Madras High Court
K.Chandrasekara Rao vs C.Masilamani on 25 July, 2012
Author: M.Venugopal
Bench: Elipe Dharma Rao, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 25.07.2012 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL O.S.A.No.125 of 2008 and O.S.A.No.163 of 2008 *** 1.K.Chandrasekara Rao 2.K.V.Maruthi Kumar 3.K.Sathyanaraya Rao 4.V.Pushpa Leelavathi 5.G.Kalyani 6.K.Mahalakshmi 7.Indumathi Shoba ... Appellants in both OSAs. (Through their power agent Mrs.Lily Arputham) Vs. 1.C.Masilamani 2.T.Srinivasan 3.S.Narasimhan ... Respondents 1 to 3 in both OSAs 4.Swami Narayananda Bharathi At Sriman Nelamavu Mutt, Haroor, Karnataka State. 5.Deepak 6.Sandeep 7.Nandini 8.Varsha 9.Jegadish ... Respondents 4 to 9 in O.S.A.No.125/2008 Prayer: Appeals filed under Order XXXVI Rule 1 of O.S. Rules read with Under Clause 15 of C.P.C., against the Common Judgment dated 26.04.2005 made in C.S.No.980 of 1999 and T.O.S.No.32 of 2000 passed by this Court. For Appellants : Mr.S.V.Jayaraman Senior Counsel For Mr.S.Raghu For Respondents : Mr.R.Krishnaswami Senior Counsel For Mr.Srinath Sridevan COMMON JUDGMENT
M.VENUGOPAL,J.
O.S.A.No.125 of 2008:
The Appellants/Plaintiffs have focussed the present Appeal as against the Judgment and Decree dated 26.04.2005 in C.S.No.980 of 1999 passed by the Learned Single Judge.
O.S.A.No.163 of 2008:
The Appellants/Defendants have preferred the present Appeal in weighing the Order dated 26.04.2005 in T.O.S.No.32 of 2000 passed by the Learned Single Judge.
2.The Learned Single Judge, while passing the Common Judgment in C.S.No.980 of 1999 and T.O.S.No.32 of 2000, on 26.04.2005, has, among other things, observed that 'the Ex.P.1-Will dated 03.11.1986 executed by Ramalakshmi Ammal is a true, genuine and valid one and has come to the conclusion that Defendants 5 to 7 have purchased the property when probate was in force for valuable consideration and that they are bona fide purchasers and that revocation of the probate subsequently would not operate as a bar for the title to the property and held that Defendants 5 to 7 cannot be ordered to redeliver the possession of the property to the Appellants/ Plaintiffs.' Also, in regard to the issue "whether notice to the Commissioner, H.R. & C.E. Board is necessary", the Learned Single Judge has come to the conclusion that "as per the Will, the 4th Defendant was made as a legatee of the Will, who is entitled to the suit property and in view of the findings that as per the Will, the 4th Defendant has become the absolute owner of the suit property and not the Mutt" and ultimately found that notice to the H.R. & C.E. Department is an unnecessary one and consequently, dismissed the suit C.S.No.980 of 1999 with costs and ordered for the issuance of Probate in T.O.S.No.32 of 2000 (O.P.No.135 of 1987).
3.The Plaint Facts in C.S.No.980 of 1999 projected by the Appellants/Plaintiffs (Relating to O.S.A.No.125 of 2008)]:
(i) The suit property belonged to K.Ramalakshmi Ammal, wife of K.V.Subba Rao. She inherited the suit property from her husband. She was residing in a portion and let out the remaining portions to six persons viz., P.Arputham, Ravi Ganesh, N.B.Damodaran, Linganathan, Narasimhan (3rd Respondent/3rd Defendant) and Dr.Subba Rao. The aforesaid Ramalakshmi was ill for a long time. She was in possession of number of jewels, silver vessels and brass vessels and she sold one property on 29.08.1986 for a sale consideration of Rs.2,75,000/-. The Respondents 1 and 3/Defendants 1 and 3 were helping her. One K.Jagannatha Rao, an agnate of Ramalakshmi and his daughter (7th Appellant/7th Plaintiff) were also helping her. However, she was completely guided by the Respondents 1 to 3/Defendants 1 to 3.
(ii)Ramalakshmi expired on 26.12.1986, at the age of 83. On the date of death, K.Jagannatha Rao, being an agnate, performed the funeral rites. He was not having details about her properties. He only knew that she had jewels, silver vessels and brass vessels and bank balances besides the suit property. The Respondents 1 to 3/ Defendants 1 to 3 alone were possessed of details.
(iii)In October 1987, the 1st Respondent/1st Defendant issued a Cheque No.098436 dated 03.10.1987 for Rs.9,000/- drawn on State Bank of India to K.Jagannatha Rao stating that the deceased Ramalakshmi directed him to give the said sum to him. He became suspicious and enquired about her properties. He learnt that Respondents 1 to 3/Defendants 1 to 3 claimed to be Executors of an alleged Will dated 03.11.1986 of Ramalakshmi filed O.P.No.135 of 1987 before this Court and obtained Probate as per order dated 02.07.1987. The Respondents 1 to 3/Defendants 1 to 3 very well know that the said K.Jagannatha Rao alone is the next kin of the deceased. However, no notice was given to him.
(iv)The said Jagannatha Rao projected an Application No.3926 of 1988 in O.P.No.135 of 1987 for revoking the grant of Probate dated 02.07.1987. Before filing of the said Application, notices were exchanged between the parties. In Application No.3926 of 1988, the Defendants were the Respondents. Respondents 1 to 3/Defendants 1 to 3 have filed counters. By an order dated 19.07.1989, the grant of Probate was revoked. Although 10 years have elapsed, the Respondents 1 to 3/Defendants 1 to 3 have not taken steps to convert O.P.No.135 of 1987 into a suit.
(v)In the counter to Application No.3926 of 1988, Respondents 1 to 3/Defendants 1 to 3 did not mention as to how they dealt with the assets. The 4th Respondent/4th Defendant sold the property as per registered Sale Deed dated 22.01.1988 for Rs.12 lakhs to the Respondents 5 to 9/Defendants 5 to 9 as if he is a legatee and absolutely entitled to the suit property. In their counter, the Respondents 1 to 3/Defendants 1 to 3 have not stated that they assented to the vesting of the legacy.
(vi)On the date of death of K.Ramalakshmi Ammal, P.Arputham, Ravi Ganesh, N.B.Damodaran, Narasimhan (3rd Respondent/3rd Defendant) and Dr.Subba Rao and Linganathan, the tenants alone were in possession of the suit property. They did not pay the rent to the Respondents 1 to 3/Defendants 1 to 3. Though the Respondents 5 to 9/Defendants 5 to 9 purchased the suit property on 22.01.1988, they did not get possession; in that the tenants did not pay the rent. Other than P.Arputham, others vacated during the period from 1988 to 1997. Thus, the purchasers got partial possession only in the year 1988. The Respondents/Defendants did not mention either in their reply notice or in their counter in Application No.3926 of 1988 that they assented to the vesting of the legacy though probate was granted on 02.07.1987. As such, till 22.01.1988 the Respondents 1 to 3/Defendants 1 to 3 as executors representing the estate must be deemed to be in possession.
(vii)Ramalakshmi Ammal was aged about 83 years at the time of her death on 26.12.1986 and she was suffering from severe diabetes. She was admitted into VHS Medical Centre on 24.05.1986 and was discharged on 04.06.1986. It was found that tissues in the posterior portion of brain were dead. During October 1986, on account of advanced stage of diabetes, the said Ramalakshmi had developed other complications. Her left side body was completely affected. She was bed ridden. A nurse was appointed to attend on her ever since the date of discharge from VHS Medical Centre. The 7th Appellant/7th Plaintiff was helping Ramalakshmi for taking food, clothing etc. Towards the end of October 1986, she lost movement and on 03.11.1986 in the morning, she could not eat. She had loose motion and was vomiting and condition did not improve. By 12.30 p.m., the 7th Appellant/7th Plaintiff phoned up her father, on his arrival at the house, he made arrangement for Ramalakshmi's admission in Vijaya Hospital. She was admitted in an Emergency Ward. She was not conscious. The doctors found that her left side body was completely paralysed. The Respondents 2 and 3/Defendants 2 and 3 were looking after her. They feared that end was nearing her. On 08.11.1986, even though she was not cured, she was discharged and brought home. She had not recovered but expired on 26.12.1986. The aforesaid facts would clearly show that she could not have executed any Will on 03.11.1986.
(viii)The conduct of the Respondents 1 to 4/Defendants 1 to 4 and the circumstances of the case clearly show that the probate proceedings are only a shield to protect the illegal distribution of her assets among themselves. The 3rd Respondent/3rd Defendant was a tenant in the suit property and he was given permission to reside in the suit property as long as he desires. The 2nd Respondent/2nd Defendant was supplying food to her. The 1st Respondent/1st Defendant must have been possessed of Ramalakshmi's assets and that was why he was paid Rs.9,000/- to K.Jagannatha Rao, father of Appellants 1 to 7/Plaintiffs 1 to 7.
(ix)The 1st Respondent/1st Defendant claims that she desired to bequeath the suit property to Sringeri Mutt but the alleged Will is otherwise. The earlier portion of the alleged Will shows that the suit property stands bequeathed to Nilamavu Mutt at Haroor but the returned cover addressed to the 4th Respondent/4th Defendant bears an endorsement of 'No Such Mutt'. The 4th Respondent/4th Defendant was given a right to enforce the Will when the Respondents 1 to 3/ Defendants 1 to 3 do not act. He is not named as a legatee. The last portions of the Will show that the house and other movables should go to Swami. The Executor's claim that they had not seen the 4th Respondent/4th Defendant and it was not known how they identified the 4th Respondent/4th Defendant as a legatee. The whole tenor of the Will was that the property was given to a religious institution. When the High Court Office returned the petition pointing out that notice must be taken to the Commissioner, H.R. & C.E. Department, the reply was that the legacy was in favour of Swami personally and not in favour of the Mutt. It is also mentioned that the house alone was bequeathed. The 4th Respondent/4th Defendant sells the property as if he was the absolute owner. Respondents 1 to 3/Defendants 1 to 3 had not assented to the vesting of legacy and yet they accepted the sale. The above facts clearly show that the Will must have been fabricated and through the medium of 4th Respondent/4th Defendant her assets were taken by the Respondents 1 to 4/Defendants 1 to 4.
(x) K.Jagannatha Rao is an agnate of Ramalakshmi, wife of K.V.Subba Rao, Koppolu Kanniah is the paternal Grandfather of K.V.Subba Rao and great Grandfather of K.Jagannatha Rao. The Appellants/Plaintiffs are the children of K.Jagannatha Rao. The suit property was inherited by K.Ramalakshmi. She died on 26.12.1986 and on that date K.Jagannatha Rao was alive and as per Section 15(b) of the Hindu Succession Act, 1956, the suit property devolves upon the heirs of the husband of K.Ramalakshmi. There is no heir of either class I or II of the Schedule of the Hindu Succession Act, 1956. As such, as per Section 8(b) of the Hindu Succession Act, 1956, K.Jagannatha Rao, an agnate claiming through a male, is entitled to the suit property. He expired on 17.11.1990 and his right devolved upon the Plaintiffs, who are his children.
(xi)The title of Appellants/Plaintiffs depend upon the decision in O.P.No.135 of 1987 or converted T.O.S. If the Will is held to be true, the Appellants/Plaintiffs will have no title. After the Respondents/ Defendants obtained Probate, K.Jagannatha Rao cannot claim title. The Probate was granted on 02.07.1987. K.Jagannatha Rao filed Application No.3926 of 1988 on 18.07.1988 for revoking the grant of Probate. The grant of Probate was revoked on 19.07.1989.
(xii)During the period from 02.07.1987 to 19.07.1989, no suit could have been filed by K.Jagannatha Rao. The period from 02.07.1987 or at any rate from 18.07.1988 on which date Application No.3926 of 1988 was filed, to 19.07.1989 on which date the grant was revoked, is to be excluded. On the date of death of K. Ramalakshmi Ammal, tenants V.Arputham, Ravi Ganesh, N.B.Damodaran, Linganathan, Narasimhan (3rd Respondent/3rd Defendant) and Dr.Subba Rao were in possession of the property. They never claimed title and their possession was not adverse.
(xiii)P.Arputham is still in possession, claiming tenancy rights, others have vacated during the aforesaid period. Only on 02.07.1987 they must be deemed to be in possession on behalf of the alleged legatee. The Legatee sold the property to the Respondents 5 to 9/ Defendants 5 to 9 on 22.01.1988. Their possession till 19.07.1989 was not adverse. The possession of the Respondents/ Defendants became adverse either on the date of grant on 02.07.1987 or on 22.01.1989 when they purchased the suit property or on 19.07.1989 when the grant was revoked. In any view of the matter, the suit is in time. Further, probate proceedings are pending and therefore, no acquisition of title during the pendency of proceedings. The Executors are bound to secure possession and deliver it to the true owner.
