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2012 DIGILAW 4509 (MAD)

M. Manjula v. Jothi Udaykumar

2012-10-31

K.CHANDRU

body2012
Judgment 1. The applicant in these two applications seeks for revocation of the Letters of Administration granted by this court, dated 4.4.2005 in favour of the first respondent in O.P.No.440 of 2004 and for directing the first respondent to deposit the original letters of administration, dated 30.6.2005. 2. Notice was ordered in these applications. On notice, a common counter affidavit was filed by the first respondent, dated Nil (January, 2012) and a common counter affidavit, dated Nil (February, 2012) was filed by the second respondent. A counter affidavit was also filed by the third respondent in A.No.5952 of 2011. The applicant has filed a reply affidavit, dated 10.8.2012. 3. Heard the arguments of Mr. Karthik Mukundan, learned counsel for the applicant and Mr. R. Yashod Vardhan, learned Senior Counsel leading Mr. S. Rajendra Kumar, learned counsel of M/s. Span Associates for respondents 1 and 2 and Mr. Y.N. Venkat Raj, learned counsel for the third respondent. 4. It is the case of the applicant that her name was shown as the second respondent in O.P.No.440 of 2004. The testatrix was her mother. The second respondent is her brother and the third respondent is her sister. The O.P. was filed for the grant of letters of administration with the Will annexed dated 10.10.2003 allegedly executed by her mother Prabavathy. Her mother Prabavathy was an absolute owner of the property bearing No.19/7, Dwaraka Apartments, First Avenue, Indira Nagar, Adyar, Chennai-20. Her mother passed away on 13.12.2003 intestate. She did not execute any Will during her life time in respect of her property. She was neither aware of any Will executed by her mother nor her mother mentioned about the execution of the Will during her life time. Even after her death, the second respondent was collecting rents arising out of her mother's property and did not pay her share. She issued a legal notice on 29.08.2011 seeking for partition of the property and for 1/3rd share of the property and also 1/3rd share from the rental income accrued after the death of her mother. The second respondent send a legal notice dated 14.09.2011 stating that her mother had executed a Will dated 10.09.2003 bequeathing her immovable property in favour of her daughter-in-law, the first respondent. The second respondent send a legal notice dated 14.09.2011 stating that her mother had executed a Will dated 10.09.2003 bequeathing her immovable property in favour of her daughter-in-law, the first respondent. It was also stated in the reply notice that the Will was filed in O.P.No.440 of 2004 along with the consent affidavit executed by her before the Notary Public consenting for the grant of the letters of administration. It was only after receiving the notice, she came to know that an alleged Will was executed by her mother. She was surprised to know about the consent affidavit said to have been executed by her. It was improbable that her mother would have executed a Will that too in favour of her daughter-in-law excluding the daughter. The respondents have filed a forged and fabricated Will. She was not aware of the proceedings of Letters of Administration. She had not executed any consent affidavit for the same. She was also not present before the Advocate Notary on 17.6.2004. It was only after perusing the records in the O.P., she came to know the consent affidavit has been executed on 17.6.2004 before the notary public. The residential address mentioned in the affidavit was not correct. She was residing at No.8, SREB Staff Quarters, Kodigehalli Main Road, Bangalore-92. The consent affidavit was a false, fabricated and fraudulent document. She had never received any notice in the O.P. Hence she has filed the application for revocation and for production of the original letters of administration as a fraud has been played on the court. 5. In reply to the same, the first respondent had stated that her mother-in-law who died on 13.12.2003 had left a Will dated 10.9.2003 bequeathing her property. The Will was produced before the court. The persons who have considerable interest in the estate of the deceased, i.e., son and daughter, had filed notarized consent affidavit before this court. Both attesting witnesses of the Will, i.e., Mrs. Sumitra Bai Vijay Singh of Bangaluru and Mr. Subhendu Chakraborty of New Delhi had filed affidavits before this court confirming the execution of the Will. One of the attesting witnesses Mrs.Sumita Bai Vijay Sinsh appeared before this court and gave evidence regarding the attestation of the Will, dated 10.9.2003. Both attesting witnesses of the Will, i.e., Mrs. Sumitra Bai Vijay Singh of Bangaluru and Mr. Subhendu Chakraborty of New Delhi had filed affidavits before this court confirming the execution of the Will. One of the attesting witnesses Mrs.Sumita Bai Vijay Sinsh appeared before this court and gave evidence regarding the attestation of the Will, dated 10.9.2003. This court also had ordered publication to be taken out in the Hindu, New Delhi edition and Bangaluru edition as well as in "Makkal Kural", Chennai. It was thereafter an order for granting letters of administration was passed with a condition to execute a bond. A bond has also been executed. The applicant, who is her sister-in-law after 7 years after the letters of administration, has come forward with this application. The applications are time barred. She is making false allegations against her own brother and sister and that these are vexatious applications. 