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Madras High Court · body

2012 DIGILAW 1964 (MAD)

. v. .

2012-04-18

V.PERIYA KARUPPIAH

body2012
Judgment : 1. A.No.3619 of 2006: This application has been filed by the applicants seeking to revoke the grant of Letters of Administration with Will annexed made in O.P.No.585 of 2003 dated 11.02.2004. 2. A.No.3620 of 2006: This application has been filed by the applicants seeking for the stay of the operation of the order made in O.P.No.585 of 2003 dated 11.02.2004 pending disposal of the application for revocation of the grant of Letters of Administration. 3. Heard, Mr. Mr. R. Thiagarajan, learned counsel for the applicants in both the applications and Mr. M.S.Mani, learned counsel for the respondents. 4. The learned counsel for the applicants would submit in his argument that the applicants are 3rd parties, who filed an application for revocation of Letters of Administration granted by this Court in O.P.No.585/2003 dated 11.02.2004, on the petition filed by the respondents. He would further submit that the respondents filed the said petition under Section 232 and 276 of the Indian Succession Act on a claim that they are the children of one late C.Veerabadhra Chettiar, who was working as a clerk under one B.Srinivasa Rao, an Advocate, who was stated to have executed an undated Will, in the month of October 1980, in favour of the said C.Veerabadhra Chettiar, in the presence of two witnesses and the said Will came into force after the death of B.Srinivasa Rao, on 17.10.1980 at Chennai. He would further submit that the claim of petitioners in that petition was that the said C.Veerabadhra Chettiar was the sole beneficiary to the said Will and he died on 06.12.1997 and the said C.Veerabadhra Chettiar did not seek for probating the Will during his life time and the petitioners have filed the Letters of Administration in O.P.No.585 of 2003 on 07.08.2003, by saying that they were not aware of the Will. He would further submit that the said second petitioner in the O.P., namely V.Ethirajan was working as a class-IV employee in this Court and he had projected the Will, after the life time of his father along with his sisters, after the said Will was fabricated by the 2nd respondent who was the 2nd petitioner in the said original petition and without citing the necessary parties to be cited under Form-59 of O.S.Rules. He would further submit that the petitioners/3rd parties are claiming right in the suit property which was said to have been bequeathed under the said Will, by virtue of a sale deed, in favour of late Anandan and therefore, they have got right in the property and they have got interest in the said property, at the time of passing an order of grant of Letters of Administration. He would further submit in his argument that according to Section 263 of Indian Succession Act, the grant of an order or Letters of Administration can be annulled in just cause and if just cause is shown, the order of grant of Letters of Administration could be resorted. He would further submit that the applicants have interest in the suit property, by virtue of purchase of the suit property and if any slightest right is available to any person, such person can question the grant of Letters of Administration, on the ground of not citing him as one of the parties to the proceedings. He would also submit that the applicants have got the caveatable interest for being cited as parties to the proceedings and the respondents as petitioners in O.P.No.585 of 2003 did not cite the applicants as respondents even though they were having interest at the time of filing the O.P. He would also submit that according to Section 263 (c) of Indian Succession Act, the grant of Letters of Administration was on the basis of un-true allegations that there was no other kith or kin of the deceased to give notice in the Letters of Administration proceedings and the respondents did not say any valid reason for the purpose of not issuing notice to the interested parties. He would also submit that next kin of the deceased alleged testator B.Srinivasa Rao were not listed as required in Form-59 of the O.S.Rules and they were not made as parties. He would also submit that even otherwise, the kith and kin of the alleged deceased legatee C.Veerabadhra Chettiar were not completely shown as parties. He would also submit that next kin of the deceased alleged testator B.Srinivasa Rao were not listed as required in Form-59 of the O.S.Rules and they were not made as parties. He would also submit that even otherwise, the kith and kin of the alleged deceased legatee C.Veerabadhra Chettiar were not completely shown as parties. He would further submit that the minor children of the deceased son Shankar were not impleaded even though the wife of Shankar was ranked as 4th petitioner in the O.P. He would further submit that the said children of the deceased Shankar and 4th petitioner were also shown as legal representatives of the beneficiary the deceased C.Veerabadhra Chettiar, the alleged legatee of the Will and they ought to have impleaded as petitioners or respondents but they were not found impleaded in the main O.P. He would also submit that the applicants who have purchased the property and are having interest in the said property can also seek for citation in the proceedings and if they raised any contention, the said proceedings should have been converted into a contentious proceedings namely Testamentary Original Suit. He would further submit that it is curiously noted that the said C.Veerabadhra Chettiar during his life time did not seek for probate of the alleged Will but the alleged Will was sought to be produced in the Letters of Administration proceedings, sheerly after 23 