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2005 Supreme(Mad) 734
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. ASHOK KUMAR
K.Chandrasekara Rao & Others - Appellant
Versus
G.Masilamani & Others - Respondents
CIVIL SUIT NO. 980 of 1999 AND TOS.NO:32 OF 2000
Decided On : 26 April 2005
Headnote:
Suit for declaration of title and possession of suit property, and to direct defendants 5 to 9 to deliver the suit property with mesne profits and costs. Counterclaim by defendants 1 to 3 for grant of probate of the will said to have been executed by the deceased Ramalakshmi Ammal. Trial court dismissed the suit and granted probate. Plaintiffs appealed.
Fact of the Case:
Plaintiffs claimed to be entitled to the suit property as heirs of Ramalakshmi Ammal, who died issueless. They alleged that the will dated 3.11.1986, under which defendants 1 to 3 claimed to be executors, was forged and that the sale of the property to defendants 5 to 9 was illegal. Defendants 1 to 3 contended that the will was genuine and that they were entitled to probate. They also adopted the written statement filed by the 4th defendant, who claimed to be the legatee under the will.
Finding of the Court:
The court found that the will was genuine and valid. It held that the plaintiffs were not entitled to the suit property as they were very far distant relatives of the testatrix. The court also held that the sale of the property to defendants 5 to 9 was valid as they were bona fide purchasers. The court dismissed the suit and granted probate to defendants 1 to 3.
Issues: 1. Whether the will dated 3.11.1986 was genuine and valid? 2. Whether the plaintiffs were entitled to the suit property as heirs of Ramalakshmi Ammal? 3. Whether the sale of the property to defendants 5 to 9 was valid? 4. Whether defendants 1 to 3 were entitled to probate of the will?
Ratio Decidendi: The court held that the will was genuine and valid based on the following factors: * The will was executed in the presence of two attesting witnesses who were not beneficiaries under the will. * The testatrix was of sound mind at the time of executing the will. * The will was consistent with the testatrix's wishes as expressed in her earlier statements and actions. The court held that the plaintiffs were not entitled to the suit property as they were very far distant relatives of the testatrix and that the sale of the property to defendants 5 to 9 was valid as they were bona fide purchasers.
Final Decision: The court dismissed the suit and granted probate to defendants 1 to 3.
Common Judgment:
The suit has been filed by the plaintiffs 1 to 7 through their power of Attorney Mrs.Lily Arputham for declaration that the plaintiffs are entitled to the suit property and to direct the defendants 5 to 9 to deliver the suit property with mesne profits and costs.
2. TOS.No:32 of 2000 has been filed by the petitioners (defendants 1 to 3 in C.S.No.980/99) against the plaintiffs in C.S.No.980 of 1999 for grant of probate of the will said to have been executed by the deceased Ramalakshmi Ammal. Since the defendants 4 to 9 are not parties in TOS.32 of 2000, though evidence was recorded in TOS.NO.32 of 2000, common judgment is delivered in C.S.No.980 of 1999 keeping the plaintiffs 1 to 7 as plaintiffs and the defendants 1 to 9 as defendants.
3. In the plaint, the plaintiffs have contended as follows:
The suit property belonged to one K.Ramalakshmi Ammal, wife of K.V.Subba Rao. She inherited the suit property from her husband. She was residing in a portion and let out the remaining portions to six persons including one P.Arputhham, the husband of the power agent of the plaintiffs and Narasimhan, the third defendant. Ramalakshmi Ammal was also having number of jewels, silver vessels and brass vessels. She sold one property on 29.8.1986 for Rs.2,75,000/=. The first and third defendants were helping her. K.Jagannatha Rao, an agnate of Ramalakshmi Ammal and his daughter, the 7th plaintiff were also helping her. However, she was completely guided by the defendants 1 to 3. Ramalakshmi Ammal died on 26.12.1986 when she was about 83 years. On the date of death, K.Jagannatha Rao being an agnate performed the funeral rites. He was not having details about her properties. He only knew that she had jewels, silver vessels and brass vessels and bank balances besides the suit property. The defendants 1 to 3 alone were possessed of the details.
4. During October 1987 the first defendant gave a cheque for Rs.9000/= to K.Jagannatha Rao stating that the deceased directed him to give the amount. He became suspicious and enquired about her properties. He came to know that the defendants 1 to 3 claiming to be executors of an alleged will dated 3.11.1986 filed O.P.No.135 of 1987 before this Court and obtained probate on 2.7.1987. No notice has been given to Jagannatha Rao before filing the said O.P. Then K.Jagannatha Rao filed an application 3926 of 1988 in the said O.P., for revoking the grant of probate dated 2.7.1987. The defendants 1 to 3 alone filed counters. By order dated 19.7.1989 the grant of probate was revoked. Though 10 years have passed, the defendants 1 to 3 have not taken any steps to convert the O.P.No.135 of 1987 into a suit.
5. In the counter filed, the defendants 1 to 3 did not say how they dealt with the assets. The 4th defendant sold the suit property under a registered sale deed dated 22.1.1988 for Rs.12 lakhs to the defendants 5 to 9 as if he is a legatee and absolutely entitled to the suit property. The defendants 1 to 3 in their counter did not say that they assented to the vesting of the legacy. The tenants did not pay the rent to the defendants 1 to 3. Though the defendants 5 to 9 purchased the suit property on 22.1.1988 they did not get possession of the entire property. Except, P.Arputham others vacated the premises during the period from 1988 to 1997. The purchasers got partial possession only in the year 1988.
6. Ramalaskhmi Ammal was suffering from severe diabetes. She was admitted in VHS Medical Center on 24.5.1986 and was discharged on 4.6.1986. It was found that tissues in the posterior portion of brain were dead. In October 1986, on account of advanced stage of diabetes other complications arose. Her left side body was completely affected. She was bed ridden A nurse was appointed to attend on her ever since the date of discharge from VHS Medical Centre. The 7th plaintiff was helping K.Ramalakshmi Ammal for taking food, clothing etc., On 3.11.1986 she could not eat. She was vomiting and her condi
