Madras High Court
R. Ramachandran vs G. Hariharan on 24 April, 2001
Equivalent citations: (2001)2MLJ417, 2002 A I H C 1555, (2002) 2 HINDULR 523, (2001) 2 MAD LW 318, (2001) 2 MAD LJ 417
Author: C. Nagappan
Bench: C. Nagappan
ORDER A.S. Venkatachalamoorthy, J.
1. The learned single Judge dismissed the applications 181 and 182 of 2000 in O.P.284 of 1991 filed by the appellant under Order 14, Rule 8 of O.S. Rules read with Order 25 Rule 62 of O.S. Rules and Section 263 of the Indian Succession Act, 1925 and Order 14, Rule 8 read with order 25 Rule 62 of O.S. Rules respectively by a common order dated 23.8.2000.
2. The above appeals have been filed by the appellant being aggrieved by the said order.
3. One Sivagami Ammal is the wife of late V.V. Raghunathan (Testator) and they have three sons and one daughter. The youngest of the sons is Ramachandran, the appellant herein. Deceased's daughter Annalakshmi's son is by name Hariharan, is the respondent herein.
4. The said Hariharan filed O.P.284 of 1991 under Sections 263 and 317 of the Indian Succession Act to issue probate of the last Will and testament of V.V. Raghunathan (Vanchi Vadyar Raghunathan), who died on 4.12.1990 at Madras. By an order dated 26.9.1995, a probate was granted. In the said proceeding, viz., O.P.284 of 1991, the present appellant was the 4th respondent.
5. The appellant filed two applications viz., (a) Application No. 181 of 2000 under Order 14, Rule 8 of O.S. Rules read with Order 25, Rule 62 of O.S. Rules and Section 263 of the Indian Succession Act, 1925 praying the Court to revoke the probate granted by this Court on 26.9.1995 of the alleged will dated 4.6.1984 of the deceased in the O.P. 284 of 1991; (b) Application No. 182 of 2000 praying the Court not to issue citation to the respondent to produce and deposit in this Court the original probate issued to him as per the order of this Court dated 26.9.1995 in the original petition.
6. A common affidavit was filed by the appellant in support of the applications Nos. 181 and 182 of 2000. The case of the appellant as set out in the said affidavit is as under:
The appellant left Chennai in or about 1976 to Mettur in connection with his business and he was residing and carrying on business there till about 1995, but however, he used to visit Chennai whenever required. His father died at Chennai on 4.12.1990. Mr. P.B. Ramanujam was the advocate for his father, elder brother R.V. Easwaran and for the respondent (Petitioner in O.P.) To condole the death of his father viz., V.V. Raghunathan, the said advocate visited No. 109, St. Mary's Road, Chennai-28 on 17.12.1990 and he asked the appellant and his brother Kasi Viswanathan to call on him to see the will of his deceased father. On 18.12.1990, the appellant and his wife by name Usha called on the said advocate and the advocate showed them the will of his father dated 12.9.1975. Again on 20.12.1990, the appellant along with his brother Kasi Viswanathan called on the advocate Mr. P.B. Ramanujam and on that day also they were shown the will dated 12.9.1975. Subsequently, the appellant left Chennai for Mettur requesting the advocate to take steps in the matter. Since there was no progress in the matter, the appellant wrote a letter dated 8.6.1991, by RPAD to the said advocate, requesting him to send him a xerox copy of the said will dated 12.9.1975 of his father. The said letter was counter- signed by his brother Kasi Viswanathan also. A reply dated 29.6.1991 was received from the said advocate refusing to furnish a copy of the said Will on the ground that he had no instructions from the deceased or anyone who entrusted the matter to probate the Will of the deceased, to give copy of the Will to the appellant or his brother Kasi Viswanathan. As the appellant was away from Chennai, he did not pursue the matter further thinking that both the second respondent R.V. Easwaran (other brother of the appellant) and the advocate would be taking further steps to get the probate of the will of his father. According to the appellant, on 14.12.1999, while he was passing through his family house at No. 109, St. Mary's Street, Chennai-28, he was surprised and taken back to find that the building was in the process of being demolished. On enquiry, the appellant came to know that one M/s Ceebros Property Development, No. 19/1, 3rd Cross Road, R.A.Puram Chennai-28 who are Real Estate Dealers and Developers were entrusted with the demolition work by the 2nd respondent and the respondent herein by name Hariharan with a view to develop the property by putting up apartments and that Mr. P.B. Ramanujam, Advocate is also the advocate for the developers.
