Madras High Court
Chrome Leather Company Ltd vs Q.Dawson on 6 September, 2012
Equivalent citations: AIR 2013 MADRAS 5, (2012) 7 MAD LJ 23 (2012) 4 MAD LW 840, (2012) 4 MAD LW 840
Bench: P.Jyothimani, P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.09.2012 CORAM The Honourable Mr. Justice P.JYOTHIMANI and The Honourable Mr. Justice P.DEVADASS O.S.A.No.256 of 2012 Chrome Leather Company Ltd., rep. by its Manager A.Selvakumar .. Appellant vs. 1. Q.Dawson 2. Juliet Chambers 3. Sheila Chambers 4. Saroja 5. Leena Hibba 6. David Chambers 7. Robin Chambers 8. Sylvia 9. Susan Chambers .. Respondents PRAYER: Appeal filed under Order XXXVI, Rule 1 of O.S. Rules r/w. Clause 15 of Letters Patent against the fair and decretal order dated 29.6.2012 made in Application No.2361 of 2011 in O.P.No.382 of 2010. ----- For appellant : Mr.R.Thiagarajan, Senior Counsel for Mr.V.Balakrishnan For respondents : Mr.E.J.Ayyappan for R.1 Mr.R.Saravanakumar for R.4 to R.9. R2 & R3 Not served. ----- J U D G M E N T
[Judgment of the Court was delivered by P. DEVADASS, J.] As against the dismissal of Application No.2361 of 2011 in O.P.No.382 of 2010 which has been filed to revoke the order probating the Will of late George Joseph Chambers, this appeal has been directed by Chrome Leather Company Ltd., a third party.
2.This appeal arose under the following circumstances:-
1) George Alexander Chambers also known as G.A. Chambers married thrice. He amassed huge wealth particularly in Zamin Pallavaram. He founded Chrome Leather Company Limited. Huge track of property formed part of this company. While alive on 18.12.1930, he executed a Will in favour of his third wife Ida L.Chambers, whereunder, he had bequeathed considerable extent of property. He was not alive to witness the fight between his third wife and a son born to him through his another wife. But, to buy peace, there was compromise between them.
2) Thereafter, Mrs.Ida executed a Will on 29.10.1949. It appears that Chrome Leather Company Limited raised loans with Central Bank of India. The Company fell into huge arrears, naturally, the Bank enforced the mortgage. The property was brought to sale. It was purchased by a third party, namely, the appellant, at the auction.
3) Subsequently, one George Joseph Chambers emerged. He claimed himself a son of Kelland Huxford Chambers, who is son of Ethel Mary Chambers, who is first wife of George Alexander Chambers. George Joseph Chambers claimed himself an heir to late G.A.Chambers, exactly as his grandson.
4) On 13.08.1930, Mrs.Ida died issueless. In O.P.No.178 of 1969, the Administrator-General sought for probating her Will. Letters of Administration was granted. George Joseph Chambers filed Application No.3899 of 2007 to revoke it. However, On 08.07.2008, it was dismissed by the learned single Judge.
5) On 06.08.2008, George Joseph Chambers passed away. Q.Dawson, the first respondent herein, claiming himself as his Power Agent as well as executor of his Will dated 6.2.2008 filed O.P.NO.382 of 2010 to probate the Will. On 06.08.2008, the Will has been probated.
6) Chrome Leather Company Limited, a third party filed Application No.2361 of 2011 to revoke the Order dated 25.01.2011. Saroja, her children and also of her husband's 1st wife filed Application No.4402 of 2011 seeking similar relief. On 25.1.2011, the learned single Judge allowed Application No.4402 of 2011 on the ground that they have established a just cause and also referring to Explanation (b) to Section 263 of the Indian Succession Act,1925 held that the power of attorney adopted certain fraudulent activities. However, the Application filed by the present appellant has been dismissed on the ground that he has no caveatable interest and he has no locus standi to seek a remedy.
