Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 2419 (MAD)

J. Rapeeta Earnest Mary v. A. Jesudass

2020-12-17

N.SATHISH KUMAR

body2020
JUDGMENT : (Prayer: Application filed under Order XIV Rule 8 of the O.S. Rules & Order 25 Rule 62 of O.S. Rules read with Section 263 of Indian Succession Act to revoke the Order dated 09.10.2001 granting letters of administration for the alleged Will dated 25.12.1993.) 1. This application has been filed to revoke the letters of administration granted by this Court by an Order dated 09.10.2001 in respect of the Will dated 25.12.1993. 2. The brief facts of the applicant case is as follows: One M.S.Arulanandam is the grand father of the applicant. The said Arulanandam had 7 sons and two daughters he was residing with the children in Door No.72, Triplicane High Road, Chennai. The applicants’ father late Joseph was the fourth child of the said Arulanandam. The applicants’ father during his life time has started Das Colour Lab in the year 1975 and he has extended his business and out of the income generated from his business several properties have been purchased not only in the name of the applicants’ grand father and grand mother but also for the benefit of the family. Certain properties have also been purchased in the name of the second respondent because of fiduciary relationship and for the benefit of the family, since the applicants’ father was busy during the days of the booming photography business and was travelling from Chennai to other cities like Coimbatore, Madurai and Vijayawada etc. The applicants’ grand father died on 05.1.1994 and the applicants’ father also died in the year 1999 leaving behind the legal heirs, viz., his wife and the applicants and their brothers and sisters and their siblings. The mother of the applicants was also looking after the family and the entire family business was managed by Michael Jesudass, uncle of the applicants. In fact the applicants’ uncle was in dominant position and when the applicants were in school, they used to take signature in the ‘x’ marked places in several papers. Dispute arose when there was threat to dispose of the applicants from the suit properties. Therefore a suit in O.S.No.218 of 2015 came to be filed in the City Civil Court. Only when they filed the suit in the year 2014, they came to know that a Will has been forged and probated by using the signature of the applicants. Dispute arose when there was threat to dispose of the applicants from the suit properties. Therefore a suit in O.S.No.218 of 2015 came to be filed in the City Civil Court. Only when they filed the suit in the year 2014, they came to know that a Will has been forged and probated by using the signature of the applicants. It is the contention of the applicants that the Will of the grand father Arulanandam was created and fabricated and the applicants and their siblings were made to sign in anti dated documents and the signature of the applicants have been forged in the consent affidavits. Hence, it is his contention that the grant was obtained fraudulently by making false allegations and suppressing material facts. Hence, seeks to revoke the letters of administration granted in favour of the second respondent. 3. Denying the entire allegations, it is the contention of the first respondent in the counter that the properties have been purchased by his individual earnings. In fact he has helped his brother for running his business. After the marriage of the applicants’ father, he started to live separately with his wife and children and at no point of time they have lived together with cordial relationship with his father and mother. It is his contention that their father had died on 05.01.94 and the applicants father died on 09.03.1999. The allegation that the consent affidavit has been forged and signature of the applicants have been obtained by undue influence is denied. It is the contention that the second respondent and seventh respondents were controlling the properties are totally false and misleading. The applicants having filed a suit for injunction in the year 2015 and a suit for partition in the year 2016, had chosen to file the present application only in the year 2019 and the same is barred by limitation. 4. The fifth respondent has filed counter stating that his signature has been obtained in the blank conguer sheet and he was informed that he will be intimated about the nature of the case in future. But surprisingly he came to know that his signature was obtained to give a consent affidavit for administering the alleged Will of his late father. 5. But surprisingly he came to know that his signature was obtained to give a consent affidavit for administering the alleged Will of his late father. 