Madras High Court
G. Gopal And Etc. vs G. Nagarathinam And Anr. on 17 March, 2006
Equivalent citations: AIR2007MAD28, AIR 2007 MADRAS 28, 2007 (1) ALL LJ NOC 154 2007 A I H C (NOC) 221 (MAD), 2007 A I H C (NOC) 221 (MAD), 2007 A I H C (NOC) 221 (MAD) 2007 (1) ALL LJ NOC 154, 2007 (1) ALL LJ NOC 154
Author: R. Banumathi
Bench: R. Banumathi
ORDER R. Banumathi, J.
1. The Applicant/Third Party has filed this Application to revoke the Grant or Probate dated 5 8 2002 of the Will dated 25-12-1984 in T.O.S. No. 32 of 1999.
2. For better appreciation of the points linked by the Applicant/Third Parly, it is necessary to refer lo the earlier proceedings. The parties are related as under:
(See related Parties under) Ramakrishna chetty | died in 1993 __________________________|_______________________________________ | | | | | Jamuna Hemavathy Nagarathinam Chandrayya Gopal ________|__________ (predeceased) (D-1) (D-2) (Plaintiff) | | Baskar Sadhana (Applicant)
3. T.O.P. No. 689 of 1993: - Ramakrishna Chetty died on 2-5-1993. The Deceased-Ramakrishna Chetty had executed the Will dated 25-12-1984 in the presence of two witnesses. According lo the petitioner, the deceased bequeathed immovable properly viz., front upstair portion of premises bearing Door No. 26, Solaianiman Roil Street. Madras-7 in favour of his First Son viz., Chandrayya. The upstair portion consisting of three rooms of 8' x 8' dimension with an open verandah 8 x 8' and an open staircase by the side of the premise. No. 19 (old No. 63) of Minor Trustpuram, Kodambakkam, Madras 24 has been be queathed to the Plaintiff-Gopal. The Attesting Witnesses are no more. The petitioner prayed for grant of Probate of the Will of Deceased Ramakrishna Chetty.
4. T.O.S. No. 32 of 1999: - In the Testamentary Original Petition, the Legal Heirs of the Deceased viz., Son and the Daughters have been shown to whom notice were sent. Upon receipt of notice in the petition, the First Defendant-Nagarathinam filed Caveat raising objections. The Testamentary Original Petition was converted as T.O.S. No. 32 of 1999. There was only one Deiendant viz. Caveator-Nagaralhinam. Though the First Defendant has filed elaborate objections within the stipulated time, she has not tiled the written statement. She has filed an Application No. 4076 of 2000 on 31-9-2000 seeking condonation of delay of 216 days in filing the Written Statement. By an order dated 28-9-2000. the delay was condoned. Though the First Defendant filed the written statement, after some time it was represented to the Court that the First Defendant is withdrawing her objections.
5. Joint Memo of Compromise:- The Application died by the First Defendant - Nagarathinam to receive her written statement was pending. At that time. Application No. 762 of 2000 was filed by the Plaintiff to implead G. Chandrayya as the Second Defendant. The Application was allowed on 17-8-2000 and Chadrayya was ordered to be impleaded, as the Second Defendant.
6. After Chandrayya was impleaded as the Second Defendant, the parties have filed a Joint Compromise Memo stating that they have compromised the matter. On the basis of the Joint. Memo of Compromise, M. Chockalingam J. has passed the following judgment:
...A joint memo of compromise is filed by both the parties. Both the parties and their respective counsel have signed in the memo of compromise. Both the parties are present in Court today and on verification, the memo is found to h<: correct. The said memo of compromise is recorded. In view of the same, a decree is passed in terms of the compromise memo. The joint memo of compromise shall form part of the Decree....
7. Thereafter on 4-10-2002, the matter came up before the Court as "Being Mentioned" and further order was passed "Issue Probate in favour of the Plaintiff.
8. The Applicant seeks revocation of the Probate granted to the Plaintiff. According to the Applicant, Defendants 1 and 2 have filed Caveat and objected the grant of Probate of the Will. But, thereafter Memo of Compromise was filed and Probate was obtained without any chance of testing its genuineness.
