Madras High Court
Unknown vs Raviprakash Ramprasad Jaiswal) And ...
A.No.111 of 2008 and A.No.3733 of 2008 in O.P.No.565 of 2001 S.RAJESWARAN,J. COMMON ORDER
PRAYER IN A.NO.111 of 2008:- This application has been filed by a third party in the pending Original petition to pass an order of revocation of the grant of probate of the Will dated 19.11.1995 of Late E.Andal in favour of the first respondent herein in the above O.P. on 28.03.2003.
PRAYER IN A.NO.3733 of 2008:- This application has been filed by a third party to pass an order revoking the grant of probate of the Will dated 19.11.1995 of late E.Andal in favour of the first respondent herein in the above O.P. by order dated 28.03.2003.
2. Since both the applications are filed by third parties for the same relief of revocation of probate granted in favour of the first respondent, a common order is being passed in both the applications.
3. The first respondent in both the applications, Mrs.Krishnaveni filed O.P.No.565 of 2001 under Sections 222 and 276 of the Indian Succession Act,1925 in the capacity of an Executrix appointed by the testator for grant of probate of the Will dated 19.11.1995 said to have been executed by Late E.Andal, who died on 29.08.1996. This Court on 28.03.2003 granted the probate as prayed for. The above two applicants, who are the third parties to the O.P. proceedings, have filed the above two applications for revoking the probate granted on 28.03.2003.
4. The case of the applicant in Application No.111 of 2008 is as follows:-
The applicant/3rd party is residing at No.104, Bricklin Road, Chennai-600 007 and his father occupied vacant land of an extent of 400 sq.ft. comprised in R.S.No.2870 bearing old No.48C and new No.104, Bricklin Road, Purasaiwalkam, Chennai. His father after occupation put up a hut about 60 years ago and the applicant himself was born in that property. There are numerous public documents including the ration card are available with the applicant to show that he is the resident of the above property. The applicant filed a suit in O.S.No.4033 of 1994 before the City Civil Court, to assert his right over the said property viz., No.104, Bricklin Road, Chennai-600 007 claiming adverse possession. The testatrix E.Andal was the neighbour of the applicant and was cited as the first defendant in the suit and Mrs.Krishnaveni, who was occupying the northern side of his property was shown as third defendant. Another neighbour Mr.Duraisamy was cited as second defendant. As the testatrix, the defendant Mrs.Krishnaveni attempted to disturb the possession of the applicant, the suit was filed for permanent injunction and the same was decreed in favour of the applicant on 4.9.1996 and the said decree has become final, as no appeal was filed against that decree. The first respondent Mrs.Krishnaveni also filed a suit in O.S.No.5344 of 1998 against her neighbour Mr.Duraisamy. In that suit the respondent herein Mrs.Krishnaveni claimed that her ancestors purchased the property from testatrix by an unregistered sale deed.
5. In the suit filed by the first respondent/ Krishnaveni never mentioned that she was related to testatrix and the suit was filed very much after the testatrix. The respondent is the sister's daughter of the testatrix and the testatrix executed a Will in her favour. The applicant applied to the Corporation of Chennai for assessment of his building. But the first respondent objected to the same on the ground that she was the owner of the land and her claim was on the basis of the Will which was probated by the orders of this Court. On enquiry, it was found out that the first respondent/Krishnaveni forged the signature of the said Andal in a fabricated Will and obtained probate from this court by playing fraud. Hence, the above application No.111 of 2008 has been filed for the aforesaid relief.
6. Similarly, Application No.3733 of 2008 has been filed by the another third party to revoke the grant of probate of the will dated 19.11.1995 of late E.Andal in favour of the first respondent.