According to the appellant, he engaged the present lawyer on 15.12.1999 and his counsel, who verified the registers and records by filing search applications on 16.12.1999 in the original petition. The appellant came to know that the respondent herein, in collusion and connivance with R.V. Easwaran and his family members obtained probate of the Will alleged to have been executed by his father on 4.6.1984 from this Court on 26.9.1995 in O.P.284 of 1991 without notice to him. According to the appellant, the Will is a rank forgery and had been fabricated and brought out by the respondent herein and R.V. Easwaran, brother of the appellant and other family members and that the consent affidavit dated 21.1.1991 is a fraudulent one procured by unfair means, and that apart, Annalakshmi i.e., sister of the appellant died on 7.2.1993. The legal representatives were not brought on record and the orders obtained behind their back. According to the appellant, the Will dated 12.9.1975 of his father bequeathed all his properties to all the three sons as well as his wife Sivagami Ammal (respondents 1 to 4 in the O.P.). But however with a view to get over the same, the respondent herein and R.V. Easwaran and his family members have fabricated the alleged will dated 4.6.1984 and the same is a rank forgery. The alleged will dated 4.6.1984' is unnatural and had been brought about with a view to grab the properties of the deceased and to be shared between the respondent, R.V. Easwaran and his family members. The case of appellant is that the reasons given in the alleged will dated 4.6.1984 for disinheriting the appellant and the other brother Kasi Viswanathan are false and untrue. The said document had not been executed by the deceased father of the appellant and the alleged signature of the deceased in the third and last page is forged one. In fact, in the first and second pages there are no signature. The said documents had been brought about by the respondent herein and R.V. Easwaran and his family members under suspicious circumstances. That apart, the purported signature of the deceased in the third and last page had been subscribed within a narrow space, strengthening the case of the appellant that the entire document is a fabricated and forged one. Furthermore, the signature of the two attesting witnesses in the said document are also forged and also not the signatures of the persons purported to have attested it. In any event, the attestation of the alleged will does not comply with the provisions of the Indian Succession Act, 1925 and the Evidence Act regarding attestation of the Wills and as such, the alleged Will of the deceased is no will at all in the eye of law and probate for the same cannot be granted.
The deceased had been affectionate to the appellant and his brother Kasi Viswanathan and to their mother Sivagami Ammal. R.V. Easwaran, the other brother of the appellant is a trouble shooter in the family squandering the wealth of the family. He has been leading a wayward life and he is still addicted to drinking. In these circumstances, the deceased never had disinherited the appellant and Kasi Viswanathan and Sivagami Ammal and their children and he would never have bequeathed his properties in the manner set out in the alleged will dated 4.6.1984.
In the affidavit of assets, the only asset disclosed by the respondent is the landed property bearing Door. No. 109, St. Mary's Road, Chennai-28 of an extent about 13,280 sq.ft (5 grounds and 1280 sq.ft), which is a very valuable property consisting of two houses, one bigger and the other smaller one. Curiously, the respondent had not disclosed the other assets left by the deceased which are mentioned in the alleged will of the deceased and their value and as to what happened to them. He has mentioned the value of the immovable property as Rs. 1,09,200 while in fact even in 1990, the Collector fixed the value at Rs. 31 lakhs. The value of the property as on the date of filing of the affidavit was Rs.1 crore and 75 lakhs. That apart, even if the life interest of Sivagami Ammal under the alleged will had been taken away by the respondent and R.V. Easwaran and his family members for no consideration when she is aged more than 90 years and she is helpless in the hands of R.V. Easwaran and his family members. In fact she is held as a captive and in house custody by the brother of the appellant R.V. Easwaran.
The proceedings in the original petition to obtain the grant were defective in substance and the same would be evident from the records of the Court in the original petition. The grant of probate had been obtained by the respondent fraudulently concealing the factual materials to the case.
7. The respondent herein inter alia resisted the said applications and filed a common counter affidavit. The various averments/allegations levelled against the respondent by the appellant have been denied emphatically. According to the respondent, the Testator late V.V. Raghunathan appointed him as Executor of the will dated 4.6.1984 and only in that capacity he filed the application for probate.
8. The allegation that Sri. Ramanujam, Advocate called on the family on 17.12.1990 has been denied. According to the respondent, the appellant called on the said Lawyer and at the time what was shown to the appellant was will of the testator viz., their father dated 4.6.1984. The respondent also disputed the further allegation that on 20.12.1990 also advocate showed the Will dated 12.9.1975 as the will was in fact only in the custody of Mr. Cho Ramasamy @ S. Ramasamy. The Will dated 12.9,1975 was in fact cancelled on 21.12.1984 and the same was attested by one Ganapathy and the respondent and the cancelled will was returned to Mr. Cho Ramasamy.
9. In the counter affidavit, the respondent denied the plea of the appellant that he left for Mettur requesting Sri Ramanujam to take steps in the matter. The allegations that he wrote letter dated 8.6.1991 since there was no progress in the matter, asking for the photo copy of the Will dated 12.9.1975 and that letter was counter signed by Kasi Viswanathan and that Ramanujam replied to the appellant on 29.6.1991 were admitted partially. The allegation of the appellant that he was away from Chennai to Mettur and that he did not pursue the matter thinking that Ramanujam and R.V. Easwaran would take required steps regarding the Will dated 12.9.1975 was also denied. The respondent pointed out that the appellant had kept quiet for nearly a decade and that while in 1991 he was under the impression that action will be taken by the Lawyer and R.V. Easwaran, even after his return to Chennai in 1995, did not bother to verify the said lawyer or himself taking any action, cannot be believed. Respondent 'also contended that the plea of the appellant that on 14.12.1999, while passing through the family house he noticed that the property was entrusted to a builder has been invented to suit his case. On the other hand, the appellant was frequently visiting his mother at No.109, St. Mary's Road, Chennai-28 and also aware of the entrustment of the property for development.
10. The search of the Court records reveal that the appellant along with his brother Kasi Viswanathan originally engaged the present counsel in the beginning of 2000 and later on Kasi Viswanathan changed his counsel. There is no dispute that in the O.P. proceeding, Kasi Viswanathan was served with notice and in fact he engaged a lawyer by name V. Ramasubramaniam. The said Kasi Viswanathan did not choose to file caveat and oppose the grant of probate and he had full knowledge of the probate proceedings and the grant of probate of the last Will and testament dated 4.6.1984 in favour of the respondent. According to the respondent, as brother of Kasi Viswanathan cannot join in instituting the proceedings to revoke the probate, as he had received the notice in the probate proceedings, the appellant has alone instituted, even though in fact he had knowledge of the O.P. proceedings.
