Date:- 22.04.2008
Coram
The Honourable Mr. Justice P.K. MISRA
and
The Honourable Mr. Justice K.K. SASIDHARAN
O.S.A.No.264 of 2006
1. R. Janaki (died)
2. S. Mala
3. S. Prasanth (Minor)
rep.by Mother and natural
Guardian S. Mala
4. R. Raghunathan
5. V. Yogalakshmi
Appellants 4 & 5 impleaded as per
order dated 22.2.2008 in MP.1/2008 .. Appellants
..vs..
1. J. Mohanasundaram
2. J. Lakhsmi ... Respondent
Original Side Appeal against the order dated 21.3.2006 in Application No.310 of 2005 in O.P.No.414 of 2004 on the file of this court. For Appellants : Mr.K. Ramu
For Respondents : Mr.S.Parthasarathy, SC
for M/s. Sarvabhauman Associates.
---------
O R D E R
(Order of the Court was made by P.K. MISRA, J.)
Heard the learned counsels appearing for the parties.
2. The present appellants had filed O.P.No.414 of 2004 for issuance of Letters of Administration in respect of the Will allegedly executed by Kanniammal on 31.8.2000. The present Respondents 1 to 3 have filed caveat petitions in the said proceedings. At that stage, the present appellants had filed Appln.No.310 of 2005 to reject such caveat petitions on the ground that they had no caveatable interest. Such Appln.No.310 of 2005 having been rejected, the present appeal has been filed.
3. Before considering the questions involved, it is necessary to take note of the Genealogy. One Seniappan Gramani had got a daughter named Dhanakotti Ammal. Her first husband was one Govindaraja Gramini. Through the above marriage, they had a daughter named Kanniammal. On the death of the first husband Govindaraja Gramini, Dhanakotti Ammal had married one Arjuna Gramini, but there was no issue from such marriage. Kanniammal had married Veerakannu and on the death of Veerakannu, she married one Rajagopal. Kanniammal does not have any issue either from the first marriage or from the second marriage. Arjuna Gramini, who had married Dhanakotti Ammal after the death of the first husband Govindaraja Gramini, himself had earlier married one Tayarammal and through such first wife they had five sons, namely, Jayaraman, Elumalai, Balakrishnan, Radhakrishnan and Nagalingam. Two caveators respectively are son and widow of late Jayaraman and three applicants (present appellants) in the probate proceedings are respectively the widow, daughter and grandson of Ragunathan, the son of Radhakrishnan.
4. Caveators filed caveat claiming that Kanniammal, the last absolute owner of the property, had executed two deeds of settlement in favour of the caveators which had been subsequently revoked by her. However, the caveators have filed two suits before the City Civil Court numbered as O.S.Nos.7045 and 7046 of 1991 for declaration that revocation of the deeds of settlement was null and void. The dispute relating to such deeds of settlement is now pending before the High Court in Second Appeals. It is therefore claimed by them that they have caveatable interest.
5. The present appellants filed Appln.No.310 of 2005 for discharging the caveat on the ground that the caveators, who are claiming on the basis of the deeds of settlement which have been subsequently revoked, cannot succeed to the property as they cannot be considered as heirs even if the Will fails and, therefore, the caveat should be discharged.
6. Learned single Judge by taking note of the fact that the second appeals relating to the deeds of settlement and subsequent revocation are pending in the High Court, it cannot be said that there is no caveatable interest. For the aforesaid purpose, the learned single Judge has placed reliance upon a decision of this Court reported in AIR 1972 Madras 212 = 1972(1) M.L.J. 4 (JAYAKUMAR v. RAMARATNAM).
7. The main question raised in the present appeal is as to whether the present respondents have any caveatable interest in the property. Learned counsel for the appellant has placed reliance upon a very recent decision of the Supreme Court reported in 2008(4) Scale 202 (KRISHANA KUMAR BIRLA v. RAJENDRA SINGH LODHA AND OTHERS).
8. The main contention of the caveators, which has been accepted by the learned single Judge, is to the effect that if the validity of the deeds of settlement in favour of the caveators is upheld in the pending Second Appeals, such caveators would be taken to be the lawful owners and in such event it should be concluded that the Testator had no disposable interest in the properties. The above claim of the caveators is fully supported by the observations made in AIR 1972 Madras 212 (cited supra).
9. If such a decision can be said to be still holding the field, obviously the ultimate order passed by the learned single Judge would be sustainable. Unfortunately, however, for the caveators, in view of the subsequent decision of the Supreme Court in 2008(4) Scale 202 (cited supra), it cannot be said that the decision in AIR 1972 Madras 212 is still holding the field. As a matter of fact, the aforesaid decision of the Madras High Court has been specifically considered by the Supreme Court in the decision cited above and has been disapproved. The Supreme Court in the aforesaid decision had observed :- "89. The propositions of law which in our considered view may be applied in a case of this nature are:
(i)To sustain a caveat, a caveatable interest must be shown;
(ii)The test required to be applied is: does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right. (iii)It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by Will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein.
10. Applying the above test, the primary question is, if the Will fails, whether the caveators will have right to succeed to the property.
11. There is no dispute that Kanniammal was the last absolute female owner of the property. If the Will fails, succession to such property will be in accordance with Section 15 of the Hindu Succession Act. The caveators (and for that matter the applicants for the issuance of Letters of Administration) claimed relationship not directly to Dhanakotti Ammal, but through Arjuna Gramini and the first wife Thayarammal. By no stretch of imagination it can be said that such caveators can at all be successors to the property of Kanniammal, if the Will fails. Their claim to the property appears to be through the deeds of settlement and not on the basis of any right of succession as heirs.
12. In view of the above conclusion and particularly in view of the aforesaid decision of the Supreme Court, there is no escape from the conclusion that the present respondents in their caveat petitions have not shown existence of any caveatable interest and, therefore, the caveats filed by them are bound to be discharged. It is, however, made clear that the aforesaid conclusion relating to caveat filed by them will not stand in the way of consideration of S.A.Nos.323 of 2000 and 1302 of 2006, which are to be decided on their own merit in accordance with law.
13. In course of hearing, the learned counsel for the respondents submitted that possibility of any other Will cannot be discounted at this stage. It is made clear that the present decision is on the basis of the interest projected by the present respondents based upon the deeds of settlement and if any person including the respondents have any other caveatable interest in the suit property on the basis of any earlier Will or otherwise, it would be open to such persons to pursue their remedy in accordance with law and this order should not be construed as expressing any opinion in such matter.
14. The appeal is disposed of accordingly. No costs.
(P.K.M.J.) (K.K.S.J.)
22.04.2008
Index:- Yes/No
Internet:- Yes/No
Tr/dpk
P.K. MISRA, J.
and
K.K. SASIDHARAN, J.
O.S.A.No.264 of 2006