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2013 DIGILAW 412 (MAD)

N. Sthirasundari v. V. Kalyani

2013-01-18

K.K.SASIDHARAN, R.BANUMATHI

body2013
Judgment :- R. BANUMATHI, J. 1. This intra Court appeal arises out of the dismissal of the application in A.No.7000 of 2007 in O.P.No.188 of 2006 and declining the revoke the probate of the Will (25.08.2005) of deceased T.S. Savithri Krishnasamy. 2. Brief facts:- O.P.No.188 of 2006 was filed by the Respondents for grant of probate of Will dated 25.8.2005 of the deceased T.S. Savithri Krishnasamy. In the main O.P., Appellants were served with notice during April 2006 and they have filed their vakalat and caveat on 28.04.2006. Case of Appellants is that subsequent to the filing of caveat in O.P.No.188 of 2006 for probate, the counsel for Respondents spoke to their Advocate and negotiated for settlement and settlement talks were in progress and the Appellants have authorised their elder sister's son Rajamani to represent them in the settlement talks with the Respondents. According to Appellants, even during the second week of August 2007, their representative and the counsel contacted the Respondents' counsel. On 21.09.2007 when the representative went over to the office of the counsel for Respondents to enquire into the settlement, he was informed about the order of the Court dated 31.07.2007 granting probate. According to Appellants, they were under the bonafide impression that the matter would be settled amicably and therefore, they did not proceed further by filing affidavit in support of the Caveat and that they were deceived by the Respondents by calling them for mediation and settlement. Alleging that the Will has been created by the Respondents only to defeat their legitimate rights, the Appellants filed A.No.7000 of 2007 in O.P.No.188 of 2006 praying to revoke the probate of the Will of the deceased T.S. Savithiri dated 25.8.2005 granted to the Respondents on 31.07.2007. 3. Counter:-Respondents resisted the application setting out the entire events chronologically. Respondents denied any malafide motive and contended that despite the name of the counsel shown in the cause list, Appellants counsel did not appear. As required under Order XXV, Rule 52 of Madras High Court Original Side Rules, Appellants have not filed the affidavit within eight days from the date of lodging of the Caveat and despite number of opportunities, Appellants have not chosen to file an affidavit in support of the Caveat and therefore, by the order dated 31.07.2007, Court discharged the Caveat and granted probate. In respect of Will, it was submitted that the testatrix T.S. Savithiri was a high ranking Officer in Civil Services of Central Government and knew her ways and that the Will was a holograph and unimpeacheable and testatrix dedicated all her estate for charitable purposes. According to Respondents, they made full disclosure of all the modes of disposal and the act of lodging a Caveat was a betrayal. According to Respondents, they have acted as per the desire of the testatrix and prayed for dismissal of the application. 4. Finding of single Judge:- The learned single Judge pointed out that Appellants have filed Caveat, but did not take any steps to file an affidavit in terms of Order XXV, Rule 52 of Original Side Rules either on time or after taking leave of the Court to file it beyond the stipulated time. Pointing out that testatrix was a retired Civil Servant and held a senior position and she had bequeathed substantial portion of the property to charitable purposes, the learned single Judge held that no substantial caveatable interest has been expressed by the Appellants so as to throw any suspicion on the Will executed by the testatrix. Learned single Judge declined to revoke the probate holding that Appellants having lost their right to file an objection after being notified by the Court, cannot seek for revocation of the probate and that too by allegations which are not germane to such proceedings. 5. Contention:- Challenging the impugned order, Mr. K. M.Vijayan, learned Senior Counsel for Appellants contended that after the first appearance, only because of the settlement proposed by the Respondents themselves through their Advocate which led to non-compliance of filing of an affidavit under Order XXV, Rule 52 of Original Side Rules and therefore technicalities of procedure for filing affidavit and automatic discharge of Caveat will have no application to the present case. 6. Per contra, Mr. Yasod Vardhan, learned Senior Counsel for Respondents submitted that despite the matter being listed on several hearing dates and name of Mr. R. Sivakumar who held vakalat for Appellants was shown in the cause list, there was no representation for the Appellants and no affidavit was filed in support of the Caveat and in the absence of any affidavit, Court discharged the Caveat and probate was directed to be issued. R. Sivakumar who held vakalat for Appellants was shown in the cause list, there was no representation for the Appellants and no affidavit was filed in support of the Caveat and in the absence of any affidavit, Court discharged the Caveat and probate was directed to be issued. Learned Senior Counsel would submit that the Will executed by deceased T.S. Savithiri is a holograph Will and unimpeachable and excepting for the sums bequeathed to her brother and helper, all other estate of testatrix was dedicated to public charities and the Appellants have no right to seek revocation of probate by challenging the genuineness of the Will. Learned Senior Counsel submitted that Appellants were legally bound to file an affidavit in support of the Caveat as required under Order XXV, Rule 52 of Original Side Rules and failure on the part of the Appellants is automatic discharge of the Caveat and the learned single Judge has rightly dismissed the application and no substantial grounds are made out for revoking the probate. 