Madras High Court
D. Usha vs K.S.Mohan on 31 October, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31/10/2012 CORAM THE HON'BLE MR. JUSTICE K.CHANDRU Application Nos.3515 and 3516 of 2012 in O.P.No.731 of 2011 Application No.3515 of 2012 --------------------------- R.SARALA NO.2/669, B-9A, RENGA REDDY GARDENS, CHINNA NEELANGARAI, EAST COAST ROAD, CHENNAI - 600 041 D. USHA 16 A.S.D. PURAM POLLACHI 642 002 VS K.S.MOHAN NO.18, OLDNO.32, THANIKACHALAM ROAD, T.NAGAR, CHENNAI - 600 017 K.S.SRIRAM NO.18, OLDNO.32, THANIKACHALAM ROAD, T.NAGAR, CHENNAI - 600 017 V.PREMA NO.140, OLD MO.59, GREENWAYS ROAD, CHENNAI - 600 028 B.SANTHA CORAL ENCLAVE, GROUND FLOOR, NO.160, GREENWAYS ROAD, CHENNAI - 600 028 S. VATSALA 2/153C PLOT NO.D 2ND ST STATE BANK COLONY THURAIPAKKAM CHENNAI 96 M SATHYA F-102 3RD ST ANNA NAGAR CHENNAI 102 C SUMITHRA 38 NEW NO.91 WEST VENKATASAMY ROAD RS PURAM COIMBATORE K.S. CHAKRAPANI 122 10TH MAIN ROAD 1ST BLOCK JAY NAGAR BENGALURU 560 011 Application No.3516 of 2012 --------------------------- S. VATSALA 2/153C PLOT NO.D 2ND ST STATE BANK COLONY THURAIPAKKAM CHENNAI 96 VS K.S.MOHAN NO.18, OLDNO.32, THANIKACHALAM ROAD, T.NAGAR, CHENNAI - 600 017 K.S.SRIRAM NO.18, OLDNO.32, THANIKACHALAM ROAD, T.NAGAR, CHENNAI - 600 017 V.PREMA NO.140, OLD MO.59, GREENWAYS ROAD, CHENNAI - 600 028 B.SANTHA CORAL ENCLAVE, GROUND FLOOR, NO.160, GREENWAYS ROAD, CHENNAI - 600 028 S. VATSALA 2/153C PLOT NO.D 2ND ST STATE BANK COLONY THURAIPAKKAM CHENNAI 96 D. USHA 16 A.S.D. PURAM POLLACHI 642 002 C SUMITHRA 38 NEW NO.91 WEST VENKATASAMY ROAD RS PURAM COIMBATORE R. SARALA 2/669 B 9A RENGA REDDY GARDENS CHINNA NEELANGARAI EAST COAST ROAD CHENNAI 41 K.S. CHAKRAPANI 10TH MAIN ROAD 1ST BLOCK JAYNAGAR BENGALURU ORDER
Application No.3515 of 2012 is filed by two applicants, i.e., 5th and 3rd respondents in the O.P., seeking for rejection and dismissal of the O.P.No.731 of 2011. Application No.3516 of 2012 is filed by the first respondent for the very same purpose. Counter affidavits have been filed by the respondents/ original petitioners, dated Nil (August, 2012) in both applications.
2.It is seen from the records that the original petitioners filed the original petition seeking for the grant of the letters of administration with a Will, dated 11.12.1996 annexed in favour of the petitioners being the legal heirs of the deceased and legatees under the said Will executed by late S.M.Subramaniam Chettiar, having the effect limited to the State of Tamil Nadu. The O.P was admitted on 16.12.2011. Even during the pendency of the O.P., the first respondent filed a caveat in Caveat No.371 of 2012 together with supporting affidavit of objection. Similarly, respondents 3 and 5 also filed a caveat in Caveat No.459 of 2012 together with an affidavit of objection. Even before they could be considered, the two applications have been taken out.
3.It is the stand of the first respondent in A.No.3516 of 2012 that she is the daughter of late S.M.Subramaniam Chettiar, who admittedly died on 15.12.1996. According to her, her father died intestate. She had filed a suit in C.S.No.524 of 2007 seeking for partition of the property left behind by her father. One of the properties left behind by her father is situated within the jurisdiction of this court, i.e., in T.Nagar, Chennai. She had demanded for partition of the property left behind by her father. As her brothers did not effect partition, she had issued a legal notice on 18.04.2003. Inspite of the same, no partition was effected. Therefore, she filed C.S.No.524 of 2007 on 21.3.2007 before this court. The original petitioners' allegation that the Will was left behind by their father on 11.12.1996 was not genuine. Since she had issued a notice on 18.04.2003, the petitioners should have filed a petition either for probate or for letters of administration within a period of three years. In view of the mandatory provision of Section 213(1) of the Indian Succession Act, the right to apply begins on the date of the death of the testator and the proceedings for the grant of probate or letters of administration should have been filed within three years from 15.12.1996. Further, no petition for the grant of probate or letters of administration was filed within three years from the date of filing of the suit in C.S.No.524 of 2007.