3. Assailing the said order, Mr.R.Thiagarajan, learned Senior Counsel for the appellant would contend that already in W.P.Nos.33248 and 33249 of 2007, this Court cancelled the legal heir certificate granted to George Joseph Chambers. In W.P.No.1435 of 2008, a Division Bench of this Court dubbed George Joseph Chambers and his Power agent as land grabbers. The learned Senior Counsel also contended that since the property purchased by the appellant at the auction also has been included in the Will of George Joseph Chambers, the appellant has caveatable interest. Thus, necessarily, he has to protect his interest. So, he has a right to approach the Court to seek revocation of the order probating the Will of George Joseph Chambers. Thus, the observations of the learned Single Judge in dismissing the appellant's application is not in accordance with law.
4.The learned Senior Counsel cited Dr.R.A.Venkatesan v. D.Jenbagalakshmi [2012 [2] CTC 278 (D.B.)] and submited that even if a third party has a fraction of right, he will have locus standi and caveatable interest. The locus standi of a person having caveatable interest cannot be restricted to persons related by blood to the testator or beneficiary under the Will or a person having an interest in the estate of the deceased. Under certain circumstances, persons having interest in the property can either oppose the order probating the Will or seek revocation of the order probating the Will.
5. On the other hand, Mr.E.J.Ayyappan, learned counsel appearing for the first respondent would contend that since the application filed by 4th respondent and her children has been allowed, the order probating the Will has been revoked and nothing survives for the present appellant to seek further relief. There cannot be double orders cancelling the very same order probating the Will.
6. Mr.R.Saravanakumar, learned counsel appearing for respondents 4 to 9 in the facts and circumstances of the case naturally supported the appellant.
7. We have given our anxious consideration to the submissions of the learned Senior counsel and the learned counsels appearing for the respondents, perused the materials placed on record and carefully gone through the impugned order of the learned single Judge.
8. A third party, namely, the present management of Chrome Leather Company Limited, has purchased the property. This property also has been included in the probated Will of late George Joseph Chambers. Let us see the law first.
9. In Sadananda Pyme v. Harinam Sha [AIR 1950 Cal. 179], a Division Bench of the Calcutta High Court held that a person holding an interest in the property in the event of intestacy is one, who will have locus standi to file an application under Section 263 of the Indian Succession Act,1925 to cancel the Order probating the Will.
10. In Promode Kumar Roy v. Sephalika Dutta [AIR 1957 Cal 631], a Division Bench of the Calcutta High Court held that a person who has acquired an interest in the testator's estate, though after his death, by reason of the mortgage transfer by the testator's son and who is undoubtedly also a creditor of the testator's said son, whom the alleged Will purports to disinherit has plainly locus standi to apply for revocation of the grant, particularly when his allegation is that the grant was obtained in fraud of the creditors.
11. In Goods of Ganapati Sarkar [AIR 1959 Cal. 227], it was held that a slightest interest in the estate will entitle a person a party to probate proceedings.
12. In Annapurna Kumar v. Subodh Chandra Kumar [AIR 1970 Cal. 433], it was held that any interest, however, slight, and even a bare possibility of an interest, is sufficient to entitle a person to oppose a testamentary disposition.
13. In Rao & Sons v. Chandamon [AIR 1971 Orissa 95], the Court went to the extent of holding that creditors of the heirs at law of the testator were entitled to ask for revocation of probate and enter caveat during probate proceedings in response to a general citation.
14. In Shanti Devi Agarwalla v. Kusum Kumari Sarkar [AIR 1972 Orissa 178], a learned single Judge of the Orissa High Court held that even bare possibility of an interest is sufficient to entitle a person to oppose testamentary instrument. In the said case, part of the property was purchased from one of the Legatees relying on second Will. That purchaser would be affected if probate is granted through first Will. The learned single Judge has held that vendor legatee is entitled to enter caveat in respect of first Will, the purchaser having stepped into the shoes of the vendor is also entitled to enter caveat.
15. In Sima Rani Mohanti v. Puspa Rani Pal [AIR 1978 Cal. 140], the Division Bench reiterated the proposition laid down in Annapurna Kumar [AIR 1970 Cal. 433].
