IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 12.01.2011 CORAM: THE HONOURABLE MR. JUSTICE D.MURUGESAN and THE HONOURABLE MR. JUSTICE S.NAGAMUTHU O.S.A.Nos.397 & 398 of 2010 1.G.Ganesan 2.G.Viswanathan 3.G.Rajasekaran 4.G.S.Ananth 5.G.Siva 6.S.Malliga ... Appellants in both OSAs -Vs- 1.P.Sundari 2.R.Varalakshmi 3.M.Kasthuri ... Respondents in both OSAs
PRAYER IN O.S.A No.397 OF 2010 : The Original Side Appeal filed under Clause 15 of Letters Patent and Order 36 Rule 1 of Original Side Rules against the Order and Decreetal Order passed by the Honble Ms.Justice R.Mala in Application No.4245 of 2009 in T.O.S.No.38 of 2004 dated 10.09.2009.
PRAYER IN O.S.A No.398 OF 2010 : The Original Side Appeal filed under Clause 15 of Letters Patent and Order 36 Rule 1 of Original Side Rules against the Order and Decreetal Order passed by the Honble Ms.Justice R.Mala in Application No.4244 of 2009 in T.O.S.No.38 of 2004 dated 10.09.2009.
For Appellants
in both OSAs : Mr.A.Venkatesan
For Respondents
in both OSAs : Mr.K.S.Gnanasambandam
COMMON JUDGMENT
(Judgment of the Court was delivered by S.NAGAMUTHU,J.)
” Is an unprobated Will admissible in evidence to prove the cancellation of an earlier Will upon which letters of administration is sought for? It is on this question these appeals resolve around.
2.Seeking letters of administration with a certified copy of the registered Will said to have been executed by one Mrs.Saraswathiammal on 22.06.1990 at Chennai in the presence of witnesses the appellants filed an application. Since it was opposed by the respondents herein, as per Order XXV Rule 55 of the Original Side Rules of this Court, it was converted as a suit and numbered as TOS No.38/2004. The testatrix died on 27.08.2001. According to the appellants, the said Will was the last Will of the deceased Saraswathiammal. The respondents herein who are the defendants in the suit have filed a written statement wherein, they have stated that the registered Will dated 22.06.1990 referred to above was subsequently cancelled by Mrs.Saraswathiammal during her life time by another Will dated 13.12.1993 and the same was registered as Document No.105 of 1993. It is because of the said cancellation by execution of the fresh Will dated 13.12.1993, which according to the respondents is the last Will of the deceased, the appellants herein are not entitled for letters of administration on the basis of the registered Will dated 22.06.1990, it is contended.
3.During the course of trial, the respondents filed I.A.No.4245 of 2009 seeking permission to mark 5 documents in evidence on their side namely (i) certified copy of registered document in Doc.No.105/1993 dated 13.12.1993; (ii)letters written by the second applicant/second defendants mother Saraswathi Ammal/testatrix; (iii) encumbrance certificate; (iv)service register of the second applicant; and (v)Death Certificate of two attesters of the Will dated 13.12.1993. Seeking to condone 475 days of delay in filing the above documents, the respondents filed I.A.No.4244 of 2009.
4.The appellants opposed both the Interlocutory Applications. They opposed the marking of the Registered Will dated 13.12.1993 on the ground that it was not probated as per law and so, as per Section 213 of the Indian Succession Act, 1925, the said document could not be proved in evidence in the suit.
5.However, it was the contention of the respondents herein that though it is true that the Registered Will dated 13.12.1993 remains unprobated, it is admissible in evidence in the said suit because the same is sought to be used only for collateral purpose and not to prove any right or title derived by means of the said document. Having considered the above submissions, the learned Single Judge of this Court by order dated 10.09.2009, allowed the petition thereby negativing the objections of the appellants herein. The delay was also condoned. Aggrieved over the same, the appellants are before this Court with these Original Side Appeals.
6.We have heard the learned counsel on either side and also perused the records carefully.
7.The learned counsel for the appellants has not canvassed the grounds raised in, the appeal against the order in Application No.4244 of 2009. That apart, we have also gone through the records which clearly indicate that the respondents have explained the delay to the satisfaction of the trial Judge. Thus, we do not find any reason to interfere with the order passed by the learned Judge in Application No.4244 of 2009.