9. Case of the Applicant is that Ramakrishna Chetty had executed the Registered Settlement Deed dated 13 8-1977 in favour of the Applicant and in favour of his Sister-Sadhana when they were minors and that he settled the entire building situated at Door No. 25 (new No. 26). Solaiamman Koil Street, Purasawalkam, measuring an extent of 1156 sq. ft., except: the front upstair portion consisting of two rooms and a small hall in front with easement rights. The Plaintiff is occupying the front upstair portion and is residing in that portion even as on date. The remaining portions of the property were settled in favour of the Applicant and his Sister-Sadhana. While so, the Plaintiff had taken steps to alienate the property at Purasawalkam settled in favour of the Applicant and the Plaintiff and the First Defendant claimed right over the property under a Registered Will of Ramakrishna Chetty. On enquiry, the Applicant learnt that the Will has been probated on the basis of the Joint Compromise Memo filed by the Plaintiff and Defendants 1 and 2.
10. Further case of the Applicant is that the Will has not been probated on merits and is on the basis of the Compromise, the terms of which are not true. The averment relating to Settlement Deed in favour of the Applicant has been bracketed and (he term "Cancelled" on 2-10-1991 has been written in the left side of the document, which was not found in the Certified Copy of the Will issued by the Sub-Registrar, Purasawalkam. The signature of Ramakrishna Chetty is greatly at variance in the Will. Hence, the Applicant prays for revocation of the Will on the ground.
i. the grant was made without citing par ties who ought to have been cited;
ii. The Will on which Probate was obtained was forged and not. genuine.
11. Denying the allegations in the Application, the Plaintiff has filed the Counter Statement that though the Mother of the Applicant was a Caveator in the O.P. proceedings, she did not contest the grant of Probate. The Applicant had already filed an Application to implead him in T.S. No. 32 of 1999 and the same was dismissed by the Order of the Court. Having suffered an order of dismissal against his impleadment in the Testamentary original Suit, it is not open to the Applicant to reagitate the same by way of filing the same application for revocation. The Probate was granted only on the basis of the Memo of Compromise recorded on 5-8-2002. The First and Second Defendants-have withdrawn their objections. Ramakrishna Chetty had executed the Settlement Deed dated 13-8-1977 registered as Document No. 897 of 177. But, the same was rectified by the Testator by an endorsement dated 2-10-1991 and he bequeathed the same in favour of the Plaintiff and in favour of his children. Under such circumstances, the Applicant is not entitled to the property situate at No. 25, Solaiamman Koil Street, Puraswalkam. The Applicant does not have any caveatable interest and during the lifetime of his mother, he cannot reagitate the validity of the Will.
12 Section 263 of the Indian Succession Act gives the Court discretion to revoke the grant of Probate if "just cause" is established. The discretion is to be exercised judiciously and not arbitrarily. For revoking the grant, a clear case of "just cause" must be made out. Revocation or annulment for "just-cause" must normally be found within one of the Clauses (a) to (e) of the Explanation appended to Section 263 of the Indian Succession Act. The circumstances under which a grant can be revoked under this Section may be classified under the following heads:
(1) When there is substantial defect in the proceedings to obtain the grant;
(2) When the grant is obtained under false suggestion;
(3) When a subsequent Will or codicil is discovered illustrations (vi) and (vii);
(4) When required for the better administration of the estate.
It is only under this Section and this section alone and on the grounds laid down therein that an application for the revocation of the grant must be made.
13. The point arising for determination is whether the aforesaid circumstances exist for revocation of Grant of Probate.
14. The disputed property Door No. 26, Solaiamman Koil Street, Madras-7 comprises of three portions:
i. Front upstair portion which was settled in favour of Second Daughter - Hemavathi by the Registered Sale Deed dated 25-7-1976. The said Hemavathi died on 28-11-1979 and the Property devolved on the Testator. Under Ex. P.2 - Will, the Testator had bequeathed the front upstair portion to his eldest son viz., First Defendant - Chandrayya. The intention of the Testator is made clear in the recitals - "My eldest Son will therefore enjoy it in perfect Title without any let or hindrance".
ii. The upstair portion consisting of three rooms of 8' x 8' dimensions with an open verandah 8' x 8' and an open staircase by the side of the premises No. 39 (old No. 63) of Minor Trustpuram, Kodambakkam, Madras - 24 has been bequeathed to the Plaintiff-Gopal.
iii. Ex. P. 2 - Will refers to the rest of the portion having been settled in favour of the Applicant-Basker and his Sister-Sadhanaby the Settlement Deed dated 2-8-1977.
