Madras High Court · 2007

23. Dr. Manoharan Stephen Abraham4. Sylvis Nirmal5. Prameela Devadoss6. Nirmala Santhosam7. Ireen Paul8. Jawahar Ravindran9. RoySuresh10. Iris Packia Durai .. Respondents/RespondentsApplication praying that this Hon'ble Court be pleasedto pass an order impleading the proposed party as 10thDefendant in the above suit enabling the Applicant toparticipate in the above suit proceedings. This Application coming on this day before this courtfor hearing the court made the following order:This application is filed by the applicant / 3rd partyseeking to implead him as proposed 10th defendant in thesuit in order to enable him to participate in theproceedings.2. Heard Mr.S.Jegannathan, learned counsel for theapplicant / 3rd party and Mr.K.Harishankar, learned counselfor the first respondent / plaintiff and Mr.S.W.Kanagaraj,learned counsel for the respondents 2 to 6 / defendants 1to 5. No appearance for the respondents 7 to 10 /defendants 6 to 9.3.The learned counsel for the applicant / third partywould submit in his argument that the applicant was the sonof one Mrs.Gladys Florence Arul, who was the sister ofMrs.Grace Winfred and both of them were daughters ofMr.S.Sathyanathan, who was the absolute owner of the suit https://hcservices.ecourts.gov.in/hcservices/ 3property. He would further submit in his arguments thatthe said Sathyanathan died leaving his two daughters, viz.Mrs.Grace Winfred and Mrs.Gladys Florence Arul as his onlyheirs to succeed to the suit property. Subsequently, thefirst daughter namely, Mrs.Grace Winfred, who inheritedhalf of the suit property, died on 16.11.1990 leavingbehind her four daughters, namely, Mrs.Ida Abraham,Mrs.Irene Paul, Mrs.Indra Colombus, and Mrs.IrisPackiadurai and one son D.J.S.Winfred, the first respondent/ plaintiff herein. The said second daughter Mrs.GladysFlorence Arul, the mother of the applicant also died on24.09.1933 leaving the applicant as her only son to inherither ½ share of the suit property. He would further submitthat however the said Mrs.Grace Winfred continued to livein the entire house, since it was not partible and the samewas permitted by the mother of the applicant and theapplicant out of love and affection. He would furthersubmit that one of the daughters of Mrs.Grace Winfred,namely, Irene Paul filed a suit in O.S.No.5061 of 1995 onthe file of the I Assistant City Civil Court against theother legal representatives seeking title of the entireproperty on the basis of a Will forging the signature ofMrs.Grace Winfred, which includes the ½ share of the suitproperty belonging to the applicant. He would furthersubmit that the applicant was not included as a properparty in the said suit. He would further submit that since https://hcservices.ecourts.gov.in/hcservices/ 4some of the defendants disputed that the said Will was notprobated, O.P. has been filed before this Court inO.P.No.446 of 1996 and it was subsequently converted intoT.O.S.No.5 of 2000 and the same is pending. He wouldfurther submit that even though the applicant is entitledto ½ share in the suit property through his mother, he wasnot impleaded in the said suit as well as in this T.O.S.and he is also one of the caveatable interest holders as ½share of the property belonging to him. Therefore, theapplicant has to be impleaded as 10th defendant in the suitas necessary party. 4.The learned counsel for the applicant would cite ajudgment of the High Court of Punjab & Haryana reported inAIR 1975 Punjab & Haryana 184 (Arjan Singh and others ..vs.. Kartar Singh and others) for the principle that theadding of parties is purely in the discretion of the Court.He would also cite a judgment of this Court reported in1998 (II) MLJ 78 (Hemamalini ..vs.. Swaminathan and others)for the principle that a person who is bound with theresult of any litigation shall not be denied an opportunityto participate in the trial. He would also submit in hisargument that due opportunity must be given to parties whowere seeking for impleadment. He would rely upon ajudgment of this Court reported in 2000 (3) MLJ 71 (RajiahThevar ..vs.. Siluvai Pattam and others) for that purpose.He would also cite a judgment of the Hon'ble Apex Court https://hcservices.ecourts.gov.in/hcservices/ 5reported in 2010 (2) SCC 162 (Suresh Kumar Bansal ..vs..Krishna Bansal and another) for the principle that even thelegatee of the deceased landlord under the Will yet to beprobated can be impleaded in the proceedings for eviction,as a necessary party. He