Madras High Court
Unknown vs Michel Charles John (Air 1990 Sc 1576)
Applications No.1186 and 1187 of 2012 in Original Petition No.792 of 1998 R.SUBBIAH, J., Application No.1186 of 2012 is filed by the third party to revoke the probate granted in O.P.No.792 of 1998 dated 20.04.2005. Application No.1187 of 2012 is filed to stay the operation of the probate grated in O.P.No.792 of 1998, pending disposal of the application for revocation.
2. The brief facts for disposal of both the applications are as follows:
(a) One Sathrasala Venkatram, who died on 21.1.1998, executed a Will on 05.12.1997, appointing the respondent S.Sharat Babu as an executor. After the demise of the testator, the executor has filed original petition before this Court in O.P.No.792 of 1998 to grant probate. This Court, by order, dated 20.04.2005, allowed the petition as prayed for.
(b) The present applications have been filed by the third party, by name, Shantilal Kothari, who was originally a tenant under the testator Sathrasala Venkatram, stating that he is having a caveatable interest in the estate of late Sathrasala Venkatram since a lease deed was executed by the testator in his favour on 22.01.1997 for 51 years in respect of the property owned by the testator at door No.140, Govindappa Naicken Street, Chennai-1. As per the terms of the lease, the applicant shall pay a sum of Rs.15,000/- per month for the first two years and thereafter at Rs.45,000/- for the remaining 49 ears. Pursuant to the lease, the applicant has also parted with Rs.5 lakhs as interest free security deposit refundable at the time of surrender of the premises after the expiry of the lease. As per the terms of the lease, the applicant is entitled to pull down the existing dilapidated structure and erect a new building thereon, namely, ground floor, first floor and third floor at his own cost and thereafter, he is entitled to let out the same to various third parties for rent. By virtue of the said lease agreement, the applicant has also entered into a rental agreement with various tenants, who are occupying shop portions at the suit property. The superstructure erected thereon belonged to the applicant and the land belonged to Sathrasala Venkatram since deceased. But the Sathrasala Venkatram, when the said lease was in force, without any valid cause of action, filed a civil suit against the lessee, the applicant herein, in C.S.No.770 of 1997 for a declaration that he continues to be the owner of the 'A' schedule property and consequential direction to the 1st defendant (the applicant herein) to put the plaintiff (the testator) in possession of the said property and also for injunction restraining the applicant/third party from dealing with the property including demolition and re-construction of the suit property.
(c) It is the further case of the applicant that he is in occupation of the property in his capacity as a contractual lessee pursuant to a valid lease agreement dated 22.01.1997 and in such circumstances, till the expiry of the period, as contemplated under the registered lease deed dated 22.01.1997 up to 21.01.2047, the applicant is legally entitled to be in occupation of the suit property. Though the Sathrasala Venkatram filed a suit as against the applicant for a declaration that he is the owner of the property, he has not questioned or challenged the validity of the lease deed dated 22.01.1997 executed in favour of the applicant. Though suit summons were served on the applicant, he has not filed the written statement and as such, he was set ex parte and an ex parte decree was passed in the said suit. Hence, the applicant/third party has filed an application to set aside the ex parte decree in A.No.3126 of 2006 in the suit, but the said application was dismissed by this Court on 03.07.2006. The applicant preferred O.S.A.No.236 to 238 of 2006 and the same were also dismissed on 02.09.2008. S.L.P.filed before the Hon'ble Supreme Court also came to be dismissed on 07.11.2008. but the application filed by the applicant in A.No.1213 of 2009 in E.P.No.511 of 2008 in the suit under section 47 of CP.C. was allowed by the Master Court and the decree passed in the suit was declared as inexecutable.
(d) It has been further stated by the applicant that during the pendency of the suit in C.S.No.770 of 1997, the original plaintiff Sathrasala Venkatram passed away and the present respondent, who claims right, title and interest under the Will, got himself appointed and substituted as the 2nd plaintiff in the said suit without there being any valid authority or right to do so. It is to be noted that this Court, without adverting to the legal position, namely, section 2(11) of C.P.C. allowed him to be brought on record. In this background, the present applications have been filed by the applicant stating that he is having substantial caveatable interest in the estate of Sathrasala Venkatram by virtue of the lease deed executed in his favour on 22.01.1997 for a period of 51 years. Apart from that, the Will in question is an unregistered, concocted and fabricated one by the respondent, the sole beneficiary with a view to secret the assets of the estate fraudulently and surreptitiously without the knowledge of the other persons, who have caveatable interest in the estate. Therefore, the applicant is a proper and necessary party and he ought to have been impleaded as the respondent in respect of the Will and testament of Sathrasala Venkatram. Thus, he prayed for the revocation of the probate granted in the main original petition.