11. The respondent would plead that on several occasions this Court was pleased to order notice to the appellant and in fact notice was taken to the address of the appellant at Mettur and only after several notices were returned as unserved, notice was issued to be served on the appellant by means of substituted service as well as by publication. The substituted service was effected and paper publication was made in the popular Tamil daily Malai Murasu dated 4.4.1995 and only thereafter High Court was satisfied about the service on the appellant and only thereafter proceeded to grant the probate.
12. In para 12 of the counter affidavit, respondent emphatically denied the allegation that the will dated 4.6.1984 is a rank forgery and it has been brought about by the respondent and R.V. Easwaran and his family members. In that context, it has been pointed out that the wife of the testator Sivagammi Ammal (wife of the testator), R.V. Easwaran (son of the testator), Annalakshmi (daughter of the testator) have given consent affidavits for grant of probate. As the consent affidavit of Annalakshmi was duly filed even during her lifetime, the allegation that the legal representatives were not brought on record even though the probate application was pending, are irrelevant. It is not for the appellant to agitate when the children of the said Annalakshmi are not objecting. The pleas of the appellant that in the Will of the year 1975, the beneficiaries were the three sons of the deceased as well as the wife of the deceased has been disputed. Under both the Wills, the beneficiaries are the same. The only difference is in the second Will, mother Sivagammi Ammal is given right to enjoy the property during her lifetime in respect of the property in No. 109, St. Mary's Road, Chennai-28.
13. The respondent denied the allegations made in para 8 of the affidavit and in para 15 of the counter affidavit set out the real factual position and that aspect of the matter is not much relevant for the purpose of deciding various issues in the case and hence the same are not adverted to. Repeated allegation made in the affidavit that the will in question dated 4.6.1984 is forged one has been denied. It has been categorically stated in the counter affidavit that the Testator has very much executed the Will duly in the presence of two witnesses, one Professor in Vivekananda College and the other a Doctor. In order to expose the falsity of the statement that the signatures of the attesting witnesses are also forged along with the counter affidavit, supporting affidavits of the attestors and Mr. Cho Ramasamy have also been filed. In the counter affidavit, respondent further staled that there had been serious difference of opinion between V.V. Raghunathan and the appellant and in fact the said testator even went to the extent of giving criminal complaint in Abhiramapuram Police Station against the appellant. The allegation that the second respondent Easwaran has been leading wayward life and a trouble shooter has been emphatically denied in the counter affidavit. As far as the allegation that the valuation with regard to the property is concerned it has been pointed out that if at all the concerned authorities find the value to be low, the respondent may be called upon to satisfy them regarding the value furnished and if necessary the respondent be called upon to pay the deficit duty. The extent of the property viz. No.109, St. Mary's Road, Chennai-28 is far less than what has been claimed to be by the appellant. So also the superstructure thereon. The allegation that the mother of the appellant is helpless and kept in house custody by R.V. Easwaran has been denied, as the same has been made without any basis whatsoever. In fact, on the other hand, she is very happy and R.V. Easwaran and family members are treating her with more love and affection and further the respondent was also frequently visiting his grandmother and she has no regrets whatsoever. The allegation in para 12 of the affidavit that the proceedings to obtain the probate were defective in substance and that the records of this Court would evidence the same are also denied. In fact, no material facts have been suppressed from the Court and the grant was obtained in a lawful and proper manner.
14. In fine, the counter affidavit concluded by mentioning that in any event, the appellant has not made out a case for revocation of probate and none of the grounds for revocation as set out in Section 263 of the Indian Succession Act have been satisfied by the appellant. That apart, appellant has not come to the Court with clean hands and has chosen to suppress material facts and consequently, the applications have to be dismissed.
15. The appellant filed a reply statement reiterating his earlier stand taken in the affidavit and apart from that he also denied the various allegations made in the counter-statement. According to the said reply, there is no delay on his part in approaching the Court for revocation of the probate in respect of the Will dated 4.6.1984. A contention was also raised that the impugned Will is a forged one and that he had no notice in the main O.P. either through Court or privately and that he came to know of the impugned Will and the order granting probate only on 20.12.1999.
16. According to him, to the best of his knowledge and memory, no criminal complaint has been lodged in the police station against him by his father and that he has applied for registration copy of the Release Deed dated 27.9.1999 alleged to have been executed by the first respondent in the O.P. viz., mother releasing her right for a consideration of Rs. 1,00,000. The appellant came to know that not even a rupee has been received by his mother and that document has been obtained by unfair means. The impugned Will is highly unnatural and has been brought about by the main petitioner, second respondent and his family members for the beneficiaries and that they should be directed to produce the Development Agreement, Power of attorney, application to the competent authority under the Income-tax Act for permission to sell the property in question, orders passed by the Competent Authority and all other papers into Court.
17. Learned single Judge after elaborately considering the matter arrived at the following findings:-
[a] The grant of probate of tellers of administration may be revoked or annulled for just cause and that the Explanation/ illustration in Section 263 of the Indian Succession Act is only illustrative and not exhaustive.
