Madras High Court
S.C.Sugumaran vs S.Renuka on 21 September, 2021
Author: M. Govindaraj
Bench: M.Govindaraj
S.A.No.643 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.643 of 2016
and C.M.P.No.11890 of 2016
S.C.Sugumaran ... Appellant
Vs.
1.S.Renuka
2.S.Ponselvi
3.Vijayalakshmi
4.Anandhan
5.Sangeetha
6.Kalpana
7.Jayanthi ... Respondents
(Respondents 1 and 2 are impleaded as legal heir
in the place of the deceased 1st respondent as per
the order passed in C.M.P.No.1431/2014 in A.S.No.183/2012)
PRAYER: The Second Appeal has been filed under Section 100 of the Civil
Procedure Code to set aside the decree passed in A.S.No.183 of 2012 by the VI
1/13
https://www.mhc.tn.gov.in/judis/
S.A.No.643 of 2016
Additional City Civil Court Judge, Chennai on 13.03.2015 by reversing the
judgment and Decree in O.S.No.1627 of 2010 on the file of XI Assistant Judge
Court, Chennai on 20.01.2012.
For Appellant : Ms. V.Thulasi
For Respondents : Mr. S.Sridhar
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JUDGMENT
The plaintiff is the appellant in the Second Appeal. The plaintiff filed a suit for partition of the suit property on the ground that plaintiff father died intestate and that the legal heirs are entitled to a share in that.
2. According to the plaintiff, the first defendant is the elder of the family, taking advantage of the situation that the plaintiff and his father were not in cordial relationship, has forged and manipulated a Will from his late father. On the basis of forged Will, he filed an Original Petition in O.P.No.437 of 1997 for probate of Will, which was later converted into TOS and was dismissed. After the dismissal, the first defendant maneuvered to get rid of the sisters by paying some monetary amount and released their shares over the said property in his favour. Since the Will is forged and the plaintiff was not made a 2/13 https://www.mhc.tn.gov.in/judis/ S.A.No.643 of 2016 party to the said TOS the judgment of the Court is not binding upon him. He caused a legal notice to the defendant on 14.11.2009 demanding peaceful partition of the said property. The first defendant by his reply dated 30.11.2009 refused to accept the same on untenable pleas. Hence, he filed a suit for partition.
3. In the written statement, it is stated that the first defendant filed a Will for probate in O.P.No.437 of 1997 impleading the plaintiff and his sisters and his nieces (sister's daughters) as respondents. However, after receipt of notice, the plaintiff has not chosen to participate in the proceedings. The sisters daughters have filed caveat and contested the O.P and it was converted into T.O.S. No.33 of 2001. The TOS was dismissed on improper ground and hence he filed an appeal in O.S.A.No.391 of 2002. The said matter was compromised and a probate was granted in favour of the first defendant by the order of the I Bench on 16.09.2003. When the plaintiff sent a legal notice on 08.04.2004 containing the same set of allegations and it was replied by the first defendant as early as 15.04.2004. Having kept quite for five years he filed the above suit for partition suppressing the material facts.
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4. After framing appropriate issues, the Trial Court decreed the suit. On appeal the decree and judgment passed by the Trial Court was set aside and the suit was dismissed. Aggrieved over the same, the plaintiff has preferred the above Second Appeal. The Second Appeal was admitted on the following substantial questions of law:-
“1. Whether the Appellate Court has erroneously held that there is a contradiction in the pleading which is against Section 41 of the Evidence Act?
2. Whether the Appellate Court was right in finding that the suit is barred by res judicata as per Section 11 of the C.P.C?
3. Whether the Appellate Court can give a finding regarding the validity of Ex.P5?”
5. Heard the submissions made by the learned counsel appearing on either side.
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6. The judgment of the Hon'ble Supreme Court in Smt. Rukmani Devi and Ors vs. Narendra Lal Gupta reported in 1985 1 SCC 144, it is held thus:
“ 2. The facts which are not in dispute are that in the petition moved by the respondent for obtaining the probate of the Will he had cited the appellants and Smt. Kamla Devi as near relations. The citation of the application was issued to the appellants and it is conceded that the appellants did not choose to appear and contest the petition for grant of probate. If the appellants did not contest the proceedings for grant of probate, can they now be permitted to question the validity of the will by a collateral attack in different proceedings. It is well-settled that the decision of the probate court is a judgment in rem. The High Court rightly held that till the order granting probate remains in force it is conclusive as to the execution and validity of the will till the grant of probate is revoked. Apart from the fact that a decision of the probate court would be a judgment in rem not only binding on the parties to the probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is cast on the probate 5/13 https://www.mhc.tn.gov.in/judis/ S.A.No.643 of 2016 court. Section 41 of the Indian Evidence Act, 1872 provides that a final judgment or order of a competent court in the exercise of probate jurisdiction is conclusive proof of what is decided therein that is about the genuineness of the will. To be precise, a probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. Apart from anything else, the citation having been issued to the appellants and having been served upon them, their failure to enter a caveat to contest the proceedings would preclude them from contesting the validity of the will in other proceedings. In Surinder Kumar and Ors. v. Gian Chand and Ors. 1958 SCR 548 this Court allowed an application for admission of additional evidence to place the probate of the will on record. The Court after allowing the application held that since will has been admitted to probate any infirmity in the matter of probate of the will due to the want of proper attestation of the will as required by Section 63(1)(c) of the Indian Succession Act would be removed because the order admitting the will to the probate will operate as a judgment in rem. Therefore the High Court was perfectly justified in 6/13 https://www.mhc.tn.gov.in/judis/ S.A.No.643 of 2016 reversing the decision of the executing court directing the respondent to lead evidence to prove the genuineness of the will.”
