Madras High Court
Alagammai And Ors. vs V. Rakkammal on 21 March, 1991
Equivalent citations: (1991)2MLJ86, AIR 1992 MADRAS 136, (1991) 2 MAD LW 487, (1993) 1 DMC 322, (1992) 1 HINDULR 397, (1991) 2 MAD LJ 86
JUDGMENT Nainar Sundaram, J.
1. Defendants 1 to 5 in O.S. No. 32 of 1976, on the file of the Subordinate Judge, Sivaganga, are the appellants in this Letters Patent Appeal. The respondent herein is the plaintiff in the suit. The plaintiff filed the suit for a declaration of heirship and recovery of possession on the strength of title. The plaintiff based her claim as follows: The plaintiff is the daughter of Velu Ambalam and Karuppayee, who were lawfully wedded as husband and wife. The plaintiff was born out of such wedlock on 3.11.1943. The first defendant was a sister's daughter of Velu Ambalam and she was brought into the family for a domestic assistance. Velu Ambalam developed sexual contact with the first defendant due to proximity. The first defendant was not the lawfully wedded wife of Velu Ambalam. Defendants 2 to 5 were born to the first defendant out of her illegal intimacy with Velu Ambalam. The plaintiff and her mother Karuppayee were driven out of the household at the instance of the first defendant in or about 1950. The plaintiffs mother Karuppayee later married one Subbiah Ambalam of Ariyakudi, who also died. The plaintiff was living in the household of her maternal grandmother and on her demise she has been living with her maternal aunt. Velu Ambalam died on 27.3.1975 leaving the plaintiff as his only legal heir. All the properties set out in the plaint schedules belonged to late Velu Ambalam. Though the properties set Out in B Schedule stand in the name of the first defendant, they were acquired only by Velu Ambalam benami in the name of the first defendant.
2. The defendants contested the suit saying as follows: Karuppayee was not the lawfully wedded life of Velu Ambalam. The plaintiff was not the daughter of Velu Ambalam. The first defendant was the lawfully wedded wife of Velu Ambalam and defendants 2 to 5 are the legitimate children of Velu Ambalam through the first defendant. B Schedule properties are the absolute properties of the first defendant. Under the Will dated 19.121965, executed by Velu Ambalam at Kuar in Malaya, Velu Ambalam bequeathed all his properties to the children of the first defendant appointing her and others as executors. The plaintiff is not the legal heir of Velu Ambalam and she is not entitled to get any relief.
3. Reflecting the controversy that arose on the pleadings, the Court below formulated the following issues:
(1) Whether the plaintiffs mother Karuppayee was the legally wedded wife of Velu Ambalam and the plaintiff was born to them? (2) Whether the first defendant was married to Velu Ambalam and even if the marriage was true, is such marriage valid? (3) Whether the plaintiff is the sole heir to Velu Ambalam?
(4) What are the properties left by Velu Ambalam?
(5) To what relief is the plaintiff entitled? Additional issue.
(6) Whether the Will dated 19.12.1965 executed by Velu Ambalam propounded by defendants is true and valid?
The parties placed their evidence oral and documentary and that was the subject matter of consideration by the first court and the findings of the first court are to the following effect: The plaintiffs mother Karuppayee was the lawfully wedded wife of Velu Ambalam and the plaintiff was born to them out of such wedlock. The first defendant was not the lawfully wedded wife of Velu Ambalam. The Will dated 19.12.1965, though true is not valid and could not be acted upon for want of letters of administration under Section 228 of the Indian Succession Act from a competent Court in India. The plaintiff is the sole heir of Velu Ambalam. B Schedule properties are the separate properties of the first defendant. Regarding other properties, except the properties comprised in Schedules A-1 and A-2, there is no pro of that other properties' are available at all. The first Court, on its findings, granted a decree in favour of the plaintiff on 14.4.1977 for declaration and possession in respect of the properties set out in Schedules A-1 and A-2.-There was an omission on the part of the first Court to accord the relief relating to mesne profits.
4. The defendants appealed to this Court in Appeal No. 581 of 1977. The plaintiff filed cross objections with reference to the denial of mesne profits. The appeal and the cross objections were heard and disposed of by the learned single Judge of this Court by judgment and decree dated 18.6.1982. The learned single Judge upheld the findings of the first Court that Velu Ambalam was married to Karuppayee and the plaintiff was the daughter born out of such lawful wedlock; the first defendant was not the lawfully wedded wife of Velu Ambalam; the Will dated 19.12.1965 was not shown to have been duly executed by Velu Ambalam and even otherwise the Will required ancillary probate under Section 228 of the Indian Sac-cession Act and in the absence of it, the Will could not be put forth as a defence to the claims of the plaintiff. As a result, the learned single Judge dismissed the appeal of the defendants. The learned single Judge allowed the cross objections of the plaintiff with regard to non-grant of mesne profits. This Letters Patent Appeal is directed against the judgment and decree of the learned single Judge.
5. On the submissions made by Mr. R. Vedantham Srinivasan, learned Counsel appearing for the defendants and the submissions in reply made by Mr. G. Masilamani, learned Counsel for the plaintiff, we find that the following questions arise for consideration in this Letters Patent Appeal:
(1) Whether the plaintiffs mother Karuppayee was lawfully wedded to Velu Ambalam and whether the plaintiff was born out of such wedlock? (2) Whether the first defendant was lawfully wedded to Velu Ambalam?