16. In Gita @ Gita Ravi v. Mary Jenet James @ James [1995 (1) MLJ 467 : 1995 (2) LW 831], it was held that Explanation (a) to (e) in Section 263 of the Indian Succession Act, 1925 is not exhaustive and the Court is not fettered by the explanation while deciding whether there is just cause for revocation of a grant. It is held that the explanation would only mean that in cases, where one of the circumstances set out in clauses (a) to (e) is present, a legal fiction comes into existence to the effect that in such cases, there is just cause for revocation. If there are circumstances, which do not fall within the ambit of clauses (a) to (e), but which warrant or necessitate the revocation of the grant, the Court is entitled to revoke the grant or annul the same even though there is no legal fiction.
17. In S.Bhaskaran and another v. R.Loganathan [2007 (6) MLJ 290], the Appellant claimed to have purchased the property through Ranganayaki, who is a Class I heir of Purushothaman. Observing that any interest howsoever slight, is sufficient to entitle to oppose the grant, the Division Bench held as under:-
"Purchasers of property from a Class I heir, have caveatable interest in the probate proceedings initiated in respect of the Will executed by the husband of the said Class I heir, especially when the said Class I heir is alleged to have only life interest over the property."
18. In Dr.R.A.Venkatesan v. D.Jenbagalakshmi [2012 [2] CTC 278], a Division Bench of this Court held as under:-
"13. A grant of administration does not decide any question of title. It merely decides the right to administer. When deciding the grant of Letters of Administration, the Court would not go into the question of title. When a person seeks Letters of Administration under Section 218 of Indian Succession Act, it is sufficient if the applicant for Letters of Administration alleges that there is a property to be distributed and that he is entitled to the whole or part of it. Although it is not necessary for the Court to decide what assets are likely to come to the hands of the applicant for Letters of Administration. Court is duty bound to consider whether there is any estate at all to be administered. Court need to specify whether any property was left by the deceased.
[emphasis supplied by us]
14. ..............No application of Letters of Administration can be entertained to an estate which was already disposed of even during the life time of the deceased. When property was already disposed of even during the life time of deceased, Respondents have a right to show before the Court that the schedule property is not available to be administered.
[emphasis supplied by us]
15. All persons who have "an interest in the estate of the deceased" and are entitled to enter caveat and oppose the grant of probate under Section 263 of the Act are also entitled to apply for revocation of the probate. It is well established that any interest, however slight is sufficient to entitle a party to oppose the grant of Letters of Administration/Probate."
19. The appellant acquired the property, exactly, Chrome Leather Company Limited in the auction purchase. This property is also included in the Will of late George Joseph Chambers. That Will has been probated at the instance of the probate petitioner Q.Dawson, the 1st respondent herein. The Court has the duty to see what exactly the property available. For instance, if a property included in the Will has already been disposed of, the buyer of the property, even the person who lent money on the property, a mortgager will have right to oppose probating the Will and also seek revocation of the order probating the Will.
20. In the case before us, the appellant has acquired the property at an auction sale. The appellant has an interest in the property. Thus, the appellant has a caveatable interest to seek revocation of the order probating the Will of late George Joseph Chambers. But, this aspect has not been properly considered by the learned single Judge. Thus, the appellant will have locus standi to seek remedy.
21. Now, the relief sought for by the appellant, viz., revocation of the probate, as rightly submitted by Mr.E.J.Ayyappan, learned counsel for the 1st respondent, has been achieved in the application filed by Saroja and others. But, observations made by the Single Judge, against the appellant will cause havoc. Thus, in the facts and circumstances, the Original petition has to be treated as Testamentary Original Suit.
22. In fine, the Original petition shall be treated as Testamentary Original Suit. The observations of the learned single Judge made in para.21 of the impugned judgment is superfluous, uncalled for and it is not in accordance with law. The learned single Judge is requested to dispose of the Testamentary Original Suit on merits and in accordance with law, not being carried away by any of the said observations in his said order. We would also request the learned single Judge to dispose of the Testamentary Original Suit expeditiously. The learned Single Judge need not take into account any of the observations made while disposing of the Testamentary Original Suit. The Appeal is disposed of accordingly. No costs. Consequently, M.P.Nos.1 and 2 of 2012 are closed.
gs/rrg