15. The relevant recitals pertaining to the Settlement Deed in Ex. P.2 - Will reads as follows:
...The rest of the portions in the said premises was already settled in favour of my two grand children - daughter Sadana and boy Baskar of my eldest Daughter Srimathi C. Jarriuna by a Registered Deed No. 897 dated 12-8-1977 and they own the ownership of that portions of the premises....
16. The above said portion had been bracketed and is said to have been cancelled on 2-10-1991 with endorsement in the left side of the Will, "Cancelled on 2-10-1991" signed by Ramakrishna Chetty.
17. It is relevant to note that at the time of filing Testamentary Original Petition, the Petitioner did not refer to the above said endorsement "cancelled". The Registry has returned the papers for rectification of various defects inter alia stating that the correction made in the middle of the Will should be disclosed in the Affidavit of Attesting Witness or in the Petition.
18. Thereafter, the endorsement "Cancelled" was sought to be explained by adding Paragraph 7(a), which reads as follows:
...The Petitioner further states that in the Original Will dated 25-12-1984, the Testator himself during his life time on 2-10-1991 deleted the last four lines in the first para commencing "the rest of the portion" and ending "and they own the ownership of the portions of the premises" and signed against the deleted portion of the Will marked with letter "A" and filed along with Petition....
19. By a careful reading of the aforesaid Paragraph 7(a), it does not in any manner indicate that the Settlement Deed itself has been cancelled. The averments in paragraph 7(a) only suggest as if the last four lines in the First Paragraph commencing "the rest of the portion".... and ending and they own the ownership of the portions of the premises" were deleted by the Testator. The inclusion or deletion of the last four lines (which refers to the Settlement Deed in favour of the Applicant and his Sister-Sadhana document No. 897/77) was of no sequence for the Applicant and his mother Jarauna, Since the Settlement Deed was already executed, it was of no relevance whether the Testator refers to the Settlement Deed or not. Since the Applicant/Plaintiff sought to probate the Will dated 25-12 1984 pertaining to the upstair front portion and the three rooms in the upstair portion, perhaps, Mother of the Applicant has not further pursued the Testamentary Petition. Under such circumstances, Mother of the Applicant might have left the matter without pursuing.
20. On behalf of the Plaintiff, much arguments were advanced contending that the Mother of the Applicant being served with Notice in the Original Petition stage could have filed the Caveat raising objections. It is further contended that the Applicant himself had filed the Petition to implead himself in the proceedings and the same was dismissed by an order of the Court. Learned Counsel for the Applicant has stated that the Applicant had filed an Application to implead himself in Diary No. 160/2000 on 3-1-2000 and the same was not further prosecuted. Earlier filing of the Impleading Petition in the year 2000 and non-prosecution of the same cannot be an impediment for the Applicant to file this Application seeking revocation of the Will. As noted earlier, a cursory reading of Para (7) of the Petition is to the effect that the last four lines in first paragraph of the Will was only deleted. The inclusion or deletion of the Settlement Deed could not have been much relevance to the Applicant. The language employed in Para (7) must have created an impression in the mind of the Applicant and his Mother that the Plaintiff is only seeking probate of the Will dated 25-12-1984. Under such circumstances, the Applicant or his mother might not had objection for the grant of Probate. Further, their shares having been settled under the Settlement Deed (Document No. 894/77), the Applicant and his Mother might have thought fit not to pursue the matter any further. Under such circumstances, the Applicant or his mother may not have pursued the matter.