5. The learned counsel appearing for the applicants submitted that the letters of administration has been obtained on the basis of a forged Will and the applicants and the respondents 4 to 7 and other brothers and sisters were under the control of their uncle, the respondents 1 and 2 herein. They used to obtain their signatures in many blank papers stating that the same will be used for Income Tax purpose when they were doing joint business and the same has been misused for obtaining letters of administration. It is his contention that the very Will is forged and the report obtained by the applicant from the handwriting expert also proves the same. Only in the year 2014, after the partition suit has been filed, he came to know that the Letters of Administration obtained on the basis of a forged Will. It is further contention that merely because the signature of the applicants are found in the consent affidavit, the same cannot be taken as a valid consent, since the first and second respondents are in dominant position and it cannot be taken as a valid consent of the applicants. The learned counsel for the applicants further contended that even in the suit filed in the year 2014, in the written statement filed by the respondents, there is no whisper about the Will. Similarly the sale agreement executed by the parties, on 30.11.2006, there is no mention about the Will. Therefore, it is his contention that the Will itself is a forged one. Hence, when the letters of administration has been obtained by suppression of facts, it has to be revoked. 6. The learned counsel for the respondents 4 to 6 in support of the contentions of the applicants submitted that infact, the so called Will is written in English and there no whisper about the scribe. Whereas the testator has signed in the Will in Tamil and there is no evidence to show that the Will was read over to the testator. Further, the testator died within two weeks from the date of the alleged Will. It is stated that the testator died in door No.72, Triplicane High Road, whereas the said property is a commercial property. Further, the testator died within two weeks from the date of the alleged Will. It is stated that the testator died in door No.72, Triplicane High Road, whereas the said property is a commercial property. Therefore, it is his contention that the entire proceedings has been obtained by suppressing the material facts and the same is a result of the forgery committed by the first and second respondents. Hence, the letters of administration has to be revoked. In support of his contentions, relied on the following judgments: Radhika Khanna Vs. State reported in 2001 (91) DLT 96 A.V.Papayya Sastry and others Vs. Government of Andhra Pradesh and others reported in 2007 (4) SCC 221 Basanti Devi Vs. Raviprakash Ram Prasad Jaiswal reported in 2008 (1) SCC 267 E.Sankaran Vs. Krishnaveni and another reported in 2011 (5) CTC 117 Ramjas Foundation and another Vs. Union of India and others reported in 2010 (14) SCC 38 Smt.Badami (Deceased by her L.R. Vs. Bhali reported in AIR 2012 SC 2858 S.P.Chengalvaraya Naidu (Dead) by L.Rs. Vs. Jagannath (Dead) by L.Rs. And others reported in AIR 1995 SC 853 T.V.Rangarajan and others Vs. R.Veeraraghavan and others in A.No.3594 of 2017 in T.O.S.No.14 of 1998 Lynette Fernandes Vs. Gertie Mathias, since deceased by LRs. reported in 2018 (6) CTC 341 7. The learned Senior Counsel appearing for the first and second respondents vehemently contended that the application is nothing but false and misleading. This application has been filed with a delay of 19 years. The alleged forgery and fraud has been introduced only for the purpose of this application. It is his contention that in the year 2003 itself, the applicants have sold the property allotted to them as per the Will. Therefore, now it cannot be said that the Will has been forged and their signature has been fraudulently obtained. The contradictory statement made by them in the very application itself show that their contention is not maintainable. Hence, prayed for dismissal of the application. He also relied on the following judgments : Lynette Fernandes Vs. Gertie Mathias reported in 2018 (1) SCC 271 T.V.Rangaraajan and others Vs. R.Veeraraghavan and others reported in 2018 SCC OnLine Mad 1995 Ramesh Nirutti Bhagwat Vs. Surendra Manohar Parakhe reported in 2019 SCC OnLine SC 1301 8. This application has been taken out challenging the letters of administration granted by this Court on 22.02.2002. Gertie Mathias reported in 2018 (1) SCC 271 T.V.Rangaraajan and others Vs. R.Veeraraghavan and others reported in 2018 SCC OnLine Mad 1995 Ramesh Nirutti Bhagwat Vs. Surendra Manohar Parakhe reported in 2019 SCC OnLine SC 1301 8. This application has been taken out challenging the letters of administration granted by this Court on 22.02.2002. The challenge is made mainly on the ground that the Will has been forged and the signature of the applicants which were obtained for business purpose has been utilized for filing consent affidavits. It is their contention that the signature of the applicants has been received by the respondents in blank papers since they were in dominant position and fiduciary relationship. Therefore, the respondents have utilized their signatures for filing consent affidavits while obtaining letters of administration. Their further contention is that the Will has been forged and the testator has died within two weeks of the alleged Will and there was no scribe for the Will. 9. The letters of administration was granted by this Court by an Order dated 22.02.2002 in respect of the Will of one Arulanandam grand father of the applicants herein. The Will is said to have been executed on 25.12.1993 in respect of 1/10th share in the land and dilapidated small super structure in Theyagaraya Nagar, undivided the 1/4th share in the property in Linghi Chetty Street, undivided 1/7th share in property in cathedral road, half share in the property in Acharappan Street and land and building in Narayanaswamy Street, Coimbatore, the business known as Capital Colour Lab at Coimbatore. In the above original petition, the applicants and their siblings respondents 4 to 6 are also arrayed as party. This fact is not in dispute. 