Madras High Court
Mr.Sanjay Srinivasan vs Mr.T.V.Prabhakaran on 17 March, 2021
Author: N.Kirubakaran
Bench: N.Kirubakaran, P.D.Audikesavalu
O.S.A. No. 103 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.03.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
AND
THE HONOURABLE MR.JUSTICE P.D.AUDIKESAVALU
O.S.A.No.103 of 2020
and
C.M.P.No.4835 of 2020
1.Mr.Sanjay Srinivasan
2.Ms.Divya Srinivasan
Both represented by their Power agent
Mrs.Edith Srinivasan ... Appellants
Vs
1.Mr.T.V.Prabhakaran
2.Mrs.Edith Srinivasan (Power Agent)
3.Mr.Murali Rangarajan
(R3 suo motu impleaded vide court order
dated 06.01.2021 in O.S.A.No.103 of 2020) ... Respondents
PRAYER : Original Side Appeal filed under Order XXXVI Rule 9 of the
Original Side Rules read with Clause XV of the Letters Patent, praying to allow
this Appeal and set aside the Fair and Decreetal order made and passed in
Application No.6643 of 2019 in T.O.S.No.2 of 2015 in O.P.No.770 of 2010 dated
24.10.2019.
https://www.mhc.tn.gov.in/judis/
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O.S.A. No. 103 of 2020
For Appellants : Mr.S.Siddappaji.
For Respondents : Mr.K.Harishankar for R1.
Mr.S.Siddappaji for R2.
Mr.Krishna Ravindran for R3.
JUDGMENT
(Judgment of the court was made by N.KIRUBAKARAN.J.,) This Appeal has been filed against the dismissal of the Application filed by Appellants herein to get them impleaded as Second and Third Defendants in T.O.S. No. 2 of 2015.
2.The facts of the case are as follows:-
O.P. No. 770 of 2010, which was converted as T.O.S. No. 2 of 2015 was filed for grant of Probate of the Will dated 14.08.2000 left behind by one Mr.T.V.Rangarajan, Son of T.K.Venkataraman, appointing his brother, viz., Mr. T.V.Prabhakaran, as the Executor of the Will. Mr. T.V.Rangarajan, has two sons, viz., R.Srinivasan and Murali Rangarajan. Mr. R.Srinivasan predeceased the Testator leaving behind his wife, Edith Srinivasan, and two children, viz., Sanjay Srinivasan and Divya Srinivasan. As per the said Will, both the legal heirs of Srinivasan as well as Murali Rangarajan are entitled to get properties and the Will, necessarily, has to be probated. Therefore, the Executor filed Original Petition in O.P. No. 770 of 2010.
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3.In the said Original Petition, all the parties including the Appellants have been shown as Respondents. Since all the parties including the Appellants had filed consent Affidavits, no notice was ordered. However, Edith Srinivasan, who had earlier given consent affidavit, had filed her caveat and objections in the year 2013 and hence, Original Petition was converted into Testamentary Original Suit in T.O.S. No. 2 of 2015 making Edith Srinivasan as sole Defendant. Since notices were not served on Sanjay Srinivasan and Divya Srinivasan, they were not made as Parties and therefore, the aforesaid children of Mr. Srinivasan filed an Application in Application No. 6643 of 2019 to implead themselves as Second and Third Defendants in T.O.S. No. 2 of 2015.
4.The said Application was dismissed by order dated 24.10.2019 holding that the mother, viz., Edith Srinivasan alone filed caveat and objections in the year 2013 and therefore, it was converted into T.O.S., whereas, the Appellants had not filed caveat. Aggrieved over the same, present Appeal has been filed.
5.Since Mrs. Edith Srinivasan is the Power of Attorney holder of the Appellants, Mr. S.Siddappaji, Learned Counsel takes notice on behalf of the Second Respondent. Heard Mr. S.Siddappaji, Learned Counsel for the Appellants https://www.mhc.tn.gov.in/judis/ 3/8 O.S.A. No. 103 of 2020 and the Second Respondent, Mr. K.Harishankar, Learned Counsel for the First Respondent and Mr. Krishna Ravindran, Learned Counsel for the Third Respondent.
