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Madras High Court · body

2014 DIGILAW 29 (MAD)

Sivagamasundari v. K. S. Varadarajan

2014-01-03

R.SUBBIAH

body2014
ORDER The application in A.No.2266 of 2013 has been filed to revoke the probate granted in O.P.No.892 of 2010 dated 23.3.2011 and a direction to surrender the original probate into this Court forthwith. 2. The application in A.No.2267 of 2013 has been filed to pass an order of interim stay of operation of the probate granted in O.P.No.892 of 2010 on 23.3.2011, pending disposal of the revocation application. 3. The brief facts which are necessary to decide the issue involved in these applications are as follows:- (a) One K.S.Varadarajan, the petitioner in O.P.No.892 of 2010 and first respondent in both the applications, has filed the said OP to grant probate in the matter of Last Will and Testament of the deceased S.Prema, who died on 30.9.2010. The second respondent herein is the beneficiary under the Will. (b) In the said OP, it has been stated that the deceased S.Prema bequeathed and allotted the house property bearing Plot No.3 situated at Door No.9, Adambakkam Link Road, N.G.O. Colony, Adambakkam, Chennai-88 comprised in Survey No.116/1B within the sub registration District of Alanthur and registration district of South Madras, measuring to an extent of 2880 sq.ft. and house constructed thereon measuring to an extent of 350 sq.ft. and other personal belongings viz., gold jewels weighing 25 sovereigns, television set, two steel cupboards, all household articles and bank balance in savings bank account No.4482 and pension amount in Account No.4541 to her adopted daughter S.Kalaiselvi, the respondent in the main OP and the second respondent in the present applications, absolutely. The deceased S.Prema left behind her only daughter S.Kalaiselvi. In the said Will, the first respondent herein was appointed as the Executor of the Will. This Court by an order dated 23.3.2011, ordered the said OP by granting Probate of the Will. (c) Now, the present applications have been filed by the sons and daughters of one Rukmani Ammal, the sister of testatrix S.Prema to revoke the probate granted by this Court in O.P.No.892 of 2010. (d) In the affidavits filed in support of the said applications, it has been stated by the applicants that the testatrix S.Prema was the sister of the applicantsâ„¢ late mother Rukmani Ammal. The said S.Prema was a spinster. (d) In the affidavits filed in support of the said applications, it has been stated by the applicants that the testatrix S.Prema was the sister of the applicantsâ„¢ late mother Rukmani Ammal. The said S.Prema was a spinster. The applicants grandfather one Soma-sundaram Pillai and grandmother Maragathavalli have three daughters, who are as follows:- (Tabular Matter Omitted......Ed.) The applicants grandfather and grand- mother already pre-deceased the deceased S.Prema in 1931 and 1981 respectively. (e) The second respondent viz., S.Kalaiselvi was never adopted by the deceased at any time during her life time, much less on 9.9.1969, the date of alleged deed of adoption dated 12.8.2008 and the deed of declaration which was registered on 30.10.2009. The second respondent herein was already adopted by one V.James and her adopted father died on 29.5.1998. After his death, the second respondent has made a claim, claiming all the terminal benefits and family pension of her deceased adoptive father V.James with the Chennai Corporation. All these facts are collected by the applicants from the Chennai Corporation under RTI Act on 8.7.2010. The second respondent was never adopted by the deceased at any time during her life time much less on 9.9.1969, the date of alleged deed of adoption or on 12.8.2008, the date of deed of declaration which was registered on 30.10.2009. Though the deed of declaration indicates that the second respondent was adopted by the deceased S.Prema under a written adoption deed dated 9.9.1969, she has failed to file the same in the suit filed by the applicants in O.S.No.10709 of 2009 for a declaration declaring that the second respondent herein is not the adopted daughter of deceased S.Prema. On a perusal of all signatures of the deceased S.Prema appeared at the bottom of the deed of declaration as well as in the petition, it could be found that the said signatures clearly differ with the signatures of the deceased affixed at the time of registration of both the documents in the presence of the respective Sub-Registrars. If really the second respondent herein was adopted by the deceased S.Prema, then there is no need for execution of Will by the deceased. The second respondent was already adopted by one V.James even as per her own documents submitted in the office of the Chennai Corporation thereby claiming all the terminal benefits as daughter of the adoptive father. If really the second respondent herein was adopted by the deceased S.Prema, then there is no need for execution of Will by the deceased. The second respondent was already adopted by one V.James even as per her own documents submitted in the office of the Chennai Corporation thereby claiming all the terminal benefits as daughter of the adoptive father. Though the deed of declaration is dated 12.8.2008, the same was presented and got registered only on 30.10.2009, with one year and two months gap and the same proves about the fraud played by the respondents. The second respondent is a major on the date of fabricated Will. While