7. The case of the applicant in Application No.3733 of 2008 is as follows:-
A larger extent of land measuring 4 grounds and 1378 sq.ft. of land situated at No.104, Bricklin Road, Purasawalkkam, Chennai was originally belonged to one E.Andal, out of which property, a land measuring 2 grounds and 689 sq.ft. was sold to one Duraisamy by the said Andal for a valuable sale consideration vide sale deed dt.29.8.1986. In respect of the part of the land to an extent of 700 sq.ft. in the remaining property, his father and the first respondent were tenants under the said Andal. His father late Kannan had put up a thatched hut and was in peaceful possession and enjoyment of the same till his death, on payment of necessary land rent to the said Andal Ammal. In order to purchase the property, the father of the applicant had also entered into a sale agreement with the said Andal Ammal and paid substantial amount towards the sale consideration to the said Andal Ammal. But the said Andal Ammal died intestate as a spinster and thereby the required sale deed could not be executed in favour of the applicant's father. Thus, the applicant's father perfected his title over the aforesaid property by adverse possession. Since then the applicant has been in continuous possession for more than 13 years. After the applicant's father's death, the mother of the applicant remained in absolute possession and enjoyment of the property measuring 700 sq.ft. Thereafter, the mother executed a registered settlement deed dated 30.01.2003 registered as document No.392 of 2003 in favour of the applicant herein. Therefore, the first respondent has no right over the property which is in possession of the applicant. The first respondent is also one of the tenants under the said Andal Ammal in respect of another portion of the land. The first respondent Mrs.Krishnaveni filed a suit against one Duraisamy in O.S.No.1046 of 1992 who had purchased a part of the property from the said Andal Ammal for injunction restraining him from evicting her from the property except by due process of law. In that suit, the first respondent did not make any whisper about the Will said to have been executed by the deceased Andal Ammal in her favour and in the O.P. filed by the first respondent herein, the factum of filing the civil suit above referred has not been mentioned. The first respondent is in no way related to the said Andal. Even the signature of the deceased Andal in the alleged Will filed by the first respondent in the probate O.P. is a forged one and fraud has been played by the first respondent upon this Court. Further, having included the property wherein, the applicant is residing, the applicant should have been made as a party in the O.P. Proceedings. Because of the non impleadment of the applicant, the probate was obtained by the first respondent without any difficulty. Thus the probate has been obtained by the first respondent by suppressing the material and relevant facts. Only from the legal notice dated 18.12.2007 issued by the first respondent, the factum of probate of the Will was brought to the notice of the applicant. Only thereafter the applicant took steps to revoke the grant of probate by filing the above application for the aforesaid relief.
8. Counter affidavit has been filed by the first respondent in both the applications separately. In respect of counter affidavit filed by the respondent in Application No.111 of 2008 has stated as follows.
The deceased Andal Ammal was her mother's sister and she died on 29.08.1996 at Chennai. She was the owner of the property measuring four grounds and 1378 sq.ft. at Door No.104-A, Bricklin Road, Purasawakkam, Chennai. The said deceased Andal Ammal acquired the said property by way of settlement deed dated 22.02.1952 registered as document No.388 of 1952. The said Andal Ammal sold two grounds and 689 sq.ft. of vacant land to one Duraisamy on 28.09.1986. The remaining land measuring two grounds and 689 sq.ft. was bequeathed to the first respondent by the said Andal Ammal by executing a Will on 19.11.1995. Therefore, the applicant has been in possession and enjoyment of the two grounds and 689 sq.ft. The O.P. filed by the first respondent to probate the said Will was also heard in detail and the probate was granted by this Court on 28.03.2003. After five years the applicant/3rd party has filed this application for revoking probate granted in favour of the first respondent. The case of the applicant that he is the owner of the vacant land to an extent of 400 sq.ft. and he is in possession of the same, out of the two grounds and 689 sq.ft. is denied. Even in the suit filed by the applicant in O.S.No.4033 of 1994, before the City Civil Court, Chennai, he prayed for a bare injunction only against the first respondent, the testatrix and Duraisamy Nadar. He obtained the exparte order of injunction on 04.09.1996. But he has not filed a suit for declaration. After obtaining probate, the first respondent applied for patta and accordingly the same was granted on 26.04.2005 by the Revenue Officials in the name of the first respondent to an extent of two grounds and 689 sq.ft., which was bequeathed by her aunt. The applicant/3rd party as such has no locustandi to apply for revocation of probate as he has no caveatable interest in the estate of Late E.Andal. The applicant is not a blood relation of the deceased and is not the beneficiary and finally the applicant has no interest in the estate of the deceased. Therefore, the case of the first respondent is that the application deserves to be dismissed.
9. In respect of Application No.3733 of 2008, the case of the respondent is as follows.
This applicant is also a third party, who has no caveatable interest nor he is related to the said Andal Ammal nor he has got any interest to the property nor he is a beneficiary in the Will. Hence, he prays for dismissing the application.
10. I have heard the learned counsel appearing for the applicants and the learned counsel appearing for the first respondent/petitioner in O.P.No.565 of 2001 and I have also gone through the documents available on record including the two separate counters filed by the first respondent.