(xiv)Although ten years had elapsed after the grant of Probate was revoked, no steps were taken to convert the O.P.No.135 of 1987 into a suit. Probably they wait for completion of 12 years. Hence, the Appellants/Plaintiffs have been advised to file the present suit for possession with future mesne profits without waiting for the disposal of the Probate proceedings. Regarding the movables, the Respondents 1 to 3/Defendants 1 to 3 have to deliver them to the Appellants/ Plaintiffs. They are advised to file Application in O.P.No.135 of 1987. Therefore, the Appellants/Plaintiffs filed the present suit seeking the relief of declaration that they are entitled to the Plaint Schedule property and for issuance of direction by this Court in directing the Respondents 5 to 9/Defendants 5 to 9 to deliver possession of the schedule property to the Appellants/Plaintiffs and for mesne profits.
4.The Written Statement Averments of the 1st Respondent/1st Defendant [Adopted by 2nd and 3rd Defendant]:
(i)He is practising as an Advocate in Madras. K.Ramalakshmi Ammal was known to their family for over 60 years and was residing in a portion of the plaint schedule property belonging to her. Another portion of the said property was occupied by the 3rd Respondent/3rd Defendant. There were also other portions in the property viz., shops which were occupied by various tenants. The deceased Ramalakshmi was possessed of many properties which she disposed off during her life-time. It was false to state that she was ill for very long time. It is also false to state that K.Jagannatha Rao and his daughter, the 7th Appellant/7th Plaintiff were helping the deceased Ramalakshmi.
(ii)Prior to her death, Ramalakshmi Ammal used to attend to her day to day routine on her own and she used to attend all her work herself and at times with the help of the 1st Respondent/1st Defendant or the Respondents 2 and 3/Defendants 2 and 3. Ramalakshmi's last rites were performed by a Purohit under instructions of the Respondents 1 to 3/Defendants 1 to 3. Neither K.Jagannatha Rao nor 7th Respondent/7th Defendant performed the last rites of Ramalakshmi Ammal. In fact, K.Jagannatha Rao came only after the demise of Ramalakshmi and never before. The 7th Respondent/7th Defendant visited Ramalakshmi only on two occasions, but never attended on her.
(iii)After the demise of Ramalakshmi Ammal, Jagannatha Rao approached the 1st Respondent/1st Defendant for financial help as he was poorly paid and had many children and his last daughter was of marriageable age. The 1st Respondent/1st Defendant promised to help K.Jagannatha Rao that too only owing to his own philanthropic approach. Jagannatha Rao repeated his requests for monetary help by writing several letters to the 1st Respondent/1st Defendant. Taking pity on the said K.Jagannatha Rao, the 1st Respondent/1st Defendant finally gave a sum of Rs.9,000/- to him by way of cheque. These funds were given by the 1st Respondent/1st Defendant out of his own personal funds and not as described in the Plaint.
(iv)The Sringeri Mutt is the Guru Peetam of Ramalakshmi Ammal and on several occasions, Shiva Pooja was performed in her house by the Sringeri Mutt Swamijis'.
(v)In regard to all other aspects, the 1st Respondent/1st Defendant adopted the Written Statement of the 4th Respondent/4th Defendant.
5.The Written Statement of the 4th Respondent/4th Defendant:
(i)The suit is a vexatious one, made with a view to blackmail the 4th Respondent/4th Defendant and other Defendants. The property mentioned in the Plaint originally belonged to K.Ramalakshmi Ammal. She died issueless. Before her death, she executed a Will on 03.11.1986 and appointed Respondents 1 to 3/Defendants 1 to 3 as the Executors of the Will. She bequeathed the suit property and other movable assets by means of the said Will. Directions were given to the Executors to obtain Probate. The Executors filed O.P.No.135 of 1987 on the file of this Court and Probate was issued on 22.07.1987.
(ii)He is the Madathipathy of Nilamau Mutt attached to Sringeri Mutt, Karnataka. As per the terms of the Will, the suit property was bequeathed to the 4th Respondent/4th Defendant. After the probate of the Will, he sold the property to Respondents 5 to 9/Defendants 5 to 9 on 22.01.1988. Nearly after six months, after the Probate was granted, one Jagannatha Rao, claiming himself as one Agnate of Ramalakshmi Ammal, tried to intervene in the peaceful enjoyment of the property. He filed Application No.3926 of 1988 in O.P.No.135 of 1987 to revoke the Probate and by an order dated 19.07.1989 passed by this Court, the probate was revoked.
(iii)No steps were taken by K.Jagannatha Rao to file the caveat or to continue the proceedings. Thereafter, the said Jagannatha Rao died on 17.11.1990. On 13.02.1991 and thereafter, the Appellants/ Plaintiffs were brought on record as his Legal Representatives on 04.02.1997. Inspite of such proceedings, the Appellants/Plaintiffs had not taken any step to file the caveat and the time expired for filing the caveat. Since caveat was not filed as per the directions of the Court, O.P.No.135 of 1987 is to be heard by the Court and orders to be passed without numbering the said O.P. as a suit.
(iv)Jagannatha Rao as well as the Appellants/Plaintiffs failed to take steps as per directions of the Court and therefore, they lost their rights, if any. In these circumstances, the Appellants/Plaintiffs could not agitate about the genuineness of the proceedings. He was not knowing anything about Ramalakshmi Ammal, since he was not interested in any of her family details. The said Ramalakshmi Ammal had executed a Will as mentioned supra and bequeathed the suit property to him. He was informed by the Respondents 1 to 3/ Defendants 1 to 3 about the execution of the Will and also about the Probate. After the Probate was granted by this Court, the property vested with the Executors, who in turn handed over the property to him and in turn sold the property to Respondents 5 to 9/Defendants 5 to 9.
(v)In the probate proceedings, it was clearly averred and contended by the Executors that Jagannatha Rao neither attended on Ramalakshmi Ammal nor, in any way, helped her. He relied upon the counter affidavit filed by the Respondents 2 and 3/Defendants 2 and 3 in Application No.3926 of 1988 wherein it was contended that Jagannatha Rao was not even a remotest heir of late Ramalakshmi Ammal and one of the Executors of S.Narasimhan was attending on her and Srinivasan, another Executor was known to her for quite a long time and helped the sickly woman during her last days. After her death, the funeral ceremonies were performed by the Purohit under the instructions of the 3rd Respondent/ 3rd Defendant. Further, Jagannatha Rao was given by the Executors, the 1st Respondent/1st Defendant, a sum of Rs.9,000/- during October 1987 as per the directions of the Will. He kept quite for over one year and thereafter sought to contest the probate proceedings. Thereafter, he was disinterested and had not taken any step to contest the probate proceedings. After the demise of Jagannatha Rao, the Appellants/ Plaintiffs had not taken any step in the probate proceedings. It was the Executors who had taken steps to bring them on record.
(vi)The Appellants/Plaintiffs had not taken any step and therefore, they had no right to complain about the 4th Respondent/4th Defendant or Executors. The Power of Attorney of the Appellants/ Plaintiffs is a tenant in a portion of the suit property and her husband was contesting the proceedings against the Respondents 5 to 9/ Defendants 5 to 9.
(vii)When all other tenants had vacated, the Power of Attorney of the Appellants/Plaintiffs (wife of a tenant), with a view to stay on the property, seems to have obtained the Power of Attorney from the Appellants/Plaintiffs and instituted this vexatious litigation. As regards the illness of Ramalakshmi, it was never known to the Appellants/ Plaintiffs or the said Jagannatha Rao and as stated by the Executors, she was attended to only by Narasimhan and Srinivasan. It was incorrect to state that she was unconscious. It was admitted by the Plaintiffs that Respondents 2 and 3/Defendants 2 and 3 are alone attended on her. The Will was executed by Ramalakshmi Ammal validly. Therefore, the genuineness of the Will could not be agitated in these proceedings.
(viii)The contents of the Will were quite clear. It was incorrect to state that there was no Mutt in the name of 'Nilamau Mutt'. The bequest was only in the name of the 4th Respondent/4th Defendant and his description was given as Madathipathy of the Nilamau Mutt and therefore, it was not donated to the institution. He had every right to deal with the property after the probate was ordered.
(ix)K.Jagannatha Rao was no agnate of Ramalakshmi Ammal and hence not entitled to succession. The Power of Attorney Holder who was still in possession of the property as a tenant could not invest himself with the right to agitate the rights in question in regard to the suit property. As per the Will probated, at the time when the property was transferred to him, the Executors had acted as per the terms of the probate and delivered possession. Further, alienees had also asserted their rights. The present suit filed after a period of 12 years from the date of death of Ramalakshmi Ammal is barred by limitation.
6.The Written Statement pleas of Respondents 5 to 9/ Defendants 5 to 9:
(i)The suit was vexatious in nature filed with a view to blackmail the Respondents/Defendants. The suit property originally belonged to K.Ramalakshmi Ammal, who died issueless, leaving behind a Will dated 03.11.1986. Under the said Will, the property was bequeathed to the 4th Respondent/4th Defendant. The Executors appointed under the said Will, obtained Probate of the Will in O.P.No.135 of 1987. These Respondents/Defendants, after satisfying about the title, purchased the property as per the Sale Deed dated 22.01.1988. They were not aware of the order made subsequently, revoking the probate granted in O.P.No.135 of 1987 as it was only after their purchase. The Plaintiffs had not taken any step subsequently to file a caveat or otherwise to make the probate proceedings a contentious issue.
(ii)On the date of purchase, the probate was in force. The Respondents/Defendants had bonafidely purchased the property for valuable consideration.
7.The Petition Averments in O.P.No.135 of 1987 [filed by the Respondents 1 to 3/Defendants 1 to 3 in C.S.No.980 of 1999]:
(i)K.Ramalakshmi Ammal died on 26.12.1986 at No.133, Usman Road, Chennai 600 017 where she was ordinarily residing within the jurisdiction of this Court. The last Will and testament of K.Ramalakshmi was executed by her at above residence on 03.11.1986 in the presence of witnesses mentioned thereto.
(ii)The Petitioners (Respondents 1 to 3/Defendants 1 to 3) were the Executors duly appointed by the Will. The said Ramalakshmi bequeathed the house bearing No.133, Usman Road, T.Nagar, Chennai 600 017 and other movables mentioned in the affidavit of assets. The amount of assets which was likely to come into the hands of the Petitioners (Respondents 1 to 3/Defendants 1 to 3) had not exceeded the aggregate sum of Rs.6,33,885/-. The original Will was the Last Will and testament of the deceased K.Ramalakshmi and that the same was in the custody of the Executors of the deceased. Therefore, the Petitioners (Respondents 1 to 3/Defendants 1 to 3) pray for issuance of Letters of Administration with the Will annexed, in solemn form, to the 1st Petitioner (1st Respondent/1st Defendant) as one of the Legatees.
8.Earlier, the Petitioners (Respondents 1 to 3/Defendants 1 to 3) claiming to be the Executors of the Ex.P.1-Will dated 03.11.1986 executed by deceased Ramalakshmi instituted O.P.No.135 of 1987 and obtained Probate on 02.07.1987.
9.On an Application No.3926 of 1988 filed by Jagannatha Rao on 18.07.1988 in O.P.No.135 of 1987 for revoking the grant of Probate dated 02.07.1987, the Probate was revoked, by means of an order passed by this Court, on 19.07.1988 [wherein the Respondents 1 to 3/ Defendants 1 to 3 filed counters]. The O.P.No.135 of 1987 was thus converted into T.O.S.No.32 of 2000.
10.The Written Statement Averments in T.O.S.No.32 of 2000 filed by the Respondents/Defendants (Plaintiffs in C.S.No.980 of 1999):
(i)The suit property belonged to Ramalakshmi Ammal, wife of K.V.Subba Rao. She inherited the suit property from her husband. She was residing in a portion of the suit property and let out the remaining portions to six tenants including the 3rd Petitioner (Narasimhan). The said property was a valuable property situated in a commercial locality adjacent to Binny and Lalitha Jewellary on Usman Road, T.Nagar, Chennai. She sold one property on 29.08.1986 for a sum of Rs.2,75,000/-. The Petitioners 1 and 3/Plaintiffs 1 and 3 helped her during her last days. K.Jagannatha Rao, an agnate of Ramalakshmi and his daughter Indumathi Shoba also helped her. The said Ramalakshmi was in possession of number of valuable gold jewels, silver vessels and brass vessels apart from cash deposits in various banks in Chennai. Ramalakshmi was ill for long time. She was admitted in Voluntary Health Services Medical Centre at Chennai on 24.05.1986 for treatment of right posterior parietal infarct with diabetes millitus and was discharged on 04.06.1986.