[b] There is no reason to come to the conclusion that notice for probate proceedings in O.P. No. 284/91 on the file of this Court has not been served on the appellant.
[c] The Will shown to the appellant by Thiru. Ramanujam, Advocate must be the Will dated 4.6.1984. The applicant is not a beneficiary either in the first Will or in the second Will.
[d] The circumstances would reveal that the 3rd respondent in the Original Petition Proceedings must have definitely conveyed to the applicant relating to the developments in the Original Petition Proceedings and as such knowledge can be imputed to the appellant also.
[e] The available records would only indicate that the appellant was well aware of the probate proceedings, but did not care to enter caveat because he knew fully well that he is not a beneficiary.
[f] Perusal of the two Wills only indicates that the beneficiaries are one. and the same person in both the Wills and the only difference is that the life interest was not given to the first respondent in the First Will whereas life interest was given to her in the second will.
[g] The present revocation application is only a chance proceeding.
[h] Undervaluation of the estate is a matter left to the concern of the Revenue Authority by the Legislature.
18. Vanchi Vadhar Raghunathan died on 4.12.1990. K. Sivakami Animal, the first respondent in the O.P. is his first wife. Respondents-2, 3 and 4 in the O.P. are their sons while the 5th respondent in the O.P. [since dead] is their daughter. The respondent in this appeal , who filed the Original Petition is their grandson through their daughter [deceased 5th respondent].
With regard to the relationship between the parties, there is no dispute.
19. In brief, the case of the appellant is that Vanchi Vadhyar Raghunathan left a registered Will dated 12.9.1975 under which the properties were bequeathed to his wife and three sons viz., respondents 1 to 4 in the Original Petition. The unregistered Will in question, viz., the one dated 4.6.1984 which is a rank forgery had been brought about with a view to grab the properties of the deceased among the respondent herein and his brother viz., R.V. Easwaran, the 2nd respondent in the O.P. The further case of the appellant is that he had no knowledge/ notice about the probate proceedings and everything had been done behind his back and that there are suspicious circumstances in the execution of the Will and consequently, the grant of probate has to be revoked.
20. Per contra, the contention of the respondent [petitioner in the O.P.] is that neither under the Will of the year 1975 nor under subsequent Will of the year 1984, the appellant was given any share and with reference to disposition the only difference is that the first respondent Sivakami Animal, the wife of the testator has been given life interest in the property viz., Door No. 109, St. Mary's Road, Chennai-28. According to the respondent, the appellant knew about both the Wills and in fact, he saw the Will in question at the residence of Shri. P.B. Ramanujam, Advocate and that the appellant was fully aware about the probate proceedings, but nevertheless, he kept quiet as he was satisfied about the genuineness of the Will of the year 1984. Only due to escalation of prices and finding that the beneficiary viz., R.V. Easwaran, the brother of the appellant is developing the properly and with a view to cause hardship to him so that he may get some pecuniary benefits, initiated the proceedings to revoke the probate.
According to the respondent, there is utter lack of bona fides on the part of the appellant and he has not made out a case to revoke the probate.
21. Vanchi Vadhyar Raghunathan executed a registered Will dated 12.9.1975. Thereafter, an unregistered Will was executed by him on 4.6.1984. Of course, the case of the appellant is that the Will dated 4.6.1984 is a rank forgery and there are some suspicious circumstances. Before we proceed to consider the other points/issues, two aspects/factual positions have to be made clear.
22. The first question is whether the appellant has admitted the Will dated 12.9.1975.
Though a plea questioning the said Will has not been raised in the affidavit and reply affidavit filed in support of Application Nos. 181 and 182 of 2000 or in O.P. No. 284 of 1991, in the course of arguments, an attempt, rather a halfhearted attempt, was made by the learned counsel for the appellant to that effect.
We have to reject such a contention for more than one reason. As already stated, there is no such plea in the affidavit or in the reply filed in support of Application Nos. 181 and 182 of 2000 in O.P.No.284 of 1991. Secondly, in the affidavit filed in support of the said Applications, in para No.4,, after referring to the Will dated 12.9.1975, the appellant has stated that he had met the counsel P.B. Ramanujam on two occasions that was on 18.12.1990 along with his wife and again on 20.12.1990 along with his brother viz., Kasi Viswanathan and that on both the occasions, the Will was shown to them. In the affidavit, it is further stated that as he was away from Chennai in 1991 and was doing business at Mettur he did not pursue the matter further, thinking that both the Advocate as well as his brother R.V. Easwaran would be taking further steps to probate the Will dated 12.09.1975, At this moment, suffice to say that the appellant has admitted the genuineness of the Will dated 12.9.1975.
23. The next aspect is how the testator had bequeathed his properties under the two Wills?
After considering the two Wills carefully, we find that the only difference between the two Wills is that in the 2nd Will, the first respondent in the Original Petition Sivakami Ammal viz., the wife of the deceased, has been given life interest in the property viz., No.109, St. Mary's Road, Chennai-28. It has to be noted that under both the Wills neither the appellant herein nor his brother viz., the 3rd respondent in the O.P. viz.. Kasi Viswanathan had been given any property. That being so, the plea of the appellant that the 2nd Will had been created to grab the properties of the deceased among the respondent and R. V. Easwaran is far from truth and obviously it has been made only to mislead this Court.
