K.R. Suresh Babu v. S. Vadivelu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 01.09.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHO.S.A.No.271 of 2009K.R.Suresh Babu.. Appellant.Vs.1. S.Vadivelu2. Spastic Society of TamilNadu, Taramani Road, Taramani, Chennai - 600 113.3. Guild of Service Central, No.18(Old No.28), Casa Major Road, Egmore, Chennaai - 600 008... RespondentsThis appeal has been preferred under Order 36 Rule 1 ofO.S.Rules with under Clause 15 of Letters Patent Act against theorder dated 27.7.2009 made in Application No.2923 of 2008 inO.P.No.599 of 2007.For Appellant : Mr.K.RamuFor Respondent : Mr.P.Chandrasekaran for R1JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges an order of the learned Single Judge ofthis Court in Application No.2923 of 2008 in O.P.No.599 of 2003whereby the application seeking to discharge the caveator/appellantfiled by the respondent herein was allowed.2. The appeal came to be filed on the following facts andcircumstances.The petitioner who is the respondent herein filed O.P. seekingfor grant of probate in respect of the last will of the testatrixdated 3.2.2001. The petitioner is the executor appointed under theWill. The O.P. was filed on 25.4.2007. Subsequent to therepresentation, it was taken on file on 21.7.2007. Then, O.P. was https://hcservices.ecourts.gov.in/hcservices/ taken up on 19.3.2008 and the matter was posted for recordingevidence. P.W.1 was examined along with the attesting witness P.W.2and 11 exhibits were marked on the side of the petitioner. On1.4.2003, P.W.3, the second attesting witness was examined andEx.P12 was also marked. At that stage, Caveat No.48 of 2008 wasfiled by Sakuntala Sambandam and D.Sambandam and the same wastaken up for consideration. Another Caveat in Caveat No.84 of 2007was filed by one kalaraj and another Caveat No.85 of 2007 wasfiled by Ananthakumar. All the caveats were taken up forconsideration. After rejection of those caveat petitions, thematter reached the final stage. At that time, the Caveat No.57/2008was filed by Suresh Babu, the appellant herein, claiming to be thebrother of the testatrix's husband. He filed an affidavit in supportof the application alleging that he was proper and necessary partyto be impleaded. He has also contended that since there was noClass-I heirs for the testatrix and as he is the textatrix husband'sbrother, he is class II heir and opportunity has to be given tohim in the proceedings in the O.P. The petitioner in the O.P. filedan application No.2923 of 2008 to discharge the caveator/appellant.Both the parties were heard and the materials were looked into bythe learned single Judge and the learned Single Judge took a viewthat the appellant has no caveatable interest and allowedApplication No.2923 of 2008 which is the subject matter ofchallenge before this Court.3. The only contention putforth by the learned counsel for theappellant before the learned single Judge is that admittedly, theappellant has got caveatable interest in the property. It is anadmitted position that he is the brother of the testatrix's husband.It is also an admitted position that there was no class-I heirs.When the property was to be devolved upon the testatrix in theabsence of the testament, it would devolve upon her husband alsoand actually, he is Class-II heir. Under such circumstances, he hasgot right in the property and he has also right to oppose theproceedings in the O.P., since, he is having caveatable interest.Therefore, the order of the learned single Judge has got to be setaside.4. Per contra, it is contended by the learned counsel for therespondent that the appellant is not having caveatable interest andhe is not a necessary party; that number of applications havealready been filed stating that they have got caveatable interestbut all the applications were rejected; that the learned SingleJudge has pointed out though the proceedings were initiated bypersons including the appellant, they have done so, in order to grabthe property of the testatrix; that in the absence of any materialsto show that they have caveatable interest, the applications aredismissed and the same has been rightly done by the learned singleJudge and hence, the order of the learned Single Judge has got to beaffirmed.5. The Court paid its anxious consideration on the submissionsmade on either side. https://hcservices.ecourts.gov.in/hcservices/

