R. Janaki v. J. Mohanasundaram

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 22.04.2008CoramThe Honourable Mr. Justice P.K. MISRAandThe Honourable Mr. Justice K.K. SASIDHARANO.S.A.No.264 of 20061. R. Janaki (died)2. S. Mala3. S. Prasanth (Minor) rep.by Mother and natural Guardian S. Mala4. R. Raghunathan5. V. YogalakshmiThe death of the first appellant recorded. Appellants 4 & 5 impleaded as LRs of thedeceased first appellant as perorder dated 22.2.2008 in MP.1/2008 ... Appellants..vs..1. J. Mohanasundaram2. J. Lakhsmi ... RespondentOriginal Side Appeal against the order dated 21.3.2006 inApplication No.310 of 2005 in O.P.No.414 of 2004 on the file ofthis court.For Appellants : Mr.K. RamuFor Respondents : Mr.S.Parthasarathy, SC for M/s. Sarvabhauman Associates.O R D E R(Order of the Court was made by P.K. MISRA, J.)Heard the learned counsels appearing for the parties. 2. The present appellants had filed O.P.No.414 of 2004 https://hcservices.ecourts.gov.in/hcservices/ for issuance of Letters of Administration in respect of the Willallegedly executed by Kanniammal on 31.8.2000. The presentRespondents 1 to 3 have filed caveat petitions in the saidproceedings. At that stage, the present appellants had filedAppln.No.310 of 2005 to reject such caveat petitions on the groundthat they had no caveatable interest. Such Appln.No.310 of 2005having been rejected, the present appeal has been filed.3. Before considering the questions involved, it isnecessary to take note of the Genealogy. One Seniappan Gramani hadgot a daughter named Dhanakotti Ammal. Her first husband was oneGovindaraja Gramini. Through the above marriage, they had adaughter named Kanniammal. On the death of the first husbandGovindaraja Gramini, Dhanakotti Ammal had married one ArjunaGramini, but there was no issue from such marriage. Kanniammal hadmarried Veerakannu and on the death of Veerakannu, she married oneRajagopal. Kanniammal does not have any issue either from thefirst marriage or from the second marriage. Arjuna Gramini, whohad married Dhanakotti Ammal after the death of the first husbandGovindaraja Gramini, himself had earlier married one Tayarammal andthrough such first wife they had five sons, namely, Jayaraman,Elumalai, Balakrishnan, Radhakrishnan and Nagalingam. Twocaveators respectively are son and widow of late Jayaraman andthree applicants (present appellants) in the probate proceedingsare respectively the widow, daughter and grandson of Ragunathan,the son of Radhakrishnan.4. Caveators filed caveat claiming that Kanniammal, thelast absolute owner of the property, had executed two deeds ofsettlement in favour of the caveators which had been subsequentlyrevoked by her. However, the caveators have filed two suits beforethe City Civil Court numbered as O.S.Nos.7045 and 7046 of 1991 fordeclaration that revocation of the deeds of settlement was null andvoid. The dispute relating to such deeds of settlement is nowpending before the High Court in Second Appeals. It is thereforeclaimed by them that they have caveatable interest.5. The present appellants filed Appln.No.310 of 2005 fordischarging the caveat on the ground that the caveators, who areclaiming on the basis of the deeds of settlement which have beensubsequently revoked, cannot succeed to the property as they cannotbe considered as heirs even if the Will fails and, therefore, thecaveat should be discharged.6. Learned single Judge by taking note of the fact thatthe second appeals relating to the deeds of settlement andsubsequent revocation are pending in the High Court, it cannot besaid that there is no caveatable interest. For the aforesaidpurpose, the learned single Judge has placed reliance upon adecision of this Court reported in AIR 1972 Madras 212 = 1972(1)M.L.J. 4 (JAYAKUMAR v. RAMARATNAM).7. The main question raised in the present appeal is asto whether the present respondents have any caveatable interest in https://hcservices.ecourts.gov.in/hcservices/ the property. Learned counsel for the appellant has placedreliance upon a very recent decision of the Supreme Court reportedin 2008(4) Scale 202 (KRISHANA KUMAR BIRLA v. RAJENDRA SINGH LODHAAND OTHERS).8. The main contention of the caveators, which has