7. Discussion:- Late T.S. Savithiri was an high ranking Officer in Civil Services of Central Government and had donated substantial sums to the Cancer Institute even during her life time. The Will executed by T.S. Savithiri is a holograph Will. Excepting a sum of Rs.1,00,000/- given to her brother T.S. Swaminathan and Rs.2,50,000/- provided to her helper R. Kannagi and her jewels which she ordained in the appendix to her Will, all her estate was dedicated to public charities. The house in Besant Nagar where she was living was also directed to be sold and the proceeds of the sale be used for charitable purposes. By perusal of the Will, it is seen that the sums standing in her Provident Fund Account, Bank Deposits and balances and left over shares were also bequeathed for charitable purposes. Appellants denied the Will being holograph and according to Appellants testatrix T.S. Savithiri did not make the Will during her life time. According to Appellants, there was settlement talks and in view of the ongoing settlement talks, they did not take steps for filing an affidavit in support of the Caveat and that they were deceived by the Respondents by calling for mediation/settlement on the one hand and at the same time, pursuing the matter in the Court. 8. According to Appellants, there was settlement talks and in view of the ongoing settlement talks, they did not take steps for filing an affidavit in support of the Caveat and that they were deceived by the Respondents by calling for mediation/settlement on the one hand and at the same time, pursuing the matter in the Court. 8. 1st Respondent-Kalyani is the sister of testatrix and Respondents 2 and 3 are the husband and daughter of the 1st Respondent. Appellants are the sisters of Krishnasamy, husband of testatrix T.S.Savithiri. O.P.No.188 of 2006 was filed by the Respondents for grant of probate of the Will dated 25.8.2005 during April 2006. Appellants were served with notice during April 2006 and their Advocate filed vakalat and Caveat in the main O.P. on 28.04.2006. 9. Under Order XXV, Rule 52 of Madras High Court Original Side Rules, where a Caveat is entered, an affidavit in support of the Caveat shall be filed within eight days of the Caveat being filed. Order XXV, Rule 54 of Original Side Rules state that when the Caveator fails to file any affidavit in support of his Caveat in compliance with the Original Side Rules, the Caveat may be discharged by the order of the Court. 10. Order XXV, Rules 52, 53 and 54 of Madras High Court Original Side Rules read as under:- “Order XXV, Rule 52. Where a caveat is entered after an application has been made for a grant of probate of letters of administration, the affidavit in support of the caveat shall be filed within eight days of the caveat being filed. Such affidavit shall state the right and interest of the caveator and the grounds of the objections to the application. Order XXV, Rule 53. Where an application for grant of probate or letters of administration is filed after a caveat has been filed, the Registrar shall forthwith issue notice to the caveator, calling upon him to file his affidavit in support of his caveat within eight days from the service of such notice. Order XXV, Rule 54. When the caveator fails to file any affidavit in support of his caveat in compliance with the last two proceeding rules, the caveat may be discharged by an order of Court.” 11. Order XXV, Rule 54. When the caveator fails to file any affidavit in support of his caveat in compliance with the last two proceeding rules, the caveat may be discharged by an order of Court.” 11. Under Order XXV, Rule 52 of Original Side Rules, affidavit must state ‘right and interest of the Caveator and the grounds of objection to the application and that Caveator opposes to the grant’. Up to the filing of the affidavit, nothing need be done by the Court. In case, no affidavit is filed within the stipulated period of eight days or no application is filed seeking extension of time for filing an affidavit, the matter never becomes contentious. To put in otherwords, unless the affidavit is filed, such Caveat shall not prevent granting of probate or letters of administration. 12. As per the mandatory requirement of Order XXV, Rule 52 of Madras High Court Original Side Rules, Appellants have not filed affidavit in support of their Caveat. Even if there was settlement talks, nothing prevented the Appellants from filing an affidavit in support of the Caveat. O.P.No.188 of 2006 was listed on 10.07.2007, 16.07.2007, 23.07.2007 and 31.07.2007. Name of Mr. R. Sivakumar counsel for Respondents 2 and 3 who filed the Caveat was printed in the cause list on 23.07.2007 and 31.07.2007. Even though the counsel Mr. R. Sivakumar's name was printed in the cause list, there was no representation for the Appellants. As pointed out earlier, in compliance with Order XXV, Rule 52 of Original Side Rules, no affidavit was filed in support of the Caveat. Since continuously there was no representation for the Appellants and in the absence of affidavit setting out of any of the grounds assailing the Will, on 31.07.2007, the Court discharged the Caveat and directed issuance of probate. 