11. The learned counsel appearing for the applicant in both the applications would submit that the first respondent without producing any document to show the relationship with the Testatrix Andal Ammal filed the O.P. on a forged Will. He refers to various signatures of Andal Ammal found in the sale deed during,1986 and the signature found in the alleged Will which are totally different. The injunction decree obtained by one of the applicants against the first respondent is still in force. The learned counsel appearing for the applicants also refers to the suit in O.S.No.5254 of 2001 filed by the first respondent/petitioner in O.P. against one Duraisamy, another tenant and would submit that in the suit filed in the year,1998 there has been no reference made about the Will dated 19.11.1995. According to him the late E.Andal died on 29.08.1996 and the suit has been filed by the first respondent in the year 1998. But there is no mention about the relationship nor the Will said to have been executed by the said Andal Ammal. The learned counsel appearing for the applicants while comparing the signatures also refers to the specimen signatures numbering 13 of the Andal Ammal to reiterate the fact that the signature of said Andal Ammal found in the alleged Will is totally different. Therefore, the Will is not a genuine one and it is a forgery. Even the witnesses in the Will are also stock witnesses and they are interested in the first respondent as one of the witnesses, is her mother. Therefore, according to the learned counsel appearing for the applicants/3rd parties, the applications have to be necessarily allowed and the probate granted by this Court has to be revoked as the first respondent has obtained probate of a forged Will and by suppressing relevant and material facts.
12. In support of his contentions that the applicant has got the locustandi to file the application for probating the Will, he relied on the decision of the Hon'ble Supreme Court reported in 2008 (1) CTC 698 (Basanti Devi Vs. Raviprakash Ramprasad Jaiswal) and would submit that any aggrieved person is entitled to file an application for revocation of probate.
13. Per contra, the learned counsel appearing for the first respondent while reiterating the averments made in the counter affidavits would submit that both the applicants before this Court are third parties not related to the Testatrix as such they don't have any locustandi to file the application to revoke the probate. The learned counsel appearing for the first respondent further submits that excepting being in possession of a portion of the property both the applicants have no matter of any caveatable interest in the estate of the first respondent's aunt late E.Andal/Testatrix and the applicants are not the blood relations of the said Andal Ammal. The applicants are also not the beneficiaries under the Will and the applicants thus have no caveatable interest in the estate of the deceased to maintain these applications. Therefore, according to the learned counsel appearing for the first respondent, the applicants have filed the above applications without any locusstandi to question the grant of probate.
14. In support of his contention, the learned counsel appearing for the first respondent relied on two unreported judgments of this Court passed on 28.09.2009 in Application No.1533 of 2000 in O.P.No.368 of 1997 and an order dated 01.04.2002 made in Application No.5342 of 2001 in O.P.No.368 of 1997.
15. I have considered the rival submissions carefully with regard to the facts and citations.
16. Admittedly, these two applications have been filed under Sec.263 of the Indian Succession Act 1925 to revoke the grant of probate of the Will dated 19.11.1995 of late E.Andal in favour of the first respondent herein as per the order dated 28.3.2003 passed in O.P.No.565 of 2001.
17. Sec.263 of the Indian Succession Act 1925 reads as under:
"263. Revocation or annulment for just cause- The grant of probate or letters of administration may be revoked or annuled for just cause.
Explanation- Just cause shall be deemed to exist where-
(a) the proceedings to obtain the grant were defective in substance; or
(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or
(c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through circumstances; or
(e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect."
18. From the above, it is very clear that the grant of probate or letters of administration may be revoked or annulled for just cause. It is also explained in the section itself when just cause shall be deemed to exist.
19. According to the applicants herein, a just cause deemed to exist in the present case as the grant of probate was obtained by the first respondent fraudulently by making a false suggestion or by concealing from the court something material to the cause. They contend that the Will itself is an act of forgery and even the admitted relationship between the testatrix and the first respondent itself is doubtful. Therefore, they contend that the grant of probate is to be revoked. Their further case is that the testatrix does not have the title to bequeath the property to the first respondent and in fact these applicants claim that they are the owners of the properties under their occupation.
20. But the first respondent's counsel questioned the locus standi of the applicants themselves by submitting that these two applicants are third parties and they are neither the legal heirs of the testatrix E.Andal nor are they relatives of the testatrix. It was mainly contended on behalf of the first respondent that when these two applicants are totally strangers to the Will and not at all related to the testatrix even remotely, they cannot invoke Sec.263 of the Indian Succession Act, 1925. In short, it was mainly argued that even assuming that there is a just cause to revoke the grant of probate, still the applicants should prove that they have the locustandi and the competence to file the application to revoke the grant of probate.
