JUDGMENT
S. Ashok Kumar, J.
1. The suit has been filed by the plaintiffs 1 to 7 through their power of Attorney Mrs. Lily Arputham for declaration that the plaintiffs are entitled to the suit property and to direct the defendants 5 to 9 to deliver the suit property with mesne profits and costs.
2. TOS.No:32 of 2000 has been filed by the petitioners (defendants 1 to 3 in C.S.No.980/99) against the plaintiffs in C.S.No.980 of 1999 for grant of probate of the will said to have been executed by the deceased Ramalakshmi Ammal. Since the defendants 4 to 9 are not parties in TOS.32 of 2000, though evidence was recorded in TOS.NO.32 of 2000, common judgement is delivered in C.S.No.980 of 1999 keeping the plaintiffs 1 to 7 as plaintiffs and the defendants 1 to 9 as defendants.
3. In the plaint, the plaintiffs have contended as follows:
The suit property belonged to one K. Ramalakshmi Ammal, wife of K.V. Subba Rao. She inherited the suit property from her husband. She was residing in a portion and let out the remaining portions to six persons including one P. Arputhham, the husband of the power agent of the plaintiffs and Narasimhan, the third defendant. Ramalakshmi Ammal was also having number of jewels, silver vessels and brass vessels. She sold one property on 29.8.1986 for Rs.2,75,000/=. The first and third defendants were helping her. K. Jagannatha Rao, an agnate of Ramalakshmi Ammal and his daughter, the 7th plaintiff were also helping her. However, she was completely guided by the defendants 1 to 3. Ramalakshmi Ammal died on 26.12.1986 when she was about 83 years. On the date of death, K. Jagannatha Rao being an agnate performed the funeral rites. He was not having details about her properties. He only knew that she had jewels, silver vessels and brass vessels and bank balances besides the suit property. The defendants 1 to 3 alone were possessed of the details.
4. During October 1987 the first defendant gave a cheque for Rs.9000/= to K. Jagannatha Rao stating that the deceased directed him to give the amount. He became suspicious and enquired about her properties. He came to know that the defendants 1 to 3 claiming to be executors of an alleged will dated 3.11.1986 filed O.P.No.135 of 1987 before this Court and obtained probate on 2.7.1987. No notice has been given to Jagannatha Rao before filing the said O.P. Then K. Jagannatha Rao filed an application 3926 of 1988 in the said O.P. for revoking the grant of probate dated 2.7.1987. The defendants 1 to 3 alone filed counters. By order dated 19.7.1989 the grant of probate was revoked. Though 10 years have passed, the defendants 1 to 3 have not taken any steps to convert the O.P.No.135 of 1987 into a suit.
5. In the counter filed, the defendants 1 to 3 did not say how they dealt with the assets. The 4th defendant sold the suit property under a registered sale deed dated 22.1.1988 for Rs.12 lakhs to the defendants 5 to 9 as if he is a legatee and absolutely entitled to the suit property. The defendants 1 to 3 in their counter did not say that they assented to the vesting of the legacy. The tenants did not pay the rent to the defendants 1 to 3. Though the defendants 5 to 9 purchased the suit property on 22.1.1988 they did not get possession of the entire property. Except, P.Arputham others vacated the premises during the period from 1988 to 1997. The purchasers got partial possession only in the year 1988.
6. Ramalaskhmi Ammal was suffering from severe diabetes. She was admitted in VHS Medical Center on 24.5.1986 and was discharged on 4.6.1986. It was found that tissues in the posterior portion of brain were dead. In October 1986, on account of advanced stage of diabetes other complications arose. Her left side body was completely affected. She was bed ridden A nurse was appointed to attend on her ever since the date of discharge from VHS Medical Centre. The 7th plaintiff was helping K. Ramalakshmi Ammal for taking food, clothing etc., On 3.11.1986 she could not eat. She was vomiting and her condition did not improve. She was admitted in Vijaya Hospital. She was not conscious. The doctors found that her left side body was completely paralysed. The defendants 2 and 3 alone were looking after her. Hence on 8.11.1986, even though she was not cured, she was discharged and brought to home. She did not recover but died on 26.12.1986. The above facts clearly show that she could not have executed any Will on 3.11.1986.
