IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 14.09.2011
CORAM
THE HON'BLE MRS. JUSTICE R.BANUMATHI
and
THE HON'BLE MR. JUSTICE B.RAJENDRAN
O.S.A.NO.324 OF 2010
Dr.R.A.Venkatesan ... Appellant
Vs.
1.D.Jenbagalakshmi
2.D.Uma Rani
3.D.Renuka Devi
4.T.Ramasamy Nadar
5.P.Jayapandian Nadar ... Respondents
Original Side Appeal is filed under Order XXXVI Rule 1 of the Original Side Rules read with Clause 15 of the Letters Patent against the order dated 20.08.2009 made in A.No.3268 of 2006 in O.P.No.549 of 2003 on the file of this Court.
For Appellant : Ms.A.V.Aruna Devi
For Respondents : Mr.K.Doraisamy
Senior Counsel
for
Ms.Muthumani Doraisamy
JUDGMENT
R.BANUMATHI,J
Being aggrieved by allowing A.No.3268 of 2006 in O.P.No.549 of 2003 revoking the Letters of Administration granted in O.P.No.549 of 2003 [20.08.2009], Appellant has preferred this appeal.
2. Case of the Appellant is that he is the adoptive son of late C.N.Rangabashyam Naidu and Perundevi Ammal @ R.Sakuntala Bai Ammal. His adoptive mother Perundevi Ammal @ Sakuntala Bai Ammal and his natural mother Adhilakshmi Ammal @ Seethammal are blood related sisters and that Perundevi Ammal @ Sakuntala Bai Ammal orally adopted the Appellant as her son when he was six months old and he was brought up and educated by his adoptive parents. His adoptive father Rangabashyam Naidu's name finds place in his school and college records and that he joined the services under the control of District Veterinary Officer at Tirunelveli as Veterinary Assistant Surgeon. His adoptive mother Perundevi Ammal had purchased the property situated at No.3, Prasanna Vinayagar Koil street, Mylapore, Chennai-4 under sale deed dated 19.11.1953. Rangabashyam Naidu died on 19.11.1972 and Perundevi Ammal died on 15.11.1973 leaving behind the above said property at No.3, Prasanna Vinayagar Koil street, Mylapore, Chennai-4. According to Appellant, he approached the authority for obtaining legal heirship certificate. But the Tahsildar asked the Appellant to obtain Succession Certificate from the competent Court and hence he filed O.P.No.549 of 2003 for grant of Letters of Administration. No Respondents were shown in O.P.No.549 of 2003. By the order dated 16.12.2003, Letters of Administration was granted to the Appellant for administration of the property of late Perundevi Ammal.
3. After getting an exparte order in O.P.No.549 of 2003, Appellant has filed O.S.No.4995 of 2005 on the file of XV Assistant City Civil Court, Chennai for delivery of possession of the said property in No.3, Prasanna Vinayagar Koil street, Mylapore, Chennai-4. On receiving notice in the said O.S.No.4995 of 2005, Respondents have filed A.No.3268 of 2006 for revoking the Letters of Administration.
4. Case of Respondents 1 to 3 is that 1st Respondent is the grand daughter of Lakshmidevi Ammal, one of the sister of Perundevi Ammal. According to Respondents 1 to 3, Perundevi Ammal settled her property in No.3, Prasanna Vinayagar Koil street, Mylapore, Chennai-4 infavour of Dhanapal who is the husband of 1st Respondent under settlement deed dated 23.08.1973. Case of Respondents is that Dhanapal is the adopted son of Perundevi Ammal and after the settlement, Dhanapal was in continuous possession and enjoyment of the same as absolute owner till his death on 08.11.1989. After the death of Dhanapal, 1st Respondent and their daughters - Respondents 2 and 3 succeeded to the property as legal heirs of Dhanapal and that they were in an uninterrupted possession and enjoyment of the property. Subsequently, Respondents 1 to 3 sold the property to Respondents 4 and 5 for valid consideration under sale deed dated 28.6.1993 and Respondents 4 and 5 are in absolute possession and enjoyment of the said property. Respondents 1 to 5 prayed for revocation of Letters of Administration granted in O.P.No.549 of 2003 on the ground that Letters of Administration was obtained by misrepresentation and fraud and without impleading the Respondents 1 to 3 as Respondents and therefore, the Letters of Administration is liable to be revoked.
5. Upon consideration of rival contentions and materials, learned Judge held that Original Side Rules require notice to be given to the kith and kin of the deceased and that grant of probate binds all parties and the aggrieved person has right to question the probate. Observing that in view of caveatable interest expressed by the Respondents 1 to 5, learned Judge revoked the Letters of Administration and directed the O.P.No.549 of 2003 to be converted into TOS.