8.Though the appeal in O.S.A.No.397 of 2010 has been preferred challenging the orders of the learned Single Judge comprehensively in respect of all the five documents, today, across the Bar, the learned counsel for the appellants would submit that the challenge in respect of the documents other than the unregistered Will dated 13.12.1993 is not pressed and therefore, there need not be any adjudication in respect of these documents. In other words, it is the submission of the learned counsel that subject to proof of the said documents in the manner known to law, these documents may be marked in evidence for which, the appellants will have no objection. The said statement is recorded.
9.In respect of the unregistered Will dated 13.12.1993 alone, the learned counsel for the appellants advanced arguments. He would reiterate that this, being an unprobated Will, is not admissible in evidence in view of the bar contained in Section 213 of the Indian Succession Act. The learned counsel would further submit that the document is sought to be marked not for any collateral purpose as it is attempted to be distinguished by the learned counsel for the respondents, but, it is sought to be used only for the purpose of proving the right and title claimed under the said document.
10.To the contrary, the learned counsel for the respondents would submit that the learned Single of this Court was right in holding that the said unregistered and unprobated Will is admissible in evidence since the purpose for which the same is sought to be proved is only collateral and not for establishing any title or right derived under the said document.
11.The learned counsel on either side have placed reliance on few judgments of the Honble Supreme Court about which, we would make reference at the appropriate stages of this judgment.
12.At the outset, we have to state that the uncontroverted legal position in respect of admissibility of unprobated Will is that in view of Section 213 of the Act, the same is not admissible in evidence except for any collateral purpose. It is worthwhile, at this juncture to reproduce Section 213 of the Indian Succession Act which reads as follows:-
213.Right as executor or legatee when established.-(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in [India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.
(2)This section shall not apply in the case of Wills made by Mohammadans or Indian Christians, and shall only apply
(i)in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and
(ii)in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the (ordinary original civil jurisdiction) of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immovable property situated within those limits)
13.The scope of Section 213 of the Act came up before Courts for consideration on several occasions. The earliest judgment from this Court which we are able to trace is Caralapathi Chunna Cunniah v. Cota Nammalwariah ((1910) 33 Mad. 91) wherein, this Court took the view that the objection that an unprobated Will is not admissible in evidence to prove the title applies only to the plaintiff and it was further held that the defendant is not precluded by that Section from relying on such a Will as he does not seek to establish his right as executor or legatee under the unprobated Will. Subsequently, doubt arose regarding the correctness of the said proposition which necessitated for a reference of the said question to a Full Bench of this Court in Ganshmdoss v. Gulab Bi Bai (AIR 1927 Madras 1054) wherein, the Full Bench has held as follows:-
If the defendant merely proves that a will is in existence and does not prove the terms of that will, that is not necessarily inconsistent with the plaintiffs title. In the first place the will may not be a valid will and, in the second place, the plaintiff may be a legatee under the will. The mere existence, therefore, of a will does not necessarily displace the plaintiffs title. It is necessary for the defendant to go further and to prove that some one other than the plaintiff has title under the will. This he cannot do by virtue of the provisions of S.187. In the circumstances of the present case, I would therefore, hold that the defendant cannot use an unprobated will as a defence.
14.The above judgment of the Full Bench of this Court came to be referred to by a three member Bench of the Honble Supreme Court in Hem Nolini v. Isolyne Sarojbashini (AIR 1962 SC 1471) wherein while affirming the said view of the Full Bench of this Court, the Honble Supreme Court has held as follows:-
The words of S.213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. The section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration.
15.Similar question arose before a Division Bench of Kerala High Court in Cherichi v. Ittianam (AIR 2001 KERALA 184). After having an elaborate survey of the said legal position including the judgment of the Honble Supreme Court in Hem Nolini v. Isolyne Sarojbashini (cited supra), in paragraph Nos.7, 8 & 10, the Division Bench has held as follows:-
7.Section 213 of the Indian Succession Act, 1925 (hereinafter referred to as the Act) says that no right as executor or legatee can be established in any Court unless a Court of competent jurisdiction has granted probate of the Will under which the right is claimed or has granted letters of administration in respect of the Will. Section 213 of the Act was amended by adding the words Indian Christians after the word Mohammedans with a view to providing that in case of Wills executed by Christians also, the requirement under Section 213(1) of the Act is not necessary. The purpose of the State Amendment made to the Act, as stated above, is to avoid the cumbersome procedure of obtaining probate or letters of administration in respect of the Will executed by Christians for the purpose of establishing right under the Will when such right is sought to be asserted in proceedings in Court. The prohibition under Section 213 of the Act is regarding establishing any right under the Will without getting probate or letters of administration and that section cannot be understood as one by which the vesting of right as per the provisions of the Will is postponed until the obtaining of probate or letters of administration. The Will will take effect on the death of the executant of the Will and what Section 213 of the Act says is that the right as executor or legatee can be established in any Court of justice only if probate or letters of administration is obtained.