7. The conduct of defendants 1 to 4 and the circumstances of the case clearly show that the probate proceedings are only a shield to protect the illegal distribution of her assets among themselves. The first defendant must have been possessed of her assets and that is why he paid Rs.9000/= to Jagannatha Rao. The earlier portion of the alleged will shows that the suit property stands bequeathed to Nelamavu Mutt at Heroor but the returned cover addressed to the 4th defendant bears an endorsement No such Mutt. The 4th defendant is given a right to enforce the Will when the defendants 1 to 3 do not act. He is not named as a legatee. The last portions of the alleged Will shows that the house and other movables should go to the Swami. The whole tenor of the alleged Will is that the property is given to a religious institution. The fourth defendant sold the property as if he is the absolute owner. The above facts clearly show that the Will must have been fabricated and through the medium of fourth defendant, her assets were taken by D.1 to D.4.
8. Jagannatha Rao is an agnate of Ramalaskhmi Ammal. The plaintiffs are the children of Jagannatha Rao. The suit property was inherited by Ramalakshmi Ammal. She died on 26.12.1986 and on that late Jaganntha Rao was alive. Under Section 15(b) of the Hindu Succession Act, 1956, the suit property devolves upon the heirs of the husband of K. Ramalakshmi Ammal There is no heir of either Class I or II of the schedule of the Hindu Succession Act, 1956. Jagannatha Rao died on 17.11.1990 and his right devolved upon the plaintiffs who are his children. The following is the genealogical table.
KOPPOLU KANNIAH
———————————–
Ankaraju (died) Adimurthi (died)
Venkatappa (died) Kotiah (died)
K.V.Subba Rao (died) Purushottam (died)
Ramalakshmi Ammal K.Jagannatha Rao
(died) - Wife Ammani Ammal
(died on 26.12.1986) (died)
___________________________________________________
K.Chandra K.V.Maruthi K.Satya V.Pushpa G.Kal K.Maha Indu
Sekara Kumar P2 naraya Leela Yani Laksh mathi
Rao Rao P3 vathi P4 P5 mi P6 shoba
P7
9. The title of plaintiffs depends on the decision in O.P.No.135 of 1997 or converted TOS. If the Will is held to be true the plaintiffs have no title. The suit is in time. Hence, the plaintiffs have filed the suit for possession and mesne profits.
10. The first defendant filed a written statement which was adopted by defendants 2 and 3. The contention of the first defendant is as follows:-
The suit is a vexatious one and is liable to be dismissed. The first defendant is practicing as an Advocate in Madras. K. Ramalakshmi Ammal was known to the first defendant’s family for over 40 years and she was residing in a portion of the plait schedule property belonging to her. Another portion of the said property was occupied by the 3rd defendant, Narasimhan. There were also other portions of the property namely shops which were occupied by various tenants. The deceased Ramalakshmi Ammal was possessed many properties which she disposed of during her lifetime. It is false to allege that Ramalakshmi Ammal was ill for a very long time. It is also false to state that Jagannatha Rao and his daughter the 7th plaintiff in the suit were helping the deceased. In fact, Ramalakshmi Ammal used to do the day to day routine on her own and she used to attend to all her work herself and at times with the help of the defendants 2 and 3. After the death of Ramalakshmi Ammal her last rites were performed by a Prohit under the instructions from the defendants 1 to 3. The averments made to the contrary in the Plaint are false. Neither Jagannatha Rao nor the 7th defendant performed the last rites of Ramalkshmi Ammal. In fact Jagannatha Rao came only after the death of Ramalakshmi Ammal and never before. The 7th defendant had visited Ramalakshmi Ammal only on two occasions. After the death of Ramalakshmi Ammal, Jagannatha Rao approached the first defendant for financial help as he was poorly paid and had many children and his last daughter was of marriageable age. In this regard the first defendant promised to help Jagannatha Rao and that too only owing to his own philanthrophy. Taking pity on the said Jagannatha Rao, the first defendant finally gave a sum of Rs.9,000/= to him. The funds were given by the first defendant out of his own personal funds and not as stated in the plaint. The first defendant duly probated the Will of Ramalaskhmi Ammal in O.P.No.135 of 1987 and as per her will, he gave all her assets to the Nilamau Mutt, which is a branch of Sringeri Mutt. The Sringeri Mutt is the Guru Peetam of Ramalakshmi Ammal and on several occasions Shiva Pooja have been performed in the house of Ramalakshmi Ammal by the Sringeri Mutt Swamiji. The first defendant also adopts the written statement filed by the 4th defendant with regard to all other facts.