(e) The case of the applicant was resisted by the respondent stating that during the lifetime, Sathrasala Venkatram executed a Will on 05.12.1997 appointing the respondent as an executor along with three other personalities to form a trust and take care of the property left behind him. Sathrasala Venkatram died on 21.01.1998 at the respondent's residence. Immediately, the respondent filed the original petition to probate the Will dated 05.12.1997 before this Court. On 17.02.1998, as the executor, the respondent filed an application in A.No.770 of 1998 in C.S.No.770 of 1997 i.e.the suit filed by the testator as against the applicant to permit him to implead himself as plaintiff in the suit and also in A.No.4390 of 1997. Since the applicant herein had stated 'no objection', A.No.770 of 1998 was allowed and the respondent was impleaded as plaintiff in the said suit. In the said application, the respondent had mentioned the probate proceedings initiated by him. Therefore, the third party/applicant herein was aware of the probate proceedings as early as in the year 1998 itself. Moreover, the applicant is not a tenant of the property, as claim by him, which is evident from the suit filed by the testator Sathrasala Venkatram. The applicant has no interest in the estate of Sathrasala Venkatram. The lease deed dated 22.01.1997, through which the applicant is claiming caveatable interest was questioned by the testator, namely, late Sathrasala Venkatram himself in C.S.No.770 of 1997. The said suit was also decreed by this Court, which was confirmed by the Division Bench of this Court in O.S.A.Nos.236 to 238 of 2006. The civil appeal filed by the applicant before the Supreme Court was also dismissed by confirming the judgment rendered in the civil suit.
(f) It is the further case of the respondent that though the applicant was a tenant in respect of a portion of the property, subsequently the said portion was also demolished and as such, the applicant cannot claim any right under the alleged lease deed dated 22.01.1997. The applicant has no locus standi to file the application. Moreover, the application is barred by limitation under Article 137 of the Limitation Act. The Will executed by late Sathrasala Venkatram is a genuine one. In the probate proceedings initiated by the respondent, all the legal heirs were impleaded as parties. The applicant is not having caveatable interest in the property and he was also aware that the respondent herein was substituted as the 2nd plaintiff in the suit by order dated 18.04.1998. The applicant was also aware of the probate proceedings initiated by the respondent as early as in the year 1998 itself. Therefore, it is incorrect to state that the applicant did not have opportunity to contest the probate proceedings since he was not made as a party to the original petition. Thus, he prayed for the dismissal of the applications.
3. Learned counsel for the applicant submitted that if a person has a slightest interest in the estate of the deceased, he can come forward to oppose the grant of probate. In this regard, the learned counsel relied on Section 284 of the Indian Succession Act and submitted that section 284 has laid down certain tests, namely,
(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".
In this regard, the learned counsel for the applicant further submitted that to sustain the application for revocation, the applicant has to show that he is having caveatable interest in the estate of the deceased. So far as the present case is concerned, a lease deed was executed by the testator in favour of the applicant with regard to his property for a period of 51 years commencing from 22.01.1997. The lease period comes to an end only in the year 2047. In such a situation, under Order 25 Rule 52 of Original Side Rules, the applicant can maintain a caveat when he is having a caveatable interest in the subject matter by virtue of the lease executed by the testator in his favour.