so, appointing her husband the first respondent herein as an Executor is purely an underground hand work of both the respondents. They have created the said Will with mala fide intention in order to defeat the legible rights of the applicants. The applicants are class-III legal heirs of the deceased S.Prema and as such, they are having direct interest in the estate of the deceased as per Hindu (Female Estate) / Indian Succession Act. The signatures of the deceased are forged by the respondents in the alleged Will as well as in the deed of declaration of adoption. Only based on the probate granted in O.P.No.892 of 2010, both the respondents are secretly and seriously negotiating with third parties to sell the petition property with mala fide intention in order to create third party interest. Thus, the applicants have filed the present applications to revoke the probate and to grant an order of interim stay. 4. The second respondent herein has filed a detailed counter, in which, the following facts have been set out:- The testatrix S.Prema, who is the second respondent adoptive mother, passed away unmarried on 30.9.2010 leaving behind the second respondent to succeed her estate by means of a registered Will dated 21.4.2008 registered in the office of the Sub Registrar, Velacherry as document No.22 of 2008, wherein the first respondent (the husband of the second respondent) was appointed as the Executor of the Will. The deceased S.Prema remained as a spinster and was satisfied in life by taking care of her elder sister Ganesamani, who also remained as a spinster. The elder sister Ganesamani had practically no income on her own and it was the adoptive mother of the second respondent, who was taking care of her needs. The deceased S.Prema remained as a spinster and was satisfied in life by taking care of her elder sister Ganesamani, who also remained as a spinster. The elder sister Ganesamani had practically no income on her own and it was the adoptive mother of the second respondent, who was taking care of her needs. Her adoptive mother S.Prema was working in the Directorate of Stationary from where she retired as Chief Accountant. The second respondent adoptive mother elder brother Sundararajan had converted himself into Christianity by changing his name as James and joined Indian Army and after his retirement, he lived with her adoptive mother S.Prema till his death. Even though the said Sundararajan converted into Christianity, her adoptive mother had not considered it and accepted the same. The second respondent’s adoptive mother S.Prema had no contact either with her elder sister Rukmani or her children, the applicants herein. Her adoptive mother remained unmarried, but she was actively participating in social welfare activities. The second respondent’s mother Sagunthala had died while giving birth to her on 5.3.1969 in the Government Kasthuribai Maternity Hospital, Triplicane, Chennai. In consonance with her social welfare bent of mind, the said S.Prema took the second respondent into her care as a ten days old child. Till her adoptive mother’s death, the second respondent has always been under the care and custody of her adoptive mother S.Prema. The second respondent was taken in adoption by the said S.Prema on 9.9.1969 after undergoing the formal ceremonies of adoption in the presence of two witnesses viz., S.Lakshmi and Sarojini Kunjithapatham. As early as on 6.4.1976, the adoptive mother of the second respondent had nominated the second respondent along with her mother, who was then alive, to receive all the family pension benefits payable in the event of her death. After the death of her mother, the second respondent’s adoptive mother has changed the nomination to include her elder brother Sundararajan and her elder sister Ganesamani, but continue to retain the second respondent as nominee to receive the family pension. The second respondent’s adoptive mother S.Prema had opened a joint savings bank account with the second respondent in the year 1988 in SB Account No.4482 with the Adambakkam Branch, Chennai Central Cooperatie Bank, which is an Either or Surviver account. Her adoptive mother gave standing instructions to the bank to transfer the monthly pension to the joint account. The second respondent’s adoptive mother S.Prema had opened a joint savings bank account with the second respondent in the year 1988 in SB Account No.4482 with the Adambakkam Branch, Chennai Central Cooperatie Bank, which is an Either or Surviver account. Her adoptive mother gave standing instructions to the bank to transfer the monthly pension to the joint account. Her adoptive mother’s elder brother Sundararajan passed away on 29.5.1998 and elder sister Ganesamani died on 3.2.2008. In the year 2008, her adoptive mother on account of her old age, was not keeping good health. Taking advantage of the fact that she was living alone, the applicants herein started giving trouble to her by attempting to usurp the house property in which she was living. Hence, she reaffirmed the adoption of the second respondent by executing a Deed of Declaration of Adoption dated 12.8.2008 reiterating the adoption already made on 9.9.1969. The deed of Declaration of Adoption significantly was attested by S.Lakshmi and Sarojini Kunjithapatham, who were the same witnesses to the adoption ceremony that took place on 9.9.1969. The applicants seem to have obtained knowledge of the Deed of Declaration of Adoption and attempted to gain control