11. The 4th defendant has filed a written statement, gist of which is as follows:-
The suit is a vexatious one filed with a view to blackmail the 4th defendant and other defendants. The property referred in the plaint originally belonged to Ramalakshmi Ammal. She died issueless and before her death,she had executed a will on 3.11.1986 and she had appointed defendants 1 to 3 as the Executors of the said Will. She had bequeathed the suit property and other movable assets. Directions have been given to the executors to obtain probate. The executors filed O.P.No.135/87 on the file of this Court and obtained probate on 22.7.1987. The terms contained in the Will may be treated as part and parcel of this written statement. The 4th defendant is the Matathipathi of Nilamau Mutt attached to Sringeri Mutt, Karnataka. As per the terms of the Will, the suit property was bequeathed to the 4th defendant. After the probate of the Will, this defendant sold the property to the defendants 5 to 9 on 22.1.1988. Nearly after 6 months after the probate being granted the said Jagannatha Rao claiming himself as Agnate of Ramalakshmi Ammal tried to intervene in the peaceful enjoyment of the property and filed Application No:3926/88 in said Original Petition. Accordingly, by order dated 19.7.1989, this Court revoked the Probate. While revoking the Probate granted, the learned Judge has observed as follows:-
“I find from the records that one S.Mohan had applied in Appln.No.4352 of 1987 for permission to inspect the Will and the petition in O.P.No.135/87 and got an order therefor. In the affidavit in support of the application it is stated that the deceased lady was the second wife of the deponent’s father late Guruvayya Chetty. It is not known whether the applicant in Appln.No.4352 of 1987 has instituted any proceedings for revocation of the probate granted or for declaring his title to the property. That application shows that some other party is interested in this matter.
In the circumstances, I am of the opinion that the Will in question should be proved in solemn form and an opportunity should be given to the applicant (K.Jaganantha Rao) to establish before court that it is a forged one and not a genuine one.
Hence, the probate granted is revoked and the original petition is restored to file. The applicant shall file a caveat in accordance with the rules, whereupon the petition will be registered as a suit.”
12. The above order makes it clear that the applicant Jagannatha Rao, under whom the plaintiffs are claiming title ought to have filed the Caveat as ordered in the above Application to be registered as a suit. The above order has been passed on 19.7.1989 and no steps were taken by Jagannatha Rao to file the caveat or to continue the proceedings. Thereafter Jagannatha Rao died on 17.11.1990 and thereafter the plaintiffs herein were brought on record as legal heirs on 4.2.1997. In spite of such proceedings, the plaintiffs have not taken any steps to file the caveat and the time has expired under law for filing the ceveat. Since caveat has not been filed as per the directions of this Court the O.P.No.135 of 1987 is to be heard by the Court and orders to be passed without numbering the said O.P., as a suit. Since the Jagannatha Rao as well as the plaintiffs failed to take steps as per the directions of this Court, they lost their right and they cannot agitate about the genuineness of the proceedings.