(ii)The Testatrix (Ramalakshmi) of the purported Will dated 03.11.1986 expired on 26.12.1986 at the age of 83 years. She was diagnosed that tissues in the posterior portion of her brain were dead. In October 1986, on account of advanced stage of diabetes, other complications developed and her left side body was completely affected and she was bed-ridden. A Nurse was appointed to attend on her ever since her date of discharge from VHS Medical Centre. The 7th Defendant (Indumathi Shoba) looked after her apart from the appointment of Nurse for taking food, clothing etc. In fact, she was in a state of coma prior to her death. She lost her movement at the end of October 1986 itself. Hence, on 03.11.1986 in the morning, she could not even eat and had complaints of loose motion, vomiting etc. and her condition had not at all improved. By 12.30 p.m., the 7th Defendant (Indumathi Shoba) phoned her father who arrived at the house and arranged for her admission in Vijaya Hospital. Ramalakshmi was in emergency ward and she was unconscious. The Doctors confirmed that her left side body was completely paralysed. The Defendants 2 and 3 alone were looking after her. They feared that end was nearing Ramalakshmi. On 08.11.1986 although she was not cured, she was discharged and brought to home. She had not recovered and expired on 26.12.1986. She could not have executed any Will on 03.11.1986, in view of the above facts.
(iii)The allegation that Ramalakshmi executed a Will on 03.11.1986, while in a sound disposing state of mind, was not true. There was no possibility for her to possess a sound disposing state of mind, because she was suffering from diabetes millitus coupled with cerebral thrombosis and resultantly, her left side of the body got totally paralysed. The Plaintiffs should have fabricated the alleged Will dated 03.11.1986 taking advantage of her continued ill health and initiated the above probate proceedings only in order to shield their act of illegal distribution of her assets among themselves.
(iv)The 3rd Plaintiff was a tenant in the demised property, who was given permission to reside in the suit property as long as he desired. As a matter of fact, the Plaintiffs 2 and 3 cooked up the said Will in the absence of the 1st Plaintiff. Even as per recitals in the purported Will, the suit property should be treated as Branch Office of Sringeri Nilamau Mutt situated in Karnataka State. Ramalakshmi belonged to Telugu Community, who was claimed to have affixed her left thumb impression in a Tamil Will. The intention of the Plaintiffs was to grab the immovable property which is situated in a prime locality at Usman Road, T.Nagar, Chennai valued about Rs.70 lakhs during the relevant point of time. The Will recited that on the death of Ramalakshmi the entire properties should vest with Nilamau Mutt of Sringeri. But, the letter addressed to the said Mutt was returned as 'No such Mutt'. In the alleged Will, nowhere the named Swamiji was appointed as a legatee. As per the tenor of the alleged Will, the property was purportedly given to a religious institution. The Office of this Court returned the Petition before numbering it on the ground that notice must be taken to the Commissioner, H.R. & C.E. Board, since the property was given to a religious institution. But the Plaintiffs made an endorsement stating that the property was bequeathed to Swamiji personally. The so-called Executors had not informed to the relatives of Ramalakshmi about the alleged Will before initiating the probate proceedings nor made them as parties at the time of obtaining the probate. Also, valuable movables like gold jewels, silver and brass vessels were not brought into the inventory submitted to this Court for probate proceedings. The Executors mentioned about the cash deposits in the Affidavit of Assets. However, they conveniently omitted to mention about the movables like valuable jewels, vessels etc. The immovable property was under-valued at Rs.1,91,000/-. In fact, the total extent of the said immovable property bearing Door No.133, Usman Road, T.Nagar, Chennai is about 4,500 sq. ft. of land with ground plus one building thereon, which was worth more than Rs.70 lakhs at the relevant point of time.
(v)The beneficiary of the purported Will of deceased Ramalakshmi, one Swami Narayanandha Bharathi stealthily sold the property as per Sale Deed dated 22.01.1998 to Mr.Deepak and four others within 7 months from the grant of an order of Probate. The Executors 2 and 3 figured as witnesses in the Sale Deed. The value of the said property measuring 4,500 sq. ft. [a little less than two grounds with 3,500 sq. ft. building thereon] was under-valued and shown as Rs.12 lakhs.
(vi)The second Executor viz., Narasimhan received a lumpsum from out of the sale proceeds and vacated the suit property. The said Narasimhan purchased the property at No.1-A, Cart Track Road, T.Nagar, Chennai-17 in which he is residing from and out of the ill-gotten wealth.
(vii)The Plaintiffs withdrew a sum of Rs.4,42,785/- from various banks of the deceased Ramalakshmi Ammal and they should be directed to remit the said sum together with interest at 18% per annum to the credit of the present T.O.S. Proceedings. They should also be directed to submit an inventory of the valuable gold jewellery, silver-wear and brass articles available in the Bank Locker at the time of the death of Ramalakshmi and at her house. The attesting witnesses had nothing to do with the Ramalakshmi and her family.
11.The Reply Statement of Plaintiffs 1 to 3:
(i)Since Jagannatha Rao pleads through several letters, the 1st Plaintiff on 03.10.1987 issued a cheque bearing No.898436 on State Bank of India, Park Town Branch in favour of Indumathi for a sum of Rs.9,000/-. The said amount was paid out of the personal funds of the 1st Plaintiff. The 1st Plaintiff denied that this amount was paid only at the instance of Ramalakshmi. The Will in question should be proved in solemn form and an opportunity should be given to the Applicant (K.Jagannatha Rao) to establish before the Court that it was a forged one and not a genuine one.
(ii)The Defendants had not complied with the formalities laid down in O.S. Rules in the matter of conversion of the petition into suit. The Plaintiff was residing in the suit property and after the sale by Swamigal, he vacated the same during the year 1987. Only during the year 1991, he purchased the present property viz., 500 sq. ft. Flat, out of his own funds. The 3rd Plaintiff was an intending agent for few steal companies since 1973 and he borrowed funds from the company also for purchase of the flat. The 3rd Plaintiff was an Income Tax Assessee for a number of years and all his transactions were disclosed to the Department. The Testatrix was in a sound and disposing state of mind at the time of execution of Will. She was clear in her mind that the property should go to the Swamigal of Nilamau Mutt. The Defendants had conspired to grab the property. For the deceased Ramalakshmi, there were no relatives.
12.The Points that arise for rumination in O.S.A.No.125 of 2008 (C.S.No.980 of 1999) are:
1.Whether the Appellants/Plaintiffs are entitled to obtain the relief of declaration in respect of the suit property?
2.Whether the Respondents 5 to 9/ Defendants 5 to 9 are to deliver possession of the suit property to the Appellants/Plaintiffs?
The Point that arises for determination in O.S.A.No.163 of 2008 (T.O.S.No.32 of 2000) is:
1.Whether the purported Will dated 03.11.1986 executed by Ramalakshmi Ammal is a true, genuine and valid one?
The Contentions, Discussions and Findings on Point Nos.1 and 2 in O.S.A.No.125 of 2008 and Point No.1 in O.S.A.No.163 of 2008:
13.The Learned Counsel for the Appellants [in both Appeals] submits that the Learned Single Judge has erroneously held that Ex.P.1-Unregistered Will dated 03.11.1986 of Ramalakshmi Ammal is a true and genuine one. Further, he failed to appreciate that the inherent features of Ex.P.1-Will dated 03.11.1986 unerringly point out that it is a fabricated one and that the Executors fabricated number of Wills, and chose to utilise the said Will with the connivance of 4th Defendant in C.S.No.980 of 1999.
14.It is the further submission of the Learned Senior Counsel for the Appellants that the name of an Advocate has been introduced only to exhibit that the Will in question is a true one, but the said Advocate has not been examined. Moreover, the recitals of Ex.P.1-Will dated 03.11.1986 would go to show that no Advocate could have drafted the said Will, much less Mr.P.B.Ramanujam, an Advocate of his stature and standing.
15.The Learned Senior Counsel for the Appellants urges before this Court that the contentions of the alleged legatee varies from paragraph to paragraph and the Learned Single Judge by resorting to the ingredients of Section 88 of the Indian Succession Act should have held that the house must be used as the Branch of the Nilamau Mutt and not belong to the 4th Defendant, in the event of upholding the Will.
16.Yet another submission of the Learned Senior Counsel for the Appellants is that there is no such Mutt mentioned in the Will and this is proved by the postal endorsement on the notice sent in Application No.3926 of 1988 in O.P.No.135 of 1987 and the evidence of Thiru.N.Ramachandran.
17.It is the plea of the Appellants that the Learned Single Judge has omitted to see that the 4th Defendant is an obliging created legatee who helped the Executors to get some part of her assets and this is established by the fact that all bank balances, jewels and other movable assets were taken by the Executors and also that the 4th Defendant has not claimed them even though as per Ex.P.1-Will dated 03.11.1986 they were bequeathed to him.
18.The Learned Senior Counsel for the Appellants brings it to the notice of this Court that admittedly Ex.P.1-Will dated 03.11.1986 was not read by Ramalakshmi when she could have read it for herself and there was no explanation forthcoming on the other side as to why she was not required to read the Will for herself.
19.Apart from the above, it is the contention of the Appellants that the Learned Single Judge failed to take into consideration that P.W.5 claimed to have taken down what Testatrix dictated and the text of the Will was dictated by P.B.Ramanujam that he got the Will typed in a job typist shop and brought the Will so typed and if this is true Ramalakshmi would not have attempted to sign because the Will contains recital that her hand was shivering and she was affixing her thumb impression.
20.The plea of the Appellants is also to the effect that the Learned Single Judge has incorrectly held that the Appellants [Plaintiffs in C.S.No.980 of 1999] should have examined the doctor to prove the mental condition of Ramalakshmi, at the relevant point of time.
21.The Learned Senior Counsel for the Appellants strenuously contends that the averments of the Plaint in C.S.No.980 of 1999 referred to the ailments of Ramalakshmi etc. and this would establish that she was not in a sound and disposing state of mind to execute the Ex.P.1-Will dated 03.11.1986. Furthermore, these facts were not denied by the 1st Defendant in his Written Statement and adopted by the 2nd and 3rd Defendants and as per Order 8 Rule 5 of C.P.C. non-denial amounts to admission and as such, there is no need to examine the doctor.
22.The Learned Senior Counsel for the Appellants projects an argument that Ramalakshmi had right posterior parietal infarct which, as per Ex.D.9, means a portion of tissue in front right side of the head had become stuffed with extravasated blood with diabetes mellitus and this fact coupled with Ex.D.10 indicates that on 03.11.1986 she was admitted in an emergency ward for treatment of Diabetes Mellitus with Cerebral Thrombosis and her left side body was paralysed.
23.The prime contention advanced on behalf of the Appellants is that it is for the propounders of the Will dated 03.11.1986 to prove that Ramalakshmi had executed the Ex.P.1-Will and at that time her mental capacity was in a sound and disposing state. Added further, the very fact that deceased Ramalakshmi complained of dysentery and vomiting in the early morning of 03.11.1986 and that she was admitted in the emergency ward of Vijaya Hospital would throw a suspicious surrounding circumstances in coming into existence of the Ex.P.1-Will dated 03.11.1986.
24.The Learned Senior Counsel for the Appellants contends that Jagannatha Rao, one of the relatives of Ramalakshmi, was present at the time of funeral and that the Plaintiffs in C.S.No.980 of 1999 are the agnates of Ramalakshmi Ammal and this admission of P.W.1 [Advocate] is enough to uphold the claim of Appellants/Plaintiffs in the suit.
25.The Appellants take a plea that P.W.1 admitted in his evidence that Ramalakshmi desired Maruthikumar [2nd Plaintiff] should perform the ceremonies for her husband and to her and this strengthens the claim that K.Jagannatha Rao was her agnate.
26.Also, the stand of the Appellants is that it is not the case of the Petitioners in O.P.No.135 of 1987 that there are heirs falling under Clauses 8(a) and (b) of the Hindu Succession Act, 1956 or any other nearer agnate.
27.Finally, it is the submission of the Learned Senior Counsel for the Appellants that the execution and attestation of the Will dated 03.11.1986 of Ramalakshmi were not proved in the manner known to law.