years that to after his death. He would further submit that the Will has no date and the testator was stated to have died on 17.10.1980 and therefore, there is a serious doubt regarding the execution of the Will, in which the petitioners herein are having interest. He would further cite a judgment of this Court reported in 1992 (1) MLJ 210 (S.D.Ponnusamy Mudaliar v. S.K.Somasundaram) for the proposition that when the probate proceedings was shrouded with suspicious circumstances and the person who was having an interest in the property was not served with citation it could be set aside at the instance of the persons having such interest in the property. He would also cite a judgment of the Hon'ble Apex Court reported in 2008(10) SCC 489 (G.Gopal v. C.Baskar and others) for the dictum that the person having even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate or Letters of Administration. He would also cite a judgment of the Hon'ble Apex Court reported in 2008(10) SCC 489 (G.Gopal v. C.Baskar and others) for the dictum that the person having even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate or Letters of Administration. He would also cite a judgment of this Court reported in AIR 2011 Madras 269 (E.Sankaran v. Mrs. Krishnaveni & another) for the principle that the non-impleadment of the kith and kin of the testatrix who are having caveatable interest is also a just cause for revocation of the probate. He would also submit in his argument that there were suspicious circumstances shrouded the Will which has no date and the attesting witnesses were not seemed to have been examined and the Will which was not propounded by the alleged legatee during his life time, but, it has been produced by the legal representatives of the legatee, for the grant of Letters of Administration, was sheerly with the fraudulent activity of the 2nd respondent/petitioner, who was working in this Court and therefore, the revocation should have been ordered. He would also submit that the grant of Letters of Administration was stayed by this Court on the ground that a huge fraud has been committed in getting the grant of Letters of Administration and therefore, the grant of Letters of Administration, on 11.02.2004 has to be revoked and the proceedings may be directed as contentious proceedings, impleading the petitioners as well as the legal representatives of the deceased Shankar as parties and be proceeded in the form of Testamentary Original Suit. He would therefore, request the Court that the applications may be allowed. 5. The learned counsel for the respondents would submit in his argument that the respondents were the petitioners, who filed O.P. No.585 of 2003 for the grant of Letters of Administration. The respondents had complied with all the formalities in filing the testamentary proceedings and they have explained the delay of 23 years in the petition, which was also accepted by the court and the attestors were dead and necessary affidavits have also been filed and the Will has been proved in accordance with law and the Letters of Administration was granted. He would further submit that the petitioners who are claiming to be the purchasers need not be shown as persons to be impleaded. He would further submit that the petitioners who are claiming to be the purchasers need not be shown as persons to be impleaded. He would also submit that the third parties cannot have any caveatable interest for questioning the grant of Letters of Administration and the judgment of Hon'ble Apex Court reported in 2008(10) SCC 489 (G.Gopal v. C.Baskar and others) was referred to regarding the point of law as to whether the persons who have got interest in the property can file revocation petition under Section 263 of Indian Succession Act. He would further submit in his argument that the judgment of this Court reported in 1992 (1) MLJ 210 (S.D.Ponnusamy Mudaliar v. S.K.Somasundaram) is subject to the reference made in the Supreme Court's larger Bench as reported in AIR 2010 (5) SCC 157 (Jagjit Singh and others v. Pamela Manmohan Singh) and therefore, the petitioners cannot have any caveatable interest for questioning the probate proceedings, on the mere holding of interest, by virtue of the purchase. He would also submit that the petitioners in OP have impleaded necessary parties in the petition and the minors being represented by the mother/4th petitioner need not be impleaded in the proceedings. He would also submit that the kith and kin of the deceased were rightly mentioned in the petition itself and the non-impleadment of minors would not in any way vitiate the proceedings. He would further submit that the Will, without date need not be considered as a fake one since it was clearly mentioned about the same in the petition itself and the date of death of the testator was also after the said date of execution of the Will, there is no suspicious circumstance for undating of the Will. He would also submit that the formalities for filing the Letters of Administration were clearly followed and this Court was pleased to order the grant of Letters of Administration. He would further submit that there is no necessity for the petitioner being impleaded as they have no caveatable interest in the said property. He would further submit in his argument that the title dispute, with regard to the suit property cannot be entertained in TOS and it is the domain of the Civil Court. He would further submit that there is no necessity for the petitioner being impleaded as they have no caveatable interest in the said property. He would further submit in his argument that the title dispute, with regard to the suit property cannot be entertained in TOS and it is the domain of the Civil Court. He would also submit