10. It is to be noted that the letters of administration or probate can be revoked only when the applicants show just cause. Section 263 of the Indian Succession Act reads 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. 10. It is to be noted that the letters of administration or probate can be revoked only when the applicants show just cause. Section 263 of the Indian Succession Act reads 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. Therefore, from the above it is very clear that the grant can be revoked when there is defective in substance or it was obtained fraudulently by making false suggestion or by concealing from the Court something material to the case or it is obtained by means of an untrue allegation etc. or when the grant has become useless and inoperative through circumstances or similarly when the person to whom the grant was made has willfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of the chapter VII of this Part or exhibited under that Chapter an inventory or account which is untrue in a material respect grant can be revoked. 11. It is to be noted that the applicants have not denied their signature found the in consent affidavits. In the affidavit filed along with the application in para 16(b), it is pleaded as if the applicants have signed in the consent affidavits in the dotted lines. Whereas in the same affidavit, in the paragraph 16(c) it is stated that the signature of the applicant is forged in the consent affidavit. Contradictory stand has been taken by the applicants. In the affidavit filed along with the application in para 16(b), it is pleaded as if the applicants have signed in the consent affidavits in the dotted lines. Whereas in the same affidavit, in the paragraph 16(c) it is stated that the signature of the applicant is forged in the consent affidavit. Contradictory stand has been taken by the applicants. It is to be noted that when forgery is pleaded, the entire burden lies on them to show that their signature is forged. The only contention of the applicants is that the alleged Will or the letters of administration is not known to them even when they filed some other suits in the year 2015 and 2016, viz., O.S.No.218 of 2015 and C.S.No.587 of 2016. Therefore, it is their contention that the Will has been forged and their signatures have also been forged. It is also to be noted that even assuming that they came to know about the Will and letters of administration only after 2014, immediate reaction of the applicants should have been to file an application in the Court. Whereas, this application has been presented in this Court only on 27.11.2017 for the first time. 12. The learned counsel for the first and second respondents brought to the notice of this Court the sale deed executed by the applicants and their brothers and sisters on 16.04.2003. On a perusal of the same, it is seen that the applicants and the brothers and sisters along with other sharers of the property which is the subject matter of the Will, have sold the property. Wherein, it is specifically admitted that late Arulanandam executed a Will dated 25.12.1993 in favour of A.Jesudass in respect of the 1/4th share in the above property and he died on 05.01.1994 and this Court has granted letters of administration in O.P.No.327 of 2000. Further, the above categorical statement made by the applicant along with other share holders makes it clear that the applicants were aware of the proceedings and infact they were aware of the grant of letters of administration. Therefore, their contention that they are not aware of the letters administration till the year 2014 is not acceptable. Further, it is stated that they have filed a suit in the year 2014 and in the written statement filed by the respondent in the said suit, there is no whisper about the Will. Therefore, their contention that they are not aware of the letters administration till the year 2014 is not acceptable. Further, it is stated that they have filed a suit in the year 2014 and in the written statement filed by the respondent in the said suit, there is no whisper about the Will. On a perusal of the written statement filed by the respondents in the suit in O.S.No.218 of 2015, which is available in the typed set, it is seen that the above suit is filed in respect of the some other property and not in respect of the subject matter of the Will. Therefore, merely because there is no mention about the Will in the written statement filed in O.S.No.218 of 2015, which is not connected to the above suit property, it cannot be said that the letters of administration have been obtained by fraud. 