24. As already mentioned, the case of the appellant is that the Counsel Shri. Ramanujam called on at No.109, St. Mary's Road, Chennai-28, on the eve of the death of Vanchi Vadhyar Raghunathan and there the appellant was asked to come over to his office to see the Will of the deceased and thereupon, the appellant on 18.12.1990 with his wife and on 20.12.1990 with his brother Kasi Viswanathan went and saw the advocate Sri. P.B. Ramanujam, advocate and on both days, they were shown the Will. It is further case that he left Chennai after making request to the said Advocate to take steps in the matter and that since no progress was made, he sent a letter on 8.6.1991 by Registered Post to the counsel requesting him to send a xerox copy of the Will dated 12.9.1975. The said letter was countersigned by his brother Kasi Viswanathan. The counsel sent reply dated 29.6.1991, declining to forward a copy. The appellant kept quiet at Mettur, proceeding on the basis that his brother R.V. Easwaran and counsel Mr. P.B. Ramanujam would take further steps to probate the Will dated 12.9.1975,
25. An affidavit has been filed before this Court by the learned counsel Mr. Ramanujam to the effect that the appellant and his brother Kasi Viswanathan when met him in his office, he showed them only the Will dated 4.6.1984 which was in his custody and that he did not have any other Will in his custody. In the said affidavit, the counsel has also admitted having sent a reply letter dated 29.6.1991. The allegations that the counsel Shri. Ramanujam went to the residence of the Testator and attended the death ceremonies and that the Will dated 12.9.1975 was shown to the appellant and his wife so also to his brother Kasi Viswanathan were disputed.
26. Let us now proceed to consider whether the appellant had knowledge about the existence of the Will i.e., the Will in question dated 4.6.1984.
A copy of the letter dated 8.6.1991 written by the appellant and counter-signed by the brother of the appellant Kasi Viswanathan has been produced before the Court. We consider it necessary to quote the letter. The letter reads thus :
" R. Ramachandran S/o. Late Sri V. Raghunatha Iyer, 9, Raja St. Extension Upstairs, Robertsonpet. Mandaveli, Madras - 600 028.
8th June, 1991 Regd. Ack. Due To Sri. P.B. Ramanujam, Advocate, Madras-600 017.
Dear Sir, I would like to bring to your kind recollection about your visit to our father's residence at 109 St. Mary Road, Raja Annamalaipuram on 17th December, 1990. At that time, I was also there. You asked me to come to your office to show me the Will written by my father ( what you told me ) late Sri. V. Raghunatha Iyer. As such I came there along with my wife Mrs. Usha on 18th Dec'90. We saw the Will dated 12th September 1975 (FRIDAY). Again on 20th Dec'90, I along with my elder brother Sri. Kasi Viswanathan came there to see the same will. We too saw the same Will, signed as witness by Mr. Ramasamy No. 1, Seethamma Road, and also by another gentleman of the same address. In one of the pages we saw two more signatures 1) Late Sri. A. Ganapathy (our brother-in law) and Sri. G. Hariharan (his son) (Italics supplied) I shall be grateful to you if you could kindly forward me a xerox copy, xerox copy of the Will dated 12th Sept. 1975 to the above address at the earliest. I hope you will co-operate me in this matter.
Thanking you.
Yours faithfully, Sd/- xxxxxx I, R. Kasi Viswanathan fully endorse the above particulars and I also request a zerox copy of the Will. Thanking you.
Yours faithfully, Sd/- xxxxxx"
27. In para 4 of the affidavit filed in support of the Application Nos. 181 and 182 of 2000, the appellant has stated as under:-
" ... Thereupon myself and my wife Usha called on the said Advocate on 18.12.1990 and he showed us my father's Will dated 12.9.1975. No other will of the deceased was shown to us by him. Again on 20.12.1990, I along with my elder brother, 3rd Respondent, called on him and he showed us only the Will dated 12.9.1975. Thereafter I left Chennai to Mettur, requesting the said Advocate to take steps in the matter. Since there was no progress in the matter, I wrote a letter dated 8.6.1991 by R.P.A.D. to the said Advocate, requesting him to send me a xerox copy of the said Will dated 12.9.1975 of my father. The said letter was counter- signed by the 3rd respondent as well. It seems that my said brother (3rd respondent) had also corresponded with the said Advocate. We received a Reply dated 29.6.1991 from Mr. P.B. Ramanujam, Advocate, refusing to furnish a copy of the said Will on the ground that he had no instructions from the deceased or 2nd Respondent who entrusted the matter to probate the Will of the deceased, to give a copy of the Will to me and hence he was unable to send a xerox copy of the Will to me. As I was away from Chennai and was doing business at Mettur, I did not persue the matter further thinking that both the 2nd Respondent and Mr. P.B. Ramanujam, Advocate, would be taking further steps to probate the Will dated 12.9.1975 of my father."
28. The Will dated 12.9.1975 runs to five pages. In page 4 of the said Will, the following endorsement has been made:
" Since I have executed a fresh Will on the 4th June, 1984, I am cancelling this registered Will of 12th September, 1975 in the presence of witnesses.
21st December, 1984.
Signed by the above named V. Raghunathan, the testator in the presence of us present at the time and who at his request hereto signed our names as witnesses hereto in the presence of said V. Raghunathan and in the presence of each other.
21st December 1984.
SdA-xxxx
1)Sd/-xxxx A. Ganapathy, 109/1, St. Mary's Road, Madras-28.
2) Sd/- xxxx G. Hariharan 109/1, St. Mary's Road, Madras-28."