would also cite a judgment of theHon'ble Division Bench of this Court reported in 2009 (5)CTC 193 (S.D.Joseph and others ..vs.. E.Ebinesan andothers) for the principle that every member, who is havinginterest and right, should be given an opportunity of beingheard by way of impleadment. Relying upon the principleslaid down by the aforesaid judgments, he would stress inhis arguments that the applicant / 3rd party is a necessaryparty and if probate is granted in favour of the plaintiff,for the property belonging to the applicant, it would beamounting to an infringement of his right over half of thesuit property and therefore, the applicant may be impleadedas necessary party to the suit.5.The learned counsel for the first respondent /plaintiff would submit in his argument that the suit wasconverted from the Original Petition and the saidproceedings are purely governed under the provisions ofO.S.Rules. He would further submit in his arguments thatwhen the O.P. has been filed for the grant of probate onthe basis of a Will executed by the mother of thepetitioner in the O.P, it was a non-contentious proceedings https://hcservices.ecourts.gov.in/hcservices/ 6and in view of the objections raised by some of thedefendants, it was converted into a contentious proceedingsin the form of T.O.S. and even after the conversion into asuit, the impleadment of the parties would be only governedunder the relevant provisions of O.S.Rules. He would alsosubmit in his argument that the testatrix, namely,Mrs.Grace Winfred had executed the Will and the said Willwas sought to be probated and in the testamentaryproceedings, the persons, who are having caveatableinterest alone can be impleaded as parties and the pointsfor consideration to be decided would be as to whether theWill said to have been executed by the testatrix Mrs.GraceWinfred was made in a sound and disposing state of mind inthe presence of two attesting witnesses and was it the lastWill of the testatrix ? When such a point has to bedecided, the requirement of the presence of the applicantas proposed 10th defendant would be of no avail. He wouldfurther submit in his arguments that the proprietary or theright, title of the testatrix in disposing the propertycannot be questioned in a testamentary proceedings. Hewould further submit that the Forum would be somewhereelse, which may be a Civil Court and either in a suit filedby the aggrieved party or in a suit filed by any 3rd party,the applicant could have sought for impleadment. He wouldfurther submit in his arguments that the question of titleof the testatrix cannot be gone into in a testamentary https://hcservices.ecourts.gov.in/hcservices/ 7proceedings and it has been laid down in the variousjudgments of the Hon'ble Apex Court as well this Court. Hewould also refer to a judgment of the Hon'ble Apex Courtreported in 2008 (4) SCC 300 (Krishna Kumar Birla ..vs..Rajendra Singh Lodha and others) in support of hisargument. He would also submit that the applicant couldhave filed a separate suit claiming ½ right in the suitproperty, if really his case was true and genuine, or, hemay seek impleadment in a civil suit, whether the partieshave subjected this property for partition and separatepossession or declaration of this right whatsoever it maybe. He would therefore, request the Court that thepresence of the applicant as 10th defendant is not at allnecessary in the testamentary suit, where the title of thetestatrix cannot be questioned. He would further submit inhis arguments that the judgments cited by the learnedcounsel for the applicant are in respect of the impleadmentof the parties in regular suits pending before the CivilCourt and those judgments would not be made applicable tothe present case, since it is a Testamentary Original Suit(T.O.S.). Therefore, he would request the Court to dismissthe application.6.I have given anxious thoughts to the argumentsadvanced on either side. 7.The relationship of parties as put forth by theapplicant has not been seriously disputed. The https://hcservices.ecourts.gov.in/hcservices/ 8applicant's mother Mrs.Gladys Florence Arul and the motherof the plaintiff and defendants namely, Mrs.Grace Winfredwere the daughters of one Mr.Sathyanathan. According tothe submission of the applicant, the suit property wasoriginally belonging to Sathyanathan and he died intestateand thereafter, the property devolved upon his daughtersequally as they happened to be his heirs. Therefore, theapplicant had claimed ½ share in the suit