6. The property in Door No.7, First Avenue, Indira Nagar, Adyar, Chennai was the subject of a development agreement in the year 1998, under which 7 apartments were built by the developer, out of which 4 apartments were handed over to the family of late Prabavathy. It was also agreed by all in the family that one apartment was to be handed over to the applicant and the third respondent and one apartment to the second respondent to be held in the capacity of HUF. The 4th apartment was to be retained by late Prabavathy. It was agreed by all in the family that the said apartment will be given to the first respondent after the life time of Prabavathy. The family arrangement was accepted and followed by all concerned after the apartment was built and handed over in the year 2000. The interior works in all apartments were done by the second respondent as instructed by the applicant and the third respondent. The apartments were let out for rental through the rental agency which was arranged by the second respondent as per the request of the applicant and the third respondent. After the demise of Prabavathy, the Will was found out, wherein she had bequeathed an apartment in favour of the first respondent. The Will was produced before this court and after following due procedures, the letters of administration was granted. The address of the applicant mentioned in the consent affidavit was the then address of the third respondent. After the demise of Prabavathy, the Will was found out, wherein she had bequeathed an apartment in favour of the first respondent. The Will was produced before this court and after following due procedures, the letters of administration was granted. The address of the applicant mentioned in the consent affidavit was the then address of the third respondent. As the address was mentioned by the applicant for the sake of convenience as the consent affidavits of the applicant and the third respondent were taken together to the Notary public at Bangalore for execution before him. It was attested by the notary on the date mentioned. The applicant cannot deny the execution of her consent affidavit just because the address mentioned in the affidavit was the then address of the third respondent and both of them had gone together and had executed the consent affidavit before the Notary, which was duly attested by him. The applicant had committed perjury and that she had wantonly and willfully denied the execution of the document filed before this court. The applicant had full knowledge about the grant of the letters of administration. She had filed the applications beyond the period of limitation. The attempt of the applicant is to make financial gain. 7. A common counter affidavit was filed by the second respondent stating that the property was owned by their father S.K. Nagaraj Singh and after his demise, their mother, the third respondent and the applicant and the second respondent had inherited the property. A development agreement was signed with the builder to make 7 apartments. The applicant was allotted one apartment. Her mother had executed a Will. The Will was executed in the presence of Sumitra Bai Vijay Singh and one Subendu Chakraborti. The persons who have caveatable interest were duly notified and they have also filed consent affidavits. The attesting witnesses, i.e., Sumitra Bai Vijay Singh of Bangalore and Subendu Chakraborti of New Delhi have filed their affidavits before this court confirming the due execution of the Will. The third respondent Mrs. Beena Gopal Singh and the applicant Mrs. Manjula had sworn to the affidavits before notary at Bangaluru on 17.6.2004. The second respondent had sworn to the affidavit before the notary public at New Delhi on 03.06.2004. A paper publication was ordered and it was duly effected Mrs. The third respondent Mrs. Beena Gopal Singh and the applicant Mrs. Manjula had sworn to the affidavits before notary at Bangaluru on 17.6.2004. The second respondent had sworn to the affidavit before the notary public at New Delhi on 03.06.2004. A paper publication was ordered and it was duly effected Mrs. Sumitra Bai Vijay Singh of Bangaluru gave evidence about her attesting the Will executed by her mother. A legal notice issued by the applicant was suitably replied. In fact, her legal notice itself was issued only in the year 2011. It was also stated that jeweleries belonging to the mother were all divided among sisters as per the last wishes of their mother. Therefore, each of the family members were in know of things. It was not open to the applicant to come forward with these applications of this nature. 