over her adoptive mother and the house property. Taking advantage of the continued ill health of her adoptive mother S.Prema, the applicants entered into her house under the guise of taking care of her and her jewels. On the intervention of the elders, the jewels were handed over to the second respondent. Subsequently, the applicants have filed a suit as against the second respondent in O.S.No.10709 of 2009 on 27.10.2009 seeking a declaration that the second respondent is not the adoptive daughter of S.Prema and for permanent injunction restraining the second respondent not to interfere with the house property of her adoptive mother situated at Adambakkam. Though the second respondent’s adoptive mother was alive at the time of filing of the said suit by the applicants, she was not made as a party to the suit. Thus, the counter sought for the dismissal of the applications. 5. (A) It is the contention of the learned counsel appearing for the applicants that the Will is a concocted and a forged one. The present OP has been filed without impleading the applicants, who are the class-III legal heirs of the testatrix. Thus, the counter sought for the dismissal of the applications. 5. (A) It is the contention of the learned counsel appearing for the applicants that the Will is a concocted and a forged one. The present OP has been filed without impleading the applicants, who are the class-III legal heirs of the testatrix. Even a person having a slightest interest in the estate of the testator is entitled to file caveat and contest grant of probate. With regard to this, learned counsel appearing for the applicants relied upon the judgments reported in (2008) 10 Supreme Court Cases 489 : ( AIR 2009 SC 1232 ); G.Gopal v. C.Baskar and others and 2011 (5) CTC 117 : (AIR 2011 Mad 269); E.Sankaran v. 1.Krishnaveni, 104-A, Bricklin Road, Chennai-600 012. 2. Rajammal, No.13, S.S.Puram, B. Block, Purasawalkam, Chennai-7. (B) Learned counsel appearing for the applicants further submitted that the applicants herein have filed a suit in O.S.No.10709 of 2009 before the VIII Assistant City Civil Court, Chennai, as against the respondents for a declaration, declaring that the second respondent herein is not the adoptive daughter of deceased S.Prema. When the said suit is pending, suppressing the same, they have filed the present OP for grant of Probate. Since the material particulars are suppressed in the OP, the probate granted by this Court is liable to be revoked. In this regard, learned counsel appearing for the applicants has also relied upon the judgment reported in (1994) 1 Supreme Court Cases 1 : ( AIR 1994 SC 853 ) S. P. Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs. and others. 6. (A) Per contra, it is the submission of the learned counsel appearing for the respondents that the second respondent’s adoptive mother S.Prema was actively participating in the social welfare activities. The second respondent’s mother Sagunthala had died while giving birth to her on 5.3.1969. In consonance with her social welfare bent of mind, the deceased S.Prema adopted the second respondent as her adoptive daughter after undergoing the formal ceremonies of adoption in the presence of two witnesses viz., S.Lakshmi and Sarojini Kunjithapatham on 9.9.1969. The second respondent’s adoptive mother had no contact with her elder sister Rukmani Ammal and her sons and daughters, who are the applicants herein. The second respondent’s adoptive mother had no contact with her elder sister Rukmani Ammal and her sons and daughters, who are the applicants herein. (B) Further, the learned counsel appearing for the respondents submitted that the deceased S.Prema during her life time executed two Wills one dated 5.1.1996 and another dated 21.4.2008. In the earlier Will dated 5.1.1996 as well as in the present Will dated 21.4.2008, the deceased S.Prema affirmed that the second respondent is her adoptive daughter. In the earlier Will dated 5.1.1996, the deceased S.Prema had stated that her adoptive daughter had to take care of her and her elder brother Sundararajan and elder sister Ganesamani. In the said Will, no reference was made about her elder sister Rukmani Ammal and her children. (C) Further, the learned counsel appearing for the respondents has also invited the attention of this Court to the nomination form submitted by the deceased S.Prema for family pension and submitted that in the nomination form, the deceased has mentioned only the names of her adoptive daughter Kalaiselvi, her elder sister Ganesamani and her elder brother Sundararajan as nominees. Even in the said nomination form, the name of her elder sister Rukmani Ammal was not mentioned. Further, the learned counsel, by drawing the attention of this Court to the marriage invitation of the second respondent, submitted that the marriage of the second respondent with the first respondent was conducted only by the deceased S.Prema on 29.8.1999. The elder sister of the deceased S.Prema viz., Ganesamani died on 3.2.2008 and her elder brother Sundararajan died on 29.5.1998. Thereafter, the present Will was executed on 21.4.2008 by bequeathing all the properties to her adoptive daughter, the second respondent herein. So far as her elder sister Rukmani Ammal and her sons and daughters viz., the applicants are concerned, at no point of time, they were in contact with the deceased. Therefore, they are not necessary parties to the OP proceedings. Moreover, they are not in the direct line