8.Amendment to Section 213 of the Act cannot be said to be an amendment which has retrospective operation. Cases in which the bar under Section 213 of the Act is not there, execution of the Will can be proved in proceedings in which the right as executor or legatee is sought to be established. The necessity to obtain probate or letters of adminstration as provided in Section 213(1) of the Act arises only when right as executor or legatee is sought to be established in a Court and hence that section does not prohibit the use of Will which is unprobated as evidence for purposes other than establishment of right as executor or legatee. So, the requirement of obtaining probate becomes relevant at the time when the establishment or right as executor or legatee on the strength of a Will is sought to be made in a Court of justice. Irrespective of the fact whether a suit is filed before or after the amendment to Section 213 of the Act if execution of the Will sought to be relied on in judicial proceedings is attempted to be proved after the amendment, it cannot be said that in cases covered by Section 213 of the Act in respect of Christians, the Will must be one in respect of which probate has been granted. Obtaining of probate in respect of a Will can also be for purposes other than the purpose for which it is not necessary to get a probate and for that reason also it cannot be said that after the amendment to Section 213 of the Act, there is no need for granting probate, or letters of administration.
10.In Sheonath Singh v. Madanlal, (AIR 1959 Raj 243), it was held that Section 213 of the Act does not vest any right or rather any substantive right in anybody and what it really does is to regulate the mode of proving a Will, that is, procedure. It was further observed in the above decision that what Section 213 really does is that it lays down a rule of procedure, that rule being that a person seeking to establish his right in any Court of justice as executor or legatee under a Will must have obtained the probate of the will under certain circumstances mentioned in the section. The section precludes the establishment of a right as executor or legatee in a Court of justice but does not affect the right as such for which the Court must look elsewhere. The High Court of Rajasthan was of the definite view that Section 213 of the Act lays down a rule of procedure and not of any substantive right. This Court in a recent decision in Acho Dominic v.Xavier, 2000 AIHC 2210, had occasion to consider the effect of amendment made to Section 213 of the Act. The amendment to the above section was made during the pendency of the appeal and at the time when the suit was pending in the lower appellate Court the provision was that for establishing right as mentioned in Section 213 of the Act, Will had to be probated. In the above decision it was held by this Court that the amendment brought about could be taken into account in deciding the Second Appeal. In Hem Nolini v. Isolyne Sarojbashini, AIR 1962 SC 1471, it was held that the words of Section 213 of the Act are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. It was also observed by the Supreme Court that the section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration of the Will under which he claims and what it says is that no right as an executor or legatee can be established in any Court of justice unless probate or letters of administration have been obtained of the Will under which the right is claimed.
16.The above judgment of the Kerala High Court was cited before the Honble Supreme Court in Commissioner v. Mohan Krishan Abrol (2004(7) SCC 505) wherein, Honble Mr.Justice S.H.KAPADIA, (presently the Honble Chief Justice of India) while speaking for the Bench in paragraph No.10 has held as follows:-
10.A bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the Will. In the case of Kulwanta Bewa v Karam Chand Soni it has been held that Section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v. Supramanian Chetty the Privy Council has held that an executor derives his title from the Will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator. For purposes of deciding this matter, Section 336 of the Act is also relevant as it provides for assent of the executor to the legacy after the death of the testator. It provides that an executor gets divested of his interest as an executor from the death of the testator when he assents to a specific legacy. Section 213 acts as a bar to the establishment of rights under the Will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an executor or a legatee under Will is sought to be established. However, an unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings.
17.A close reading of the above judgments would make it very clear that it is the settled proposition of law that in view of the bar contained in Section 213 of the Act, an unprobated Will cannot be admitted in evidence in any proceeding to establish any right or title derived under the Will. However, for collateral purposes such an unprobated Will can be proved in evidence.