21. Therefore, it has now become necessary to find out whether these two third parties could maintain these applications filed under Sec.263 of the Indian Succession Act, 1925.
22. The learned counsel for the applicants submits that an application for grant of probate is a proceeding in rem and a probate when granted not only binds all the parties before the court, but, also binds all other persons. If a judgment in rem, any person who is aggrieved is entitled to file an application for revocation of probate. In support of his submissions, the learned counsel for the applicants relied on the decision of the Hon'ble Supreme Court reported in 2008(1) C.T.C. 698 (cited supra).
23. A perusal of the above judgment will show that a Will was executed by one Lakhpathi Devi, widow of late Mahadeo Jaiswal in favou of one Ravi Prakash Ram Prakash Jaiswal who was one of the grand sons of late Bhagwatidina one of the brothers of late Mahadev Prasad. The appellant before the Hon'ble Supreme Court claimed said lakhpathi Devi executed another will on 12.03.1996 and expired on 13.3.1996, whereas the appellant did not file any application for grant of probate for the Will dated 12.03.1996, the respondent Raviprakash did so on 06.09.1996. In the said application for grant of probate, it was stated by the respondent Ravi Prakash that there was no heir known to the petitioner on the side of husband of the deceased. A probate was granted in favour of the respondent Ravi Prakash by the High court on 7.4.1997. An application for revocation of the said grant of probate was made by the appellant Vasantha Devi on the ground that although she was one of the heirs of the said Lakhpathi Devi, no citation was made. Furthermore, a Will has been also executed in her favour, when a learned Single Judge of the Bombay High Court has dismissed the application for revocation of probate and intra court appeal was also dismissed by a Division Bench of this court. When the matter was taken up before the Apex court, the Apex court found that for the reasons best known to the respondent Ravi Prakash, he did not at the first instance disclose that any party belonging to the testatrix was situated at a place other than the State of Maharashtra, even though such a disclosure was required in terms of Sub-Section 3 of the Sec.283 of the Indian Succession Act.
24. Only in that context, the Hon'ble Supreme Court set aside the impugned judgment of the Bombay High Court and allowed the appeal.
25. No doubt, the Apex Court in the above judgment held as follows:
"22. It is now well settled that an Application for grant of probate is a proceeding in rem. A probate when granted not only binds all the parties before the court but also binds all other persons in all proceedings arising out of the Will or claims under or connected therewith. Being a judgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings and proper citations having not been made, is entitled to file an Application for revocation of probate on such grounds as may be available to him. We are, therefore, of the opinion that the Application for revocation of the grant of probate should have been entertained."
26. In the above said findings rendered by the Hon'ble Supreme Court cannot be read in isolation to submit that even any third party who is not at all connected with the Will or the testatrix can maintain an application to revoke the grant of probate under Sec.263. This decision is not an authority to hold that any third party can file an application under Sec.263 of the Indian Succession Act to revoke the grant of probate.
27. On the other hand, this court in the unreported judgment dated 1.4.2002 made in A.No.5342 of 2001 in O.P.No.368 of 1997 (cited supra) held as follows:
"3. The scope of the probate proceedings is very limited. What the Court is concerned is whether the testator was in a sound and disposing state of mind, memory and understanding and whether the requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act had been complied with. Beyond that, the court does not concern itself with the title of the property subject matter of the Will. In view of that, I do not find any merit in this application for revocation. The application is therefore dismissed. It is open to the applicant to convince the City Civil Court regarding the scope of grant of probate."
28. In the other unreported judgment dated 28.03.2000 made in A.No.1533 of 2000 in O.P.No.368 of 1997 (cited supra) this court held as follows:
"6. Point: The applicant is a third party and he had filed the present application to revoke the order of probate granted by this Court in O.P.No.368 of 1997 dated 9.2.1999. Learned counsel for the applicant contended that the property originally belonged to one R.K.Shanmugam Chetty and he had conveyed the same to two persons viz., Veeraraghavalu Chetty and Varadharajulu Chetty on 2.6.1940. They constructed a house in the plot and later, the applicant is said to have purchased this property under a registered sale deed dated 5.5.1976 for a consideration of Rs.2.65 lakhs and they are in absolute possession and enjoyment of the property and patta has also been transferred in the name of the partnership firm. Now, based upon the alleged Will executed by one Doraisamy iyengar dated 22.4.1975, it appears that the respondent has filed O.P.No.368 of 1997 and obtined an order of probate. Neither the said Doraisamy Iyenger nor the respondent had any right title over the property and considering the overwhelming documents filed on the side of the applicant, the order of probate already granted by this Court is liable to be revoked.