13. It is not the case of the applicants that they are minors at the time when they signed the consent affidavits. It is alleged by them that their signature has been obtained by the respondents in blank papers and the same has been used for filing consent affidavits in the petition filed for obtaining letters of administration. Such a ground is also unacceptable for the simple reason that all the family members who had share in the property which was the subject matter of the Will have joined together and confirmed the execution of the Will and also letters of administration granted in O.P.No.327 of 2000. Therefore, it cannot be said that the applicants have no knowledge about the Will or the proceedings. Much reliance has been placed on the agreement of sale entered by the family members in respect of the property situated in G.N.Chetty Road wherein it is recited that Arulanandam died leaving behind the parties mentioned in the agreement as the legal heirs. The above document has been placed to contend that if really there was a Will, the same should have been referred in the agreement. This Court is unable to comprehend as to how this document support the applicants. In fact the agreement for sale is in respect of some other property not covered under the Will. The above document has been placed to contend that if really there was a Will, the same should have been referred in the agreement. This Court is unable to comprehend as to how this document support the applicants. In fact the agreement for sale is in respect of some other property not covered under the Will. In such view of the matter, merely because in the sale agreement of some other property, the Will has not been referred, it cannot be one of the circumstance to contend that the letters were obtained by fraud. 14. Much reliance has been placed by the applicants on the report of the expert to contend that the signature of the testator in the Will is forged. It is to be noted that such a report cannot be given much importance without any further proof. The applicants themselves have sent some signatures which are said to be signatures of late Arulanandam for comparison by a private lab. The opinion obtained by the applicants themselves without any proof cannot be given much importance. The fact remains that the question is not about the Will. The main contention of the applicants is that their signature has been forged or their signature obtained in blank papers for some other purpose has been used for filing consent affidavits in the proceedings. But the fact remains that they have not placed any proof for the alleged forgery or that their signature was obtained in blank papers. Whereas, the registered sale deed dated 16.04.2003 executed by the applicants, wherein they have admitted the execution of the Will by late Arulanandam and letters of administration granted by this Court. In such view of the matter, any contrary opinion obtained at a later stage, after the dispute arose between the parties in respect of other property, the same cannot be given much importance. 15. The judgment relied on the learned counsel for the applicant in Radhika Khanna Vs. State reported in 2001 (91) DLT 96 , it is held that when the Orders were obtained by the plea of fraud on the Court, the same is nullity and the same can be challenged at any stage and the Court can recall it even under its inherent powers. In Basanti Devi Vs. State reported in 2001 (91) DLT 96 , it is held that when the Orders were obtained by the plea of fraud on the Court, the same is nullity and the same can be challenged at any stage and the Court can recall it even under its inherent powers. In Basanti Devi Vs. Raviprakash Ram Prasad Jaiswal reported in 2008 (1) SCC 267 it has been held that the person who is aggrieved of letters of administration and having no knowledge about the proceedings and proper citations having not been made, is entitled to file an application for revocation of probate on such grounds as may be available to him. E.Sankaran Vs. Krishnaveni and another reported in 2011 (5) CTC 117 , it is held that grant obtained by false allegations or concealing can be cancelled. In S.P.Chengalvaraya Naidu (Dead) by L.Rs. Vs. Jagannath (Dead) by L.Rs. And others reported in AIR 1995 SC 853, it has been held that the decree obtained by fraud is nullity. In T.V.Rangarajan and others Vs. R.Veeraraghavan and others in A.No.3594 of 2017 in T.O.S.No.14 of 1998, it has been held that persons who have foisted has no right to approach the Court. In Lynette Fernandes Vs. Gertie Mathias, since deceased by LRs. reported in 2018 (6) CTC 341 , it has been held that mere allegation of fraud in obtaining probate without any evidence is insufficient to revoke letters of administration. 16. In the judgment in Lynette Fernandes Vs. Gertie Mathias, since deceased by LRs. reported in 2018 (6) CTC 341 , it has been held that the application filed with inordinate delay cannot be maintainable. In this case, probate was obtained in the year 2002. The applicant is also aware of the same as could seen from the sale deed executed by the applicant along with other legal heirs on 16.04.2003. The applicant has filed this petition only in the year 2017 with inordinate delay. Therefore, this application is barred by limitation also. Accordingly, this Court finds that there is no substantial cause in the application and it is a result of the dispute arose between the family members at a later stage. Therefore, the application lacks merits and is liable to be dismissed. 17. Accordingly, this application is dismissed.