18.Now in the case on hand, the question is as to whether the unprobated Will is sought to be proved by the respondents for collateral purpose as it is claimed by them. The learned counsel for the respondents would submit that no right or title is attempted to be established under the Will so as to fall within the bar contained in Section 213 of the Act, instead, according to him, the document is used only to prove that the earlier Will for which letters of administration is sought for has been subsequently canceled. This according to the learned counsel for the respondents is a collateral purpose. But, we find it too difficult to accept the said contention. The said Will of the year 1993 is sought to be used to defeat the claim of the appellants to get letters of administration on the earlier Will. Unless, the due execution and contents of the said Will by which the earlier Will is stated to have been cancelled are proved, the respondents cannot succeed in their plea to defeat the claim of the appellants for letters of administration. The contents of the said Will of the year 1993 can be proved only in an appropriate probate proceeding. Unless the said Will of the year 1993 is proved that it is the last Will of the deceased and it satisfies all the other legal requirements, the earlier Will for which letters of administration proceeding has been initiated cannot be negatived. Proof of the same cannot be made in the present suit because the same could be done if only the respondents approach the Court for probating the said Will either by making a counter claim or by initiating separate proceedings. For the respondents, the right to oppose the issuance of probate in respect of the earlier Will itself is derived only from the unprobated subsequent Will. As held by the Full Bench of this Court in Ganshmdoss v. Gulab Bi Bai (cited supra), the bar contained in Section 213 of the Indian Succession Act is applicable even to a defendant in a suit. Therefore, we are of the firm view that the purpose for which the Will of the year 1993 is sought to be proved by the respondents in evidence is only for the main purpose to establish that the said Will is the last Will which cancels the earlier Will and the said purpose is not merely collateral as it is sought to be made out by the respondents. Apart from that, in Commissioner v. Mohan Krishan Abrol (cited supra) the Honble Supreme Court has held that even for such collateral purposes the unprobated Will cannot be used in a probate proceedings.
19.The learned Single Judge, after having referred to the Judgment of the Honble Supreme Court in Hem Nolini v. Isolyne Sarojbashini (cited supra) and the judgment of the Kerala High Court in Cherichi v. Ittianam (cited supra), has held that those were the cases where the title was claimed under an unprobated Will and that was the reason why the Courts took the view that such unprobated will could not be proved in evidence. In essence, the view taken by the learned Single Judge is that no right or title is claimed under the unprobated Will in the instant case, by the respondents and therefore, the contention of the respondents that the unprobated Will which is sought to be proved is only for collateral purpose is sustainable. In view of our foregoing discussions, we regret, we are unable to persuade ourselves to agree with the said conclusion arrived at by the learned Single Judge.
20.In our view, as we have already concluded, the unprobated Will is sought to be proved not for any collateral purpose but for the main purpose of proving that the said Will is the last free Will of the testator cancelling the earlier registered Will. For this main purpose, unless the said Will is probated, the same cannot be admitted in evidence.
21.On realising the above legal position, the learned counsel for the respondents would submit that the respondents contemplate to file a separate application seeking to probate the said Will dated 13.12.1993. He would further submit that there may atleast be a direction for trying the said probate case, along with the present suit by the learned Single judge. We find justification in the said submission.
22.In view of all the above, O.S.A.NO.398 of 2010 is dismissed and O.S.A.No.397 of 2010 is allowed in part in the following terms:-
(i)The impugned order to the extent the learned Single Judge has allowed marking of the unregistered Will dated 13.12.1993 is set aside and it is clarified that the said Will can be allowed to be proved in evidence in T.O.S.No.38 of 2004, if only the same is probated in accordance with law.
(ii)The order of the learned Judge allowing to mark the other four documents enumerated in the order subject to proof of those documents in accordance with law is confirmed.
(iii)If any application is filed, by the respondents seeking probate of the Will dated 13.12.1993, the said case shall also be tried along with T.O.S.No.38 of 2004. No costs.
(D.M., J) (S.N., J) jbm 12.01.2011 Index: Yes Internet: Yes D.MURUGESAN,J and S.NAGAMUTHU,J. Jbm O.S.A.Nos.397 & 398 of 2010 12.01.2011