property.However, the said Mrs.Grace Winfred, the mother of theplaintiff and the defendants, was said to have bequeathedthe entire property in the Will said to have been executedby her. According to the applicant, ½ share belonging tothe applicant in the suit property derived by him on thedeath of his mother Gladys Florence Arul was alsobequeathed away, as if, the said ½ share of the propertyalso belonged to Mrs.Grace Winfred. Further case of theapplicant would be that if the probate is granted as soughtfor by the plaintiff in this suit, the ½ right belonging tothe applicant would also be considered as bequeathed infavour of the beneficiaries in the Will executed byMrs.Grace Winfred and it would affect his interest. Inorder to avoid multiplicity of proceedings, he wouldrequest the Court to implead him as 10th defendant in thiscase so as to state his case.8.The claim made by the applicant would be that the https://hcservices.ecourts.gov.in/hcservices/ 9testatrix Mrs.Grace Winfred had no right to bequeath away ½right in the suit property which is stated to have belongedto the mother of the applicant, viz., Mrs.Gladys FlorenceArul. Therefore, I could see that the applicant is claiming½ right in the suit property by virtue of a right derivedfrom his mother. Consequently, he is disputing theproprietary right of the testatrix in bequeathing theentire property when she is stated to have entitled to only½ share in the suit property. 9.In the judgment of the Hon'ble Apex Court reportedin 2008 (4) SCC 300 (Krishna Kumar Birla ..vs.. RajendraSingh Lodha and others), it has been categorically laiddown as follows:-"68.In Basanti Devi v.Raviprakash Ramprasad Jaiswal [(2008) 1SCC 267 : (2007) 12 SCALE 542], it isstated :"22[2l]. The ProbateCourt, indisputably, exercisesa limited jurisdiction. It isnot concerned with thequestion of title. But if theprobate has been grantedsubject to compliance of theprovisions of the Act, anapplication for revocationwould also lie." https://hcservices.ecourts.gov.in/hcservices/

1069. Abhiram Dass v. Gopal Dass[ILR 17 Calcutta 48] is a decision ofthe Division Bench of the Calcutta HighCourt. In that case, the District Judgeadmitted the objection. It was heldthat rival titles set up by thecaveator can be gone into. Settingaside the said judgment of the DistrictJudge, the Division Bench of the HighCourt held:" .... A person disputing theright of a deceased testatorto deal with certain propertyas his own cannot be properlyregarded as having an interestin the estate of the deceased.His action is rather that ofone claiming to have anadverse interest..."70. Abhiram Dass (supra) wasfollowed by a Division Bench of theBombay High Court in Prijoshah Bhikajiv. Pestonji Merwanji [12 Bom LR 366]stating:" ......the interest whichentitles a person to put in acaveat must be an interest inthe estate of the deceasedperson, that is, there shouldbe no dispute whatever as tothe title of the deceased to https://hcservices.ecourts.gov.in/hcservices/ 11the estate, but that theperson who wishes to come inas caveator must show someinterest in that estatederived from the deceased byinheritance or otherwise."71. Madras High Court also tookthe same view in Rahamtullah Sahib v.Rama Rau & Anr. [ILR 17 Madras 373]opining:"....... this possibilityshould rest on existing factsand not on mere conjecture"."10.In yet another judgment reported in 2008(1) CTC 80(Kanwarjit Singh Dhillon ..vs.. Hardyal Singh Dhillon andothers) : 2007 (11) SCC 357, it has been laid down that thequestion of title of the testator cannot be gone into bythe probate court. The relevant passage would be asfollows:-" 10. ....... The Probate Courtis also not competent to determine thequestion of title to the suit propertiesnor will it go into the question whetherthe suit properties bequeathed by hisWill. The Probate Court is also notcompetent to determine the question oftitle to the suit properties nor will itgo into the question whether the suit https://hcservices.ecourts.gov.in/hcservices/ 12properties bequeathed by the Will werejoint ancestral properties or acquiredproperties of the testator.11.In Chiranjila Shrilal Goenkav. Jasjit Singh and others, 1993 (2) SCC507, this Court while upholding theabove views and following the earlierdecisions of this Court as well as ofother High Courts in India observed inparagraph 15 at page 515 which runs asunder:"In Ishwardeo Narain Singh v.Smt.Kamta Devi, this Court heldthat the Court of probate isonly concerned with the questionas to