beenaccepted by the learned single Judge, is to the effect that if thevalidity of the deeds of settlement in favour of the caveators isupheld in the pending Second Appeals, such caveators would be takento be the lawful owners and in such event it should be concludedthat the Testator had no disposable interest in the properties.The above claim of the caveators is fully supported by theobservations made in AIR 1972 Madras 212 (cited supra).9. If such a decision can be said to be still holding thefield, obviously the ultimate order passed by the learned singleJudge would be sustainable. Unfortunately, however, for thecaveators, in view of the subsequent decision of the Supreme Courtin 2008(4) Scale 202 (cited supra), it cannot be said that thedecision in AIR 1972 Madras 212 is still holding the field. As amatter of fact, the aforesaid decision of the Madras High Court hasbeen specifically considered by the Supreme Court in the decisioncited above and has been disapproved. The Supreme Court in theaforesaid decision had observed :-"89. The propositions of law which in our consideredview may be applied in a case of this nature are:(i)To sustain a caveat, a caveatable interest must beshown;(ii)The test required to be applied is: does theclaim of grant of probate prejudice his rightbecause it defeats some other line of succession interms whereof the caveator asserted his right.(iii)It is a fundamental nature of a probateproceeding that whatever would be the interest ofthe testator, the same must be accepted and therules laid down therein must be followed. Thelogical corollary whereof would be that any personquestioning the existence of title in respect ofthe estate or capacity of the testator to disposeof the property by Will on ground outside the lawof succession would be a stranger to the probateproceeding inasmuch as none of such rights caneffectively be adjudicated therein.”10. Applying the above test, the primary question is, ifthe Will fails, whether the caveators will have right to succeed tothe property.11. There is no dispute that Kanniammal was the lastabsolute female owner of the property. If the Will fails, https://hcservices.ecourts.gov.in/hcservices/ succession to such property will be in accordance with Section 15of the Hindu Succession Act. The caveators (and for that matterthe applicants for the issuance of Letters of Administration)claimed relationship not directly to Dhanakotti Ammal, but throughArjuna Gramini and the first wife Thayarammal. By no stretch ofimagination it can be said that such caveators can at all besuccessors to the property of Kanniammal, if the Will fails. Theirclaim to the property appears to be through the deeds of settlementand not on the basis of any right of succession as heirs. 12. In view of the above conclusion and particularly inview of the aforesaid decision of the Supreme Court, there is noescape from the conclusion that the present respondents in theircaveat petitions have not shown existence of any caveatableinterest and, therefore, the caveats filed by them are bound to bedischarged. It is, however, made clear that the aforesaidconclusion relating to caveat filed by them will not stand in theway of consideration of S.A.Nos.323 of 2000 and 1302 of 2006, whichare to be decided on their own merit in accordance with law. 13. In course of hearing, the learned counsel for therespondents submitted that possibility of any other Will cannot bediscounted at this stage. It is made clear that the presentdecision is on the basis of the interest projected by the presentrespondents based upon the deeds of settlement and if any personincluding the respondents have any other caveatable interest in thesuit property on the basis of any earlier Will or otherwise, itwould be open to such persons to pursue their remedy in accordancewith law and this order should not be construed as expressing anyopinion in such matter.14. The appeal is disposed of accordingly. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTr/dpkToThe Sub Assistant Registrar,Original Side, High Court, Madras.1 CC To Mr.K. Ramu, Advocate, SR NO.235481 CC To Mr.Sarvabhauman Associates, Advocate, SR NO.23783O.S.A.No.264 of 2006ka(co)pmk/20.8.2008.