29. In fact, the appellant has categorically referred to this endorsement in his letter dated 8.6.1991, which we have already referred to. Hence, even according to the appellant, the Will dated 12.9.1975 was shown to himself and his wife on 18.12.1990 and again on 20.12.1990 to himself and his brother Kasi Viswanathan. There is no plea at any point of time viz., either in the letter dated 8.6.1991 or in the affidavit filed before this Court in Application Nos. 181 and 182 of 2000 dated 11.1.2000 or in the reply affidavit dated 20.6.2000 or even during the course of argument before the learned single Judge or before this Court that the appellant and his brother were permitted only to see the Will and not to read it. Even while requesting for xerox copy of the will in the letter dated 8.6.1991, there is no whisper to that effect. It has to be borne in mind that in the said letter, the appellant has categorically referred to the endorsement made by the testator in page 4 of the Will. From the endorsement it is clear that the testator had executed a fresh Will on 4.6.1984. The word "show" in the absence of any other clarification or positive averments in the affidavits filed in support of the applications by the appellant has to be understood as that the document was produced for examination of the appellant.
30. In this view of the matter, we hold that even according to the appellant, he had definite knowledge about the existence of the Will dated 4.6.1984 even on 18.12.1990.
31. The next question to be considered is as to whether the appellant had knowledge of the probate proceedings i.e., O.P. No.284 of 1991 on the file of this Court?
32. The petition for probate was filed on 22.1.1991 and notice was served to all except the appellant herein. The appellant's brother Kasi Viswanathan received notice on 11.7.1991 and entered appearance on 24.7.1991 and he had not chosen to file any caveat or objection relating to the grant of probate of the Will in question dated 4.6.1984. Since notice taken to the appellant was not served, the respondent filed application No.4079 of 1994 for effecting substituted service on the appellant and the said application was ordered by the learned Master. According to the respondent, pursuant to the said Order, he took steps and the Court also ordered the service as sufficient.
33. According to the appellant no notice either through Court or privately was received by him. Hence, he had no knowledge about the O.P. proceedings. The appellant would contend that when he happened to pass through the Road in which the property vie., bearing Door No. 109, St. Mary's Road, Chennai-28, situate, he found some demolition work going on arid hence he entertained a doubt and both himself and his brother Kasi Viswanathan engaged a counsel and the counsel filed application on 16.12. 1999, seeking permission to examine the records in the probate proceedings and on 20.12.1999, the said counsel verified the records and only thereafter, he came to know that the respondent in collusion and connivance with R.V Easwaran and his family members had obtained probate of the Will alleged to have been executed by late V.V. Raghunatha Iyer, the father of the appellant without notice to him.
34. As to whether the appellant had knowledge of the probate proceedings and whether these proceedings had been instituted with ulterior motives/lack of bona fides, are the aspects to be considered.
a) Before we proceed to consider the above, we have to keep in background two aspects which we have already pointed out viz., [i] the appellant has not disputed the genuineness of the 1975 Will; [ii] the testator had not bequeathed any property under either of these two Wills to the appellant or to his brother Kasi Viswanathan.
b) Admittedly, the appellant wrote a letter on 8.6.1991 and the same was also countersigned by Kasi Viswanathan, that shows at that time they were in the same camp or sailing together. In the said letter, they requested the respondent to send a xerox copy of the Will dated 12.9.1975. Again, it appears that another letter was written by them dated 26.6.1991 to the same effect. The counsel Sri. Ramanujam sent a reply dated 29.6.1991 wherein he made it clear that he had not been instructed by V.V. Raghunatha Iyer or Vancheeswarar @ Easwaran, who entrusted the matter to probate the Will of V.V Raghunatha Iyer, to give a copy of the Will and consequently, expressed his inability to send a xerox copy of the same. The said letter further reads thus:-
" Any how; I am happy that in the concluding paragraph of your letter you have said that you will be forced to hand over the papers to your Legal Adviser. In fact, I wanted to suggest to you that you can choose an Advocate and entrust the matter to him and when he writes to me, he will be given a proper and factual reply."
According to the appellant, before leaving to Mettur, in the last week of December, 1990, he made a requisition to the said Advocate to take steps in the matter and since there was no progress, he wrote the letter dated 8.6.1991 referred supra. Now in the affidavit filed in support of the Application Nos. 181 and 182 of 2000, he has stated that by saying further steps, he only meant to probate the Will dated 12.9.1975.
As to why the appellant had kept quiet between 1991 and 1995 when he was in Mettur, is not known. Even after 1995, till initiating this proceeding, he did not take any step or do anything to achieve what he desired. To elaborate this, between 1991-1995, admittedly the appellant was in Mettur and he used to come to Madras now and then. He could have at that time taken steps, which according to him could safeguard his interest, if any. Similarly, he could have requested his brother to pursue the matter further. It is not as if that himself and his brother Kasi Viswanathan fell out for some reason or the other during that period. Even after coming to Madras in the year 1995 he did not take any step.