28.In response, the Learned Senior Counsel for the Respondents submits that the Learned Single Judge has taken into account the entire oral and documentary evidence let in and produced by the respective parties, which are available on record and has come to a definite conclusion that Ramalakshmi has executed the Ex.P.1-Will dated 03.11.1986 in a sound disposing state of mind and held that the said Will is a true, genuine and valid one and rightly dismissed the suit in C.S.No.980 of 1999 with costs and consequently, ordered for the issuance of Probate in T.O.S.No.32 of 2000 (O.P.No.135 of 1987), which need not be disturbed by this Court in Appeal, at this distance point of time.
29.At this stage, we deem it appropriate to make a useful reference to the evidences of P.W.1 to P.W.9, D.W.1 and D.W.2 for fuller and better appreciation of the controversies/disputes. Also, in T.O.S.No.32 of 2000, Exs.P.1 to P.15 and Exs.D.1 to D.13 were marked. Exs.C.1 to C.6 were marked by the Commissioner.
The Evidence of P.W.1 to P.W.5:
30.It is the evidence of P.W.1 (1st Plaintiff in T.O.S.No.32 of 2000) that he is a practising Advocate at Madras and formerly, he was a Class I employee of the Southern Railways and that he knew the deceased Ramalakshmi Ammal, who was their family friend for almost 40 years and in the year 1950, her husband had passed away and after the death of her husband, she was living with him at No.17, Govindappa Naicken Street, Chennai-1 and she lived with him till 1984 and she left because after the death of his wife, she had no female assistance and further, from his house at Govindappa Naicken Street, she went to live in her house at No.133, Mhd. Usman Road, T.Nagar.
31.P.W.1 has further deposed that he knows the 2nd and 3rd Plaintiffs viz., Srinivasan and Narasimhan and that Srinivasan was a friend of the deceased Ramalakshmi and Narasimhan was a tenant of her house at T.Nagar and that the personal needs of Ramalakshmi were attended to by Narasimhan's wife Kanagavalli and after 1984, he used to visit Ramalakshmi to see her and that he used to look after her affairs in respect of the tenancy as well as the bank matters and that she was quite hale and healthy till 1986.
32.Added further, it is the evidence of P.W.1 that Ramalakshmi took ill in May 1986 and was admitted in Voluntary Health Service, Adyar and was subsequently, discharged in the first week of June 1986 and the 3rd Plaintiff and his wife looked after the needs of Ramalakshmi in the hospital and at no point of time, her relatives came forward to look after her and to his knowledge, Ramalakshmi executed Ex.P.1-Will dated 03.11.1986 and he had seen it and also that she informed him about the same and subsequent to the execution of the said Will, she showed it to him and at the time of showing the Will to him, she was quite hale and healthy and talked to him. Moreover, Jagannatha Rao, one of Ramalakshmi's relatives, was present at the time of her funeral but he had not performed her funeral rites and that the said Jagannatha Rao approached him personally and wrote many letters requesting financial help from the estate of the Testatrix for his unmarried daughter and Ex.P.2 dated 10.06.1987 and Ex.P.3 dated 03.08.1987 were the Letters written by Jagannatha Rao to him requesting financial help from him.
33.P.W.1 proceeds in his evidence that he gave financial help of Rs.9,000/- for the marriage of K.Jagannatha Rao's daughter and he paid the said sum, by means of a cheque, drawn in favour of K.Jagannatha Rao's daughter i.e. Indumathi Shoba and Ex.P.4 is the acknowledgement dated 03.10.1987 given by K.Jagannatha Rao for the receipt of said sum and he paid the said amount for his personal money.
34.Furthermore, the evidence of P.W.1 goes to the effect that after Ramalakshmi's hospitalisation in May, 1986 and discharge in June 1986 she sold the property on 29.08.1986 and registered the sale by proceeding to the Registrar's Office and at the time of signing in the Sale Deed dated 29.08.1986, Ramalakshmi's hands were shaking and she drew money from Canara Bank from October to December 1986 till her death and she drew money from her account by calling the Manager to her residence because of her shaking hand and the Bank was situated at next door and Jagannatha Rao never visited Ramalakshmi Ammal in her house and his daughter Indumathi Shoba visited her only on two days in November, 1986.
35.According to P.W.1, during November and December 1986 Ramalakshmi was quite alright and was moving about and was attending to her duties and Physiotherapist attended on her and that the relationship between Ramalakshmi and Jagannatha Rao was not cordial.
36.Added further, it is the evidence of P.W.1 that Ramalakshmi went to Badrinath in the year 1960 to perform her husband's death ceremony and earlier she requested Jagannatha Rao that his son Maruthi Rao be allowed to perform the death ceremonies of her husband and her funeral rights, if she does not return and after Ramalakshmi came back from Badrinath, Jagannatha Rao refused to allow his son to perform as per the desires of Ramalakshmi, even though she said that she would give her property at Kodambakkam and Chittoor to Maruthi Rao, if her request is acceded to and from then onwards their relationship was not cordial.
37.That apart, P.W.1 stated in his evidence that after the death of Ramalakshmi, he wrote a letter to Sri Sringeri Sankaramat at Varanasi as per the instructions of Ramalakshmi for immersion of her ashes. Ex.P.5 is the letter dated 05.01.987 received by him from Sringeri Mutt, Varanasi and Ex.P.6 is his reply dated 06.02.1987 to the aforesaid Mutt and Ex.P.7 is the original death certificate issued in respect of Ramalakshmi Ammal by the Corporation of Madras on 07.01.1987 and as reported by the doctor, the cause of death of Ramalakshmi Ammal was cardiac arrest and difficulty in breathing and Indumathi was not prsent at the time of her death and it was not correct to state that Ramalakshmi was not in a sound state of mind in November 1986 for executing Ex.P.1-Will.
38.It is the evidence of P.W.1 [in his cross examination] that he was told about the Execution of the Will by Ramalakshmi, after some time, in June or July 1996, after she came back from VHS hospital and he filed the O.P.No.135 of 1987 in the matter of last Will of Ramalakshmi and in Ex.D.1 he had not stated as to whom the Will property was bequeathed to and it is true that she was admitted into VHS hospital as an inpatient from 24.05.1986 to 04.06.1986 and after her discharge from the hospital, a nurse was appointed to look after her and he did not know whether she was diagnosed that the tissues in the posterior portion of Ramalakshmi's brain were dead and on 03.11.1986 she was admitted into emergency ward at Vijaya Hospital and he knew that she complained of dysentery and vomiting in the early morning of 03.11.1986, but he did not know whether she was thereafter in a state of unconscious.
39.P.W.1 [in his evidence] also deposed that as an Executor he had withdrawn a total sum of Rs.4,42,785/- from various banks as cited in the affidavit of assets filed before this Court and he had not taken steps to deposit the said amount after revocation of the probate and in penultimate paragraph at page 2 of Ex.P.1-Will dated 03.11.1986, Ramalakshmi had stated that she desired that her house shall be used as a Branch by the Mutt and he knew that on 22.01.1988, the 4th Defendant sold her property at No.133, Usman Road to Defendants 5 to 9 and that he had not taken steps as an Executor to set aside the aforesaid sale.
40.The evidence of P.W.2 is that Ramalakshmi came permanently to the house at Usman Road, T.Nagar in 1984 and before that she used to come and stay in the said house frequently. He had not seen any of her relatives and her physical health and mental condition were alright and she was affected with ill health during May 1986 and was hospitalised. He and Narasimhan (Tenant) admitted her into the hospital and she was in the hospital for about 4 or 5 days or a week and she was a diabetic and she was in good health and after being discharged from the hospital. She was looked after and was provided with food by Kanakavalli, wife of Narasimhan and she was frequently visiting Sringeri Mutt and attending poojas in nearby temple.
41.P.W.2 adds in his evidence that on 02.11.1986, Ramalakshmi asked Narasimhan to phone up to him and asked him to come and when he met her, she informed that she wanted to execute a Will in favour of Swami Narayananda Bharathi and therefore, directly went to the house of Advocate P.B.Ramanujam, [who is known to him] and he informed Ramanujam that Ramalakshmi Ammal desired to execute a Will and immediately he asked one Krishnamurthy to accompany him to Ramalakshmi's house and take down whatever was dictated by her and he took Krishnamurthy to Ramalakshmi's house and Ramalakshmi informed that she knew only Tamil and wanted the Will to be in Tamil, and furnished all the details for the Will to Krishnamurthy and that Krishnamurthy took the notes and for getting it typed. On the next day, the said Krishanmurthy brought the typed Will at about 8.00 a.m. and since Krishnamurthy informed Ramalakshmi that two witnesses were required she asked him to fetch Natarajan who is the Proprietor of Sundaram Provisions Store and Ramalakshmi knew Natarajan because he was a tenant under her and the next day he and Natarajan went to Ramalakshmi's house and when he went there on 03.11.1986, the 3rd Plaintiff (Narasimhan), Krishnamurthy and Ramalakshmi were present and at that time Ramalakshmi was in sound conscious state, but she was unable to sign, as she had shivering in her hand and hence, she had affixed her thumb impression in the Will and thereafter, Krishnamurthy and Natarajan signed as attesting witnesses. Moreover, Ex.P.1 is the Will executed by Ramalakshmi Ammal and Natarajan and Krishnamurthy attested the Will in his presence and she set her thumb impression only after the typed Will was read aloud to her and after she acknowledged that it was correct and the attesting witnesses signed in the Will only after Ramalakshmi Ammal set her thumb impression.
42.P.W.2 also deposed that Jagannatha Rao and Indumathi Shoba (7th Plaintiff) had not attended the funeral ceremonies of Ramalakshmi and there was no endorsement in Ex.P.1-Will as to who typed and prepared the same.
43.P.W.3 in his evidence has stated that Ramalakshmi came to the house at T.Nagar only in the year 1984 and he knew her but not any of her relatives and she was about 78 to 80 years old and he used to help her by providing food and she was hale and healthy at that time. Thereafter, she became weak and was suffering from diabetes and became very sick in May 1986 and informed him that she wanted to undergo all the medical tests and accordingly, he took her to VHS hospital and got her admitted where she was in-patient for about 10 days and at that time of discharge, she was in good conscious and was hale and healthy.
44.P.W.3 proceeds to state in his evidence that on 02.11.1986 morning Ramalakshmi asked him to call Srinivasan and therefore, he called him and she talked to him as well as to Srinivasan and instructed them to call Advocate Ramanujam. But the Advocate sent one Krishnamurthy and he had not gone to Advocate Ramanujam's house and the said Krishnamurthy came to Ramalakshmi's house and she told him that she was aged and wanted to execute a Will and she gave instructions for the writing of the Will to Krishnamurthy in his presence and in the presence of Srinivasan and Natarajan and she asked Krishnamurthy to get it typed so that she could execute the same, the next day at 7.30 a.m. and Natarajan was present on 2nd as well as on 3rd November 1986 and on 3rd November 1986, a typist was brought to the house and then typed Will was read aloud to her. It is his further evidence that he wanted to attest the Will, but was told that since he was appointed as an Executor, he could not do so and therefore, the signatures of Natarajan and Krishnamurthy were obtained in the Will and when Ramalakshmi affixed her thumb impression, he was present and also Natarajan and Krishanmurthy attested the Will and Ex.P.1 is the Will executed by Ramalakshmi Ammal and she was in sound and disposing state of mind and healthy at that time, but was weak physically due to her old age.
45.The evidence of P.W.3 is to the effect that initially Ramalakshmi was in the habit of signing, but later she developed shivering in her hand and required massage to her arms and informed that she would not sign in the Will, but set her thumb impression and in the afternoon of that day, she told him that she was not feeling well and wanted to get herself checked by a doctor. Hence, at about 2.00 p.m. he took her to Vijaya Hospital and Srinivasan also accompanied them and she had symptoms of vomiting and on 03.11.1986 neither Jagannatha Rao nor Indumathi Shoba was in the house and he had never seen them at all and Ramalakshmi was in the hospital for about a week and after her discharge, she was well and sound consciousness. She died in the month of December 1986 and he could not remember the exact date and till about half an hour prior to her death, she was fully conscious and was of sound memory and at the time of her death, he brought Dr.Radhakrishnan to see her and after the doctor arrived, she was alive for about 45 minutes and he informed Masilamani about her demise and he performed her last rites.
46.P.W.3 (in his cross examination) has stated that they disposed away all the medical records pertaining to the admission of Ramalakshmi in VHS hospital in May 1986 and her discharge therefrom in June 1986, when they vacated the house and that the property was sold by Swamy Narayananda Bharathi to Deepak Brothers for Rs.12 lakhs and in the Sale Deed, himself and Srinivasan signed as attesting witnesses and the Sale Deed was registered in the house at 133, Usman Road.
