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High Court of Judicature at Madras
THANGAMANI
R. Krishnamoorthy
Versus
J. Chandrasekaran
T.O.S. No. 28 of 1982
Decided On :Decided On : 20-12-1991
PROBATE - REVOCATION - LEGAL REPRESENTATIVES OF DECEASED DEFENDANT - CAVEATABLE INTEREST - NECESSITY - INDIAN SUCCESSION ACT, 1925 - SECTIONS 15(1), 15(2)(A), 222, 263, 276, 295, 300 - CODE OF CIVIL PROCEDURE, 1908 - ORDER 4 RULE 1, ORDER 22 RULE 4, ORDER 22 RULE 10(A), ORDER 25 RULE 67 - SUPREME COURT RULES, 1966 - ORDER 41 RULE 11 - LIMITATION ACT, 1963 - SECTION 5 - REPRESENTATION OF PEOPLE ACT, 1951 - SECTION 86(1) - CONSTITUTION OF INDIA, 1950 - ARTICLE 136 - CIVIL PROCEDURE CODE, 1908 - ORDER 22 RULE 4 - INDIAN SUCCESSION ACT, 1925 - SECTION 295 - INDIAN SUCCESSION ACT, 1925 - SECTION 276 - INDIAN SUCCESSION ACT, 1925 - SECTION 300 - INDIAN SUCCESSION ACT, 1925 - SECTION 295 - CODE OF CIVIL PROCEDURE, 1908 - ORDER 4 RULE 1 - INDIAN SUCCESSION ACT, 1925 - SECTION 222 - INDIAN SUCCESSION ACT, 1925 - SECTION 263 - INDIAN SUCCESSION ACT, 1925 - SECTION 15(1) - INDIAN SUCCESSION ACT, 1925 - SECTION 15(2)(A) - CODE OF CIVIL PROCEDURE, 1908 - ORDER 25 RULE 67
Fact of the Case:
The plaintiff, an executor of the will of Smt. Padmini Chandrasekaran, filed an application for grant of probate. The husband of the deceased opposed the application, claiming that the probate was obtained without disclosing his existence or issuing any notice to him. The single judge allowed the application and directed revocation of the grant of probate. On appeal, a division bench of the High Court allowed the appeal and set aside the order of revocation. The husband of the testatrix appealed to the Supreme Court, which set aside the judgment of the High Court and directed that the matter be treated as a regular testamentary suit in the original side of the High Court.
Finding of the Court:
The court held that the legal representatives of the deceased defendant did not have to be brought on record in the testamentary original suit, as they did not have any caveatable interest in the estate of the deceased Padmini Chandrasekaran. The court further held that the caveat filed by the deceased defendant had lapsed with his death and there were no persons who could succeed him with caveatable interest in the estate of the deceased Padmini Chandrasekaran.
Issues: Whether the legal representatives of the deceased defendant have to be brought on record in T.O.S. No. 78 of 1982?
Ratio Decidendi: The court relied on the following principles in reaching its decision: * A person must have an interest in the estate of the deceased, supposing he had died intestate, in order to have the locus standi to apply for revocation of probate. * A person who has merely the possession of a trespasser has no interest in the estate of the deceased and therefore has no locus standi to file such an application. * The proceedings in an application for grant of probate are not an action in law, but rather a moral duty that the applicant seeks recognition from the Court to perform. * The existence of a caveatable interest is a condition precedent for coming on record in a probate proceeding, whether it is a mere petition or a testamentary suit.
Final Decision: The court upheld the objection of the plaintiff and directed him to prove the will in solemn form by examining the attestors.
One Smt. Padmini Chandrasekaran died on 7.6.1980 at Madras leaving behind a registered will dated 20.9.1975. The plaintiff herein Thiru R. Krishnamurthy and one H.B.N. Setty were appointed as executors under the Will. The latter had relinquished his post as such executor by virtue of his being in the Indian Administrative Service. Thereupon the plaintiff filed O.P. 117 of 1981 on the file of this Court under Ss. 222 and 276 of the Indian Succession Act for the grant of probate. By an order dated 28.4.1981 probate was issued to him. Subsequently the husband of deceased Padmini Chandrasekaran came forward with Application No. 1998 of 1982 to revoke the probate granted by this court. According to him the probate was obtained even without disclosing his existence and without any attempt to issue any notice to him. That application was stoutly opposed by the present plaintiff on the ground that the genuineness of the will was not challenged by the husband in the earlier proceedings. A single Judge of this Court has allowed the application and directed revocation of the grant of probate under S. 263 of the Indian Succession Act by his order dated 16.9.1982. And the O.P. was converted as T.O.S. 28 of 1982. Against this order the plaintiff herein preferred O.S.A. 96 of 1983. A Division Bench of this Court allowed the appeal on 24.3.1984. The husband of the testatrix took up the matter in appeal before the Supreme Court in Civil Appeal No. 4462 of 1984. As the parties have agreed to settle the matter between themselves the Supreme Court by its order dated 11.9.1985 set aside the judgment passed by this Court in O.P. No. 117 of 1981 dated 16.9.1982 and in O.S.A. No. 96 of 1983 dated 12.3.1984 and held that on the caveat filed by the husband the matter would be treated as regular testamentary suit in the original side of the High Court and this Court will proceed to dispose of this matter at its convenience but as early as possible.
2. While this T.O.S. No. 28 of 1982 was pending Application Nos. 17, 18, 19 and 20 of 1989 came to be filed by one minor J. Gnanaprakasam represented by J. Chandrasekaran the husband or the testatrix. Application No. 17 of 1989 was for impleading the said J. Gnanaprakasam as a party in the T.O.S. on the ground that he was adopted on 7.12.1988 as son by the above said J. Chandrasekaran under a registered deed of adoption, that the deceased Padmini Chandrasekaran would become his adoptive mother by such adoption and that he would be her heir. This application was dismissed as absolutely misconceived and consequently the prayer in the other three applications were also rejected.
3. Subsequently on 31.5.1991 the defendant who is the husband of the deceased testatrix died on 17.7.1991 the counsel for defendant filed a memo in Court informing the death of his client. He had also served a notice on the counsel for the plaintiff stating that the deceased defendant has left his two brothers as legal representatives and also an adopted son minor Prakash. Deceased had also left a Will dated 11.3.1991.
4. The plaintiff has filed an objection memo mentioning that the properties which are the subject matter of the suit were inherited by deceased Padmini Chandrasekaran only as heir to her father. And so only her fathers heirs could have any caveatable interest to oppose the grant of probate. Even the caveatable interest of the deceased husband Chandrasekaran itself was in dispute. On the death of Chandrasekaran on 31.5.1991 the caveat terminated and there cannot be persons succeeding Chandrasekaran. There is no need to bring on record any legal representative of the deceased defendant as the caveat has lapsed with defendants death.
5. The point for determination is whether the legal representatives of the deceased defendant have to be brought on record in T.O.S. No. 78 of 1982?
6. The learned counsel for the deceased defendant represented that by filing the memo dated 17.7.1991 he has simply carried out the duty e
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