4.A reference was made to a judgment of the Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur reported in (2008) 8 SCC 463, wherein the Supreme Court had held that Article 137 of the Limitation Act applies to a petition for the grant of letters of administration. Hence it was prayed that the O.P should be rejected.
5.In A.No.3515 of 2012, the 5th respondent had stated that their father died intestate on 15.12.1996. She is the eldest daughter and the first child of the testator. When he died, he was 86 years and was suffering from cancer. He was admitted to the Apollo Hospital on 04.12.1996. After exhausting all possibilities, the hospital administration had discharged him as he was dying from the end stage cancer. Be became unconscious and never regained consciousness till his death. The Will, dated 11.12.1996 was bogus and fabricated by the first and second respondents, who are the original petitioners, with the connivance of the 6th respondent. Her father was unconscious even on the date of execution of the alleged Will. The Will was not genuine and it was fabricated only to deprive her 1/9th share in the estate. Her father did not execute any Will. Her father was a business man and was in the habit of signing in English in all business and banking transactions. He never affixed any thumb impression as in the case of the Will. If he was in conscious state of mind, he could have affixed his signature and not his thumb impression. The Will was read out on the 11th day ceremony of their father. A copy of the Will was not given to her and her sisters immediately, but only on 21.1.1997, it was given. The daughters including the fifth respondent was given a sum of Rs.50,000/- by cheque dated 25.12.1996. The amount was received by them under a bona fide belief. But after perusing the copy of the alleged Will, they came to know that the Will was bogus. The payment of Rs.50000/- under the Will cannot stop them or other respondents from demanding their share in the estate of their father.
6.The suit in C.S.No.524 of 2007 was also referred to the Lok Adalat for settlement. During the proceedings, her brothers had offered a very low amount. The proceedings before the Lok Adalat cannot constitute the date from which a right accrues to file a petition for letters of administration. The petition for the grant of letters of administration after a period of 15 years was clearly barred by limitation. The property is situated in a prime locality in T.Nagar near Pondy Bazaar with an extent of 8.5. grounds and it was undervalued. At present, the property will fetch more than Rs.45 crores. The necessary stamp duty had not been paid in terms of Order 25 Rule 44 of the O.S. Rules. The Will was brought into effect after the conclusion of the arguments in the partition suit in C.S.No.524 of 2007 which was reserved for judgment during November, 2011.
7.In reply to the same, in the counter affidavit it was stated that the Will was executed by late S.M.Subramaniam Chettiar. The Will was read out in the presence of all parties during the 11th day ceremony. The question of limitation cannot be considered even before trial. The rules framed under the Original Side of this court will apply to the testamentary proceedings and it has been framed under Clause 37 of the Letters Patent. The Letters Patent and rules framed therein will constitute a special law insofar as the High court is concerned and to that extent, the general law will not apply. Order 25 of the O.S. Rules pertains to testamentary and intestate matters. Order 25 Rule 9 states that in any case where probate or letters of administration is applied for the first time after a lapse of three years from the date of the death of the deceased, the reasons for the delay shall be explained by the petitioner. It is impliedly mean that the general bar applicable under Article 137 of the Limitation Act does not apply to the proceedings in exercise of testamentary original jurisdiction. The judgment of the Supreme Court in Kunvarjeet Singh Khandpur case (cited supra) has held that in a proceedings for the grant of probate or letters of administration, no right is adverted or claimed by the applicant and that the applicant only seeks recognition of the court to perform a duty and that duty is only moral and it not legal.
