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2011 Supreme(Mad) 2856
2011 (3) LW 633, 2011 (4) CTC 593
High Court of Judicature at Madras
R. BANUMATHI & V. PERIYA KARUPPIAH
P. Dhanakoti
Versus
Devikarani @ Devaki & Others
O.S.A.No.245 of 2010
Decided on : 21-06-2011
For the Appellant:Kalyanasundaram, Senior Counsel for B. Venugopal, Advocate.
For the Respondents:R2 - N. Rajan, R3, R5 & R6 - M. Vijayakumar, Advocates.
The probate court is not competent to determine the question of title to the properties covered by the Will.
Headnote:
Probate - Will - Sec.68 of Indian Evidence Act, Sec.4 of Benami Transactions (Prohibition) Act, 1988, Sec.14 of Hindu Succession Act - The court discussed the execution of the Will, the rights of the testator in the 'B' schedule property, and the applicability of the Benami Transactions Act. The court emphasized that the probate court is not competent to determine the question of title to the properties covered by the Will and directed the parties to work out the remedy before the competent Civil Court.
Fact of the Case:
The deceased executed a Will bequeathing properties to the Appellant and other legal heirs. The Appellant sought probate, which was declined by the lower court due to a dispute over the 'B' schedule property.
Finding of the Court:
The court held that the probate court is not competent to determine the question of title to the properties covered by the Will and directed the parties to work out the remedy before the competent Civil Court.
Issues: The main issue was whether the Plaintiff is entitled to the grant of probate as sought for. Additional issues included the ownership of the 'B' schedule property and the rights of the testator in the property.
Ratio Decidendi: The probate court is not competent to determine the question of title to the properties covered by the Will. The grant of probate by a competent Court is conclusive of the validity of the Will itself, but it cannot decide the title of the testator in the suit properties.
Final Decision: The appeal was allowed, and the decree and judgment declining to grant probate in respect of the 'B' schedule property to the Will were set aside. Probate in respect of the 'B' schedule property to the Will was granted, and the direction of the lower court as to the Letter of Administration of the deceased shall hold good for the 'B' schedule property to the Will also.
R. Banumathi, J
1. This appeal arises out of the Decree and Judgment in T.O.S.No.2 of 2007 dated 03.03.2008 in and by which grant of probate in respect of "B" schedule property described in the Will dated 11.08.1995 executed by deceased A.Pattabiraman appointing the Appellant as executor of the Will was declined. Plaintiff is the Appellant herein.
2. Deceased Pattabiraman had five daughters and four sons. One of his daughter viz., Jayalakshmi, mother of Respondents 8 & 9 predeceased the deceased Pattabiraman. Wife of deceased Pattabiraman predeceased and the parents of the deceased also predeceased. Pattabiraman died on 04.09.1995 leaving the Respondents 1 to 9 as his legal heirs.
3. The genealogy of deceased Pattabiraman is as under:-
Pattabiraman
[died on 04.09.1995]
= Radhabai Ammal [died in 1986]
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Dhana- Devika Rani Mohana- Thiaga- Bala- Mythili Gaja- Jaya- P.Revathi
kotti@ Devika sundaram rajan sundaram lakshmi lakshmi[died]
[Plff] [R1] [R2] [R3] [R4] [R5] [R6] | [R7]
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N.Saravana- N.Swaminathan
kumar
[R8] [R9]
4. Case of Appellant is that deceased Pattabiraman had executed his last Will and testament [Ex.P1] at Madras on 11.08.1995 bequeathing all his self acquired properties infavour of Appellant and the Respondents 1 to 9 by cancelling the earlier Will dated 15.06.1995 and the same was registered as Doc. No.57 of 1995 in Sub Registrar Office, Triplicane. Appellant and Respondents 1 to 9 are entitled to the properties left by the deceased as per the last Will dated 11.8.1995. Appellant was appointed as the executor under the Will [Ex.P1] dated 11.08.1995. According to Appellant, the amount of assets which is likely to come to the hands of the Appellant in aggregate comes to Rs.2,00,600/- after deducting all items which the Appellant in law is allowed to deduct.
5. Appellant-Plaintiff being the executor of Ex.P1 Will has filed O.P.No.317 of 1999 for grant of probate. After completion of the proceedings before the Master, order of probate was granted by Justice M.Chockalingam on 08.02.2006. 2nd Respondent-2nd Defendant has filed application in A.No.3753 of 2006 for setting aside the order of grant of probate passed in O.P.No.317 of 1999 on the ground that name of his counsel was not printed in the cause list on the date of final enquiry proceedings in O.P.No.317 of 1999. The order of grant of probate passed in O.P.No.317 of 1999 dated 08.02.2006 was set aside by Justice S.Rajeswaran by an order dated 20.09.2006. The contesting 2nd Respondent-2nd Defendant filed Caveat and hence, O.P.No.317 of 1999 was converted as T.O.S.No.2 of 2007.
6. Non contesting Respondents/Defendants 1,3, 5, 6 and 7 have filed consent affidavits on 29.04.2005 and 22.12.2005 respectively stating that they have no objection in granting Letter of Administration to the Appellant/Plaintiff. Respondents 8 and 9 have not entered appearance in the proceedings.
7. Resisting the suit, 2nd Defendant filed written statement contending that Appellant- Plaintiff has not rendered any accounts to any of the Defendants in respect of the movable and immovable assets bequeathed and holding onbehalf of the legal heirs. According to 2nd Defendant, since the Appellant failed to perform the duties as an executor of the Will and also non-compliance of payment of property tax and maintenance of the assets, 2nd Defendant has filed suit in O.S.No.8466 of 1995 on the file of II Asst. City Civil Court, Chennai stating that the property viz., No.63, C.N.K. Road, Triplicane, Chennai described in the "B" schedule of the Will belonged to Radhabai Ammal, wife of deceased Pattabiraman. By the Judgment dated 20.02.2003, the trial Court dismissed O.S.No.8466 of 1995 filed by the 2nd Defendant on the ground that the deceased left the Will and the grievance of the parties will be agitated only in the High Court