6. Challenging the impugned order, Ms.Aruna Devi, learned counsel appearing for Appellant has contended that though there is no Will in this case, in the impugned order the learned Judge proceeded under wrong impression that there is a Will existing in this case. It was further submitted that learned Judge did not comprehend that 1st Respondent is not claiming any caveatable interest on her own but she is claiming caveatable interest only as legal heirs of her husband Dhanapal by virtue of an alleged settlement deed dated 23.08.1973 which is a forged document. It was further submitted that in the alleged settlement deed dated 23.08.1973, Dhanapal is stated as son of Rangarajulu Naidu who is a total outsider and not in any way connected with the Appellant's family which was not properly considered by the learned Judge.
7. Onbehalf of Respondents, Mr.K.Doraisamy, learned Senior Counsel has contended that Appellant is claiming right as an adopted son of Rangabashyam Naidu and Perundevi Ammal nearly 30 years after their death and has filed O.P.No.549 of 2003 with a false case of adoption and obtained an exparte order for grant of Letters of Administration by misrepresentation and fraud without impleading the Respondents 1 to 3 as party Respondents. Learned Senior Counsel would further contend that the property was settled infavour of Dhanapal, husband of 1st Respondent way back in 1973 and the property was also sold to Respondents 4 and 5 and suppressing the same, Appellant has filed O.P.No.549 of 2003 for grant of Letters of Administration and the learned Judge has rightly revoked the Letters of Administration and directed the O.P.No.549 of 2003 to be converted as TOS.
8. Rangabashyam Naidu and Perundevi Ammal died intestate. Appellant has filed O.P.No.549 of 2003 after 30 years of the death of Perundevi Ammal for grant of Letters of Administration claiming that he is the adopted son of C.N.Rangabashyam Naidu and Perundevi Ammal. The parties are related as under:-
Dr.Veerasami
|
---------------------------------------------------------------------------
| | |
Lakshmi Devi Seethammal Perundevi Ammal
= Dorairaj @ Adhilakshmi ammal @ Sakuntala Bai Ammal
| = Alwar Naidu (died on 15.11.1973)
| | = C.N.Rangabashyam Naidu
| | (died on 19.12.1972)
| | |
-------------------------------- ? ?
| | | Dr.R.A.Venkatesan No issue
Jenbaga- Umda Devi Renuga Devi (Appellant)
lakshmi[R1] [R2] [R3]
=Dhanapal
(died on
08.11.1989)
9. Original Petition No.549 of 2003 has been filed under Sections 218 and 278 read with Order XXV, Rule 1 of Original Side Rules. Under Section 218 of Indian Succession Act, Letters of Administration can be granted only when there has been an intestacy. Admittedly, Perundevi Ammal died intestate. But the learned Judge appears to have proceeded as if there was a Will. In Paragraph (8) of the impugned order, the learned Judge observed that "Hence, Letters of Administration is filed on the basis of the Will". Learned Judge has also observed that it is a probate proceeding. The observation of the learned Judge that ....... there is a Will existing .... is factual incorrect. However, we are of the view that the said factual mistake shall not affect the correctness of the impugned order.
10. While considering the question to whom administration should be granted, as per Section 218 of Indian Succession Act, the right to a grant of administration follows the right of succession, and an heir entitled to a shares on the distribution of the deceased intestate's estate is entitled to grant of Letters. In the present case, Appellant claims himself as an adopted son of Rangabashyam Naidu and Perundevi Ammal. Claiming himself to be the adopted son of Rangabashyam Naidu and Perundevi Ammal, nearly 30 years after their death, raises doubts about his claim.
11. 1st Respondent also claims that her husband Dhanapal is the adopted son of Rangabashyam Naidu and Perundevi Ammal. It is to be pointed out that in the settlement deed dated 23.08.1973, 1st Respondent's husband Dhanapal has not been described as adopted son of Rangabashyam Naidu and Perundevi Ammal, but only described as son of "Rangarajulu Naidu". Question whether either the Appellant-Dr.R.A.Venkatesan or Dhanapal were actually the adopted son of Rangabashyam Naidu and Perundevi Ammal is to be resolved only in the suit now converted as TOS.
12. In this appeal, the points falling for consideration are:- (i) Dehors the plea of adoption by Dhanapal, whether the Respondents can seek for revocation of Letters of Administration granted in O.P.No.549 of 2003; and (ii) Whether the learned Judge was not right in revoking the Letters of Administration and converting the O.P.No.549 of 2003 into TOS.