8.The Supreme Court had approved the law laid down by this Court in S.Krishnaswami Vs. E.Ramiah reported in AIR 1991 Madras 214 to the effect that there is no law which compelled the person to file a proceedings for probate or letters of administration and that such proceedings are not action in law. However, the Supreme Court had disagreed with this court with reference to the applicability of Article 137 of the Limitation Act and had held that the said Article will apply to a petition for probate also. But the Supreme Court did not have an occasion to consider Order 25 Rule 9 of the O.S. Rules which specifically permits a person to approach the court for the grant of probate or letters of administration even after 3 years from the date of the death provided the reason for delay is properly explained. The respondents have explained the delay. The Supreme Court had also held that a right to perform the legal duty created by the Will is a continuous right which can be exercised any time after the death of the testator so long as the right to do so survives. The legal heirs had accepted the Will and acted under the same by receiving benefits under the Will. However, one of the legal heirs had issued a legal notice and the matters were put to rest after negotiations. The suit was filed only in the year 2007. A reference of the same made to the Lok Adalat and the earlier application made by the respondents to issue a citation to the only surviving executor and his inability to file a petition for the grant of probate will given rise to the continuing cause of action in favour of the respondents to approach this court beyond the period of three years. The decision relied on by the applicants will not apply to the case on hand.
9.With reference to the valuation of the property, the respondents had obtained guideline value of the property in question from the official website of the Department. Therefore there is no question of any undervaluation. In any event, the petition for the grant of letters of administration is accompanied by notice to the Collector in Form No.57 to enable the Collector to determine whether the property has been adequately valued or not. A detailed procedure has been set out in Sections 59, 60 and 61 of the Tamil Nadu Court Fees and Suit Valuation Act. Only after effecting the service on all respondents, the question of payment of probate duty of 3% will arise. Even before the court should take up the O.P for consideration, the applicants have filed the above applications. The respondents undertook to make payment of 3% duty within the time fixed by this court. In any event, Order 25 Rule 44 of the O.S. Rules will not apply to the present case. Similar stand was also taken in the other counter affidavit.
10.Mr.S.R.Raghunathan, learned counsel for the applicants placed reliance upon a judgment of the Supreme Court as noted above in Kunvarjeet Singh Khandpur case (cited supra) and in paragraphs 14 and 15, the Supreme Court had observed as follows :
"14.Though the nature of the petition has been rightly described by the High Court, it was not correct in observing that the application for grant of probate or letters of administration is not covered by Article 137 of the Limitation Act. Same is not correct in view of what has been stated in Kerala SEB case2.
15.Similarly reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani7. Para 16 reads as follows: (AIR p. 270) 16. Rejecting Mr Dalpatrai's contention, I summarise my conclusions thus
(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;
(c) such an application is for the court's permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death;
(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no longer operates. Conclusion (b) is not correct while Conclusion (c) is the correct position of law."
11.He subsequently referred to a judgment of the Supreme Court in Sopan Sukhdeo Sable and others Vs. Assistant Charity Commissioner and others reported in (2004) 3 SCC 137 for contending that the objection of the plaint under Order 7 Rule 11 can be raised and the court can exercise its power at any stage of the suit. The power analogous to Order 7 Rule 11 will also apply to other enactments and in that case, it was applied under the Bombay Public Trusts Act, 1950.
12.The learned counsel also referred to a judgment of the Supreme Court in Mrs.Hem Nolini Judah Vs. Mrs.Isolyne Sarojbashini Bose reported in AIR 1962 SC 1471 for contending that Section 213 creates a bar to the establishment of any right under Will by an executor or a legatee unless probate or letters of administration of the Will have been obtained, whether that right is claimed by the person as a plaintiff or defendant. Therefore, the respondents / original petitioners should have approached this court long before and not after the period of limitation.
13.A reference was also made to a judgment of a division bench of the Delhi High Court in Pratap Singh and another Vs. The State and another reported in 173 (2010) DLT 132 for contending that Article 137 of the Limitation Act will apply and the right to apply for probate clearly accrues on knowledge of the suit filed by the respondent and that if any probate petition filed beyond the period of three years was barred by law of limitation.
14.He also referred to an another judgment of the Delhi High Court in Karan Singh and others Vs. State and others reported in MANU/DE/2356/2011 for contending that Article 137 of the Limitation Act will apply to probate proceedings and that the court had referred to the judgment of the Supreme Court in Kunvarjeet Singh Khandpur's case (cited supra) and followed the same.
15.Per contra, Mr.R.Parthasarathy, learned counsel for the respondents placed reliance upon Clause 37 of the Letters Patent, where this court has been given power to frame rules for regulating its own procedure and in respect of the civil procedure. Insofar as the testamentary proceedings are concerned, it is governed by Order 25 of the O.S. Rules. Order 25 Rule 9 though states that if a petition for letters of administration was presented before this court after a lapse of three years from the date of the death of the deceased, the reason for the delay has to be explained in the petition. Therefore, he argued that Section 213 of the Indian Succession Act read with Article 137 of the Limitation Act will not apply as the petition has been presented under the rules framed under the Letters Patent.