7. The applicant had filed typed set of documents consisting of the sale deed dated 20.3.1936, 2.6.1940 and 5.5.1976. They have also produced the encumbrance certificates for the period commencing from 1.4.1940 to 22.3.1976. These documents have been pressed into service by the applicant in order to show that they were originally owned by Shanmugam Chetty and from his successors-interest, the applicant had purchased the property and patta has also been transferred and as the applicant is in possession and enjoyment of the property, now the respondent is attempting to take forcible possession of the property through muscle men in view of the order of the probate granted by this Court.
9. It is necessary to state that the applicant is not related to Doraisamy Ienger, who had executed the Will in favour of the respondent. It is also not in dispute that the applicant had no caveatable interest in the property. Only by virtue of the registered sale deed, the applicant claims title to the property. It is settled position of law that in probate proceedings the question of title cannot be considered and concluded. Only if a party has got caveatable interest or if the party is a beneficiary under the Will or if the party is related to the testator, then alone the application can be filed under section 263 of the Indian Succession Act to revoke the order passed by this Court.
10. Learned counsel for the respondent also relied on KASHI NATH Vs DULHIN GULZARI (AIR 1941 PATNA 475) wherein it was observed that a person who claims outside and independently of a Will or claims adversely to the testator and disputes his rights to deal with the property, can, in no sense be deemed to claim an interest in the estate of the deceased, within the meaning of Section 263.
11. Reliance is also placed upon another decision in KOMALANGIAMMAL Vs SOWBHAGIAMMAL (AIR 1931 MADRAS 37) and also In Re: P.D. RAJAN (AIR 1996 MADRAS 318) for the principle that "applicant must have some interest in testator's property. No claim of blood relationship with testator The applicant is not a beneficiary under the Will. It is therefore clear from the aforesaid decisions that the applicant is not a competent person to claim that he has got title to the property in the probate proceedings. The only course open to the applicant is to file a suit for declaration and establish his title to the property. I am of the view that the present application filed by the applicant is not maintainable before this Court. Hence, the point is answered accordingly.
29. Both the above said unreported judgments dealt with the same question namely whether a third party can maintain an application under Sec.263 of the Indian Succession Act to remove the grant of probate.
30. This court categorically held that when the applicant has no caveatable interest in the property, the applicant cannot maintain the application filed under Sec.263 of the Act. This Court further held that the question of title cannot be considered in probate proceedings.
31. In the Basanthi Devi's case also (cited supra), the Hon'ble Supreme Court clearly held that the jurisdiction of the probate court is a limited one and the probate court is not concerned with the question of title.
32. In the light of the above discussions and the decisions referred to, I am of the considered view that these two applicants have no caveatable interest at all in the Will of late E.Andal executed in favour of the first respondent and therefore, they have no locus standi to file these applications. Thus, these applications are to be rejected as not maintainable.
33. The settled law is that unless a person seeking revocation of probate establishes his or her caveatable interest the probate court is not bound to revoke the probate merely on the basis of suspicious circumstances alleged by such a person. First of all, the person seeking revocation should establish his or her locus standi and therefore he or she should establish the suspicious circumstances surrounding the execution of the Will. Without establishing the caveatable interest or the locus standi, the person cannot maintain an application under Sec.263 of the Indian Succession Act alleging that there is a just cause to revoke the grant of probate.
34. In the present case, admittedly, both the applicants are third parties who have no caveatable interest and therefore, it is not for them to file these applications to revoke the grant of probate in favour of the first respondent. Further, both the applicants are questioning the title and therefore, it is for them to approach the competent Court of law to redress their grievances and the applications filed under Sec.263 of the Indian Succession Act are misconceived and not maintainable.
35. In the result, both the applications are dismissed. No cost.
10.06.2010 vaan S.RAJESWARAN,J.
vaan Pre-Delivery Common order in A.Nos.111 of 2008 and 3733 of 2008 in O.P.No.565 of 2001 .06.2010