47.P.W.3 (in his cross examination) has also deposed that he does not have the records relating to the hospitalisation of Ramalakshmi in Vijaya Hospital and they did not retain the same and further stated that it is not correct to state that Ramalakshmi was affected with paralysis in October 1986 due to which her brain was affected and from then onwards, she had poor visibility and was in a state of semi-consciousness and therefore, they destroyed the documents pertaining to the treatment. Furthermore, he denied the suggestion that it is not correct to state that his wife, himself and Srinivasan brought about Ex.P.1-Will and obtained the right hand thumb impression of Ramalakshmi when she was in a semi-conscious state. To another suggestion, he denied by stating that it is not correct to state that the signature of the attesting witnesses was obtained later and they were known to him and Srinivasan.
48.P.W.4, in his evidence, has stated that he knew Ramalakshmi as a landlady and she was not residing at Door No.131, Usman Road, but she used to go there to collect rent and she used to talk to him, by coming to his shop, whenever she come to collect the rent and she sent a word to him to come and meet her through Srinivasan, who was working in a pharmaceutical shop which was adjacent to his shop and Srinivasan told him the purpose that she wanted him to sign as a witness in some document she proposed to execute and the next day, Srinivasan came and took him to her house at about 8.00 a.m. and at that time, when they went there, one Krishnamurthy was present in the house, who was introduced to him by Srinivasan and that Ramalakshmi told him that she had prepared a Will and said that he had to attest the same.
49.P.W.4 in his further evidence has stated that Ex.P.1-Will was given to him and he read through the same and when he asked her as to why she was executing the Will so urgently, she informed him that she was mentally disturbed and hence, she had taken a decision to execute the Will in such a manner and thereafter, he read the Will aloud to her twice and after she acknowledged it to be correct, she said that she wanted to set her thumb impression as her hands were shivering and then did so and thereafter, he attested the Will.
50.P.W.4 in his evidence proceeds to state that while Ramalakshmi was setting her thumb impression in the Will, himself along with Krishnamurthy and Srinivasan were present and after his attestation, Krishnamurthy signed in the Will.
51.P.W.4 adds in his evidence that he does not know about Ramalakshmi's hospitalisation in VHS hospital during May-June, 1986 and though he was doing business in the building owned by her nobody informed him that she was unhealthy and he had enquired as to who was Krishnamurthy and he was introduced to him by Srinivasan and that it is not correct to state that Ramalakshmi was very ill on 2nd November and that she had vomitting and diarrhoea and was unconscious on the 3rd morning and hence, she was admitted to hospital by 2.00 p.m. on that day.
52.P.W.5, in his evidence, has deposed that P.B.Ramanujam was his neighbour and he used to spend his evenings with him and in many matters he used to ask him to accompany him to the houses of clients and on one such occasion, he requested him to go to Ramalakshmi's house and note down hints given by her, since he could not go and one evening, he had gone to the house of Ramalakshmi and Srinivasan took him to her house and when he went to her house, she told him that she wanted to execute a Will and that she was not well and asked him to note down the hints for the Will and accordingly, he noted down the same and informed her that the details would be fully prepared by P.B.Ramanujam and that he would get the same typed and bring it back to her and when she enquired her as to whether she wanted the Will to be either in Tamil or in English. She told him that she wanted it in Tamil and told her that she had to arrange for two witnesses to attest the Will and then, he showed the hints to Ramanujam who dictated the Will in detail to him and he took down the dictation and got the Will typed in job typing.
53.P.W.5 has also stated in his evidence that he took the Will so prepared to Ramalakshmi's house the next day morning and the said Will is Ex.P.1 and while taking the said Will, they took one Natarajan along with them since they wanted another witness to be arranged and Natarajan was brought to Ramalakshmi's house by Srinivasan. When they went to her house the next day morning, she tried to sign in one paper, but could not do so because of shivering in her hands and he informed her that it would be better if she set her thumb impression in Ex.P.1-Will. Moreover, before Ramalakshmi set her left hand impression, he read aloud the contents of the Will to her and thereafter, Natarajan read out the Will to her and then Ramalakshmi set her left thumb impression in his presence and thereafter, he set his signature as the second attesting witness and the first attesting witness S.Natarajan also signed in the Ex.P.1-Will.
Depositions of P.W.6 to P.W.9:
54.It is the evidence of P.W.6 that he is the Births and Deaths Clerk of Corporation of Chennai [Kodambakkam Branch, Chennai] and that the death of Ramalakshmi, wife of late K.V.Subba Rao resided at No.133, Usman Road, T.Nagar, Madras 17 and aged 82 years [widow] was registered in their Death Register on 31.12.1986 in Serial No.81 and the death of Ramalakshmi was informed by one S.Narasimhan, residing at No.133, Usman Road, T.Nagar, Madras 17 and Ex.P.7 is the Certificate of death issued by the Corporation of Madras relating to Ramalakshmi.
55.The further evidence of P.W.6 is that it is true that the entry pertaining to cause of death shown as Cardiac arrest with respiratory arrest, has been made in different handwritings in different inks and he does not know as to who made the said entry and when it was done and added that it is correct to say that entry in Serial No.81 is in two handwritings and two different inks.
56.P.W.7 in his evidence has deposed that he is an Office Assistant at the burial ground of Kannamapet and in respect of the cremation of K.Ramalakshmi Ammal, in the counterfoil register maintained in their burial ground, one S.Narasimhan has signed who described himself as a family friend and Ex.P.14 is the xerox copy of the receipt issued by the Corporation of Madras reporting the cremation of Ramalakshmi on 27.12.1986 and he was not the Office Assistant at the time of cremation of the aforesaid Ramalakshmi.
57.P.W.7 (in his cross examination) has stated that he is not able to say whether the signature found in Ex.P.14 is that of S.Narasimhan and normally during the year 1986, the persons who received the burial receipt did not mention the relationship to the dead persons but some times they do mention it.
58.The evidence of P.W.8 (Chartered Accountant) is that he knows the formation of Sri Narayanandha Bharathi Trust and that the Trust received a sum of Rs.12 lakhs as corpus for the Trust on sale of the property at Madras and he does not know the particulars of the property sold at Madras and Swamy Narayanandha Bharathi sold the property in the year, 1988.
59.Continuing further, it is the evidence of P.W.8 that Ex.C.1 is the copy of the extract of the Ledger of Sri Narayanandha Bharathi Trust, Tirupur which pertains to two years 1987-1988 and in page 4 of the Ex.C.1, sale proceeds by Will is recorded as Rs.11,99,963/- on 30.03.1988 and in Ex.C.2-Certified copy of the Day Book Entry of the Trust, it is recorded in the first page 'Property by Will Rs.11,99,963.00/-' and Ex.C.3 is the copy of Income and Expenditure Account for the year ended 31.03.1988 and also the Balance Sheet on 31.03.1988 and he signed the document as Sole Trustee of Sri Narayanandha Bharathi Trust at Tirupur on 26.07.1988 and Ex.C.4 is the copy of the registration under Section 12A of the Income Tax Act issued by the Commissioner of Income Tax, Coimbatore in favour of Sri Narayanandha Bharathi Trust on 11.01.1988 and that under original of Ex.C.5, the Commissioner of Income Tax granted exemption as per Section 80-G of the Income Tax Act, in respect of donations to Sri Narayanandha Bharathi Trust on 25.03.1997.
60.P.W.8 (in his cross examination) has deposed that Swamy Narayanandha Bharathi passed away in or about October 2002, at the age of 65 in a hospital at Trichy and according to Clause 14 of the terms of the Trust, Sri Sringeri Mutt got the properties and that Sri Narayanandha Bharathi has not appointed any successor in his place and that he does not have any record to show that Sri Sringeri Mutt took over the assets of the Mutt and as a Chartered Accountant of the Trust, he has taken over and himself handed over the fixed deposits of Sringeri Mutt. Also that as per Ex.C.6 the Trust Deed, the office of the Trust is at No.13, Universal Road, Vallipalayam, Tirupur and the Trust is functioning from the said premises even now and he does not know the details of the Will and he has been informed of it and he cannot say whether Sri Swamy Narayanandha Bharathi had any right to sell the property at Madras or put it in the Trust.
61.The evidence of P.W.9 (5th Defendant) is that 6th Defendant is the younger brother, whose wife is 7th Defendant and 8th Defendant is his Aunt and 9th Defendant is his cousin and that Defendants 6 to 9 are his family members, purchased the property as per Ex.P.15-Registration Copy of the Sale Deed dated 22.01.1988.
Evidence of D.W.1 and D.W.2:
62.D.W.1 [7th Defendant in T.O.S.No.32 of 2000 and 7th Plaintiff in C.S.No.980 of 1999] has deposed that suit property belongs to her paternal grandfather K.V.Subbarao and that her father-Jagannatha Rao married his mother Ammaniammal and Plaintiffs 1 to 7 are the children of Jagannatha Rao and Ammaniammal and his father was working as a Headmaster in Kesari Elementary School, T.Nagar.
63.It is the further evidence of D.W.1 that her grandmother Ramalakshmi was admitted in VHS hospital, Adyar on 24.05.1986 for paralysis of her left portion of the body and she was discharged from the hospital on 04.06.1986 and Ex.D.9 is the Discharge Certificate issued by the Voluntary Health Services and that two nurses were appointed, one for looking after her and another for physiotherapy of her grandmother, and in October 1986 her grandmother was not able to walk and she was bed ridden and one Masilamani was looking after the accounts regarding the income and expenses of her grandmother and even though she tried to send them away. He and her parents and sisters stayed there in the hospital and her grandmother was there in the hospital for five days and on 08.11.1986 she was discharged from the hospital and that the doctor said that she could not be cured in the hospital and they were to take care of her in the house and her grandmother died on 26.12.1986.
64.According to D.W.1, her grandmother had no issues and they are the agnates of Ramalakshmi Ammal and all the medical records of her grandmother are with Narasimhan and Masilamani (1st and 3rd Defendants) and her father and mother treated her grandmother and Ex.D.10 is the certificate received by her father from the doctor of Vijaya Hospital but she wanted to examine Dr.Ganesan but she heard that he died in the year 2002 and that the alleged Will dated 03.11.1986 is a fabricated one.
65.The evidence of D.W.2 (Lily Arputham) is that she is the Power of Attorney Agent of the Plaintiffs and also for the Respondents in the testamentary original suit and herself and her husband were staying in the suit property since 1978 when her husband took the portion of the house for textile shop and she knew Ramalakshmi since 1978 and that the 1st Plaintiff in TOS, Masilamani was looking after the accounts of Ramalakshmi and he used to come to Ramalakshmi's house once in a week and once in two weeks and whenever she used to visit her husband's shop, she used to help Ramalakshmi for purchasing provisions, ration etc. and 3rd Plaintiff in TOS viz., Narasimhan came to the suit property as a tenant in the year 1983 and Ramalakshmi's husband Subba Rao used to tell him that Jagannatha Rao was his agnate and that she is giving evidence on behalf of the Plaintiffs.
66.It is the further evidence of D.W.2 that till 1985 Ramalakshmi was in good health and during 1986 May, she became unwell and almost went to the stage of coma and was admitted into Raju Hospital, T.Nagar and since there was not enough facilities in that hospital, she was taken to VHS hospital, Adyar on 25.05.1986 and after she was admitted in the said hospital, she was in the coma stage for two or three days and she does not exactly know whether it was 24th or 25th May and after that she recovered from the coma stage and her brain cells on the right side was damaged, she was paralysed on the left side of the body and after discharge from the VHS hospital, Ramalakshmi was able to sit in the bed, but she was not active and she did not remember the past and that on 29.08.1986 Ramalakshmi Ammal went to the Registrar's Office to register the sale deed in respect of vacant land at the back portion of the suit property and she saw the 3rd Defendant (Narasimhan) carrying Ramalakshmi in his hands to a taxi and he took her to Registrar's Office etc.
67.Apart from the above, it is the evidence of D.W.2 that on 02.11.1986 at about 5.00 p.m. she went to the Panagal Park Market for purchasing vegetables, at that time, she saw the 7th Plaintiff, sitting at the entrance of the house of the suit property and asked her why she was sitting there? and she said that she and her father came to see Ramalakshmi Ammal and since she was sick, her father had left her at the entrance of the house and then she and 7th Plaintiff went to see Ramalakshmi. At that time, she was having loose motions and she was lying in the bed and she enquired Ramalakshmi as to how she was feeling and she said that she was having loose motions and very tired and she was given medicines by a person in their house and next day on 03.11.1986 she was told that Ramalakshmi was serious and was taken to Vijaya Hospital and when she went to see her in the hospital at 5.00 p.m. on 03.11.1986 Ramalakshmi Ammal was not in a condition to write a Will and she was unconscious.