in his argument that the dispute in between parties and the right over the suit properties can be tested in the said proceedings only and it cannot be done in a testamentary proceedings like this. He would also submit that the right flowing from the Will can also be justified in the Civil Court and the interest of the third party namely buyer cannot be adjudicated in a testamentary proceedings, in which the factum of execution of the Will alone to be considered in between the persons, who are having ceaveatable interest and the beneficiaries in the Will. He would also submit that the petitioners admittedly third parties, who claim to have purchased the property cannot have any caveatable interest and therefore, he has no locus standi to file the revocation petition. He would further submit that no fraud has been committed in bringing up the Will of the testator and therefore, there need not be any further contentious proceedings to decide the genuineness of the Will. He would further submit that the third party cannot question the non-impleadment of the persons who ought to have been impleaded in the proceedings and therefore, the claim of the applicants to have a revocation of the Letters of Administration may not be entertained and therefore, it may be dismissed. 6. I have given anxious thoughts to the arguments advanced on either side. 7. The petitioners are admittedly the third parties claiming the property through a purchase. The petitioners on the foot of the right and interest created in the suit property have asked for the revocation of grant of Letters of Administration, on a ground of not giving any notice to the petitioners as well as on the ground of fraudulent creation of the Will. The petitioners on the foot of the right and interest created in the suit property have asked for the revocation of grant of Letters of Administration, on a ground of not giving any notice to the petitioners as well as on the ground of fraudulent creation of the Will. It has been alleged that the 2nd petitioner in the original petition(2nd respondent) had manipulated the Will for the purpose of grabbing the property from the hands of the petitioners as if it was bequeathed by the testator B.Srinivasa Rao, 23 years back in favour of the father of the petitioners namely C.Veerabadhra Chettiar. It is an admitted fact that the said C.Veerabadhra Chettiar did not take any steps to probate the Will, said to have been executed by Srinivasa Rao during his life time. The said testator died on 17.10.1980. At the same time, the Will was stated to have been executed by him in the presence of two witnesses in the month of October 1980. Admittedly, the said Will was not bearing any specific date. The said Will can be considered to have been executed at any date of October 1980 since there is no specific date mentioned in the said Will, but the death certificate of Srinivasa Rao produced would show that he died on 17.10.1980. In the said circumstances, the evidence of the attestors are essential for the proof of the fact that the Will was executed prior to 17.10.1980, by the said Srinivasa Rao, in the presence of two attesting witnesses in a sound and disposing state of mind. It has been stated in the petition that both the attestors died. However, the 1st attestor's death certificate was produced and second attestor's death certificate has not been produced and an affidavit of one Mr. M.S.Mani, has been produced who is none other than counsel for the petitioners in the original petition(respondents). Whether such circumstances could be considered that it was sufficient to hold that both the attestors were died and the other evidence could be produced for the proof of the Will and the Will has been properly proved before the Court, are the questions. On a perusal of the order passed by this Court, I could not see whether any witness was examined to identify the signature of the attesting witness so as to prove the attestation. 8. On a perusal of the order passed by this Court, I could not see whether any witness was examined to identify the signature of the attesting witness so as to prove the attestation. 8. In the said circumstances, the grant of Letters of Administration was ordered, on the basis of an un-dated Will and in support of the affidavit shown by the third party Mr. M.S.Mani and on the publications made in the papers, the said Will is said to have been executed, some 23 years back by the alleged testator Srinivasa Rao. Admittedly, the legatee was an Advocate Clerk under the testator but he not take steps to probate the Will during his life time and he also died. After the life time of the alleged legatee, the legal representatives of the legatee are said to have taken steps for the grant of Letters of Administration. 9. According to Order 25 Rule 5 of O.S.Rules, the application for Letters of Administration with Will shall be in accordance with Form-59. In Form-59 of Appendix-II, we could see that the reference as to the next of kin of the deceased testator should have been stated in the petition but the petitioners did not state about the next of kin of the testator B.Srinivasa Rao in their petition. However, they have mentioned about the next of kin of the legatee, who did not apply for the probate of the said Will during his life time. The reference as to the next of kin of the legatee is not necessary, in view of Form-59. But, the particulars of next of kin of the deceased testator alone should have been furnished. If really, the testator had no next of kin, the said particulars should have been given in the petition as per Form-59 of Appendix – II. Admittedly, there was no mentioning of such requirement as per Form-59 of the Appendix-II, by the petitioners in the original petition(respondents herein). 