21. The eldest Son - Chandrayya was impleaded as Party to the Suit by the order dated 7-8-2000 in Application No. 762 of 2000. The Joint Compromise Memo has been filed. By a perusal of the Joint Compromise Memo, it is seen that only the Second Defendant and the Plaintiff have signed. Neither the First Defendant - Nagarathinam nor her counsel have signed in the Joint Compromise Memo. There is no indication showing that she was present on the date of recording compromise. There is nothing to indicate that either the Second Defendant or her counsel were present at the time of recording evidence. As noted earlier, the First Defendant only filed an Application No. 4076 of 2000 seeking to condone the delay of 216 days in filing the Written Statement. By an order dated 28-9-2000, the delay was condoned. By perusal of records, it is seen that only representation was made stating that the First Defendant is withdrawing her objections.
22. Either for recording the Memo of Compromise or in any event, presence of the First Defendant is of much importance. Presence of the First Defendant assumes importance since she has signed as Identifying witness at the time of execution of the Will by her Father. By a reading of Ex. P.2 - Will, -it is seen that the First Defendant Nagarathinam has signed as an identifying Witness giving her address as "Miss. G. Nagaratnam. D/o. Mr. G. Ramakrishna Chetty, Indian Standards Institution, C.I.T. Campus, Adyar, Madras-600 020." The First Defendant signing as an identifying Witness indicates that the First Defendant Nagarathinam is a woman of knowledge. Recording of compromise without the presence of the First Defendant throws serious doubts about the terms of compromise and the arrangement between the Plaintiff and the Second Defendant.
23. The Joint Compromise was Pled after the Second Defendant was impleaded. The Compromise by the Plaintiff with the Second Defendant without getting First Defendant's signature or non-presence of the Second Defendant in the Court substantially affects the regularity and the correctness, of the proceedings. This is all the more so. when the First Defendant is the Identifying Witness.
24. The dispute revolves around the endorsement made in the left side of the Will "Cancelled" dated 2-10-1991. Under Section 71 of the Indian Succession Act, if the Will contains any alteration, Interlineation or obliteration made after the Will is executed shall not have any effect except so far as the words or the meaning of the Will have been changed thereby rendered illegible or unreasonableness. Section 71 of the Indian Succession Act reads as follows:
...Effect of Obliteration. Interlineation or Alteration in Unprivileged Will: - No obliteration, interlineation, or other alteration made in any unprivileged will after the execution thereof shall have any effect, except so far as the words or meaning of the will have been thereby rendered illegible or indiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the Will;
Provided that the Will, as so altered, shall be deemed to be duly executed if the signature of the Testator and the subscription of the Witnesses is made in the margin or on some other part of the Will opposite or near to such alternation, or at the foot or end of I or opposite to a memorandum referring to such alteration, and written at the end or some other part of the Will.
The alterations, interlineations or obliterations will only be given effect to only if the signature of the testator and of the attesting Witnesses is made in the margin or on some part of the Will opposite or near to such alterations. Under such legal position, the effect of bracketing and the interlineations added by the endorsement "cancelled" dated 2-10-1991 remains to be determined.
25. It. is to be noted that for proving the Will and to speak about the endorsement on the left side of the Will, only the Plaintiff was examined as P.W. 1. Since the Attestors are no more, they could not be examined.
26. In Para 7(a) of the Plaint, it is averred ...The Petitioner further states that in the Original Will dated 25-12-1984, the Testator himself during his life time on 2-10-1991 deleted the last four lines in the first para commencing "the rest of the portion" - and ending "and they own the ownership of the portions of the premises" and signed against the deleted portion of the Will marked with letter "A" and filed along with Petition". These averments reiterate the Settlement Deed executed in favour of Applicant - Baskar and his Sister-Sadhana. Bracketing of the said portion and the endorsement "cancelled" seriously affects the rights of the settlees-Baskar and Sadhana. The Applicant has a caveatable interest. Hence, while including Para 7(a) in the Petition, the Plaintiff ought to have sought for issuance of citation to the Applicant-Baskar and also his Sister-Sadhana. The effect of interlineations made in Ex. P.2 -Will has to be gone into arid the Applicant ought to be given an opportunity to raise his objection.