68.The Learned Senior Counsel for the Appellants submits that Ex.P.1-Will dated 03.11.1986 cannot be true because P.W.1 one of the Executors of the Will states that in Ex.D.2 counter in Application No.3926 of 1988 that Ramalakshmi desired to bequeath the property to Sringeri Mutt and in the Written Statement in C.S.No.980 of 1999 that she has given all her assets to Nilamau Mutt, Branch of Sringeri Mutt.
69.It is the further contention of the Learned Senior Counsel for the Appellants that two other Executors in Ex.D.6 state that Ramalakshmi wanted to give properties to Dharma Institution and hence has given to Nilamau Mutt, Branch of Sringeri Mutt. In view of the discrepancy, it is the plea of the Learned Senior Counsel for the Appellants that Ex.P.1-Will cannot be her Will and the contents are not known to the Executant viz., Ramalakshmi.
70.Another submission of the Learned Senior Counsel for the Appellants is that there is no denial about the physical and mental condition of the Testator viz., Ramalakshmi and further, the property has been sold and money has been put in the Trust founded by the 1st Respondent/ 1st Defendant for the Trust activities and in fact, Respondents 1 to 3/Defendants 1 to 3 have utilised the amount to the detriment of the Trust.
71.It is brought to the notice of this Court on behalf of the Appellants that in Ex.P.1-Will, there is no indication as to who typed the Will. The Learned Senior Counsel for the Appellants vehemently contends that Ramalakshmi at the time of alleged execution of the Ex.P.1-Will was not conscious and not knowing what she was doing.
72.Furthermore, it is the submission of the Learned Senior Counsel for the Appellants that question arises as to whether Mutt is a beneficiary or the individual and also that even before the service of summons to 4th Respondent/4th Defendant, he filed a Written Statement. Further, the non-existence of Mutt has not been denied in the Written Statement.
73.The Learned Senior Counsel for the Appellants cites the decision of the Hon'ble Supreme Court in C.Beepathuma and others V. Velasari Shankaranarayana Kadambolithaya and others [AIR 1965 SC 241], wherein it is held that 'the Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it.'
74.In response, the Learned Senior Counsel for the Respondents submits that in the Ex.P.1-Will dated 03.11.1986, executed by Ramalakshmi, earlier Clause is to the effect that 'after the life time of testator (Ramalakshmi) all her properties shall pass on to Nilamau Mutt connected with Sringeri Mutt etc.' and the latter Clause of the Will refers to the testator's (Ramalakshmi's) house, articles, jewels, utensils etc. and the money standing in her name and everything shall pass on to the aforesaid Swamigal [i.e. Sri Narayanandha Bharathi Swamigal of the Mutt] and he himself shall be the absolute owner and that she executed this Will with all the contents while in sound memory and her desire is that after her life time, her house shall be kept as the Branch of the aforesaid Mutt and in view of the inconsistency between the earlier Clause/Part of the Will and the latter portion of the Will as referred to supra, the last of the Clause will prevail over the earlier paragraph, as per Section 88 of the Indian Succession Act.
75.To lend support to the contention that in view of the inconsistency between the earlier Clause and the latter clause in Ex.P.1-Will dated 03.11.1986 of Ramalakshmi, the latter one shall prevail over the other, the Learned Senior Counsel for the Respondents cites the decision of the Hon'ble Supreme Court in Uma Devi Nambiar and others V. T.C.Sidhan (dead), [2004 (2) CTC 287] wherein it is held that 'the Rules of interpretation of the Will are different from Rules which govern interpretation of documents like Sale Deed, Gift Deed, Mortgage Deed or any other instrument by which interest is created in immovable property and in case of Will, the testator can always change his mind to create another interest in place of bequest already made in earlier part or on earlier occasion and the last Will will prevail over earlier Wills' and further, it is observed that 'the Maxims meaning 'Latter shall prevail over earlier clause in case of inconsistency can be applied to Will containing two inconsistent provisions'.
76.By placing reliance on the aforesaid decision of the Hon'ble Supreme Court in 2004 (2) CTC 287 (cited supra), the Learned Senior Counsel for the Respondents submits that even though the Testatrix-Ramalakshmi in Ex.P.1-Will dated 03.11.1986 has mentioned that after her life-time, all her properties shall pass on to Nilamau Mutt connected with Sringeri Mutt etc., in view of the fact in the latter Clause, the Testatrix (Ramalakshmi) has categorically mentioned that after her life-time her house, articles, jewels, utensils etc. and the money in the Bank standing in her name and everything shall pass on to the aforesaid Swamigal, Sri Narayanandha Bharathi the Swamigal of the Mutt and he himself shall be the absolute owner, the Swamigal viz., the 4th Respondent (4th Defendant) in the suit is the absolute owner of the property viz., Door No.133, Usman Road, Chennai 17 mentioned in the Will and as such, the earlier Clause in the Will that after Testatrix's (Ramalakshmi's) life-time, all her properties shall pass on to Nilamau Mutt connected with Sringeri Mutt will not prevail.
77.The Learned Senior Counsel for the Respondents contends that in law, the propounder of a Will has to prove the Will and the existence of suspicious circumstances cause a burden on the propounder to explain such circumstances to the satisfaction of the Court before the Will is accepted as genuine and in this regard, he relies on the decision of the Hon'ble Supreme Court in Sridevi and others V. Jayaraja Shetty and others [2005 (1) CTC 443].
78.It is the contention of the Learned Senior Counsel for the Respondents that in the present case on hand, two attesting witnesses have categorically stated that Testatrix (Ramalakshmi) was in sound state of mind at the time of execution of Ex.P.1-Will and therefore, it cannot be said that the Will is not a genuine one.
79.The Learned Senior Counsel for the Respondents seeks in aid the decision of the Hon'ble Supreme Court in Madhukar D.Shende V. Tarabai Aba Shedage, [2002 (1) CTC 244] wherein it is held that 'the propounder of Will must establish competence of testator to make Will at the time of execution of the Will in manner contemplated by law and contesting opposite party may bring material meeting such prima facie evidence adduced by the propounder and in such event, onus will once again shift on propounder to establish affirmatively that the testator was aware of the contents of Will and was in sound state of mind while executing the Will.'
80.Also, in the aforesaid Judgment, at page 250 it is, inter alia, observed that "Subsequent purchaser who filed the suit for injunction or alternatively for recovery of possession against same 'T' and when he relied on the same Will to prove title, it is held that the Judgment in suit filed by 'C' against 'T' is relevant piece of evidence and had material bearing in suit filed by the subsequent purchaser against 'T'."
81.The Learned Senior Counsel for the Respondents cites the decision of the Hon'ble Supreme Court in Sri Devi and others V. Jayaraja Shetty and others, [(2005) 2 Supreme Court Cases 784] wherein it is, among other things, held that 'The onus to explain suspicious circumstances, if any, is also on the propounder of a Will, but the onus to establish allegations of undue influence, fraud or coercion rest on the persons making such allegations and proof in either case should be one of satisfaction of a prudent man.'
82.The Learned Senior Counsel for the Respondents cites the decision of the Hon'ble Supreme Court in Savithri and others V. Karthyayani Amma and others, [2008-1-L.W.255 at page 256] wherein it is held that 'the onus to prove the case of the appellants that the signature of the testator on the Will was obtained under undue influence or coercion was on them and they are failed to do so and if the propounder proves that the Will was signed by the testator, and he at the relevant time was in sound disposing state of mind and understood the nature and effect of disposition, the onus stands discharged.'
83.The Learned Senior Counsel for the Respondents quotes the decision of the Hon'ble Supreme Court in Crystal Developers V. Smt.Asha Lata Ghosh (dead) through LRs. and others [2005-1-L.W.-387] wherein at pages 405, 406 & 407 in paragraphs 28 & 29, it is, inter alia, held as follows:
"28. ...... Moreover, section 221 of the Indian Succession Act indicates that intermediate acts of the administrator which damage or diminish the estate are not validated. This section brings out the difference between letters of administration and probate. Section 221n expressly states that certain intermediate acts of the administrator are not protected as the authority of the administrator flows from the grant by the competent court unlike vesting of the property in the executor under the will (see: section 211). Section 222 states that probate shall be granted only to an executor appointed by the will. Section 227 deals with effect of probate. It lays down that probate of a will when granted establishes the will from the date of the death of the testator and renders valid all intermediate acts of the executor. Section 227 is, therefore, different from section 221. As stated above, in the case of letters of administration, intermediate acts of the grantee are not protected whereas in the case of probate, all such acts are treated as valid. Further, section 227 states that a probate proves the will right from the date of the death of the testator and consequently all intermediate acts are rendered valid. It indicates that probate operates prospectively. It protects all intermediate acts of the executor as long as they are compatible with the administration of the estate. Therefore, section 221 read with section 227 brings out the distinction between the executor and holder of letters of administration; that the executor is a creature of the will; that he derives his authority from the will whereas the administrator derives his authority only from the date of the grant in his favour by the Court. Section 235 inter alia states that letters of administration with the will annexed shall not be granted to any legatee, other than universal or residuary legatee, until a citation has been issued and published calling on the next-of-kin to accept or refuse letters of administration. Such provision is not there in respect of grant of probate. In the circumstances, the judgment in the case of Debendra Nath Dutt & another v. Administrator-General of Bengal reported in [ILR (1906) 33 Calcutta 713] will not apply to the present case.
29. ........ Before us, it has been vehemently urged on behalf of the plaintiffs that the revocation of the grant of probate will make all intermediate acts ab initio void. Under section 263, as stated above, grant of probate or letters of administration is liable to be revoked on any of five grounds mentioned therein. One of the grounds as stated above is failure on the part of the grantee to exhibit/file an inventory or statement of account. Similarly, the probate or letter or administration is liable to be revoked if the grant is obtained fraudulently. Can it be said that revocation of the probate on the ground of non-exhibiting an inventory or statement of account will make the grant ab initio void so as to obliterate all intermediate acts of the executor? If it is not ab initio void in the case of non-filing of inventory or statement of account then equally it cannot be ab initio void in the case of a grant obtained fraudulently. In other words, what applies to clause (e) of the explanation equally applies to clause (b) of the explanation. At this stage, we clarify that if the intermediate act of the executor is not for the purpose of administration of the estate or if the act is performed in breach of trust then such act(s) is not protected. However, acts which are in consonance with the testator's intention and which are compatible with the administration of the estate are protected. Therefore, on reading sections 211, 227 along with section 263, it is clear that revocation of the grant shall operate prospectively and such revocation shall not invalidate the bona fide intermediate acts performed by the grantee during the pendency of the probate."
Also, in the aforesaid decision, at page 409 in paragraph 35, it is observed as follows:
"35.In Cherichi v.Ittianam & others [AIR 2001 Kerala 184], it has been held that the prohibition under section 213 of Indian Succession Act is regarding establishing any right under the will without probate and that section cannot be understood as one by which the vesting of right as per the provisions of the will is postponed until the obtaining of probate or letters of administration. The will takes effect on the death of the testator and what section 213 says is that the right as executor or legatee can be established in any Court only if probate is obtained. Therefore, section 213(1) does not prohibit the use of will which is unprobated as evidence for purposes other than establishment of right as executor or legatee. Therefore, the requirement of obtaining probate becomes relevant at the time when the establishment of right as executor or legatee is sought to be made on the basis of a will in a court of justice."
Moreover, in the aforesaid decision of the Hon'ble Supreme Court, in paragraph 49 at page 416, it is, inter alia, held thus:
"49. ........ Before concluding, we reiterate that revocation of the probate operates prospectively; that such revocation does not obliterate bona fide transactions entered into by the executor during the pendency of the probate; that we have gone into the circumstances surrounding the will as they were pressed into service during the course of the argument."
84.He also refers the decision of the Hon'ble Supreme Court in Kaivelikkal Ambunhi (dead) by LRs and others V. H.Ganesh Bhandry, [AIR 1995 Supreme Court 2491] wherein it is held that 'The Subsequent part, clause or portion prevails over the earlier part'.
Also, in paragraph 4, it is observed as follows:
"4.A Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. This is regulated by the well known maxim "cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est" which means that if in a Will there are to inconsistent provisions, the latter shall prevail over the earlier (See: Hammond V. Treharne, (1938) 3 All ER 308'.
85.The Learned Senior Counsel for the Respondents submits that D.W.2 in her evidence has deposed that she is the General Power of Attorney Agent of the Plaintiffs in the Civil Suit and also for the Respondents in T.O.S.No.32 of 2000 and her husband is a tenant who is still in the suit property and as a Power of Attorney Holder, she cannot depose on behalf of the Principal.