16.In this context, he placed reliance upon a judgment of the Supreme Court in Iridium India Telecom Ltd. v. Motorola Inc., reported in (2005) 2 SCC 145 and referred to the following passages found in paragraphs 28,29,30 and 44, which reads as follows:
"28.It appears to us that this was the real reason why a distinction was drawn between the proceedings in original jurisdiction before the chartered High Courts and those in other courts. For historical reasons this distinction was maintained right from the time the Letters Patent was issued, and has not been disturbed by the Code of Civil Procedure, 1908, despite the amendments made in CPC from 1976 to 2002.
29.The learned counsel for the appellant referred to the speech of the Law Member while introducing the Code of Civil Procedure Bill, 1907, which ultimately resulted in the Code of 1908. Our attention was drawn to the proceedings of the Council of the Governor General of India (published in the Gazette of India dated 7-9-1907, pp. 134 to 143). The only relevant portion is the portion at p. 141 where the Law Member, who introduced the Bill, referring to clauses 145 and 148 to 150 contained in Parts X and XI of the Bill, explained the need as under:
I have already explained the nature of the rule-making power which is dealt with in Part X of the Bill and in regard to Part XI (miscellaneous), I would only call attention to clauses 145 and 148 to 150, which widen the discretion of courts. They confer powers to enlarge time and to amend written proceedings, and they recognise the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. In these ways greater elasticity will, it is hoped, be of benefit.
30.Far from advancing the case of the appellant, the speech of the Law Member, while introducing the Bill, suggests that it was thought necessary that the inherent powers of the Court to make appropriate orders, as may be necessary for the ends of justice or to prevent abuse of the process of the Court, was retained for the purpose of greater elasticity.
44.The Full Bench of the High Court of Calcutta in Manickchand Durgaprasad v. Pratabmull Rameswar19 had occasion to consider this very contention with regard to clause 37 of the Letters Patent and observed: (AIR p. 489, para 13) The restriction upon the power of the Court as contained in the proviso to clause 37 of the Letters Patent is that the rules framed under that clause should, as far as possible be in conformity with the provisions of the Code of Civil Procedure. This restriction as the phrase as far as possible indicates is merely directory. The provisions of the Code of Civil Procedure are intended for the purpose of guidance of this Court in framing rules under clause 37 of the Letters Patent. Consequently, if any rule framed by the High Court under clause 37 be inconsistent with or confers any additional power besides what is granted by the Code of Civil Procedure, the rule framed under clause 37 will prevail over the corresponding provisions of the Code of Civil Procedure. This we think is the correct view to be taken in interpreting the words as far as possible in clause 37 of the Letters Patent. This interpretation would be consistent with the amplitude of the words used in Section 129 CPC by which the High Court is empowered to make rules not inconsistent with the Letters Patent to regulate its own procedure in the exercise of its original jurisdiction as it shall think fit.
In view of the above, he contended that the argument based upon limitation will have no application to the case on hand.
17.He also stated that for the purpose of rejecting a petition in terms of the power under Order 7 Rule 11(d), the courts are slow in applying the said provisions for rejecting the petition on the ground of limitation as it is the question involved in both question of law and facts. For this purpose, he referred to a judgment of the Supreme Court in Popat and Kotecha Property v. State Bank of India Staff Assn., reported in (2005) 7 SCC 510 and a reference was made to the following passage found in paragraph 25, which reads as follows :
"25.When the averments in the plaint are considered in the background of the principles set out in Sopan Sukhdeo case10 the inevitable conclusion is that the Division Bench was not right in holding that Order 7 Rule 11 CPC was applicable to the facts of the case. Diverse claims were made and the Division Bench was wrong in proceeding with the assumption that only the non-execution of lease deed was the basic issue. Even if it is accepted that the other claims were relatable to it they have independent existence. Whether the collection of amounts by the respondent was for a period beyond 51 years needs evidence to be adduced. It is not a case where the suit from statement in the plaint can be said to be barred by law. The statement in the plaint without addition or subtraction must show that it is barred by any law to attract application of Order 7 Rule 11. This is not so in the present case."
In the light of the above, he sought for dismissal of the two applications. He further contended that it is only when a citation is issued on the original petition, the question as to whether it could be tried as a petition for letters of administration or to be converted into T.O.S., has to be considered.
18.The stand taken by the respondents is well founded. This court do not incline to accept the contentions of the applicants in rejecting the O.P. even before the matter could be taken up for appropriate consideration after due notice to the respondents. Hence both applications will stand dismissed. No costs. Post the O.P. before the learned Master for compliance regarding service.
vvk