10. As regards the requirements of just cause for revocation or annulment of the grant of Letters of Administration, it has been enlisted under Section 263 of Indian Succession Act. For appreciating the claim of the petitioners, the entire provisions of Section 263 is required to be extracted as follows:- 263. Revocation or annulment for just cause.- The grant of probate or letters of administration may be revoked or annulled for just cause. For appreciating the claim of the petitioners, the entire provisions of Section 263 is required to be extracted as follows:- 263. Revocation or annulment for just cause.- 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 (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. Illustrations I. The Court by which the grant was made had no jurisdiction. II. The grant was made without citing parties who ought to have been cited. III. The Will of which probate was obtained was forged or revoked. IV. A obtained letters of administration to the estate of B, as his widow, but it has since transpired that she was never married to him. V. A has taken administration to the estate of B as if he had died intestate, but a Will has since been discovered. VI. Since probate was granted, a later Will has been discovered. VII. Since probate was granted, a codicil has been discovered which revokes or adds to the appointment of executors under the Will. VIII. The person to whom probate was, or letters of administration were, granted has subsequently become of unsound mind." 11. As per illustration No.ii, it is mentioned that the grant was made without citing parties who ought to have been cited in the petition is a relevant point to be considered. Whether it is a case of grant of probate or Letters of Administration, who are the parties is the question. As per illustration No.ii, it is mentioned that the grant was made without citing parties who ought to have been cited in the petition is a relevant point to be considered. Whether it is a case of grant of probate or Letters of Administration, who are the parties is the question. Even if the Will is true and the legatee C.Veerabadhra Chettiar would get the property as a legatee and on the death of the said C.Veerabadhra Chettiar, all his legal representatives would be the persons to join with for getting Letters of Administration. But the petitioners 1 to 4 in the original petition were only impleaded as petitioners and the other legal representatives namely the minor children of the 4th petitioner and the deceased son, Shankar were not admittedly impleaded as parties. Even though they are minors, they ought to have been shown as petitioners or respondents represented by the natural guardian 4th petitioner or if 4th petitioner was not willing, some other next friend may be shown as next friend / guardian and be impleaded as parties because they were also interested parties in the property in case the Letters of Administration has been granted. Admittedly, they were not impleaded nor they have not come forward with the revocation of the Letters of Administration granted. 12. Now, the petitioners who are the purchasers of a portion of the property have come forward with the request of revoking the Will under Section 263 of Indian Succession Act. They claim, on yet another ground that the grant of Letters of Administration was obtained fraudulently by making a false citation and by concealing from the Court something material to the case. It is not necessary that the persons who have got caveatable interest alone, should come to Court for revoking a grant. The said requirement of caveatable interest can be applied for non-impleadment of necessary parties, who ought to have been cited or for other grounds to revoke the Will, when they are required to be impleaded. In this case, the applicants who have got interest through purchase can freely raise the grounds of fraud in the grant of the Letters of Administration. Admittedly, the minor children of the deceased Shankar and 4th petitioner in the original petition were not added as parties, who ought to have been cited as parties. In this case, the applicants who have got interest through purchase can freely raise the grounds of fraud in the grant of the Letters of Administration. Admittedly, the minor children of the deceased Shankar and 4th petitioner in the original petition were not added as parties, who ought to have been cited as parties. The death certificate of another attestor was not produced to bring it to the notice of the Court but a 3rd party affidavit has been filed and no witness has been examined to prove the hand writing of the attestor and the Will was produced after a lapse of 23 years, and the same was not produced by the legatee C.Veerabadra Chettiar, even though, he was working as a vakil's clerk. 13. In the backdrop of the case, when we analyse the case of the applicants it is seen that the applicants are having some interest in the property through purchase. The judgment of Hon'ble Apex Court reported in 2008(10) SCC 489 (G.Gopal v. C.Baskar and others) laid down the following proposition. "5. The only question that was agitated before us by Mr. Thiagarajan, learned counsel appearing for the appellant challenging the judgment of the High Court revoking the probate granted in respect of the Will executed by the testator, was that the respondents having no caveatable interest in the estate of the deceased, the application for revocation filed by them could not be allowed. We are unable to accept these submissions made by Mr. Thiagarajan, learned counsel appearing on behalf of the appellant only for the simple reason that admittedly the respondents were grandchildren of the testator and they have claimed the estate of the deceased on the basis of a settlement deed executed by the testator himself which admittedly was revoked by the testator. That being the position, we must hold that the respondents had caveatable interest in the estate of the testator and, therefore, they are entitled to be served before the final order is passed. It is well settled that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the will of the testator." 