86.The Power of Attorney document registered as Document No.604 of 1999 on 04.06.1999. As per the aforesaid General Power of Attorney executed by Appellants 1 to 7 to and in favour of Mrs.Lily Aruputham (D.W.2) it is evident that the Power Agent was authorised to defend T.O.S. as and when O.P.No.135 of 1987 was converted into suit and for this purpose to engage Advocate, sign vakalats and file Written Statement and take all proceedings in the aforesaid O.P. or T.O.S. to secure their assets, to sign and verify complaints, Written Statements, Petition, Affidavit and Application of all kinds objections, memorandum of Appeal, Revision etc., and file them in Courts or Offices etc. As per Clause 7 of the said Deed, D.W.2 (Power Holder) is authorised to spend for the above proceedings.
87.Expatiating his submissions, the Learned Senior Counsel for the Respondents contends that D.W.2 cannot depose about Ex.P.1-Will dated 03.11.1986 executed by Ramalakshmi Ammal or any other facts concerning the said execution and as a matter of fact, the Power of Attorney was only created for the purpose of filing the suit.
88.In support of the contention that a Power of Attorney Holder viz., D.W.2 could not depose on behalf of the Principals viz., Plaintiffs, the Learned Senior Counsel for the Respondents cites the decision of the Hon'ble Supreme Court in Janki Vashdeo Bhojwani and another V. Indusind Bank Limited and others, [AIR 2005 Supreme Court 439] wherein it is categorically stated that 'A Power of attorney holder cannot depose in place and instead of principal.'
89.In matters requiring personal knowledge, evidence cannot be adduced through a Power of Attorney. In law, a General Power of Attorney Holder can appear as a witness only in his personal capacity. However, he/she cannot appear as a witness on behalf of the Plaintiff, in the capacity of Plaintiff.
90.In the instant case on hand, D.W.2 (in her chief examination) has deposed that she is giving evidence on behalf of the Plaintiffs. As such, it is held by this Court that D.W.2 cannot appear as a witness on behalf of the Plaintiffs, in the capacity of Plaintiffs. However, there is no embargo for her to appear as a witness only in her personal capacity, as opined by this Court.
91.The Learned Senior Counsel for the Respondents brings it to the notice of this Court that the sale proceeds of the property bearing Door No.133, Usman Road, T.Nagar, Madras 17 [by Will] viz., a sum of Rs.11,99,963/- has been referred to in the Capital Fund Account of Sri Narayanandha Bharathi Trust, Tirupur and the Trust has been exempted as per Section 80-G of the Income Tax Act. Further, in the Income Tax and Expenditure Account for the year ended 31st March 1988 of the said Trust under the caption 'Liabilities', it is mentioned as "Rs.20,67,535" and under the caption 'Assets', it is mentioned as "Rs.20,67,535".
92.The Learned Senior Counsel for the Respondents contends that Sri Narayanandha Bharathi Trust, Tirupur has been granted the exemption under Section 80-G of the Income Tax Act (in respect of donations to it) and further, the Commissioner of Income Tax, Coimbatore in his proceedings in C.No.1419(64)/87-88 dated 25.03.1997 has renewed the exemption as per Section 80-G of the Income Tax Act in respect of the Trust from 01.04.1997 to 31.03.2000 and therefore, it cannot be said that the said Trust is not in existence in the eye of law.
93.That apart, the Learned Senior Counsel for the Respondents submits that Sri Narayanandha Bharathi Trust, Tirupur has come into existence by means of a Trust Deed dated 15.04.1987 and the same has been registered as Document No.33 of 1987 of Book 4, Volume 24 pages 81 to 85 (Registered on 21.04.1987) with certain objects.
94.The suit summons in Civil Suit No.980 of 1999 of this Court has been sent to the 4th Respondent/4th Defendant as 'Swami Narayananda Bharathi D4, Peetatheeswarar & Sriram Nilamavu Mutt disciple Mutt of Sringeri Sarada Peedam, Heroor, Karnataka State'.
95.The Learned Senior Counsel for the Respondents submits that the probate, in the present case, was granted on 22.01.1988 and the revocation of probate was ordered on 19.07.1989 and even if the property viz., at Door No.133, Usman Road, T.Nagar, Chennai-17 has been sold as per the Sale Deed dated 22.01.1988 in favour of Defendants 5 to 9 in C.S.No.980 of 1999, all actions during the interregnum period are a valid one, in the eye of law.
96.At this stage, this Court pertinently points out that a Court of Law will always endeavour to reconcile the two separately inconsistent dispositions in a Will so as to avoid applying the same what arbitrary rule of despair that the latter of the two inconsistent clauses shall prevail.
97.In fact, Section 284 of the Hindu Succession Act, prescribes procedure to be followed by a person who wants to oppose the grant of probate.
98.If anyone wants to oppose the issuance of a grant of probate or letters of administration, he or she must file a caveat. A caveat is entered usually after the petition is presented and before the grant is issued. But it may even be lodged before the petition is presented. After the caveat is presented, the caveator, if he challenges the Will, must file an affidavit in support of the caveat within eight days. But there is no time limit under the Indian Succession Act for a caveat to remain in force.
99.It is to be borne in mind that the entry of a caveat does not convert the petition into a contentious proceeding. The petition becomes contentious one only after the caveator files an affidavit in support of the caveat. One cannot ignore a very vital fact that a testamentary proceeding is not really a suit, but it has all the trappings of a suit. In law, when a caveat is filed, the propounder of a Will has been given the option either to contest the caveator's right to oppose the grant or to concede such right. If that option is exercised and when the proceedings are marked as a suit, then, it is not open to a propounder of a Will to contend that the caveator has no locus standi.
100.An individual who claims the property by means of a paramount title or claims adversely to the testatrix or disputes their right to deal with the property sought to be disposed of by the Will, has no locus standi to lodge a caveat. However, if the caveatrix claims to be an intestate heir of the testatrix, she already has sufficient interest to maintain the caveat, in our considered opinion.
101.It cannot be gainsaid that in an application for revocation of grant of probate the burden is on the applicant to dislodge the evidence as regards the execution and attestation of the Will. The oral evidence ought to be a definite and stringent one. To put it precisely, the evidence in regard to the improbability of the due execution should be clear and cogent and should approach very nearly to an impossibility as per the decision in Chotey Narain V. Ratan Koer 22 IA 12.
102.In regard to an application for revocation of a grant, there is no fixed period of limitation. The application may be made at any time. If an application for revocation of a grant, is made with a delay, then the same is not a material one, if it does not point out to an inference of waiver.
103.At this stage, this Court worth recalls the decision in Karunanidhi V. Umakeswaran, [(2006) 2 MLJ 647] wherein it is observed as follows:
"The suit for Letters of Administration was filed by the legatee son of the testator and the grant was opposed by another son of the testator, only on the ground that the testator -father did not execute the Will in a sound disposing state of mind. The suit was decreed ordering the issue of Letters of Administration in favour of the plaintiff-legatee with the Will annexed.
In the absence of both the attestors of the Will, they having died, the evidence of P.W.2 satisfied the ingredients of Section 69 of the Evidence Act.
The above evidence coupled with the registration of the document and the other circumstances surrounding the execution of the Will would lead to the conclusion, that the testator had executed the Will while he was in a sound disposing state of mind."
104.Further, this Court aptly points out the decision of the Hon'ble Supreme Court in Krishna Kumar Birla V. Rajendra Singh Lodha and others, [(2008) 3 MLJ 1002 (SC)] wherein at page 1016, in paragraph 59, it is, inter alia, held that 'A question of title arising under the Act cannot be gone into the proceedings. Construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court.' Further, in paragraph 60, it is observed hereunder:
"60. A person to whom a citation is to be issued or a caveator, must have some interest in the estate of the testator. Any person claiming any interest adverse to the testator or his estate cannot maintain any application before the Probate Court. His remedy would be elsewhere. The question with regard to the degree of interest or the right which a caveator must show to establish his or her caveatable interest before the Probate Court should be considered having regard to the aforementioned legal propositions."
Moreover, in paragraph 89 at page 1021, it is held thus:
"89. The propositions of law which in our considered view may be applied in a case of this nature are:
(i)To sustain a caveat, a caveatable interest must be shown;
(ii)The test required to be applied is: does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right.
(iii)It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by Will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein."
Apart from the above, in the aforesaid decision in (2008) 3 MLJ 1002 (SC), at special page 1004, it is held follows:
"It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. As such, any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by Will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein."
"Section 284 of the Indian Succession Act does not lay down the qualifications or disqualifications of the caveator and it only provides for a forum and nothing more. Once a caveat is filed, it is for the Court to determine the question as to whether the caveator has any caveatable interest or not."
"A busy body or an interloper having no legitimate concern in the outcome of the probate proceedings would not be entitled to lodge a caveat and oppose the grant of probate."
"The High Court in exercise of its powers under Section 122 of the CPC, could frame the Rules providing for determination of the issue of caveatable interest as a preliminary issue. After coming into force of Constitution, such Rules can also be framed by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India."
Also, in the aforesaid decision, the Hon'ble Supreme Court has observed as follows:
"Existence of a mutual Will or filing of a suit, by themselves, are not sufficient to create a caveatable interest."
"A preson having a remote family connection or as an agnate is not entitled to file a caveat. A reversioner or an agnate can maintain a caveat only when there is a possibility of his inheritance of the property in the event the probate of the Will is not granted. If there are heirs intestate who are alive, entertaining of a caveat on the part of another family member or a reversioner or an agnate or cognate would never arise."
105.That apart, this Court cites the following decisions in the interest of justice:
(a)In S.Bhaskaran and another V. R.Loganathan [(2007) 6 MLJ 290], it is held that 'if a person who is a necessary party to probate proceeding is not made a party, neither his knowledge nor acquiescence nor lapse of time will be a bar. If the grant is made without citing parties, who ought to have been cited, it will amount to a cause, which is just to revoke or annul the letters of administrations.'
(b)In R.Vasanthi V. Janaki Devi and others, [1999 Supp. MLJ 31], it is observed that 'a petition for grant of Letters of Administration filed some time after death of the testator with a delay cannot be a reason to disbelieve the Will'.
(c)In Balwant Kaur and another V. Chanan Singh and others, [(2000) 3 MLJ 59 (S.C.)] at page 60, it is held as under:
"Section 88 of the Indian Succession Act is obviously on the principle that the last clause represents the latest intention of the testator. It is true that in the earlier part of the Will, the testator has stated that his daughter -'BK' shall be the heir, owner and title-holder of his entire remaining moveable and immovable property but in the later part of the same Will he has clearly stated that on the death of 'BK', the brothers of the testator shall be the heirs of the property. This clearly shows that the recitals in the later part of the Will would operate and make appellant No.1 only a limited estate holder in the property bequeathed to her."
(d)In Mohanlal Futnani alias Mohanlal D. Futanani and another V. Vishanji D. Futnani, [1990-Vol.2-MLJ-294] it is held as follows:
"A fixed abode need not necessarily be a permanent residence and a person can have more than one such fixed abodes if he spends time more or less considerable, in all those places as exigencies of his occupation, vocation or fancy demand. The contention that there is an element of permanence in the word 'fixed' cannot be accepted."
(e)In K.Saroja, wife of R.R.Krishnan [1990-Vol.1-MLJ-51], it is observed as follows:
"The time would not begin to run under Art. 137 of Limitation Act in the case of a petition for grant of probate or Letters of Administration, because in such a case, right to apply accrued everyday and the cause of action for the application arises every moment so long as the Will remains unprobated. Therefore, the limitation question will not arise in such a petition or application for Probate or Letters of Administration."
(f)In J.Bakthavatchalam and another V. P.Krishnamoorthy, [1992 (2) MLJ 407 and 408], it is, among other things, held as follows:
"There is no gainsaying that rules in the Code of Civil Procedure are not strictly applied to a probate proceedings under the Succession Act, for it is well-known that Sec.295 of the Indian Succession Act lays down that when the proceedings become contentious, it shall take as nearly as may be the form of a regular suit according to the provisions of the Code of Civil Procedure. In a proceeding as nearly as a suit to be decided in accordance with the provisions in the Code of Civil Procedure, it will be unjust to say that those who stand in the place of the deceased caveator shall have no interest to object to the plaintiff's claim for grant of probate. The view expressed by a single judge in Baggiammal V. Balagopala, A.I.R. 1948 Mad. 33, clearly shows that there should be interest in the estate of the testator to justify a caveat and such a right Chandrasekharan had, a fact which cannot be disputed. The appellants herein are claiming the very same right which Chandrasekharan claimed. Thus they fully justify their appearance as caveators in the place of Chandrasekharan."