7. In the case of Ashok Kumar Singhal and Ors vs. State of M.P. And another, reported in 1996 9 SCC 48, the Hon'ble Supreme Court has held thus:
“...
7. It would, thus, be seen that the probate granted by the competent civil court would be conclusive and bind all the parties until the probate is duly revoked in an appropriate proceedings. It may, therefore, be open to the parties to impeach the probate in the manner provided under law. But so long as that was not done, parties were bound by the probate.......”
8. The judgment of P. Jothi Bai vs. B. Dorai Raj and 2 others, reported in 2001 4 CTC 330, this Court has held thus:
“ 21. In the Allahabad case, the Division Bench has held that the compromise cannot be recorded in a testamentary proceeding, since the genuineness of 7/13 https://www.mhc.tn.gov.in/judis/ S.A.No.643 of 2016 the Will has to be proved before ever the probate can be granted in favour of the plaintiff in the following terms:
"It also appears that it will be contrary to public policy to introduce into the probate that is granted to the executor terms of a private compromise that might have been arrived at between him and any objector. So long as it is not revoked the probate is conclusive against the whole world and private arrangements between the parties in a proceeding would be quite out of place in it."
From the principles laid down by the Allahabad High Court, it is clear that once the probate is granted, the probate is valid against every one until the same is revoked, even if it is on the basis of compromise.
22. We entirely agree with the view taken by the learned Judges of the Allahabad High Court. The compromise can be acted upon if the same was entered into by all the legal heirs of the testator. When all the legal heirs of the testator joined together and entered into the compromise, the same is binding on them by virtue of their agreement or arrangement. When a few had joined together and compromised the dispute, definitely the same will not be binding on others who are 8/13 https://www.mhc.tn.gov.in/judis/ S.A.No.643 of 2016 not parties to the compromise. In this case, the appellant being not a party to the compromise, definitely the terms of the compromise entered into between the respondents will not bind her.”
9. From the above judgments, it is clear that when a probate is granted, it is conclusive against the whole world and it is a judgment in rem which bind all the parties.
10. In the present case, the appellant was served with a notice in O.P (probate proceedings), but he had not chosen to participate in the proceedings.
The appellant, who has not chosen to contest the proceedings for grant of probate, cannot turn around and question the validity of the Will by a collateral attack by way of the present suit. The Trial Court without understanding the law in proper perspective had erroneously decreed the suit. The First Appellate Court after considering the settled principles of law that a probate is a conclusive proof not only against the person, who is contesting the case, but also against the whole world has rightly reversed the findings. So long as the probate is revoked, it is conclusive against the whole world. Therefore, as it is categorically declared in various judgments that once a probate is granted, it is 9/13 https://www.mhc.tn.gov.in/judis/ S.A.No.643 of 2016 valid against everyone until the same is revoked, even it is on the basis of compromise, the same principle will apply to this appeal also.
11. In the instant case, the plaintiff has chosen to contest the probate proceedings and given up his right. Even in the Testamentary Original Suit, the legal heirs of the sisters of the appellant alone have filed Caveat, participated and contested the case. Before the Division Bench of this Court, on Appeal in O.S.A.No. 391 of 2002 dated 16.09.2003, the Caveators had entered into a compromise and it was recorded before the Court and the Will was approved and registered and probated in favour of the first defendant. The appellant was not a party to the appeal, in fact, he was not a party throughout the proceedings. He cannot claim that he was left out in the compromise to state that it is not binding upon him.
12. The factum was informed to the appellant by way of a reply notice to the legal notice issued by him. It is evident from Ex.A3 that the first defendant has categorically declared that “though for wrong reasons the O.P was dismissed by the Lower Court my client took up the matter by way of 10/13 https://www.mhc.tn.gov.in/judis/ S.A.No.643 of 2016 Appeal and filed O.S.A.No.391 of 2002 and finally a decree was passed on 16.09.2003 granting probate to my client and after the said decree my client is now the unchallenged owner and in exclusive possession of the property and after six years your client is making a stale and purposeless claim for a partition of the property deliberately suppressing all the previous proceedings which will never sustain.”
13. The above fact that appellant was informed of Probate granted by the Court vide Ex.A2 as early as 30.11.2009. Even then the appellant has not chosen to approach the Probate Court for revoking the same. Instead he has indulged in challenging the Will and asking for partition in a collateral proceeding. Such claim is not legally sustainable and opposed to well settled principles of law. The First Appellate Court has rightly given the finding that the Probate granted by the Competent Court, is in rem and it will operate against the whole world is absolutely correct. Therefore, I do not find any merit in the contention of the appellant. The questions of law raised by the appellant are answered against.
11/13 https://www.mhc.tn.gov.in/judis/ S.A.No.643 of 2016 In result, the Second Appeal stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
21.09.2021 Kpr/asi To
1. The Judge, VI Additional City Civil Court, Chennai.
2. The XI Assistant Judge, Chennai.
12/13 https://www.mhc.tn.gov.in/judis/ S.A.No.643 of 2016 M. GOVINDARAJ, J.
kpr/asi S.A.No.643 of 2016 and C.M.P.No.11890 of 2016 21.09.2021 13/13 https://www.mhc.tn.gov.in/judis/