4. The learned counsel for the applicant further submitted that in O.P.No.792 of 1998, which was filed by the respondent for grant of probate, totally six persons were added as respondents; but he has not stated the relationship between the testator and the respondents in the original petition. Therefore, whether all the legal heirs of the testator were made as parties in the original petition by the respondent is very much doubtful. As required under Form 55 of the Original Side Rules, the respondent has not furnished full particulars of the legal representatives of the testator. Further, the applicant, who is having a lease over the suit property for a period of 51 years has become an affected party by an order of grant of probate. Therefore, he is entitled to maintain the application of revocation of probate. In this regard, the learned counsel has relied on section 263 of the Indian Succession Act and submitted that section 263 contemplates revocation or annulment of the grant for 'just cause'. On account of the fraudulent, forged and fabricated Will projected by the respondent, the grant of probate or Letters of Administration may be revoked or annulled for 'just cause'. Therefore, the probate is liable to be revoked on the ground of "just cause" also. In support of his contentions, the learned counsel has relied on the decisions reported in Elizabeth Antony .vs. Michel Charles John (AIR 1990 SC 1576), Panchaqnathan, S. .vs. Ellappan etc.and others (1995-2-L.W.852), R.V.R.Nallasivam and others .vs. N.Kuppammal and others (2007 (4) CTC 291), Krishna Kumar Birla .vs. Rajendra Singh Lodha and others ((2008) 4 SCC 300), Kunvarjeet Singh Khandpur .vs. Kirandeep Kaur and others (2008(8) SCC 463) and G.Gopal .vs. C.Baskar and others (2008(1)SCC 489).
5. Per contra, the learned counsel for the respondent submitted that the testator of the Will is his paternal grandfather. The testator Sathrasala Venkatram executed a Will on 05.12.1997 appointing the respondent as his executor along with three other personalities to form a trust and take care of the property left behind him. In the original petition proceedings, the legal heirs of the testator were added as parties and they had all given their consent to grant probate by filing consent affidavits. So far as the applicant is concerned, he was a lessee in respect of only a small portion of the property. The entire extent of the property was not leased out to the applicant at any point of time. In fact, the testator himself during his lifetime has filed the suit as against the applicant/third party to declare that he is the owner of the suit property, which fact would speak that the applicant has no right or interest over the subject property. Even the portion which was let out to the applicant was subsequently demolished and as on date his status is a trespasser in the property and he is not a person having any interest over the suit property and on the other hand, he is having only adverse interest.
6. By inviting the attention of this Court to the judgment of the Delhi High Court reported in Jagdish Chander .vs. State and another (36 (1988) DLT 272), the learned counsel for the respondent submitted that the tenant had no locus standi to show that he is having a caveatable interest in the suit property. That apart, as per section 137 of the Limitation Act, the application for revocation could be filed within three years from the date when the right to apply accrues. So far as the present case is concerned, the order of probate was granted on 28.04.2005. The right to file revocation of the probate accrued from the date on which probate was granted in favour of the respondent. But in the instant case, the application was not filed within a period of three years from the date of ordering probate. Further more, in this case, the applicant was aware of the probate proceedings as early as in the year 1998 itself, which could be seen from the application filed by the respondent in C.S.No.770 of 1997 to implead himself as one of the plaintiffs after the demise of the testator Sathrasala Venkatram. In the said application filed in the said suit, the respondent has stated about the probate proceedings. The applicant has also stated 'no objection' in allowing the application. Therefore, it is evident from the records that the applicant has got knowledge over the probate proceedings in the year 1998 itself. Therefore, the applications filed by the applicant are clearly hit by the law of limitation. Therefore, on this ground also, the applications are liable to be dismissed. In this regard, the learned counsel has relied on the judgments reported in R.Sivagnanam .vs. P.K.Sadananda Mudaliar (AIR 1978 Madras 265), Kunvarjeet Singh Khandpur .vs. Kirandeep Kaur and others (2008(2) CTC 850), Sadananda Pyne .vs. Harinam Sha and another (AIR (37) 1950 Calcutta 179), Sakkarathayammal .vs. Shanmugavel Chettiar (1990-1-L.W.475), J.Malarvizhi .vs. D.Shankar ((2010) 5 MLJ 432) and Sharad Shankarrao Mane and etc., .vs. Ashabai Shripati Mane (AIR 1997 Bombay 275).
7. By way of reply, the learned counsel for the applicant submitted that the right to apply for revocation of probate or letters of administration is a continuing right of a person who is having caveatable interst, which can be exercised at any time. Therefore, it is incorrect to state that the application for revocation of the probate has to be filed within three years from the date of grant of probate.
8. The Court paid its anxious consideration on the submissions made by the learned counsel on either side and perused the materials available on record.