(3) Whether the Will dated 19.12.1965 can be put against the claims of the Plaintiff?
6. We propose to deal with the third question in the first place, because depending on the answer to be given thereto, the necessity or otherwise to take up the other questions may arise. Per chance, we should accept the Will, the other questions will recede to insignificance. What is being urged by Mr. R. Vedantham Srinivasan, learned Counsel for the defendants, is a straight acceptance by us of the Will, as true, valid, genuine and duly executed, without any further poser over the same, taking note of the grant of probate given by the High Court of Malaya in O.P. No. 84 of 1974 on 5.11.1974 as per Ex. B-4 now supplemented by the ancillary probate, granted by the District Court, Ramanathapuram at Madurai in O.P. No. 1 of 1984 on 26.10.1988. For this submission, learned Counsel for the defendants, places reliance on Section 41 of the Indian Evidence Act, which contemplates about the relevancy of a final judgment, order or decree of a competent Court in the exercise of probate jurisdiction and the same being conclusive pro of over matters enumerated in the provision. In answer, Mr. G. Masilamani, learned Counsel for the plaintiff, would contend that the High Court of Malaya could not be said to be a competent Court in the exercise of probate jurisdiction within the meaning of Section 41 of the Indian Evidence Act and in any event this Court must hold that such a judgment, order or decree was obtained by fraud and collusion, as contemplated under Section 44 of the Indian Evidence Act. Learned Counsel for the plaintiff would also advance a proposition that under Section 13, Clauses (d) and (e) of the Code of Civil Procedure, the judgment of the High Court of Malaya, being a foreign judgment should not be taken to be conclusive because it has been obtained by fraud and in violation of the principles of natural justice - Learned Counsel for the plaintiff would submit that the grant of ancillary probate in O.P. No. 1 of 1984 by the District Court, Ramanathapuram at Madurai could be of no legal consequence, because the grant of ancillary probate under Section 228 of the Indian Succession Act, could be given only when there is already a grant of probate by a foreign court of competent jurisdiction and according to the learned Counsel for the plaintiff, the High Court of Malaya was not such a Court.
7. As between the decision rendered by an ordinary civil Court and the decision rendered by a Probate Court, on the question of truth, validity, genuineness and due execution of a Will, the decision of the Probate Court is a judgment in rem, which will bind not only the parties before it, but the whole world is a well accepted proposition which does not admit of any dispute. The decision of the ordinary civil Court, dealing with the same question and adjudicating the same issue, would not constitute a judgment in rem. Such is the sanctity annexed to the decision of the Probate Court, which is a Court of exclusive jurisdiction. The Probate Court is a Court of conscience. It applies its mind to find out as to whether the document put forth is the last will or codicil of the deceased. It must arrive at the satisfaction as to the due execution of the document. It must be satisfied as to the testamentary capacity of the deceased. It is an exclusive Court dealing with probate matters in contrast to the ordinary civil Court, which is concerned only with deciding rights between parties. The probate Court does not decide rights between parties. Once the Probate Court renders its decision, that will takes precedence on the relevant questions, over the decisions of Courts of ordinary civil jurisdiction at all levels and will be binding on proceedings pending before such Courts. These principles are so well known, we do not think we should cite authorities for them.
8. However, a judgment in rem is also open to attack on grounds specified in Section 44 of the Indian Evidence Act. They are want of jurisdiction on the part of the Court, and fraud or collusion vitiating the judgment. In the present case, at the time of the decision rendered by the first Court, and again at the time of the decision rendered by the learned single Judge on appeal, the decision of the High Court of Malaya granting probate of the Will as per Ex. B-4 alone has been obtained. That was found to be not sufficient and for want of ancillary probate under Section 228 of the Indian Succession Act, the Will was not acted upon and was eschewed from consideration. Subsequently, while the Letters Patent Appeal has been pending, the District Court Ramanathapuram at Madurai, has been moved in O.P. No. 1 of 1984 and by judgment and decree dated 26.10.1988, ancillary probate has been obtained.
9. The judgment and decree of the District Court Ramanathapuram at Madurai in O.P. No. 1 of 1984 are the subject matter of C.M.A. No. 685 of 1990. The very same contentions and the counter contentions with regard to the propriety of this Court acting upon the grant of probate given by the High Court of Malaya, now supplemented by the ancillary probate granted by the District Court, Ramanathapuram at Madurai, has been upheld by us and we have by that decision of ours sealed the issue. The principles which we have discussed supra, render the said decisions, judgment in rem. It is not permissible for Courts of ordinary civil jurisdiction to overlook them and render decisions running contrary to them on the relevant question, reopening them. They being judgments in rem must hold the field and conclude the questions in the affirmative with regard to the truth, validity, genuineness and due execution of the will. In view of this position, the Will alone rules the right of the parties, and so ruled, it is only defendants 2 to 5 who get the properties to late Velu Ambalam. The plaintiff could not claim any right in the said properties.
10. Now we have answered the third question in the above manner, it is unnecessary for us to go into the other two questions. The result is this Letters Patent Appeal is allowed; the judgment and decrees of both the first Court and the learned single Judge of this Court are set aside and the plaintiffs suit will stand dismissed. Considering the relationship between the parties and in the peculiar facts and circumstances of the case, we direct the parties to bear their respective costs throughout.