13. A grant of administration does not decide any question of title. It merely decides the right to administer. When deciding the grant of Letters of Administration, the Court would not go into the question of title. When a person seeks Letters of Administration, under Section 218 of Indian Succession Act, it is sufficient if the applicant for Letters of Administration alleges that there is a property to be distributed and that he is entitled to the whole or part of it. Although it is not necessary for the Court to decide what assets are likely to come to the hands of the applicant for Letters of Administration. Court is duty bound to consider whether there is any estate at all to be administered. Court need to specify whether any property was left by the deceased.
14. As pointed out earlier, case of Respondents is that Perundevi Ammal settled her immovable property at No.3, Prasanna Vinayagar Koil street, Mylapore, Chennai-4 infavour of Dhanapal under settlement deed dated 23.08.1973 and after the settlement deed, Dhanapal was in continuous possession and enjoyment of the same as absolute owner till his death on 08.11.1989. Further case of Respondents is that after the death of Dhanapal, Respondents 1 to 3 were in possession and enjoyment of the said property and that they sold the property to Respondents 4 and 5 under sale deed dated 28.06.1993 and Respondents 4 and 5 are in possession and enjoyment of the property. No application of Letters of Administration can be entertained to an estate which was already disposed of even during the life time of the deceased. When property was already disposed of even during the life time of deceased, Respondents have a right to show before the Court that the schedule property is not available to be administered.
15. All persons who have "an interest in the estate of the deceased" and are entitled to enter caveat and oppose the grant of probate under Section 263 of the Act are also entitled to apply for revocation of the probate. It is well established that any interest, however slight is sufficient to entitle a party to oppose Letters of Administration/Probate.
16. As seen from the genealogy, Perundevi Ammal had two sisters. Under Order XXV, Rule 31 of Original Side Rules, where Letters of administration is applied for by one or some of the next-of-kin only, there being another or other next-of-kin equally entitled thereto, the applicant is required to file proof by affidavit that notice of such application has been given to such other next-of-kin. Referring to non-compliance of Order XXV, Rule 31 of Original Side Rules, learned Judge has referred (2008) 1 SCC 267 [Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal] wherein while considering the similar rule framed by Bombay High Court, the Hon'ble Supreme Court held that "non-issuance of notice to near relatives may be hit by Section 263 of Indian Succession Act".
17. As per Section 263, Explanation (b), Letters of Administration may be revoked where "the grant was obtained fraudulently by making false suggestion or by concealing from the Court something material to the case". Section 263, Explanation (c) states that "just cause exist where the grant is obtained by means of untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently". Since Perundevi Ammal is already is said to have settled the property even in 1973 and subsequently, sold by sale deed dated 28.03.1993, in all fairness the Appellant should have disclosed in the Petition about the said settlement deed and sale deed. Only after the Respondents have filed the application for revocation of Letters of Administration, in his counter-affidavit, Appellant has alleged that the settlement deed is a fraudulent one only. In our considered view, non-disclosure of the settlement deed and sale deed would squarely fall within the meaning of "concealing from the Court something material to the case" under Section 263 Explanation clause (b) of Indian Succession Act.
18. Considering the scope of "locus standi" of the person seeking revocation and the test for determination of locus standi, referring to various decisions, in 1995-2 LW 852 [S.Panchanathan v. Elappan (died) and 5 others], it was held as under:-
"22. The question as to who is entitled to file an application under Section 263 of Indian Succession Act, has been the subject matter of several decisions of various High Courts. In Sadananda Pyme v. Harinam Sha, AIR 1950 Cal. 179, a Division Bench of the Calcutta High Court held that a person holding an interest in the property in the event of intestacy is one, who Will have locus standi to file an application under Section 263 of the Indian Succession Act. In Promode Kumar Roy v. Sephalika Dutta, AIR 1957 Cal 631, a Division Bench of that Court held that person who has acquired an interest in the testator's estate, though after his death, by reason of the mortgage transfer by the testator's son and who is undoubtedly also a creditor of the testator's said son, whom the alleged Will purports to disinherit has plainly locus standi to apply for revocation of the grant, particularly when his allegation is that the grant was obtained in fraud of the creditors. In the Goods of Ganapati Sarkar, AIR 1959 Cal. 227, a single Judge of that Court held that a slightest interest in the estate Will entitled one to be a party to probate proceedings. In another Bench decision the Calcutta High Court in Annapurna Kumar v. Subodh Chandra Kumar, AIR 1970 Cal. 433, has held that any interest, however, slight, and even a bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. In Rao & Sons v. Chandamon del, AIR 1971 Orissa 95, a single Judge of that Court went to the extent of holding that creditors of the heirs at law of the testator were entitled to ask for revocation of probate and enter caveat during probate proceedings in response to a general citation. In Sima Rani Mohanti v. Puspa Rani Pal, AIR 1978 Cal. 140, a Division Bench of that Court reiterated the proposition laid down in Annapurna Kumar's case, AIR 1970 Cal. 433 (supra).