whether the document putforward as the last Will andtestament of a deceased personwas duly executed and attestedin accordance with law andwhether at the time of suchexecution, the testator hadsound disposing mind. Thequestion whether a particularbequest is good or bad is notwithin the purview of theProbate Court. "Therefore, theonly issue in a probateproceeding relates to thegenuineness and due execution ofthe Will and the Court itself isunder duty to determine it andperverse the Original Will in https://hcservices.ecourts.gov.in/hcservices/ 13its custody. The Succession Actis a self contained code insofaras the question of making anApplication for probate, grantor refusal of probate or anAppeal carried against thedecision of the Probate Court.This is clearly, manifested inthe fascicule of the provisionsof the Act. The Probateproceedings shall be conductedby the Probate Court in themanner prescribed in the Act andin no other ways. The grant ofprobate with a copy of the Willannexed establishes,conclusively as to theappointment of the executor andthe valid execution of the Will.Thus, it does no more thanestablish the factum of theWill. Thus, it does no morethan establish the factum of theWill and the legal character ofthe executor. Probate Courtdoes not decide any question oftitle or of the existence of theproperty itself."(Emphasis supplied)It is made clear from the aforesaid judgments of theHon'ble Apex Court that the testamentary court has nocompetency to go into the title of the testator for https://hcservices.ecourts.gov.in/hcservices/ 14arriving to a conclusion that the testator / testatrix hadany title to bequeath the Will in a testamentary suit. 11.The various judgments cited by the learned counselfor the applicant reported in AIR 1975 Punjab & Haryana 184(Arjan Singh and others ..vs.. Kartar Singh and others)deals with the principle of impleadment in general. Therelevant passage would run as follows:-4..... It is well settled thatsub-rule (2) of Rule 10 of Order 1 ofthe Code of Civil Procedure gives widediscretion to the Court to meet everycase of defect of parties, but thepower must be exercised on judicialprinciples and not arbitrarily. One ofthe well-known principles in thisrespect is that the presence of theperson added must be necessary toeffectually and completely adjudicateupon and settle all the points involvedin the suit and that a party should notbe added merely to avoid multiplicityof suits. On the concessions on mixedquestions of law and fact made by thecounsel for the appellants, it is clearthat the impleading of Ind Kaur to thepresent suit was not necessary toeffectually and completely adjudicateupon, and settle any of the pointsinvolved in the suit of the plaintiffs-appellants as originally instituted.Another principle invoked in the matterof deciding the application for https://hcservices.ecourts.gov.in/hcservices/ 15impleading parties to a pendinglitigation is that the discretion underthe above mentioned rule should beexercised in a reasonable manner so asnot to cause inconvenience orembarrassment to any of theparties. .... "12.The reliance placed by the learned counsel for theapplicant in paragraph No.17 of the judgment of this Courtreported in 1998 (II) MLJ 78 (Hemamalini ..vs.. Swaminathanand others) would run as follows:- "17.In P.R.Nallathambi Goundan ..vs.. Vijaya Raghavan and others, AIR1973 Mad. 25 : 85 LW 648 in paragraph 14of the judgment (at page 35) it has beenheld thus:-" .... It would be atravesty of justice to holdthat a party who is bound bythe result of a litigation,though not eo nominee a partyto the litigation, shall bedenied an opportunity to drawthe attention of the Court tosome step, which seeks toprejudice his interestsbehind his back. In all suchcases, it is the plain dutyof the court to implead theparties concerned eitherunder O.1, Rule 10 or in https://hcservices.ecourts.gov.in/hcservices/ 16exercise of its undoubted,inherent power under Sec.151CPC."