9. On a perusal of the materials, I find that the late Sathrasala Venkatram had executed a Will, appointing the respondent as executor and the said Will was probated in the original petition filed by the respondent on 28.04.2005. Now, after a lapse of seven years from the date of probate, these applications have been filed by the lessee in respect of the property, which was owned by the testator during his lifetime. Now, it is the contention of the applicant/third party that he is having substantial caveatable interest in the property of late Sathrasala Venkatram on the basis of the lease deed executed by the testator in his favour on 22.01.1997 for a period of 51 years. The Will dated 05.01.1997 is an unregistered Will, concocted and fabricated by the respondent, the sole beneficiary with a view to secrete the assets of the estate, without the knowledge of the other persons. Now, according to the applicant, the respondent is taking further consequential steps to represent the estate in his capacity as the sole executor, which he would not be entitled, by making use of the probate granted by this Court,
10. Per contra, it is the contention of the learned senior counsel for the respondent that the applicant was the tenant in respect of a small portion of the property owned by the testator in 1996 and the portion which was let out to him was also subsequently demolished and as on date he is only a trespasser in the suit property. Moreover, as a tenant, he cannot have a caveatable interest to revoke the probate granted by this Court. But the learned counsel appearing for the applicant/third party has relied on number of judgments stated supra in support of his contentions that even if there is slightest interest in the estate, the application for revocation of probate can be filed. The learned counsel for the applicant has also invited the attention of this Court to the dictum laid down in the judgment reported in AIR 1990 SC 1576 (supra) that the party can apply revocation of probate, if a finding has been given against the said party and in such a situation, findings regarding caveatable interest have a limited effect. There cannot be any quarrel in accepting the proposition that even if a person is having a slightest interest in the estate, he can file an application for revocation, but whether the principle laid down in the said judgment could be applied to a tenant is a question to be decided in this application.
11. At this stage, it would be appropriate to refer the judgment relied on by the respondent reported in AIR 1996 Madras 318 (supra), which gives a fitting answer to this question, wherein it has been held that if there is no claim of blood relationship with testator or if the applicant is not a beneficiary under the Will, then his request for conversion of application for probate into T.O.S.is not maintainable. In the instant case, admittedly, the applicant is only a tenant and he is neither having blood relationship with the testator nor beneficiary under the Will. Therefore, the judgments relied on by the learned counsel for the applicant to the effect even if a person has slightest interest in the estate, he can file the application for revocation are not applicable to the facts of the case on hand.
12. Learned counsel for the applicant has relied on another set of judgments for the principle that as per section 263 of the Indian Succession Act, the grant of probate or letters of administration may be revoked or annulled for 'just cause'. In this regard, the learned counsel for the applicant has also submitted that since the respondent has not specified the relationship of the other respondents with the deceased testator as required under Form 58 of Original Side Rules, the probate granted can be revoked on the ground of 'just cause'. In support of his contention, the learned counsel for the applicant has also relied upon the judgment reported in 1995-2-L.W.852 (supra), wherein it has been held that failure to specify in Form 58, close relations of deceased who would normally be entitled to claim heirship in the absence of a testament is sufficient to revoke the grant of letters of administration. But, I find that in that case, the application to revoke the letters of administration was filed by the relative of the deceased. Therefore, the said judgment cannot be made applicable to the present case since the present applicant has been filed by a tenant, who has no locus standi to file the application. Moreover, I find that in the present original petition, the legal heirs of the deceased were shown as respondents, who had filed their consent affidavits. Therefore, the judgments relied upon by the learned counsel for the applicant cannot be made applicable to the facts of this case. In the another case relied upon by the applicant reported in 2007(5) CTC 821 (supra), a Division Bench of this Court has allowed the application filed by the subsequent purchaser of the property from the class I heir of the deceased testator. But, the factual aspects of that case would show that the applicant therein had purchased the property from one Ranaganayaki, wife of the testator viz., Purushothaman. The brother of the testator, viz., R.Loganathan has filed petition for grant of letters of administration in respect of Will dated 20.09.1997 executed by his brother impleading the wife of the testator viz., Ranganayaki as respondent. Though the said original petition was filed in the year 1999, it was numbered only in the year 2001. In the meantime, the said Ranganayaki died on 19.10.1999. In the original petition, the name of Ranganayaki was struck off and letters of administration was granted by order dated 17.09.2001. Subsequently, the purchasers of the property from Ranganayaki Ammal have filed application to revoke the letters of administration in O.P.No.157 of 2001 and only in that