(g)In the decision Smt.Vyjayanthimala Bali V. Rattan Chaman Bali, [1990-1-Vol.105-L.W.27 at page 28], it is held thus:
"Even though the proceeding in a Testamentary Original Suit is not a suit in the strict sense of the term after it becomes contentious, it shall take the form of a regular suit, as nearly as may be, according to the provisions of the Code of Civil Procedure. (Vide S.295 of the Indian Succession Act. In such suit it has to be pointed out that there is no question of concealment or under-valuation with a view to defeat the payment of Estate Duty, as it has been abolished during the relevant period. Under-valuation of the estate is a matter left to the concern of the Revenue Authority by the Legislature. The provisions of Ss.55 to 59 of the Tamil Nadu Court-fees and Suits Valuation Act contain the necessary safeguards. It is not for this court to worry about the same. The agreement of learned counsel for the defendant that the proceeding not being a suit, there cannot be an application for striking of issues is untenable."
Further, in the aforesaid decision at pages 29 & 30, it is observed as follows:
"With regard to the records for proving the valuation of the properties, there is no necessity for the plaintiff to have produced them at this stage. The question of valuation is a matter for the Revenue Authorities as pointed out already. Hence, this is not a suspicious circumstance surrounding the execution of the will."
O.25 of the Original Side Rules prescribes the procedure for proceedings under the Indian Succession Act with reference to testamentary and intestate matters. R.51 of O.25 of the Original Side Rules provides that if any person intends to oppose the issue of a grant of probate or letter of administration, he must either personally or by his advocate file a caveat in the Registrar's office in Form No. 69. A caveat shall state the name, place of abode, description, occupation and the address for service of the caveator. Under the rule, when a caveat is filed, the Registrar shall give notice thereof to the petitioner. Under R.52, where a caveat is entered after an application has been made for a grant of probate or 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. Upon the affidavit in support of the caveat being filed, the proceeding shall be numbered and registered as a suit in which the petitioner shall be the plaintiff and the Caveator shall be the defendant. As per the Rules, the only person who can be a defendant in the suit is the caveator. No person who has not filed the caveat is entitled to be impleaded as a defendant."
(h)In G.Nagappan V. Kalaiselvam [1995-2-L.W.-65] at page 66, wherein it is observed hereunder:
"Under O.25, Rule 4 of the Original Side Rules, an application for probate shall be made by a petition with the will annexed, accompanied, if the will is not in English, by an official transaction thereof in English and such application shall be in Form No.55 or as near thereto as the circumstances of the case may permit. The language is mandatory and the application ought to be in Form 55. Form 55 found in Appendix II in Cl. 7 thereof, which was introduced by R.O.C.No.3618-A.89 F1.
The aforesaid R.O.C. Circular of this Court runs below:
"The petitioner has impleaded all the next of kin or other persons interested as party/respondents. There is no next of kin or other person interested to be impleaded."
(i)In the decision R.Krishnamoorthy V. J.Chandrasekaran, [1992-1-Vol.109-L.W.185] at page 186 it is held as follows:
"The grant of probate does not declare the right of any party to the property contained therein nor does it decide title. It only relates to the genuineness and the execution of the Will. The testamentary suit is a separate proceeding by itself. In view of the Order 4, Rule 1, of C.P.C., unless a proceeding starts with a plaint as such it is not a suit."
Moreover, in the aforesaid decision, at pages 186 & 187 in paragraphs 9 & 10, it is laid down as follows:
"Whereas a proceeding to obtain probate of a will cannot be said to be instituted on a plaint, under S.276 of the Indian Succession Act application for probate shall be made by a petition with the will annexed. A proceeding not initially started by presentation of a plaint is not a suit though it may assume the form of a suit for certain purposes of procedure. All that S.295 of the Indian Succession Act lays down is that when the proceedings become contentious it shall take as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure. It is for this limited purpose only that such a contentious case will be treated as a suit. A proceeding for grant of probate is not strictly a suit though in some cases where the grant is opposed it is deemed as such. This is only for the purpose of classification of the proceeding without changing its character. The order passed in such a proceeding may have the force of a decree, but strictly it is not, a decree not having been passed in a suit. What follows from the order is the grant in the form of probate or letters of administration set out in Schedule 6 or 7 of the Indian Succession Act."
(j)In Dr.Ruth Annamalai V. Mrs.Valliammai Achi and another,[1991-1-Vol.107-LW-352], at page 353 in paragraph 7, this Court has held thus:
"The value of the estate is stated in the petition and provision is made in S.56 of the Act for the purpose of the computation of the fee chargeable and S.59 provides for enquiry by the Collector regarding the valuation of the estate. After the caveat is entered and the application is registered as suit, the market value thus ascertained becomes the basis for computing the court-fee payable at half the scale prescribed, and this cannot be gainsaid."
106.A perusal of Ex.D.10-Certificate dated 15.04.1990 issued by Dr.V.Ganesan indicates that Ramalakshmi, aged 81 years was admitted in the Emergency Ward of Vijaya Hospital on 03.11.1986 at 2.00 p.m. and was treated for diabetes millitus with cerebral thrombosis. She was discharged on 08.11.1986. Her condition on discharge was slightly .... (not decipherable). Her left side of the body was paralysed.
107.In Ex.D.13-Reply dated 31.03.2005 sent by Vijaya Hospital to M.Balasubramanian, Advocate, Chennai 600 028 it has been informed that the records of 1986 relating to the admission and discharge entries of Ramalakshmi Ammal are not available with them and stated that it will not be possible to issue a certificate from the hospital. Further, the said Advocate has also been informed that Dr.V.Ganesan, Consultant Physician and Cardiologist was not in service as he passed away in October 2002.
108.As far as the present case is concerned, no documentary evidence has been filed to prove the presence of D.W.1 and her father in the Vijaya Hospital on 03.11.1986 or till the date viz., 08.11.1986, when Ramalakshmi Ammal (Testatrix) was discharged. P.W.4 and P.W.5 (Attesting Witnesses), in their evidence, has clearly deposed that Ramalakshmi has affixed her left hand thumb impression in Ex.P.1-Will dated 03.11.1986 in their presence and their evidences to the effect that Ramalakshmi has executed the Will and that P.W.5 reading the contents of Will to her and thereafter, one Natarajan was also read the Will to her and then Ramalakshmi affixed her left hand thumb impression in his presence clearly established that the Will-Ex.P.1 dated 03.11.1986 has been executed by the said Ramalakshmi (testatrix) at the relevant time in a sound and disposing state of mind, and that she understood the nature and effect of disposition and executed the document voluntarily and that free Will.
109.At this stage, it is to be pointed out by this Court that P.W.4 and P.W.5 are not the beneficiaries under the Will. P.W.3 (Narasimhan - 3rd Plaintiff in TOS and 3rd Defendant in the Civil Suit) has been given the right of staying in the suit property as long as he desired. Apart from that P.W.1 and P.W.2 and even for that matter P.W.3 have not been showered with any benefit under the Ex.P.1-Will dated 03.11.1986 of Ramalakshmi Ammal.
110.The word 'Attested' is defined in Section 3 of the Transfer of Property Act and the same runs as follows:
"Attested in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant to sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant, but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary."
111.A mere attestation does not effect an estoppel, because the attestation does not fix an attesting witness with the knowledge of the contents of a document. Attestation does not itself imply consent as per the decision of the Privy Council in Pandurang V. Markandeya [AIR 1922 PC 20].
112.The word 'Execution' and 'Attestation' are different acts, one following the other. However, the 'Execution' in Section 68 of the Indian Evidence Act, 1872 includes 'Attestation' as required by law. By attestation, it is meant signing of a document to signify that the Attester is a witness to the document.
113.In the case of Wills, it is desirable that all witnesses capable of being called should be examined as per the decision of the Privy Council in Surendra Krishna Mondal v. Sreemati Ranee Dassi, [(1924) CWN 860 (PC)].
114.As per Section 103 of the Indian Evidence Act, 1872 the burden of proving undue influence is on the individual who sets it up. Whether a certain transaction was vitiated on the ground of undue influence is primarily on the decision of fact as per the decision in Ladli Prashad V. Karnal Distillers Company, [AIR 1963 SC at page 1279].
115.In Shamu Patter V. Abdul Kadir Ravuthan and others, [35 Madras at page 607 (PC)], it is held that an attestation to be valid must be made by the witness after seeing the actual execution and the attesting witness must sign as such.
116.The mode of proving the Will does not ordinarily differ from that of proving any other document except as to special requirement of attestation prescribed by Section 63 of the Indian Succession Act.
117.It is to be remembered that all legitimate, suspicious circumstances made the early onus, a very difficult one. A Court of Law would be hazy to treat the document as the Last Will of an Attester/Testatrix unless suspicious circumstances were satisfactorily discharged.
118.A closer scrutiny of Ex.P.1-Will dated 03.11.1986 of Ramalakshmi Ammal clearly speaks of the fact that due to any inconvenience if the desires of the testatrix are not carried out by the three Executors, then, the 4th Defendant (Swamigal of the Mutt) can be approached and the acts and deeds shall be carried out as desired by him and entrusted to him. Although Ramalakshmi died on 26.12.1986 at 3.05 p.m., the Appellants/Plaintiffs have not been diligent enough and they remained silent for long. Furthermore, in view of the fact that in the latter portion of the Will in Ex.P.1 of Ramalakshmi dated 03.11.986, the 4th Respondent/4th Defendant (Swamigal) has been described as the absolute owner in regard to the house of the testatrix, articles, jewels, etc., the earlier/preamble portion of the Will referring to the fact that after Ramalakshmi's (Testatrix's) life-time all her properties shall pass on to Nilamau Mutt etc., cannot override or prevail in view of the ingredients of Section 88 of the Indian Succession Act, in the considered opinion of this Court.
119.Also, after reciting in the latter portion of the Ex.P.1-Will by the Testatrix- Ramalakshmi that after her life-time 4th Defendant will be the absolute owner in regard to her house, articles, etc., the further recital that 'after her life-time her desire that her house shall be kept as Branch of the aforesaid Mutt' will be of no avail and the same is only an otiose one, as opined by this Court.
120.After the sale of the Ex.P.1-Will, property by the 4th Defendant (Swamigal) to and in favour of Defendants 5 to 9 (in C.S.No.980 of 1999) as per the Sale Deed dated 22.01.1988, the sale proceeds of Rs.11,99,963/- have been shown in the Capital Fund Account of Sri Narayanandha Bharathi, Tirupur (as seen from the trial balance of the Trust as on 31.03.1988) and therefore, it cannot be said that P.W.1 to P.W.3 (in T.O.S.No.32 of 2000)/Defendants 1 to 3 (in C.S.No.980 of 1999) and the 4th Defendant (Swamigal) have acted to the detriment of the Trust and contrary to the tenor and spirit of the Ex.P.1-Will dated 03.11.1986 of Ramalakshmi Ammal.
121.The Defendants 5 to 9 in C.S.No.980 of 1999 have purchased the Ex.P.1-Will property, by means of Sale Deed-Ex.P.15 dated 22.01.1988 from the 4th Defendant (Swamigal). In O.P.No.135 of 1987 the Probate was granted on 02.07.1987. The revocation was ordered on 19.07.1989. Before that, Defendants 5 to 9 (in C.S.No.980 of 1999) had purchased the property covered under Ex.P.1-Will on 22.01.1988 as per Ex.P.15-Sale Deed from the 4th Defendant. Therefore, during the interregnum, the purchase of Ex.P.1-Will property, by Defendants 5 to 9 from the 4th Defendant, is a valid one and the said Defendants are only bona fide purchasers in law and their purchase does not suffer from any vice. Accordingly, we hold that Defendants 5 to 9 are the bona fide purchasers of Ex.P.1-Will for a valuable consideration of Rs.12 lakhs.
122.Inasmuch as Ex.P.1-Will dated 03.11.986 executed by Ramalakshmi is held, by this Court, to be a true, genuine and valid one, the Appellants/Plaintiffs (in C.S.No.980 of 1999) are not entitled (i) to obtain the relief of declaration of their title in respect of the suit property; and (ii) also not entitled to get the relief of delivery of possession by Defendants 5 to 9 in respect of the suit property in their favour and accordingly, the Substantial Questions of Law Point Nos. 1 and 2 in O.S.A.No.125 of 2008 and the Point No.1 in O.S.A.No.163 of 2008 are answered against the Appellants.
123.In the result, both the Original Side Appeals are dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree in C.S.No.980 of 1999 and the Order in T.O.S.No.32 of 2000 passed by the Learned Single Judge are affirmed by this Court for the reasons assigned in these Appeals.
(E.D.R.J.) (M.V.J.) 25.07.2012 Index :Yes Internet :Yes Sgl ELIPE DHARMA RAO,J.
AND M.VENUGOPAL,J.
Sgl JUDGMENT IN O.S.A.No.125 of 2008 and O.S.A.No.163 of 2008 25.07.2012