13. The 4th defendant does not know anything about Ramalakshmi Ammal since he is not interested in any of the family details of Ramalakshmi Ammal. The 4th defendant was informed by the defendants 1 to 3 about the execution of the Will and also of the probate. After the probate was granted by this Court, the property vested with the executors, who in turn had handed over the property to the 4th defendant who in turn had sold the property to the defendants 5 to 9. In the probate proceedings it has been clearly averred and contended by the executors that Jagannatha Rao never attended on Ramalakshmi Ammal nor was he in any way helping Ramalakshmi Ammal as alleged by the plaintiffs. The 4th defendant relies upon the counter affidavit filed by the 2nd and 3rd defendants in Application No.3926 of 1988 wherein it has been contended that Jagannatha Rao is not even a remotest heir of the late Ramalakshmi Ammal and one of the executors Mr. S. Narasimhan was attending on Ramalakshmi Ammal and Srinivasan, another executor is known to Ramalakshmi Ammal for a quite long time and helped the sickly women in her last days. After her death the funeral ceremonies had been done by the Prohit under the instructions of Narasimhan. It is also contended that the applicant is not a legal heir of Ramalkahmi Ammal. It is also averred that neither the plaintiffs nor Jagannatha Rao participated in the funeral ceremonies of Ramalakshmi Ammal. Jagannatha Rao was given Rs.9,000/= during 1987 as per the directions of the Will. He kept quiet for over one year and thereafter sought to contest the probate proceedings. Thereafter he kept disinterested and had not taken any steps in regard to the contesting of the probate proceedings. After the death of Jagannatha Rao, the plaintiffs have not taken any steps in the probate proceedings and it is the executors who have taken steps to bring them on record. The power of attorney of the plaintiffs is a tenant in a portion of the suit property and her husband has been agitating the proceedings against the defendants 5 to 9. When all the other tenants have vacated, the power of attorney of the plaintiffs has with a view to stay on the property seems to have obtained the power of attorney from the plaintiffs and instituted this suit. AS regards the illness of Ramalakshmi Ammal, it was never known to the plaintiffs or the said Jagnnatha Rao and as stated by the executors, she was attended to only by Narasimhan and Srinivasan. It is incorrect to state that she was not conscious. The plaintiffs themselves admitted that defendants 2 and 3 alone attended on her. The genuineness of the Will cannot be agitated, since the Will was executed by Ramalakshmi Ammal validly.
14. The contents of the Will are quite clear and it is incorrect to state that there is no mutt in the name of Nilamau Mutt. The bequest is only in the name of the fourth defendant and his description is given as Madathipathy of the Nilamau Mutt and therefore, it is not donated to the institution as alleged. The fourth defendant has every right to deal with the property after probate was ordered. Jagannatha Rao is no agnate of K. Ramalakshmi Ammal and entitled to succession as agnate. If the Will is held to be true, the plaintiffs have no title. The suit is filed after a lapse of twelve years from the date of the death of Ramalakshmi Ammal and the suit is also barred by limitation.
15. Defendants 5 to 9 have filed a written statement, wherein they have contended as follows:-
The testatrix Ramalakshmi Ammal, who died issueless left behind a Will dated 3.11.1986. Under the said Will, the property was bequeathed to the fourth defendant. The executors appointed under the said Will obtained probate of the Will in O.P.No.135 of 1987. Defendants 5 to 9 after satisfying about the title purchased the same under the Sale Deed dated 22.1.1988. The defendants were not aware of the order made subsequently revoking the probate granted in O.P.135/1987 as it was only after their purchase. The plaintiffs have not taken any steps subsequently by filing a caveat or otherwise to make the probate proceedings contentious. According to defendants 5 to 9 on the date of purchase, the probate was in force. The defendants have bonafidely purchased the property for valuable consideration and the present suit is a malicious one.