14. It is well settled that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the will of the testator." 14. On the basis of the aforesaid judgment, it was argued that the applicants, who are having interest, by virtue of purchase are also entitled to be considered as persons having caveatable interest as per illustration No.(ii) of Section 263 of Indian Succession Act. However, in the judgment of Hon'ble Apex Court reported in AIR 2010 (5) SCC 157 (Jagjit Singh and others v. Pamela Manmohan Singh), the aforesaid judgment reported in 2008(10) SCC 489 (G.Gopal v. C.Baskar and others) has been compared with yet another judgment of Hon'ble Apex Court reported in 2008 (4) SCC 300 and the matter was referred to a larger Bench. The relevant portion of the said judgment as described in paras 21 and 22 reads as follows:- "21. It is thus evident that apparently conflicting views have been expressed by the coordinate benches of this Court on the interpretation of the expression "caveatable interest ". In Krishna Kumar Birla case the Bench did not approve the judgments of the Calcutta High Court in Bhobosoonduri was held that any person having some interest in the estate of the deceased can come forward and oppose the grant of probate. As against this, in G.Gopal case, the dictum that a person who is having a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate has been reiterated. 22. This being the position, we feel that the issue deserves to be considered and decided by a larger Bench. The Registry is directed to place the matter before the Hon'ble the Chief justice for appropriate order." 15. Therefore, this Court cannot either approve that the applicants who are having slightest interest by virtue of purchase would also have caveatable interest or they cannot maintain the application in view of the judgment of Hon'ble Apex Court reported in 2008 (4) SCC 300 . As per the judgment of this Court reported in 1992 (1) MLJ 210 (S.D.Ponnusamy Mudaliar v. S.K.Somasundaram) it could be considered only after the settlement of law by the Hon'ble Apex Court. 16. As per the judgment of this Court reported in 1992 (1) MLJ 210 (S.D.Ponnusamy Mudaliar v. S.K.Somasundaram) it could be considered only after the settlement of law by the Hon'ble Apex Court. 16. However, this Court can indulge in deciding the other points regarding fraud as well as the other ground of non-citation of necessary parties. When the un-dated Will produced after 23 years without citing the legal representatives of the legatee as interested party in the proceedings as per illustration No.(ii) of Section 263 of Indian Succession Act and the death of one of the attesting witnesses was not proved through filing a death certificate which is a conclusive proof but was accepted on the affidavit of 3rd party namely Mr. M.S.Mani, who is none other than the counsel for the petitioner in OP, I could see that the propounding of the Will by the petitioners in the testamentary proceedings in O.P.No.585 of 2003 is "prima facie" shrouded by suppression of facts and citations were also omitted in the petition so as to obtain the grant of Letters of Administration, by fraudulent means from the Court. However, such prima facie case of misguiding this Court could have been confirmed only in a full-fledged trial by giving opportunity to the petitioner, who is said to have interest through a purchase to establish the alleged fraudulent activity of the petitioners in main O.P. No doubt, the citable parties namely the minor children of 4th petitioner and the deceased Shankar ought to have been impleaded as parties to the proceedings apart from the petitioners being impleaded as parties. In the said circumstances, the absence of the impleadment of the minor children of 4th petitioner having caveatable interest and the establishment of prima-facie case of fraud would go to show that there are just causes established as per clause(b) of explanation and illustration No.(ii) of Section 263 of the Act and it would be sufficient for this Court to order revocation of the Letters of Administration granted by this Court on 11.02.2004. 17. 17. For the foregoing discussion, I am of the considered view that the applications filed by the applicants in A.Nos.3619 of 2006 to revoke the grant of Letters of Administration passed in O.P.No.585 of 2003 on the un-dated Will during October 1980 ought to have been allowed and the order passed by this Court in granting Letters of Administration dated 11.02.2004 in O.P.No.585/2003 is hereby revoked and the application is allowed accordingly. Consequently, the application for stay of operation of the order, passed by this Court in A.No.3620 of 2006 is closed. 18. The Registry is directed to register the original petition filed by the respondents herein / petitioners in O.P.No.585/2003, as a Testamentary Original Suit and the applicants are directed to file their written statement within such time to be fixed by the Court from the date of receipt of a copy of the plaint and the respondents herein are directed to implead the children of the 4th petitioner and the deceased son Sankar as parties to the suit and to proceed with the case as a contentious proceedings. 19. With the aforesaid observations, the application in A.No.3619 of 2006 is allowed with costs and A.No.3620 of 2006 is closed.