of succession. Therefore, they cannot have any claim against the estate of the second respondent’s adoptive mother. It is the further submission of the learned counsel appearing for the respondents that the applicants have harassed the second respondent’s adoptive mother during her last days of her life in order to get her house property. Therefore, they cannot have any claim against the estate of the second respondent’s adoptive mother. It is the further submission of the learned counsel appearing for the respondents that the applicants have harassed the second respondent’s adoptive mother during her last days of her life in order to get her house property. Having failed in their attempt, now they have filed the present applications to revoke the probate. (D) Learned counsel appearing for the respondents has also drawn the attention of this Court to the suit filed by the applicants before the VIII Assistant City Civil Court, Chennai in O.S.No.10709 of 2009 and submitted that the said suit was filed for declaration, declaring that the second respondent herein is not the adoptive daughter of deceased S.Prema. But, at the time of filing of the suit, though the adoptive mother of the second respondent was alive, the applicants herein have purposefully omitted to add her as a party to the said suit, which would speak about in voluminous of the fraudulent act of the applicants. (E) Further, the learned counsel appearing for the respondents by drawing the attention of this Court to the plaint filed in O.S.No.10709 of 2009 and submitted that in the long cause title of the said plaint, it has been stated that the plaintiffs viz., the applicants herein are residing at No.21/5, Chithrakulam Street, Thiruvanmiyur, Chennai-41. But, in the present applications, they have falsely given their address as No.9, N.G.O. Colony, Adambakkam, Chennai-88, i.e., the property bequeathed to the second respondent by her adoptive mother. Actually, the second respondent is in possession of the said property and not the applicants. The furnishing of the wrong address by the applicants in the present applications would show that the applicants herein are attempting to interfere with the peaceful possession and enjoyment of the second respondent in the property. In fact, the respondents herein have already filed a suit in O.S.No. 7921 of 2012 before the City Civil Court, Chennai as against these applicants. Thus, the above factual aspects also would speak voluminous about the fraudulent conduct of the applicants. Their sole intention is only to grab the property. Therefore, the present applications filed by for revocation of the probate granted by this Court and for interim stay are liable to be dismissed. 7. I have heard the submissions made on either side and perused the materials available on record. Their sole intention is only to grab the property. Therefore, the present applications filed by for revocation of the probate granted by this Court and for interim stay are liable to be dismissed. 7. I have heard the submissions made on either side and perused the materials available on record. 8. The present applications have been filed to revoke the probate granted by this Court in O.P.No.892 of 2010 dated 23.3.2011 and to pass an order of interim stay of operation of the said probate granted in the said OP. 9. It is the case of the respondents in the OP that the second respondent herein viz., S.Kalaiselvi is the adoptive daughter of the testatrix S.Prema, who executed the Will dated 21.4.2008 bequeathing all her properties to the second respondent. Her husband K.S.Varadarajan, the first respondent herein was appointed as the Executor of the said Will. The applicants are the sons and daughters of one Rukmani Ammal, the elder sister of the Testatrix S.Prema. 10. It is the case of the applicants that the Will is a concocted and a forged one. The present OP has been filed without impleading the applicants, who are the Class-III legal heirs of the testatrix S.Prema. But, according to the respondents, the testatrix S.Prema lived as a spinster and she adopted the second respondent as her adoptive daughter on 9.9.1969 in the presence of two witnesses viz., S.Lakshmi and Sarojini Kunjithapatham, which was subsequently confirmed by way of declaration deed dated 12.8.2008. The said Declaration Deed was also signed by the same witnesses, who were present at the time of adoption ceremony in the year 1996. During her life time, the said S.Prema never had any contact with her elder sister Rukmani Ammal. The elder sister Ganesamani and elder brother Sundararajan of the Testatrix S.Prema were also living with her and her adoptive daughter viz., the second respondent herein was taking care of them. Her elder sister Ganesamani and brother Sundararajan died prior to the death of the testatrix S.Prema. Hence, the testatrix executed another registered Will dated 21.4.2008 bequeathing all the properties to the second respondent. Learned counsel appearing for the respondents has also produced number of documents in support of his contention that during her life time, the testatrix S.Prema was not having any contact with her elder sister Rukmani Ammal and her sons and daughter viz., the applicants herein. Learned counsel appearing for the respondents has also produced number of documents in support of his contention that during her life time, the testatrix S.Prema was not having any contact with her elder sister Rukmani Ammal and her sons and daughter