6. The only question that would arise for consideration beforethe Court is that whether the appellant has got caveatable interestin the property and whether he should be given an opportunity tooppose the proceedings before the learned Single Judge in the O.P. 7. The respondent made the O.P. on the strength of the lastWill of the testatrix. The testatrix, as could be seen from theavailable materials, executed three Wills on 1.7.1986, 28.7.1988 and3.2.2001. The two Wills have been superseded by the third onewhich is the subject matter of O.P. before the learned singleJudge. It is also true that the earlier applications filed by theCaveator were actually rejected at the instance of the O.P.Petitioner and now, that cannot be a reason to reject the contentionputforth by the appellant side. In a given situation like this, theCourt has to look into whether the appellant has caveatableinterest. It would be apt and appropriate to reproduce Section 263of the Indian Succession Act which reads as follows:"263. Revocation or annulment for just cause – The grantof probate or letters of administration may be revoked orannulled for just cause.Explanation – Just cause shall be deemed toexist where -(a) the proceedings to obtain the grant weredefective in substance; or (b) the grant was obtained fraudulently bymaking a false suggestion, or by concealing from theCourt something material to the case; or (c) the grant was obtained by means of an untrueallegation of a fact essential in point of law tojustify the grant, though such allegation was made inignorance or inadvertently; or (d) the grant has become useless and inoperativethrough circumstances; or (e) the person to whom the grant was made haswilfully and without reasonable cause omitted toexhibit an inventory or account in accordance withthe provisions of Chapter VIII of this Part, or hasexhibited under that Chapter an inventory or accountwhich is untrue in a material respect." The above would indicate that so long as he is able to showcaveatable interest and that he is not having adverse interest,opportunity should be given to him. 8. Admittedly, the appellant is the testatrix's husbandbrother. It is also quite clear, in the instant case, there is noClass-I heirs available and by operation of law, Class-II wouldbecome as heir. The Supreme Court while deciding a similar matter in(Basanti Devi Vs Ravi Prakash Ram Prasad Jaiswal) reported in (2008)1 SCC 267 dealt with a similar rule 683 framed by the Bombay HighCourt and considered that an heir includes even agnates and cognatesunder the Hindu Succession Act. In paras 12 and 13 of the saidjudgement, it has been observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "12. Parliament enacted the Hindu succession Act,1956 to amend and codify the law relating tointestate succession among Hindus. Section 3 (f) ofthe Hindu Succession Act defines "heir" to mean anyperson, male or female, who is entitled to succeed tothe property of an intestate under the Act. Section15 of the Act lays down the general rules ofsuccession in the case of female Hindus in thefollowing terms:"15. General rules of succession in thecase of female Hindus – (1) The property of afemale Hindu dying intestate shall devolveaccording to the rules set out in Section 16, - (a) firstly, upon the sons and daughters(including the children of any predeceased sonor daughter) and the husband;(b) secondly, upon the heirs of thehusband;(c) thirdly, upon the mother and father;(d) fourthly, upon the heirs of the father;and (e) lastly, upon the heirs of the mother.(2) Nothwithstanding anything contained insub-section (1), -(a) any property inherited by a femaleHindu from her father or mother shall devolve,in the absence of any son or daughter of thedeceased (including the children of anypredeceased son or daughter), not upon theother heirs referred to in sub-section (1) inthe order specified therein, but upon the heirsof the father; and (b) any property inherited by a femaleHindu from her husband for from her father-in-law shall devolve, in the absence of any son ordaughter of the deceased (including the childrenof any predeceased son or daughter) not upon theother heirs referred to in sub-section (1) inthe order specified therein, but upon the heirsof the husband."13.For the purpose of ascertaining as to who wouldbe heirs of the husband if the deceased didl notleave any sons and daughters or husband; referencehas