of the property of the deceased on the executor/administrator and consequently any right of action to represent the estate of the executor can be initiated even before the grant of the probate." 13. When we analyse the principles laid down by the Honourable Apex Court, we could understand from the submission of learned Senior Counsel appearing for the applicants and the affidavit of the applicants filed in support of the applications that the applicants are taking steps to probate the Will executed by the deceased applicant Mrs.K.Mahalakshmi on 10.2.2003. In the said circumstances, the vesting of right on the Will executed by said Mahalakshmi is quite surely empowering the applicants to proceed with the case left by the testatrix in A.No.4/006. 14. The applicants are always entitled to prosecute the case left by the testatrix on the basis of the Will executed by the testatrix decease K.Mahalakshmi. However, on the basis of final order, if any right over the applicants can be claimed, then the Section 213 of the Indian Succession Act, 1925 would come into play and it would require the applicants to produce the probate to exercise the right on the property. 15. Therefore, this Court is of the view that the expression "right" in Section 213 of the Indian Succession Act, 1925 does not include within its ambit of the right to prosecute the suit and it is limited to a right to declare or enforce a right over the property. The applicants as legatees derive by vestiture of the right through the Will executed by the deceased applicant and the said right is recognised under Section 211 of the Indian Succession Act, 1925. Such a right is vested under Section 211 of the Indian Succession Act, 1925 even if the Will is not probated. It can be sufficient for initiating any action to represent the estate or to represent the deceased testator. Such a right is vested under Section 211 of the Indian Succession Act, 1925 even if the Will is not probated. It can be sufficient for initiating any action to represent the estate or to represent the deceased testator. Therefore, it is very clear that the applicants, who are relying upon the Will of the deceased applicant K.Mahalakshmi, dated 10.2.2003, are entitled to be substituted to prosecute the application in A.No.4/2006 in O.P.No.418/2001 filed by the deceased testatrix Mrs.K.Mahalakshmi. The said application filed by the applicants in A.No.6619/2009 is liable to be allowed. 16. As regards the application in A.No.6620/2009, seeking for recalling R.W.2 viz. S.Thangasamy for further cross-examination by the applicant/first respondent in A.No.6619/2009, it can be adjudicated at the stage when the applicants in A.No.6619/2009 have been ordered to be impleaded. After the impleadment of applicants in A.No.4/2006, the present application in A.No.6620/2009 for recalling R.W.2 viz. S.Thangasamy for further cross-examination could be ordered after hearing the objections, if any, on the side of applicants. Therefore, no order is passed in the said application in A.No.6620/009 and it is kept pending for impleadment and consequential amendment due to the orders passed in A.No.6619/2009. 17. In the result, (i) the application in A.No.6619/2009 is ordered as prayed for. (ii) In view of the order passed in A.No.6619/2009, the application in A.No.6620/2009 is kept pending for impleadment of the applicants in A.No.6619/2009 and to dispose the same after hearing their objections. No order as to costs.