viz., the applicants herein. Further, it is the submissions of the learned counsel appearing for the respondents that during her life time, the testatrix S.Prema was harassed by these applicants and the present application to revoke the probate has been filed only with a sole intention to grab the property bequeathed by the testatrix to the second respondent. Thus, the learned counsel for the respondents submitted that the applicants are not in the direct line of succession and therefore, they are not necessary parties to be added in the OP. 11. Though an elaborate argument was made by the learned counsel appearing for the respondents to establish that the sons and daughters of Rukmani Ammal viz., the elder sister of the testatrix S.Prema had no contact with her during her life time, now, in the present OP, the only question that has to be decided is, whether the applicants are having a caveatable interest in the probate proceedings or not. 12. According to the applicants, they are the sons and daughters of the elder sister of the testatrix. Therefore, they are the Class-III legal heirs of the testatrix S.Prema. When there is no legal heir of any of the two classes viz., Class-I and Class-II, then as the close blood relations viz., the applicants will have a caveatable interest in the probate proceedings. Therefore, they are necessary parties in the probate proceedings. Since they have not been shown as respondents in the probate proceedings, the probate granted by this Court is liable to be revoked. Per contra, it is the submission of the respondents that the applicants are not in the direct line of succession. Therefore, they cannot have any caveatable interest in the probate proceedings. 13. Since they have not been shown as respondents in the probate proceedings, the probate granted by this Court is liable to be revoked. Per contra, it is the submission of the respondents that the applicants are not in the direct line of succession. Therefore, they cannot have any caveatable interest in the probate proceedings. 13. For the said submissions made on either side, the judgment reported in 1995 2 LW 852 , S.Panchanathan v. Ellappan (died) and 5 others/South India Vaniga Vaisya Sangam (Repd) by its Secretary, gives a fitting answer, wherein it has been clearly held that failure to specify in Form 58 the close relations of deceased, who would normally be entitled to claim heirship in the absence of a testament, is sufficient to revoke the grant of Letters of Administration. In the instant case, the applicants are the blood relatives of the testatrix S.Prema. Therefore, in my considered opinion, they ought to have been shown as respondents in the OP proceedings. With regard to this, a reference could also be placed which was relied upon by the learned counsel appearing for the applicants reported in (2008) 10 Supreme Court Cases 489 : ( AIR 2009 SC 1232 ); G.Gopal v. C.Baskar and others, wherein it has been held that the person having even a slightest interest in the estate of the testator is entitled to file caveat and contest grant of probate. 14. Though an elaborate argument was made by inviting the attention of this Court to various documents stating that these applicants had never been in contact with the testatrix S.Prema, the said submission cannot be considered in these applications, because, in these applications, we are not dealing with the question as to whether the Will is a genuine one or not, which can be decided only after revocation of the probate granted in the main OP. So far as the present applications are concerned, I am of the opinion that the applicants are the close relatives of the testatrix S.Prema and they will have a caveatable interest in the property in the absence of any Class-I and Class-II legal heirs. Therefore, the applicants ought to have been shown as respondents in the OP. 15. It is the yet another submission of the learned counsel appearing for the respondents that the genuineness of the Will was not questioned by the applicants in their applications. Therefore, the applicants ought to have been shown as respondents in the OP. 15. It is the yet another submission of the learned counsel appearing for the respondents that the genuineness of the Will was not questioned by the applicants in their applications. When the genuineness of the Will was not questioned, then there is no need to revoke the probate granted by this Court. In support of this contention, learned counsel appearing for the respondents relied on the decision reported in (2010) 5 MLJ 432 , J.Malarvizhi v. D.Shankar. On a reading of the affidavit filed in support of the application to revoke the probate, I find that the applicants have made an allegation to the effect that the Will is only a concocted one. Therefore, it is not correct to state that the genuineness of the Will was not questioned by the applicants. Therefore, the said judgment cannot be made applicable to the facts of the present case. 16. For the foregoing reasons, I am of the opinion that the applicants are having caveatable interest in the probate proceedings and since they have not been made as party in the probate proceedings, the probate granted in O.P.No.892 of 2010 dated 23.3.2011 is liable to be revoked. 17. In fine, the probate granted in O.P.No.892 of 2010 dated 23.3.2011 is revoked and the application in A.No.2266 of 2013 is ordered accordingly. Consequently, application in A.No.2267 of 2013 is closed. No costs. Order accordingly.