8. The third respondent has filed a counter affidavit. Apart from the stand of the first and second respondents, it was stated that on 24.10.1980, she was given in marriage to Mr. Gopal Singh at Chennai. The applicant got married on 7.3.1977. Both marriages were conducted in a grand manner befitting their status with usual pomp and gaiety. At the time of their marriage, their mother was kind enough to exhibit her complete love and affection by providing them enough gold jewelry and other valuable gifts which are still in their possession. The second respondent, who is their brother, did not lag behind and assiduously followed the pious wish of their mother without any demur and happily showered on them valuables during their marriage. Inspite of the same, the applicant has come forward to make such allegations to shatter the harmony and tranquility among the siblings. The second respondent was kind enough to oversee all the civil and other interior and furniture works of her apartment as well as the apartment of the applicant since at the relevant point of time, both of them were residing at Bangaluru on account of their husbands employment in Bangaluru. After completion of the interior works, with the help and guidance of their brother, the second respondent, they were able to let out their respective apartments and were receiving monthly gains till this date. After completion of the interior works, with the help and guidance of their brother, the second respondent, they were able to let out their respective apartments and were receiving monthly gains till this date. During the end of 2003, one of their routine chatting with their mother, who was in New Delhi with the second respondent, their mother had conveyed to her that she had bequeathed her apartment in favour of the first respondent, who is the wife of the second respondent. The applicant subsequently informed her that their mother had also informed her decision to give the apartment to the first respondent, daughter-in-law. They did not have any objection as it was a part of the family arrangement. 9. It was also stated by her that their mother was continuously under the due care and attention of her son, the second respondent, at New Delhi. On very many occasions, their mother was in all praise for her daughter-in-law, the first respondent, for taking due care and attention and for rendering selfless services and had also filled up their absence, which prompted their mother to show her gratitude by bequeathing the last of the apartment in favour of the first respondent. Their mother had passed away on 13.12.2003 at New Delhi. Thereafter, the first respondent in furtherance of fulfilling their mother's wish had filed an original petition seeking for the letters of administration on the basis of the Will dated 10.9.2003. Their brother, the second respondent, had approached the applicant and the third respondent for getting consent affidavits from them, duly attested as proof of execution at Bangaluru, because at the relevant point of time, the applicant and the third respondent were at Bangaluru. Their brother had also sent a model affidavit to be sworn to by them for filing before this court. With the model of the consent affidavit, on 17.6.2004, the third respondent and the applicant had approached Mr. Nagaraja, an Advocate and notary public having office at No.108, 6th Main, 2nd Block, Third Stage, Basaveshwara Nagar, Bangaluru, who was referred through a known acquaintance. The said notary had prepared a consent affidavit as per the model. The third applicant's residential address at Bangaluru was given to the counsel for incorporating it in both the consent affidavits to be filed by her and the applicant. 10. The said notary had prepared a consent affidavit as per the model. The third applicant's residential address at Bangaluru was given to the counsel for incorporating it in both the consent affidavits to be filed by her and the applicant. 10. The applicant is now mischievously attempting to make a mountain out of a mole hill regarding the residential address. As per their instructions, the notary had prepared the consent affidavits which was duly executed by them in the presence of the notary public, who had also attested the same. Thereafter, they sent the duly executed consent affidavits to the second respondent at New Delhi. Subsequently, they were informed by their brother that the consent affidavits received were filed before the court along with supporting affidavits from the attestors in the original petition and the letters of administration obtained by them. The allegation that their mother did not execute the Will was denied. Such an allegation was made with an ulterior motive. It was only to wreak vengeance on their brother. The fact that the applicant never chose to make any claim whatsoever or even a murmur till her legal notice dated 29.8.2011 nearly 7 years after the issuance of the letters of administration clearly shows that the applicant has come forward with such allegation as an after though. There was no truth in the allegations made as the applicant had voluntarily singed before the notary public and consented for giving the letters of administration. 11. The applicant had filed a reply stating that the first respondent did not take care of her mother. The fact that their mother was under full praise of her daughter-in-law was denied. After her father's death, her mother was staying alone in Chennai for 7 years only because she did not get along with the first and second respondents. Her mother was suffering from clots in her brain. The second respondent took her to Delhi. The relationship between the first respondent and her mother was not cordial. Her mother was not even talking to the first respondent. They were not even allowed to speak with their mother. During the last week of November, 2003, when her mother did not wake up during the entire day, both the first and second respondents did not bother to check her. Only at 8.00 p.m., they found the mother was unconscious and she was hospitalized. They were not even allowed to speak with their mother. During the