Back
IN THE HIGH COURT OF MADRAS
R. Subramanian, J.
G. Srinivas - Appellant
Vs.
M. Swaminathan - Respondent
Application No. 4119 of 2015; Original Petition No. 408 of 2014
Decided On : 09-07-2019
Indian Succession Act - Section 263 - Seeking revocation of grant - Oral evidence – Death – Claim of compensation - Upon their filing consent affidavits, this Court had granted Probate - Applicants who claim to be the second wife and son born through the second wife of husband of the Testatrix had come forward with this application seeking revocation of Probate - According to the applicants, the Testatrix had married who was a renowned actor some time in - There were no children born out of said wedlock. According to the applicants, the deceased married applicant and out of said wedlock applicant was born applicants would also contend that died intestate on her death, property devolved on her husband - On death of property devolved applicant who is the son through the second marriage – Held, Reliance is also placed on judgment of learned Single Judge of Madhya Pradesh High Court in wherein it was held that a presumption of marriage cannot be raised only on ground of cohabitation conditions of habit and repute are necessary that its existence must be satisfied beyond doubt - In case on hand Court have enough oral and documentary evidence which goes to show beyond doubt that deceased and applicant were in fact living as husband and wife at for over – In light of said evidence Court constrained to observe that applicants have made out a strong case for presumption of valid marriage between applicant and deceased G and nothing has been elicited to discredit said evidence and no evidence has been placed in rebuttal of said presumption - As already pointed out, oral evidence coupled with effect of documents birth certificate of the applicant family card of deceased sale deeds would go to show that there was a marriage between and applicant and applicant was born out of the said marriage - Once it is found that applicant was born out of the marriage between deceased and applicant he would be illegitimate child of the deceased entitled to the benefits of Section 16(2) of Hindu Marriage Act - In absence of Will applicant would be natural heir and he would have inherited the property which would have devolved upon the deceased - In the light of said unimpeachable evidence Court constrained to hold that applicants particularly applicant has established that has a caveat able interest and should have been notified before grant of Probate fact that applicant was not imp leaded as party to Original Petition and no citation was issued to him before grant makes grant revocable – Petition allowed
JUDGMENT :
R. Subramanian, J.
The instant application is one seeking revocation of grant of Probate of the Will dated 27.03.1998 said to have been executed by G.Parvathi W/o. G.Ramakrishna who died on 24.04.1998.
2. The Original Petition was filed by the Executor seeking Probate. The Legatees who are the brother's grandchildren of Testator were cited as respondents in the Original Petition.
3. Upon their filing consent affidavits, this Court had granted Probate on 25.02.2015. The applicants who claim to be the second wife and son born through the second wife of G.Ramakrishna, husband of the Testatrix had come forward with this application seeking revocation of Probate.
4. According to the applicants, the Testatrix Parvathi had married G.Ramakrishna who was a renowned telugu actor some time in the year 1963. There were no children born out of the said wedlock. According to the applicants, the deceased G.Ramakrishna married the 2nd applicant on 18.01.1973 and out of the said wedlock, the 1st applicant was born on 23.03.1974. The applicants would also contend that Parvathi died intestate on 24.04.1998 and on her death, the property devolved on her husband G.Ramakrishna. On the death of G.Ramakrishna on 23.10.2001, the property devolved on the 1st applicant who is the son through the second marriage.
5. Therefore, according to the applicants, the 1st applicant would have inherited the estate in the event of intestacy of late G.Parvathi. Hence, he should have been made a party to the Original Petition and notice should have been issued to him. Inasmuch as the 1st applicant was not made a party to the Original Petition, the applicants seek for revocation of Probate under Section 263 of the Indian Succession Act.
6. The application is being resisted by the respondents viz., Executor as well as the Legatees contending that there was no marriage between the 2nd applicant and the said G.Ramakrishna. In the absence of proof of marriage, the 1st applicant cannot be construed to be an illegitimate son. Therefore, he has no caveatable interest and as such, he cannot seek revocation of Probate.
7. The matter was heard by the Hon'ble Mr.Justice C.V.Karthikeyan. By an order dated 06.11.2017, the applicants were called upon to prove the marriage of the 2nd applicant with G.Ramakrishna and also establish that they have caveatable interest. Hence, the matter was posted before the learned Additional Master for recording of evidence. Before the learned Additional Master, the 2nd applicant was examined as PW1, one T.S.Aswin Kumar, the purohit who claims to have performed the marriage of the 2nd applicant with G.Ramakrishna was examined as PW2. The elder sister of the 2nd applicant S.Swarnalakshmi was examined as PW3. The applicants also marked 11 documents as Ex.P1 to Ex.P11. The respondents did not let in any evidence.
8. The only issue that arises for consideration in this application is as to whether there was a marriage between the 2nd applicant and G.Ramakrishna and whether the 1st applicant as an illegitimate son born out of the said wedlock could be said to be the person having caveatable interest in order to enable him to oppose the grant of Probate.
9. I have heard Mr. S. Parthasarathy, learned Senior Counsel appearing for Mr. C. Ramesh, for the applicants, Mr. J. Krishnamachary, learned counsel for the 1st respondent/ Executor and Mr. R. Umasuthan, learned counsel for the respondents 2 to 5/ Legatees.
10. Mr. S. Parthasarathy, learned Senior Counsel appearing for the applicants would vehemently contend that the evidence on record would show that there was a marriage between G.Ramakrishna and the 2nd applicant. He would further point out that the evidence would also show that the 1st applicant was born out of the said wedlock.
11. According to Mr. S. Parthasarathy, learned Senior Counsel, even assuming that the marriage is invalid in view of Section 16 of the Hindu Marriage Act, the 2nd applicant as illegitimate child of G. Ramakrishna would be entitle
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