T.O.S.No.32 of 2000:-
16. The petitioners herein are defendants 1 to 3 in C.S.980/1999 and they have pleaded as follows:-
One Ramalakshmi Ammal, who died on 26.12.1986 has executed the Will on 3.11.1986 in the presence of witnesses, whose names appear at the foot thereof. The petitioners are the executors duly appointed by the said Will. The deceased Ramalakshmi Ammal bequeathed the house bearing No.133, Usman Road, T. Nagar, Madras-17 and other moveable assets set out in the affidavit of assets. The amount of assets, which is likely to come to the petitioners’ hands does not exceed in the aggregate a sum of Rs.6,33,885/= and the net amount of such assets after deducing the debts and other items which the petitioners are in law allowed to deduct is of the value of Rs.6,32,885/=. The petitioners undertake to duly administer the properties and credits of Late Ramalakshmi Ammal and in any way concerning the Will of Ramalakshmi Ammal by paying her debts, then the legacies therein bequeathed so far as the assets Will extend and to make a full and true inventory thereof and exhibit the same before this Court within six months from the date of grant of probate and render true accounts of the said assets within one year of the said date. The petitioners also state that no application has been made before any District Court or delegate to any other High Court for grant of probate of any Will of the deceased or Letters of Administration with or without the Will annexed of these properties and credits. The original Will is the Last Will and Testament of the deceased Ramalakshmi Ammal and that the same was in the custody of the executors/petitioner. The petitioners pray that they may be allowed to prove the Will in solemn form and the probate thereof to have effect throughout the whole Union of India and the costs of these proceedings may be provided from and out of the assets of the deceased.
17. After conversion of O.P.135/1987 as T.O.S.No.32 of 2000, the respondents, who are plaintiffs in C.S.No.980 of 1999 filed a written statement. The written statement is nothing but repetition of the pleadings filed in the plaint in C.S.No.980 of 1999.
18. A reply statement has been filed by the petitioners in O.P.No.135/1987 reiterating their written statement filed in the suit.
19. On the above pleadings, the following issues were framed:-
C.S.No.980 of 1999:-
i) Whether the plaintiffs are entitled for a declaration that they are entitled to the schedule mentioned suit properties?
ii) Whether a decree for delivery of possession can be granted in favour of the plaintiffs against the defendants 5 to 9 as asked for?
iii) To what other reliefs the plaintiffs are entitled to?
T.O.S.No.32 of 2000:-
i) Whether the Will dated 3.11.1986 alleged to have been executed by Ramalakshmi Ammal is true, genuine and valid?
ii) Whether the plaintiffs are entitled for the issuance of the Probate?
iii) Whether a notice is necessary to the Commissioner, H.R.& C.E., for the reasons stated in the written statement?
iv) To what other reliefs, the plaintiffs are entitled to?
20. Both the suits can be decided on the following simple facts:-
i) Whether the alleged Will dated 3.11.1986 said to have been executed by Late Ramalakshmi Ammal is true and valid?
(ii) Whether the sale of the property to defendants 5 to 9, who claim to be bona fide purchasers can be cancelled and the property can be re-delivered to the plaintiffs and D5 to D9 to pay mesne profits to the plaintiffs.
21. Both the Testamentary Original Suit and the Civil Suit were tried jointly and common evidence was recorded on both the suits. The defendants have been examined as plaintiffs’ witnesses and the plaintiffs in C.S.No.980 of 1999 have been examined as defendants’ witnesses. On behalf of the defendants, P.Ws.1 to 9 have been examined and on behalf of the plaintiffs, D.Ws.1 and 2 have been examined.
22. The plaintiffs in C.S.No.980 of 1999 are the caveators/defendants in T.O.S.No.32 of 2000. In the plaint in C.S.No.980 of 1999, their definite stand is “if the Will is held to be true, the plaintiffs have no title”. In T.O.S. also the main issue is whether the Will is true and Probate be issued. If the genuineness of the Will is considered and decided the other issues are only auxiliaries. The Will under dispute is marked as Ex.P.1. The said Will was executed by Ramalakshmi Ammal on 03.11.1986 in the morning. The Will is attacked by the plaintiffs on the following grounds:
(i) Ramalakshmi Ammal was sick and she was not in healthy state of mind or sound disposing state of mind at the time of execution of the Will in view of her sickness.
(ii) The properties were bequeathed only to Nilamau Mutt attached to Sringeri Mutt, and not to the 4th defendant and the 4th defendant has no right to execute the Sale deed to Defendants 5 to 9.