At this juncture, it may also be pointed out that we have also rendered a finding that the appellant came to Know about the existence of 1984 Will even on 18.12.1990. c) In the probate proceedings, Kasi Viswanathan received notice on 11.9.1991 and he entered appearance on 24.7.1991. However, thereafter, he did not contest the matter. It was not as if there was a dispute between himself and Kasi Viswanathan after writing those letters and that was why he (Kasi Viswanathan) did not appraise the appellant about the probate proceedings.
d) According to the appellant, he engaged a counsel on 15.12.1999 by giving vakalat and after coming to know from the O.P. Register maintained in the office about the O.P. Number, year and particulars, he instructed his counsel to file Search Application on 16.12.1999. Thereafter, Court records were perused on 20.12.1999. In the said affidavit, the appellant suppressed the fact that in fact on 16.12.1999, vakalat given to the counsel was for both on his behalf and on behalf of Kasi Viswanathan. Only after this was pointed out by the respondent in the counter affidavit, the appellant filed a reply affidavit and in para-6 he has admitted the same.
e) According to the appellant, the counsel after going through the records on 20.12.1999 did not want to appear for Kasi Viswanathan any further and gave consent for change of vakalat for him on 10.1.2000 and Kasi Viswanathan engaged counsel by name Sri. K.V. Ananthanarayanan. Very curiously and conveniently, the appellant has not disclosed any reason for the counsel refusing to appear for Sri. Kasi Viswanathan. Obviously, this is because Kasi Viswanathan though entered appearance in the probate proceedings he did not contest and hence he could not have been in a position to join with the appellant to initiate proceedings. The conclusion is irresistible and inescapable that Kasi Viswanathan would have certainly told the appellant about the probate proceedings,
f) It is not the case of the appellant that the address furnished in the notice is an incorrect one and notice was taken to a wrong address so that it will not serve on the party. On the other hand, the address given in the notice was the proper address of the appellant and if the party had not been served in spite of giving the correct address, the only course open to the Court is to order substitute service by publication in one of the newspapers. Only this procedure had been adopted by the Courts and considering the fact that the address furnished in the notice sent to the appellant was a correct one. The learned single Judge is right in taking the view that there is no reason to come to the conclusion that notice had not been served on the appellant and as such, it cannot be construed as a just cause to revoke the order. The appellant had slated that on making search of the records, on 20.12.1999, he came to know of all the details including the paper publication in a paper widely circulated in that area, where he was then residing. But however, the appellant has not made a statement either in the affidavit or in the reply affidavit that the paper publication did not come to his notice or knowledge, for some reason or the other.
g) Another very important aspect to be noted is that even if the Will in question viz., one dated 4.6.1984 fails for some reason or the other, ultimately, the Will dated 12.9.1975 would only stand and under the said will, the appellant had not been bequeathed with any property by the testator. Hence, no purpose will be served by revoking the probate even assuming that the appellant has made out a case for revocation and it will be only an unnecessary exercise.
h) As referred supra, the case of the appellant is that on 14.12.1999, when he had occasion to see the property in question, he found the same was being demolished by the promoter of the Building and he suspected and only thereafter, on search, he came to know about the earlier proceedings. The appellant has admitted that he used to frequently visit the suit property to see his mother residing there and it is not his case that his mother has been against him or taking sides with others. The only conclusion is, in the facts and circumstances of the case, the appellant in order to gain some monetary advantage has now raised this dispute by filing petition for revocation. If the appellant had caveatable objections, he could have approached the Court at the earliest point of lime and not after lapse of five years.
35. From the above aspects pointed out by us as well as discussions in paras 22 to 29, we arrive at the following conclusions:-
[a] The appellant has admitted the genuineness of the Will dated 12.9.1975.
[b] The appellant has made an attempt to mislead the Court by stating that the 1984 Will had been created to grab the properties of the deceased among the respondent herein and Easwaran.
[c] The appellant knew about the existence of the Will dated 4.6.1984 even on 18.12.1990.
[d] The appellant should have knowledge about the probate proceedings in 1991 itself and certainly in any event in the year 1995.
[e] The appellant instituted the proceedings praying the Court to revoke the grant of probate with ulterior motives (i.e.) with a view to gain some monetary benefits.
[f] The appellant has not averred anywhere in his affidavits that the publication made in the Tamil Newspaper 'Malai Murasu' dated 4.4.1995 did not come to his knowledge for some reason or other.
[g] There are no bona fides on the part of the appellant in instituting these proceedings.
36. Learned counsel for the appellant, placing reliance on the ruling of the Supreme Court reported in Anil Behari v Latika Bala Dassi, contended that once the genuineness of the Will is questioned, automatically, the probate has to be revoked. In that case, application for revocation of the grant of probate was filed, but however, the applicant did not challenge the validity or the genuineness of the Will and in those circumstances, the Court observed that it would not serve any purpose to revoke the grant and the parties to go through the formality of proving the Will.
We quote here the relevant portion from the said Judgment, which runs as follows:-
" The annulment is a matter of substance and not of mere form. The Court may refuse to grant annulment in cases where there is no likelihood of proof being offered that me Will admitted to probate was either not genuine or had not been validly executed. But, as rightly pointed out by the lower appellate Court, in the present case where the validity or genuineness of the Will has not been challenged, it would serve no useful purpose to revoke the grant and to make the ponies go through the mere formality of proving the will over again. In our opinion, therefore, the omission of citation has had no effect on the regularity of the proceedings resulting in the grant of 1921." (Italics supplied) We may point out that in that the reported case as referred supra, the genuineness of the Will was not questioned. In the present case, as already pointed out, even assuming the Will of the year 1984 is ultimately found to be not a genuine one, the first Will viz., dated 12.9.1985 would only stand, and as the appellant has admitted the validity of that Will and he had not been bequeathed any property by the testator. Hence no purpose will be served by revoking the probate even assuming that the appellant has made out a case for revocation.
