Madras High Court
Perianayagam vs Maria Arokiam on 9 January, 1996
Equivalent citations: 1996(1)CTC415, (1996)IMLJ328, 1996 A I H C 4380, (1997) 1 ICC 151, (1996) 1 MAD LW 415, (1996) 1 MAD LJ 328, (1996) 2 CIVLJ 289, (1996) 1 CTC 415 (MAD)
ORDER S.S. Subramani, J.
1. Defendant in O.S. No. 1742 of 1981, on the file of the District Munsif's Court, Dindigul is the appellant herein. Respondent herein, who is his brother, filed the said suit for partition of B Schedule Property on the basis of a will alleged to have been executed by their father Arulappan Servai on 31.10.1963. It is in evidence that Arulappan Servai had children other than the parties to the suit. He died in 1964. On the basis of the will, the plaintiff claimed half right in the property and wanted partition of the same.
2. The appellant disputed the genuineness of the will and also contended that the suit is bad for non-joinder of necessary parties.
3. The trial court, after taking evidence, came to the conclusion on that the plaintiff is entitled to half right on the basis of the will, but dismissed the suit on the ground that there are other sharers who also should have been made parties to the suit. A finding was entered on the basis that there are other properties also to be partitioned.
4. Against the dismissal, the plaintiff preferred A.S. No. 51 of 1984, on the file of the District Judge, Madurai North at Dindigul. The Lower appellate Court reversed the said decision and passed a preliminary decree. The lower appellate court held that in so far as the B Schedule property is concerned, the plaintiff and defendant alone are the legatees under the will, and to effect partition of the same, no other party need be implcadcd in the suit. A preliminary decree was passed as prayed for.
5. The decision of the lower appellate court is challenged in this second appeal. At the time of admission, the following substantial question of law was formulated by this Court;-
"Whether on the facts and in the circumstances of the case, the suit is maintainable?"
6. The question of law that has been argued before this Court is not covered by pleadings. But the same goes to the root of the case. It is based on admitted facts and there is no necessity to look into any other evidence from the one adduced in the suit. Being a question of law, not dependent on evidence, no fresh evidence on facts can be allowed to be taken for the first time in second appeal. It was so held in the decisions reported in M.K. Ranganathan v. Government of Madras, and Ram Kristo v. Dhankisto, .
7. In the decision reported in Ram Kristo v. Dhankisto, , the question of validity of a sale was allowed to be raised for the first time in Second Appeal in view of total prohibition of the same under a Regulation known as Sonthal Parganas Settlement Regulation. It was held in that case thus:-
"The section is comprehensive enough to include a transfer of the holding by way of an exchange. ..Sub Section (2) of Section 27 in clear terms enjoins upon the Courts not to recognise any transfer of such lands by sale, mortgage, lease, etc. or by or under any other agreement or contract whatsoever. Therefore, even assuming that the contention as to the invalidity of the said exchange under Section 27 was raised for the first time before the High Court, the language of sub-section (2) being absolute and clear, the High Court had to take notice of such a contention and was bound to held such an exchange was invalid.."
(Italics supplied)
8. In M.K. Ranganathan v. Government of Madras, , their Lordships held thus:-
"A respondent may rightly be allowed to raise a question even at appellate stage when it is a pure question of law"
9. The question of law raised in this second appeal is regarding the maintainability of the suit on admitted facts.
10. Even in the plaint, it is said that the parties are Indian Christians and the plaintiff has filed the suit only on the basis of a will alleged to have been executed by his father. A right claimed under a will executed by an Indian Christian cannot be recognised in any Court of law unless probate or Letters of Administration is obtained from the competent Court. Admittedly the plaintiff has not obtained any probate or Letters of Administration.
11. Section 213(1) of the Indian Succession Act reads thus;-
"No right as executor or legatee can be established in any Court of Justice, unless a Court of competent Jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed."
It is a total prohibition on the part of the legatee to establish his right as. such unless a probate or Letters of Administration is obtained.
12. In one of the earliest decisions of this Court, namely, in Ganeshamdoss v. Gulab Bi Bai, AIR. 1927 Mad. 1054 , a Full Bench of this Court has held thus:-
"..The general law would seem to be that the defendant's plea of jis terti cannot be entertained when he does not state in whom (such) the right resides. The defendant must trace the title to a third party other than plaintiff. A mere suggestion that there may be a third party with better title is nothing: Chandra Kanta Pathak v. Bhagjur Bepari, (1909) I IC 525. It has been held by the Privy Council that "possession is a good title against all the world except the person who can show a better title:
Sundar v. Parbati, 1889 LR 16 IA 186, Narayana Row v. Dharmachar, 1902 ILR 26 Mad. 514"
Similarly a prima facie title made out by the plaintiff to the property in suit is, I think, a good title against all the world except against the person who can show a better title. This prima facie title of the plaintiff has no doubt to be proved by him if it be not admitted by the defendant; but when one plaintiffs prima facie title is admitted or proved, I think it follows that he must succeed unless the defendant is able to displace the plaintiffs prima facie title and prove a better title in some person other than the plaintiff. If such persons rights should happen to be as legatee under a Will, since the defendant has to prove such person's right as legatee, he comes within the scope of Section 213, Succession Act.39 of 1925 (Section 187 of the Old Act 10 of 1865) under which "no right as legatee can be established in any Court of justice unless a court of competent jurisdiction has granted probate of the will under which the right is claimed."
That is a case where the defendant impeached the title of the plaintiff on the basis of a will and thereby he wanted to raise a contention that the title to the property is of a third person based on a will executed by the original acquirer. Even though the defendant did not claim title in himself, he was establishing a right of a legatee even though in favour of a third person on the basis of the will. Even in such a case, their Lordships said that since the will was not probated, such a contention cannot be raised. The said decision was approved by the Supreme Court in the decision reported in Hem Nalini v. Isolyne Sarojhashini, wherein it was held thus:-
"Section 213 creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained, whether that is claimed by the person as a plaintiff or defendant.
The words of Section 213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The Section docs not say that no person can claim as a legatee or as an executor unless be obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of same legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration.
A claiming as legatee under a will of which she had obtained letters of administration filed a suit for declaration of her title in regard to a property included in the will. She ought to establish that the ownership of that property vested in her testator as a legatee under a will executed in favour of her testator by another person. No probate or letters of administration had however been obtained in regard to that will.
Held that Section 213 barred from establishing the right of her testator as a legatee under the alleged will as no probate or letters of administration had been obtained".
Their Lordships held in that case that the bar applies to both the plaintiff and the defendant, and the same is absolute.
13. In this case, admittedly, the plaintiff has not obtained any probate or Letters of Administration. The suit is based only on a will. If the will be put forward as a basis for claiming a share, the suit can only be dismissed.
14. In case, de heirs the Will, the plaintiff claims as a legal heir of the acquirer, then there are other legal heirs who also will be entitled to a share in the assets of the deceased. If so, the suit also will be bad for non-joinder of necessary parties. Either way, the suit cannot be decreed on the basis of the present claim. The judgment of the lower appellate court is, therefore, reversed and the suit is dismissed.
15. Taking into consideration the close relationship between the parties and also for the reason that the present contention is taken only for the first time in this Court, I direct the parties to suffer their own costs.