13. Learned Senior Counsel for Appellants contended that in view of the settlement talks, there ought not to have been automatic discharge of Caveat and further opportunity should have been given to the Appellants. Rebutting the said contention, the learned Senior Counsel for Respondents submitted that compliance of Madras High Court Original Side Rules is mandatory and that the Caveator has to file an affidavit and in the absence of filing necessary affidavit, the learned single Judge has rightly discharged the Caveat. Rebutting the said contention, the learned Senior Counsel for Respondents submitted that compliance of Madras High Court Original Side Rules is mandatory and that the Caveator has to file an affidavit and in the absence of filing necessary affidavit, the learned single Judge has rightly discharged the Caveat. In support of his contention, learned Senior Counsel placed reliance upon the decision of the single Judge in AIR 1955 Calcutta 88 [In the Goods of Nanda Lal Sett (deceased)], wherein the single Judge of Calcutta High Court held as follows:- "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 Indian 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. If a proper affidavit disclosing the right and interest of a caveator as well as the grounds of objection to the grant is made in support of the caveat within the time laid down, then the next stage is reached by marking the matter as "contentious cause" where the petition for probate is regarded as a plaint and the affidavit of the caveator as written statement and the "contentious cause" is thereafter heard as a suit. ...." 14. Observing that every application for revocation of probate cannot be treated as suit under Section 295 of Indian Succession Act and it has to be treated as miscellaneous application and disposed of according to the given fact situation, in AIR 1997 SC 1055 (Nalini Navin Bhagwati and others v. Chandravadan M. Mehta), the Hon'ble Supreme Court held as under:- "7. ...... an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or after recording evidence. ............ ...... an application to revoke probate or letter of administration would be treated as miscellaneous application and may be disposed of on the fact situation in an appropriate case either summarily or after recording evidence. ............ 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 S.295 of the Act. ......" 15. As pointed out earlier, Appellants entered Caveat on 28.04.2006. It is settled law that Caveator himself has to satisfy the Court that he has some interest in the estate of the deceased either by inheritance or otherwise. The entry of Caveat is by itself does not render the proceedings contentious. When the Appellants have not filed the affidavit in support of Caveat within the time stipulated or thereafter, it cannot be said that Court was not right in discharging the Caveat. The settlement talks do not in any way preclude the Appellants from filing an affidavit in support of the Caveat. 16. Another contention of Appellants is that in the order sheet dated 10.07.2007, there was a direction to print the name of all three counsel viz., Mr. S. Mahesh, Mr. R. Sureshkumar and Mr. R. Sivakumar, who lodged the Caveat and while so, in the order sheet dated 16.07.2007, the Court directed to print the name of only Mr. R. Sivakumar and it is not known why Mr. R. Sivakumar's name alone was directed to be printed. It was further submitted that the said direction of the Court was without justifiable reasons and the learned single Judge ought to have set aside the exparte probate for the error committed by the Court in the order sheet dated 16.07.2007. 17. Having regard to the above submissions, we have called for the records in O.P.No.188 of 2006 and perused the records. By perusal of the order sheet, we find that the learned single Judge directed the office to print the name of the counsel for Respondent. The order sheet dated 10.07.2007 reads as under:- “Office is directed to print the name of counsel for the respondent who has entered caveat. Post on 12.07.07. Print the name of Mr. S. Mahesh, Mr. R. Suresh Kumar and Mr. R. Sivakumar, counsel for R2 and R3 (Caveator).” The order sheet dated 16.7.2007 reads as under:- "Office is directed to print the name of Mr. Post on 12.07.07. Print the name of Mr. S. Mahesh, Mr. R. Suresh Kumar and Mr. R. Sivakumar, counsel for R2 and R3 (Caveator).” The order sheet dated 16.7.2007 reads as under:- "Office is directed to print the name of Mr. R. Sivakumar, learned counsel for the respondents 2 and 3 who have filed Caveat and post next week." 18. Of course on 10.07.2007, the Court directed to print the name of all three counsel. But on 16.7.2007, Court directed to print the name of Mr. R. Sivakumar, learned counsel for Respondents 2 and 3 who filed the Caveat and adjourned the matter by one week. Again the matter was listed on 23.072007 and on that day the name of Mr. R. Sivakumar, counsel for Respondent has been printed in the cause list and still there was no representation for the Appellants. By perusal of the xerox copy of Caveat in O.P.No.188 of 2006 (found in page No.8 of typed set of papers filed by the Appellants), it is seen that Respondents 2 and 3 therein alone have filed the Caveat and therefore, the learned Judge thought fit to print the name of the counsel who appeared for Respondents 2 and 3. In our considered view, much significance cannot be attached to the above order dated 16.7.2007. It cannot be said that the order sheet dated 16.7.2007 directing printing of Mr. R. Sivakumar, learned counsel for Respondents 2 and 3 in O.P.No.188 of 2006 has caused any prejudice to the Appellants. Suffice to note that inspite of several opportunities, Appellants have not chosen to file an affidavit in support of the Caveat and as such the learned single Judge has rightly declined to revoke the probate. 19. As pointed out earlier, testatrix was a high ranking Officer in Civil Services of Central Government and the Will was a holograph. Excepting few lakhs and jewels which the testatrix ordained in the appendix of the Will, all her estate was dedicated to public charities. Considering the high stature of the testatrix, the nature of disposition and the back ground facts, we do not find any reason warranting interference with the order of learned single Judge and the appeal is liable to be dismissed. 20. In the result, the appeal is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.