6.The only question to be decided is as to whether the Appellants are entitled to contest the Suit by getting themselves impleaded as Defendants. While dealing with this matter, the procedural aspect needs to be dealt with by this Court. In this case, consent affidavits of the Appellants were filed, while the Petition for probate was filed by Respondents. Since consent affidavits were filed, this Court granted probate without ordering notice to the Appellants. However, the Second Respondent viz., Mrs.Edith Srinivasan filed caveat and contested the Original Petition which has been converted into Testamentary Original Suit and the Appellants who have not filed caveat cannot take part in the proceedings as their Application to implead themselves has been dismissed, against which the present Appeal has been filed.
7.As observed by the Learned Single Judge, the reason for not making the Appellants as parties is only a procedural violation as they have not filed caveat before the Learned Single Judge. Since the Appellants have already filed consent affidavits, notice was not ordered. In any event, the mother of the Appellant, viz., https://www.mhc.tn.gov.in/judis/ 4/8 O.S.A. No. 103 of 2020 Edith Srinivasan, has filed caveat and subsequently, was redirected to file written statement. Therefore, the said Original Petition has been converted as Testamentary Original Suit. Since the Original Petition was filed along with the consent affidavits from the Appellants, notice was not ordered and served upon the Appellants.
8. Whenever any consent affidavit is filed, though, prima facie, it has to be accepted, it is the duty of the Court of verify whether the said consent affidavits have been actually filed by those persons. After verification, it is mandatory for the Court to issue notice to the persons who have given consent affidavits and to verify as to whether the said persons really filed consent affidavits or not along with proof. That procedure alone will take care of the entire issue and it will avoid unnecessary proceedings like what has happened in this case. However, in this case, notice has not been issued to the Appellants and they have not been given an opportunity to state as to whether they have sworn the consent affidavits or not. We cannot rule out fraudulent consent affidavits being filed by the parties, in an endeavour by the close relatives to knock off the properties of the testator.
9.Since non-service of notice is a procedural violation which would violate the rights of the Appellants, even though it is stated that the Appellants have https://www.mhc.tn.gov.in/judis/ 5/8 O.S.A. No. 103 of 2020 already filed consent affidavits, in an endeavour to do complete justice, this Court is of the view that the Appellants should be given an opportunity as they have not been given an opportunity before the Learned Single judge. Therefore, the order passed by the Learned Single Judge is set aside and the application in A.No.6643 of 2019 is ordered and they are impleaded as Second and Third Defendants. Further, Registry is directed to issue notice to the persons who have filed consent affidavits.
10.This Court is of the view that the surviving son of the Testator, viz., Mr. Murali Rengarajan, who has been suo motu impleaded in this Appeal as Respondent, has to be impleaded as Defendant in the Suit, since he has not filed caveat before the Learned Single Judge, though he has given consent affidavit. More over, he is a beneficiary under the Will having two properties. Therefore the said Murali Rengarajan is also a necessary party in the TOS and hence, this Court, suo motu impleads the said Mr.Murali Rengarajan as Fourth Defendant in TOS No. 2 of 2015.
11.The aforesaid Defendants shall file their written statement on or before 07.04.2021 and after filing of the Written Statement, the matter is directed to be listed before the Learned Single Judge on 19.04.2021 for framing of issues and the https://www.mhc.tn.gov.in/judis/ 6/8 O.S.A. No. 103 of 2020 Parties are directed to file their respective draft issues. The Learned Single Judge is requested to frame the issues at the earliest, so as to issue necessary directions to post the matter before the Learned Master for expeditious recording of evidence for disposal of the case, since the Original Petition is of the year 2010. It shall be incumbent upon the Learned Master to have at least one effective hearing every week showing progress of the case.
12.With these observations and directions, this Original Side Appeal is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.
[N.K.K.,J.] [P.D.A.,J.]
17.03.2021
ay/Maya
Index: Yes/No
Internet: Yes/No
To
The Sub Assistant Registrar,
Original Side Section,
High Court of Madras,
Chennai.
https://www.mhc.tn.gov.in/judis/
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O.S.A. No. 103 of 2020
N.KIRUBAKARAN, J.
AND
P.D.AUDIKESAVALU, J.
ay
O.S.A.No.103 of 2020
and
C.M.P.No.4835 of 2020
Dated:17.03.2021
https://www.mhc.tn.gov.in/judis/
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