27. By careful consideration of the terms of the Memo of Compromise, it is seen that grant has been obtained on untrue allegations as noted earlier. Only the front portion of the upstair was bequeathed to the Second Defendant. The upstair portion consisting of three rooms of 8' x 8' dimensions will, an open verandah 8' x 8' and an open staircase by the side of the premises No. 39 (old No. 63) of Minor Trustpuram, Kodambakkam, Madras-24 has been bequeathed to the Plaintiff - Gopal. Rest of the portion have been already settled to the children of Jamuna viz., Applicant and his Sister - Sadhana. Assuming "Without admitting" that the words "Cancelled" has been made by the Testator, the matter ends with the endorsement "Cancelled". The Will does not further indicate the mode of bequeathing of the ground floor. But, in the Joint Memo of Compromise, the parties have clandestinely introduced a new case under the guise of Joint Memo of Compromise making false suggestions as to the intention of the Testator.
28. As discussed earlier, in the Will front upstair portion of the premises was bequeathed to the Second Defendant-Chandrayya. The upstair portion consisting of three rooms 8' x 8' dimensions with open verandah-was bequeathed to the Plaintiff. 1 In (he Will, the Testator has stated that the rest of the portion in the said premises was already settled in favour of the Applicant and his Sister Sadhana. Assuming (without admitting) that the Testator himself has incorporated the expression "cancelled", the Will only ends with the cancellation. The Will does not further indicate the mode of bequeathing of the ground floor.
29. But, in the Joint Compromise Memo filed, the parties have introduced a new case under the guise of intention of the Testator. In the Joint Memo of Compromise, the parties have stated.
i. The ground floor portion at No. 26, Solaiamman Koil Street, Purusawalkkam, Chennai-600 007 which has been allotted to the children of the Plaintiff under the Last Will and Testament of Ramakrishna Chetty and as per the last wishes of the Testator, is in the possession of the Second Defendant.
ii. The First floor portion under the occupation of the Plaintiff has been bequeathed to the Second Defendant.
The parties have agreed that the Second Defendant is to hand over possession of the first floor to the Plaintiff for consideration. Be it noted, that the terms of the compromise form part of grant of Probate. It is also to be noted that once Probate is granted, the same cannot be challenged by a separate Suit.
30. The terms of the Agreement between the parties in the Compromise Memo making false suggestion interpreting the expression "Cancelled" to gain unfair advantage over the Applicant and his Sister - Sadhana alone is sufficient to revoke the Probate.
31. The Applicant and his Sister - Sadhana claimed right in themselves in the rest of the portions other than bequeathed under Ex. P.2 - Will. The Applicant has also filed C.S. No. 772 of 2005 for a Declaration of Title of the Applicant as per the Settlement Deed dated 12-8-1977 and to direct his Paternal Uncle and Aunt to deliver vacant possession of the property. Learned Counsel for the Plaintiff has submitted that the Applicant could establish his Title in the Suit in C.S. No. 772 of 2005 and that the grounds for revoking the Will have not been made out.
32. Since the Plaintiff has sought to interpret the expression "Cancelled" as if amending to "Cancellation of the Settlement Deed", it has become necessary for the Applicant to establish his Title by filing the Suit. The grant of Probate cannot be challenged in this Suit. On the other hand, the grant of Probate in favour of the Plaintiff as claimed by the Plaintiff as per the Joint Memo of Compromise would cause serious prejudice to the Plaintiff In the Suit in putting forth his case in C.S. No. 772 of 2005.
33. Learned Counsel for the Plaintiff has vehemently contended that when a person claims adverse Interest to the Testator, he cannot file a Petition under Section 263 of the Indian Succession Act for revocation of the Probate or Letters of Administration. In support of his contention, learned Counsel for the Plaintiff has relied upon the decisions reported in 1995 (2) LW 852; 2005 (2) CTC 262 : AIR 2005 Mad 423; 1975 (1) MLJ 379 : AIR 1975 Mad 330 and 1990 (1) LW 27.