23. Recently, a Division Bench of this Court, to which one of us was a party held in Gita @ Gita Ravi v. Mary Jenet James @ James (1995) 1 MLJ 467 : 1995 (2) LW 831 held that explanation (a) to (e) in Section 263 of the Indian Succession Act is not exhaustive and the Court is not fettered by the explanation while deciding whether there is just cause for revocation of a grant. It is held that the explanation would only mean that in cases, where one of the circumstances set out in clauses (a) to (e) is present, a legal fiction comes into existence to the effect that in such cases, there is just cause for revocation. If there are circumstances, which do not fall within the ambit of clauses (a) to (e), but which warrant or necessitate the revocation of the grant, the Court is entitled to revoke the grant or annul the same even though there is no legal fiction."
19. In the above said case, the respondent Ellappa Chettiar was a close relation standing in the same degree of relationship as the wife of the appellant and also a probable legal heir of the deceased. Bench has pointed out that consideration of material fact and failure to specify in Form 58 close relations of deceased who would normally be entitled to claim heirship in the absence of a testament would be sufficient to revoke grant of Letters of Administration and explanation (a) to (e) in Section 263 is not exhaustive.
20. Referring to various decisions, in AIR 1972 Orissa 178 [Shanti Devi Agarwalla v. Kusum Kumari Sarkar], learned single Judge of Orissa High Court held that even bare possibility of a interest is sufficient to entitle a person to oppose testamentary instrument. In the said case, part of property was purchased from one of the Legatees relying on second Will. That purchaser would be affected if probate is granted through first Will. The learned single Judge has held that vendor legatee is entitled to enter caveat in respect of first Will, the purchaser having stepped into the shoes of the vendor is also entitled to enter caveat.
21. Referring to the above judgments, in (2007) 6 MLJ 290 [S.Bhaskaran and another v. R.Loganathan] (in which one of us was a member RBIJ), the Appellant claimed to have purchased the property through Ranganayaki who is the Class I heir of Purushothaman. Observing that any interest howsoever slight, is sufficient to entitle to oppose the grant, the Division Bench of this Court held as follows:-
"Purchasers of property from a Class I heir, have caveatable interest in the probate proceedings initiated in respect of the Will executed by the husband of the said Class I heir, especially when the said Class I heir is alleged to have only life interest over the property."
22. In the case on hand when the property was already said to have been disposed of by way of settlement deed infavour of Dhanapal and subsequently sold, the Respondents definitely have interest in the property to oppose the Letters of Administration. More so, when the Letters of Administration was sought for nearly 30 years after the death of Perundevi Ammal.
23. As per Order XXV, Rule 9 of Original Side Rules, in any case where Probate or Letters of Administration is for first time applied for after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the Petition. Letters of Administration/Probate can be granted only if the delay is explained. In the instant case, Rangabashyam Naidu died on 19.12.1972 and Perundevi Ammal died on 15.11.1973. Appellant has filed O.P.No.549 of 2003 for grant of Letters of Administration nearly 30 years after the death of the deceased. In O.P.No.549 of 1993, Appellant has not convincingly explained the reason for the delay. It is pertinent to note that immediately after getting Letters of Administration, Appellant had filed O.S.No.4995 of 2005 on the file of XV Assistant City Civil Court, Chennai for recovery of possession from the Respondents. Reasonable doubts arise as to the bonafide of the Appellant. In order to prevent misuse of the jurisdiction of the testamentary and intestate matters, we feel that whenever there is an inordinate delay in filing the Petition for Letters of Administration, it would be appropriate that the testamentary Court insist for production of legal heir ship certificate, encumbrance certificate and other relevant documents of the estate of the deceased. Observing that notice ought to have been sent to the next-of-kin and that the aggrieved person has a right to question the Letters of Administration, the learned Judge has rightly revoked the Letters of Administration. Notwithstanding the factual mistake crept in the impugned order, we do not find any reason warranting interference in the impugned order.
24. In the result, the appeal is dismissed. Consequently, connected M.P. is closed. No costs. We request the learned Judge to proceed with the TOS.
bbr
To
The Sub Assistant Registrar,
Original Side,
High Court,
Madras