to be made to Section 8 of the Act which reads asunder:"8. General rules of succession in the case ofmales. - The property of a male Hindu dying intestateshall devolve according to the provisions of thisChapter-(a) firstly, upon the heirs, being therelatives specified in Class I of theSchedule;(b)secondly, if there is no heir of ClassI, then upon the heirs, being the https://hcservices.ecourts.gov.in/hcservices/ relatives specified in class II of theSchedule;c) thirdly, if there is no heir of any ofthe two classes, then upon the agnates ofthe deceased; and (d) lastly, if there is no agnate, thenupon the cognates of the deceased."It is, therefore, not correct to say thatagnates of the deceased are not heirs." From the very reading, it would be quite clear, in a given casewhere female dies intestate, by operation of law, the property,firstly devolves upon class-I heirs and in the absence of the same,it would devolve upon class-II heirs, the heirs of the husband.Needless to say, by operation of section 8 of the Act, the appellantherein is having caveatable interest as the heir of the husband ofthe testatrix. Now, in the instant case, in the absence oftestament, when a person comes before the Court alleging that heis having caveatable interest, the test what has got to be appliedis to see whether he will get a division of the property or whole ofthe property. For doing so, the appellant should be allowed toparticipate in the proceedings, hence, he is the necessary party.9. In the instant case, the learned single Judge has pointedout number of decisions in order to fortify his decision. But theCourt is of the opinion that all those decisions can be applied atthe time of considering, whether the Will is true, genuine or validdocument and whether it was properly executed or not. Now, atthis earliest point of time, the only question arise is whether theappellant who comes before the Court has got caveatable interest ornot. The Court is of the considered opinion that the appellant isable to show caveatable interest, apart from that, the respondent isunable to show, what adverse interest, the appellant holds. Merelybecause number of applications were filed by the caveators and theyare opposed by the O.P. Petitioner stating that it was an attemptmade to grab the property, cannot be a reason to reject theapplication filed by the appellant. The Court is of the opinionthat the appellant has got caveatable interest, hence, the order ofthe trial Court has to be set aside. 10. Accordingly, the order dated 27.7.2009 passed by the trialCourt is set aside. The appeal is allowed leaving the parties tobear their costs. Consequently, M.P.No.1 of 2009 is closed.Vsi01.09.2009This Appeal having been posted on Monday the fifth day ofOctober 2009 'For Being Mentioned' subsequent to the order of thisCourt dated 1.09.2009 and made herein in the present of Mr.K.RamuAdvocate for Appellant and of Mr.P. Chandrasekaran Advocate for thefirst respondent, the Court made the following order. https://hcservices.ecourts.gov.in/hcservices/ (Order of the Court was made by M. CHOCKALINGAM, J.)This matters appears for being mentioned.2. The learned Counsel for the first respondent brought to thenotice of the Court that the appeal filed by the appellant hereinhas been allowed, and now the probate has been revoked, andconsidering the age of the first respondent, it would be fit andproper that the proceedings should come to an end early, and hencetime has got to be stipulated.3. The learned Counsel for the appellant would submit that itis a case where the OP has got to be converted into TOS, and he hasto receive summons and file the written statement, and issues havegot to be framed, and the parties have to go for trial.In apraisement of the circumstances, this Court is of the viewthat considering the age of the first respondent, an octogenarian,it has got to be taken early. The Counsel for the appellantundertakes to file vakalath within a period of a week from the timeof conversion of OP into TOS and thereafter, file the writtenstatement as early as possible. The trial Court is required tocomplete the trial proceedings within a period of six monthsherefrom.Nsv5.10.2009.Sd/-Asst. Registrar//True Copy//Sub Asst. RegistrarToThe Sub Assistant Registrar,Original Side, High Court,Madras.+ 1 cc to Mr. P.Chandrasekaran, Advocate SR No.50323OSA.No.271 of 2009PKB(CO)SR/16.9.2009EU/15.10.2009