37. We may also point out that it is not as if that the Supreme Court in the said Ruling and this Court in the ruling reported in Gita alias Gita Ravi v Mary Jenet James alias M.J. James alias M.J. James and others, 1995 (2) L.W 831 (DB) has held 'that notwithstanding the fact that a person had knowledge about the will, slept over for years wilfully and initiated proceedings thereafter with ulterior motives with bad intention, once the genuineness of the will is questioned, the application for revocation has to be allowed in all cases.
In that ruling, the Supreme Court only observed as under, " But it was argued on behalf of the appellant that that stage had not yet arrived and that it would be open to the appellant after obtaining an order or revocation of the grant to show that the will was either not genuine or had not been validity executed. Great reliance was placed in this contention on the Judgment of a Division Bench of the Calcutta High Court in AIR 1915 Cal. 421 (A), where the following observations have been made:
" No question of the genuineness of the will arises for consideration till the Court has decided that the probate must be revoked on one or more of the grounds specified in S. 50, Probate and Administration Act. The only matter for consideration at this stage is, whether the appellants have made out a just cause for revocation of the probate which was granted without notice to them:-Brindaban v Sureshwar, 10 Cal. LJ 263 at p.273 (B). The question of genuineness cannot be considered till the case for revocation is made out: Durgagati v. Sourabinr, 33 Cal. 1001 (C)."
The observations relied upon by the appellant were made with reference to the facts of that case and were not intended to be of universal application.
In effect, the Supreme Court only ruled that each case has to be considered in the facts and circumstances of that case.
38. Having considered the factual position and arrived at factual findings let us proceed to consider the legal submission made by learned counsel for the appellant.
39. The learned counsel drawing the attention of this Court to Order 25, Rule 62 of the Original Side Rules, submitted that the applications 181 and 182 of 2000 in O.P.284 of 1991 were filed setting out the grounds for revocation of grant already made and for issue of citation to the grantee and the Court should have registered the petition for probate as a suit.
40. Order 25, Rule 62 is to the effect that subsequent to the grant of probate or letters of administration, any person interested in the property of the deceased, desires that the said grant may be revoked, he shall file an affidavit setting out the grounds thereof and application for issue of citation to the grantee. The second part of the rule is to the effect that the petition for probate shall be registered and numbered as suit in which the petitioner shall be the plaintiff and the person applying for the citation shall be the defendant.
41. It has to be noted that the rule is not to the effect that once a person interested in the property of the deceased files an affidavit setting out the grounds for revocation, automatically the petition for probate shall be registered and numbered as a suit even without the Court passing any order revoking the probate. Or in other words, the question of numbering the petition for probate as a suit would arise only if the application to revoke the grant of probate is allowed. As far as the present case is concerned, on facts, we have held that the petitioner knew about the Will even in the year 1990 and about the probate proceedings even in 1995 and that he deliberately kept quite for nearly five years and has come forward with the present petition with ulterior motives. We do not find any substance in this submission.
42. The learned counsel for the appellant relied on number of rulings vis., (1) M.T. Ramanandi Kuer v M.T. Katawati Kaur, AIR 1928 PC 2; (2) Anil Beliari v. Latika Bala Dassi, ; (3) Purnima Debi v Khagendra Narayan, ; (4) Shashi Kumar v Subodh Kaur, ; (5) Mookayi Ammal v. Duraisamy Udayar, 1998 (2) L.W. 744.
in support of his contention that non-registration of Will is a suspicious circumstance and in the present case, there are number of suspicious circumstances, which would shock the conscience of the Court and it is for the respondent, R.V. Easwaran ( brother of the appellant) to discharge the burden.
We have held that the appellant has not made out a case for revocation of probate. Hence, this submission does not arise for consideration.
43. The learned counsel then contended that the respondent filed untrue affidavit of assets and that the properties are of very substantial value and he has purposely undervalued the house value. As pointed out in the ruling of this Court reported in Vyjayanthimaala Bait v Rattan Chaman Bali, 1990 (1) L.W. 27 the under-valuation of the estate is a matter left to the concern of the Revenue Authority by the Legislature. The provisions of Sections 55 to 59 of the Tamil Nadu Court Fees and Suits Valuation Act contain the necessary safeguards. It is not for the Court to worry about the same. This decision is also applicable to the case on hand and will be an answer to the contentions raised by the appellant relating to the valuation of the property.
44. The learned counsel for the appellant relied on the ruling reported in Gita @ Gita Ravi v Mary Jenet James @ M.J. James and others, 1992 (2) L.W. 831 wherein it was observed that under Section 263 of the present Act the explanation is only illustrative providing for a legal fiction in the cases set out in clauses (a) to (e) and not exhaustive of the circumstances in which the grant may be revoked of annulled for just cause.
The decision reported in N. Saroja v Sri Vidya Chits & Finance (P) Ltd. Karur, 1995 (1) L.W. 121 is also to the same effect.
It may straight way be stated that there is no dispute about this legal position,
45. The Supreme Court in the ruling reported in Anil Behari v Latika Ball Dassi, has pointed out as follows:
" Section 263 of the Succession Act vests judicial discretion in the Court to revoke or annual grant for just cause."
46. In this case, as already pointed out, the appellant has not only not made out a just cause, but also there is lack of bona fides on the part of the appellant.
47. There are no merits in the appeals and both the appeals are dismissed. Consequently, the connected C.M.P. is also dismissed.