last week of November, 2003, when her mother did not wake up during the entire day, both the first and second respondents did not bother to check her. Only at 8.00 p.m., they found the mother was unconscious and she was hospitalized. She later slipped into Coma. Subsequently, she could not recover and died on 13.12.2003. During her life time, the relationship of the applicant and her mother was very close and cordial. She had never expressed any intention of executing a Will in favour of the first respondent. The first attesting witness to the Will Mrs. Sumitra Bai Vijay Singh is the sister-in-law of the first respondent residing at Bangaluru. The second attesting witness Mr. Subendu Chakraborti was the colleague of the second respondent. Both of them are well known to the first and second respondents. Her counsel had inspected the records and obtained the certified copies of the same. It was alleged that she was never present before the notary on 17.6.2004. Hence the letters of administration should be revoked. 12. However, when the matter came up before this court on 01.10.2012, this court directed the applicant to appear before this court to answer as to why there has been difference in the signatures of the applicant. The applicant was accordingly present before this court on 17.10.2012. She was shown the consent affidavit given by her as well as the signatures found in the affidavit filed in support of the applications and the signatures found in the reply affidavit. The applicant could not explain to the court satisfactorily the variance in the signatures found in the three documents referred to above except by stating that she had some illness during the period. But at the time of filing reply affidavit, she stated that she was in good condition and that was her correct signature. If that is compared with the signature found in the consent affidavit, dated 17.6.2004, there is vast difference in the same. It cannot be said that it was due to any illness. The allegation that the address found in the affidavit was not that of her cannot be the basis for rejecting the affidavit, because the applicant and the third respondent went to the notary public simultaneously. Therefore, it is possible that the same address could have been shown. It cannot be said that it was due to any illness. The allegation that the address found in the affidavit was not that of her cannot be the basis for rejecting the affidavit, because the applicant and the third respondent went to the notary public simultaneously. Therefore, it is possible that the same address could have been shown. The applicant has also not chosen to examine the notary at Bangaluru who had notarized the affidavit given by the applicant. 13. The further fact that even though the parties were close relatives, it is not clear as to why the applicant never made an issue of the apartment not fetching any income for her and waited for several years, but yet had sent a legal notice claiming share in the rental income and for partition of the apartment. Further, this court had ordered for paper publication in the Bangaluru edition of the Hindu giving notice on the letters of administration proceedings. There is no need to presume that the applicant never had a notice on the same. 14. Mr. R. Yashod Vardhan, learned Senior counsel for the first respondent also produced a copy of the development agreement singed during June, 1998 containing signature of the applicant which was very much coincide with the signatures found in the consent affidavit filed by her in the year 2004. The development agreement is dated Nil (June 1998) and the consent affidavit was singed on 17.6.2004. The signatures found in both documents are comparable, whereas her signature in the affidavit filed in support of the judges summons for revoking the letters of administration as well as the reply affidavit was completely different. Even a perusal by the naked eye would show the glaring difference in various signatures. When the applicant was present before the court, she could not satisfactorily explain the difference in the signatures in the four documents except by stating that the signatures were that of her in three documents except in the consent affidavit. 15. This court is not satisfied with the explanation offered by the applicant coupled with the fact that the third respondent, who is also a sister, had given an affidavit stating that both of them went to the notary public and she saw the applicant appearing before the notary public and signing the affidavit which was notarized subsequently. 15. This court is not satisfied with the explanation offered by the applicant coupled with the fact that the third respondent, who is also a sister, had given an affidavit stating that both of them went to the notary public and she saw the applicant appearing before the notary public and signing the affidavit which was notarized subsequently. The further averment that they were aware of the execution of the Will even earlier has to be accepted knowing the close relationship between the parties as well as the applicant was never getting any amount from the rental received from the apartment allotted to the testatrix which was bequeathed by the Will. The long delay in approaching the court is not also satisfactorily explained. Hence this court has no hesitation to dismiss both the applications. 16. In the light of the above, both applications will stand dismissed. No costs.