background, this Court has held that the said Ranganayaki is entitled to inherit the property from her husband as she being Class I legal heir entitled to succeed to the property in the absence of any testamentary disposition. Thus, this Court has allowed the application filed by the purchaser for revocation. But, in the instant case,the appalicant is only a tenant. Moreover, the testator himself had filed the suit during his lifetime as against the applicant herein for a declaration to declare that he is the owner of the property. Hence, I am of the opinion that the factual aspects of the case on hand are totally different from the case relied upon by the applicant and the same cannot be made applicable to the facts of the case on hand. Further I find that in the instant case, except making bald statement that the respondent herein by playing fraud had obtained the probate, no substantial proof has been placed before the Court to show that the grant of probate has to be revoked applying the principle of 'just cause'. Hence, the judgments relied on by the learned counsel for the applicant based on the principle of 'just cause' cannot be made applicable to the facts of the present case. In fact, in the judgment relied on by the learned senior counsel for the respondent reported in Jagdish Chander's case (supra), the identical issue has been dealt with in detail. The relevant passage from the said judgment reads as follows:
"11. Thus, examined from any angle, it is evident that the appellant did not try to explain his categorical admissions made from time to time admitting Inderjit to be adopted son of Hakumat Rai. He had not given any explanation as to why and how he came to make such an admission of fact if the same was not correct. The District Judge appears to have relied on unreported judgment of Om Prakash, J., in S.A.O.No. 268/69, Arjan Dass .v. Madan Lal in support of his finding that a tenant had no right to bring the petition under section 263 of the Indian Succession Act. It appears that the learned District Judge drew wrong inferences from the said judgment which was on a different point. This judgment is now reported as 1970 Rcr (Delhi) 785. In the cited case, a tenant wanted to prove that the property, which was subject matter of Will, was ancestral property of the testator and thus, the will could not be made in respect of such a property. It was held by this Court that the tenant had no locus standi to show that the particular property of the testator is ancestral. It was not a case where tenant was challenging the factum of execution of a Will. However, keeping in view the facts, as enumerated above, it is clear that the appellant has no interest in the estate left by Hakumat Raj as one of the heirs and the grant of probate and letters of administration in favour of Inderjit by no stretch of reasoning could be deemed to affect the appellant's tenancy rights. Hence, the appellant had no locus standi to file the petition seeking revocation of such grant of probate and letters of administration in favour of Inderjit".
Therefore, in my considered opinion, the slightest interest referred under various judgments is not referable to the interest of the tenant. A tenant may have an interest only with regard to his leasehold right and not caveatable interest.
13. It is to be noted that the testator himself had filed the suit as against the applicant to declare that he is the owner of the suit property. Though there is no prayer in the civil suit to set aside the lease deed, by making the prayer for declaration, the testator had impliedly challenged the lease deed executed in favour of the applicant herein. Therefore, I am of the opinion that if at all there is any interest for the applicant, the said interest could be only a leasehold interest and it cannot be said to be a caveatable interest.
14. Coming to the next fold of submission with regard to limitation, I find that there is a divergent view that whether the limitation could be taken from the date of the right accrued or right to revocation is a continuous one. But, so far as the present case is concerned, I find that even in the year 1998, the probate proceedings was brought to the knowledge of the applicant in the application filed by the respondent to implead him as one of the plaintiffs in the suit. The said application was allowed by this Court since there was no objection on the part of the applicant. This fact would show that having known the probate proceedings even in the year 1998, the applicant had not taken any steps to implead himself. No proper explanation was forthcoming from the applicant as to why he has not chosen to revoke the proceedings immediately after the grant of probate. Therefore, I am of the opinion that the applicant, who had failed to succeed in the suit proceedings, is now making an attempt to revoke the leave granted by the Court as another round of litigation, which cannot be allowed by this Court. As a tenant, the applicant/third part neither a close relative nor the beneficiary under the Will, had no locus standi to file the petition seeking revocation of grant of probate. The interest of the tenant can be only a leasehold interest and not a caveatable interest in the probate proceedings. Even though the party is entitled to file application for revocation for 'just cause', no case has been made out by producing tangible evidence that the respondent had obtained probate by playing fraud in this case. Under such circumstances, I am of the view that both the applications are liable to be dismissed.
For the reasons stated above, both the applications are dismissed.
Index: Yes. 05.06.2012
Internet: Yes.
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R.SUBBIAH, J.,
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Pre-delivery Order in A.Nos.1186 and 1187 of 2012 in O.P.792 of 1998
05.06.2012