(Italicssupplied)13.Yet another judgment of this Court reported in 2000(3) MLJ 71 (Rajiah Thevar ..vs.. Siluvai Pattam and others)laid down the principle for impleadment of parties, whichwould run as follows:-5...... Though, the rights ofparties has to be decided only in thesuit with due opportunity to both theparties to be heard, still, just forthe simple reason that the first andsecond respondents herein have beenordered to be impleaded as necessaryparties to the suit proceedings as ithad been done by the Court ofAdditional District Munsif, Valliyoorin the case in hand, it does not meanthat automatically respondents Nos.2and 3 will be granted with the reliefthat they seek for in the suit.Unless they had the right to get anyshare or right to be declared, theycannot accept any fraction of the suitproperty and hence, the whole affairhas to be decided by the trial courtwith due opportunities afforded to boththe parties to be heard and ultimatedecision has to be arrived at based on https://hcservices.ecourts.gov.in/hcservices/ 17the materials placed on record and uponhearing the parties fully. ...."14.Apart from that, the judgment of the Hon'bleDivision Bench of this Court reported in 2009 (5) CTC 193(S.D.Joseph and others ..vs.. E.Ebinesan and others) alsodealt with the impleadment of parties at paragraph No.23,which has been extracted here under:-"23...... So long as the appellantscontinue to be the members of YMCA, inthe considered opinion of the Court,needless to say, they have got interestover the property, hence, they shouldalso be given opportunity of beingheard in respect of the deal, thesubject matter of the litigation beforethe Trial Court. The reason adduced bythe Trial Judge that they have comeforward with an application withulterior motive, even for a moment,cannot be accepted. In a given caselike this, if the applicants want to beadded as parties, the Court must seewhether they are necessary parties ornot and whether the subject mattercould be factually adjudicated upon inthe absence of parties. ......"15.When we go through the dictum laid down by thesejudgments, I could see that all those principles have been https://hcservices.ecourts.gov.in/hcservices/ 18laid down in a regular suit towards the impleadment ofparties. But, it is a case of testamentary suit, which hasbeen dealt with by the judgment of the Hon'ble Apex Courtreported in 2008(1) CTC 80 (Kanwarjit Singh Dhillon ..vs..Hardyal Singh Dhillon and others) : 2007 (11) SCC 357 and2008 (4) SCC 300 (Krishna Kumar Birla ..vs.. Rajendra SinghLodha and others), in which it has been held that thequestion of title of the testatrix cannot be decided in atestamentary suit. If the request of the applicant isheeded towards his impleadment, he would raise an objectionregarding the title of the testatrix that she was notentitled to execute a Will in respect of ½ share of thesuit property, said to have been belonged to his motherMrs.Gladys Florence Arul. The proposed objection would bein respect of the title of the testatrix and therefore, thepresence of the applicant in the suit is neither necessarynor lawful in accordance with the judgments of the Hon'bleApex Court cited above.16.The judgment of the Hon'ble Apex Court reported in2010 (2) SCC 162 (Suresh Kumar Bansal ..vs.. Krishna Bansaland another) has been cited by the learned counsel for theapplicant in support of his argument that the legatee of anunprobated Will of the deceased landlord was ordered to beimpleaded in the aforesaid proceedings in order to avoidmultiplicity of the proceedings and the same ratio can beapplied in this proceedings also and the applicant may be https://hcservices.ecourts.gov.in/hcservices/ 19impleaded. The said case dealt with by the Hon'ble ApexCourt was in a Rent Control Proceedings and in respect of alegacy of an unprobated Will. In this case, the applicantis not a legatee. But, his claim is that the testatrix hasno title in respect of ½ share of the property bequeathedby her in the impugned Will. Therefore, the facts of thecase as dealt with by the Hon'ble Apex Court in theaforesaid judgment would not be helpful to the applicant toget support from the said principle. Therefore, I am ofthe considered view that the applicant, who sought to beimpleaded as 10th defendant in this suit, cannot beimpleaded as a necessary party in a testamentary suit.His remedy is elsewhere by filing a separate suit forpartition and separate possession of the said property orto declare his ½ share in the suit property or to seekimpleadment in the suit for partition filed by one of thechildren of Mrs.Grace Winfred stated to have been pendingbefore the City Civil Court and not here. 17.Therefore, the application filed by the applicant /3rd party for impleading him as 10th defendant deservesdismissal and accordingly dismissed. No costs.Sd/-V.P.K.J 07.06.2012 //Certified to be a true copy//Dated this the day of 2012. R.s/03.07.2012 COURT OFFICERFrom 25.09.2008 the Registry is issuing certified copies ofthe Order/Judgment Decree in this format.