34 It is well settled that the scope of Enquiry in a Probate proceedings is confined only to an enquiry as to the disposing state of mind of the Testator and the disposition of his property by Will. In a Probate proceedings, the Caveator will not be entitled to claim Title to the property covered by the Will or any part of the estate of the deceased. In (1975) I MLJ 379 : AIR 1975 Mad 330. a Division Bench of this Court has elicited the Probate as under:
...In a probate proceeding a Caveator will not be entitled to raise title In himself to the whole or any part of the estate of the deceased. The Interest in the estate of the deceased mentioned in Section 283 of the Indian Succession Act Is but that interest which by citation a person called upon may claim to have in the estate of the deceased and not the Interest which the deceased did not own, but the claimant coming into the picture by citation claims to be vested in himself. In other words, the title of the Testator or testatrix to the whole or any part of the property which is the subject matter of disposition, is entirely and necessarily outside the scope of probate proceedings and that question will have to be settled by a regular trial. A caveator is in no better position by mere entry of caveat; a proceeding for probate cannot be and should not be allowed to be converted into a suit for resolving disputed title....
35. In the case of D.L. Rajasekaran (died) and Ors. v. Ayyavu 1995 (2) MLJ 334, it Is held that a person, not claiming any right under Testator, nor a beneficiary of Will, nor who is likely to inherit estate of deceased, whose claim is adverse to interest of testator, cannot file petition under Section 263 of the Indian Succession Act, 1925 for revocation of Probate or Letters of Administration.
36. Learned Counsel for the Plaintiff has submitted that the Applicant claiming Title in himself cannot seek to revoke the Probate. It is further submitted that in a Probate proceedings, the Court cannot "enquire the 'question of Title and go into the question whether a Registered Settlement Deed could be "Cancelled" by a mere expression "Cancelled" inserting in the Will. In support of his contention, learned Counsel has relied upon the decision reported in Ramani U. Krishnan v. Dr. Atnmini Praveen Joshua & Veena 2005 (2) CTC 262 : AIR 2005 Mad 423. In the said case, the Agreement Holder sought for revocation of Probate. Under such circumstances, it was held that the Agreement Holder is not a person having cavetable interest entitled to seek for revocation of Probate. Under such circumstances, it was held.-
As rightly concluded by the learned Judge, the Applicant does not have a claim to cite or oppose the grant of probate. Further, a person who is not claiming any right under Testator nor a beneficiary of a Will nor who is likely to inherit the estate of the deceased whose claim is adverse to the interest of the testator, cannot file an application under Section 263 of the Indian Succession Act, 1925 for revocation of the Probate. Here, the applicant is claiming neither the right from the testator nor is she the beneficiary under the Will, nor is she likely to inherit the estate of the deceased or her claim is adverse to the interest of the Testator....
37. A person, who seeks for revocation of Probate should have a right to claim a citation or oppose the grant. The Applicant is not a beneficiary under the Will. He does not claim any interest or title in the property bequeathed in favour of the Plaintiff and the Second Defendant viz., front upstair portion and three rooms of the upstair portion bequeathed to the Plaintiff. The Testator has referred to the rest of the portions of the premises, which was already settled in favour of the Applicant and his Sister - Sadhana. The Testator is said to have cancelled on 2-10-1991 by making endorsement "cancelled" on the left side of Ex. P.2 - Will. Such Interlineations purported to have been written by the Testator seriously affect the right of the Applicant and his Sister, who are the settlees under the Settlement Deed.
38. As discussed earlier, the expression "cancelled" is sought to be misinterpreted by the Plaintiff and the Second Defendant. Under such circumstances, the Applicant has a caveatable interest to whom the citation ought to have been issued. Hence, the Probate already granted is to be revoked for1 the reasons:
i. the grant was made without citing parties who ought to have been cited.
ii. the proceedings of the grant of Probate bate suffers from procedural defects, which affects the regularity.
iii. the grant of probate was obtained by making false suggestions in the Joint Compromise Memo.
39. For the foregoing reasons, this Application is allowed and the grant of Probate (dated 5-8-2002 of the Will dated 25-12-1984 is ordered to be revoked.