(iii) The property was sold for Rs.12 lakhs only whereas the property was worth Rs.70 lakhs on the date of execution of the sale deed.
(iv) P.W.3 has purchased a flat of 450 Sq.ft. from the amount received by him from defendants 5 to 9.
To prove the Will, P.Ws.1 to 9 have been examined. P.Ws.4 and 5 are the attesting witnesses to Ex.P.1 Will. P.Ws.1 to 3 were prescribed as executors of the Will. P.Ws.4 and 5 have not derived any benefit from the Will. Though P.W.3 was given right to stay in a portion of the property as a tenant, he has vacated the portion and purchased a flat for himself as per Ex.P.11 sale deed. According to the plaintiffs, Ramalakshmi Ammal, the testatrix was sick during October, November and December, 1986. It is pleaded by the plaintiffs that her left side was affected by paralysis and a portion of the brain was also affected. The admitted evidence of both sides is that on 03.11.1986 afternoon, she was admitted in Vijaya Hospital and discharged from the hospital on 08.11.1986 after improvement of the health condition as per Ex.D.10, the letter issued by Dr. Ganesan in which it is mentioned that her left side of the body was paralysed. Ex.D.10 letter has been produced without examining the Doctor who attended Ramalakshmi Ammal. Ex.D.9 is the Certificate issued by the Voluntary Health Services, Adyar, Madras wherein it is stated that Ramalakshmi Ammal was admitted on 24.05.1986 for Right Posterior Parietal Infarct, with Diabetes Mellitus and discharged on 04.06.1986.
23. P.W.2 is an employee (Pharmacist) in the Medical Shop of P.W.4 and he was regularly supplying medicines to Ramalakshmi Ammal. P.W.3 was residing in a portion of the property and himself and his wife were taking care of Ramalakshmi Ammal. According to P.Ws.2 and 3, on 02.11.1986, Ramalakshmiammal expressed her desire to execute a Will and P.W.2 took steps for preparing the Will by approaching Advocate Mr. P.B. Ramanujam who directed P.W.5 to assist the deceased for preparation of the Will. According to P.W.5, he got instruction from Ramalakshmi Ammal on 02.11.1986 at 7.30 p.m and thereafter went to Mr. Ramanujam’s house where he dictated the Will and he had the Will typed by Job typing. P.W.5 also deposed that Ramalakshmi Ammal affixed her left thumb impression in the Will on 03.11.1986 morning. P.W.4 an attesting witness has deposed that he stayed in the suit premises from the year 1974, but vacated in the year 1986. He knew the deceased and she sent a word through P.W.2, Srinivasan, who was employed under him. According to him, on 03.11.1986, D.W.2 took him to the house of P.W.1, where the will was given to him and he read the Will. The testatrix, Ramalakshmi Ammal told him that she has desire to execute the Will. P.W.4 has further stated that when he questioned her why she was executing the Will so urgently, she has told him that she was mentally disturbed and hence, she had taken a decision to execute the Will in such manner and thereafter affixed her thumb impression.
24. P.W.1, first defendant was an employee of Railways. After retirement, he enrolled as an Advocate on 17.07.1976. According to him, he used to visit the house of the testatrix once in a week or fortnight. Under Ex.P.1, Will, he was appointed as one of the Executors of the Will. He was not present when Ex.P.1 Will was prepared and executed. In the Will, certain obligations were caused on the Executors as follows:
(i) In the Will, it is stated that P.W.1 to 3 (D1 to D3) should look after her funerals. Out of the three Executors, if any of them are not able to attend or perform the rites due to any inconvenience, the other two must attend. If more than one are not able to attend due to any inconvenience, H.H. Sri Narayananda Bharathi, the Swamigal of the Mutt shall be approached and the acts and deeds shall be carried out as desired by him and entrusted to him. She has further stated in the Will, “after my life time, all my properties shall pass to Nilamav Madam(Mutt) connected with Sringeri Mutt. On the annual ceremony days of myself and my husband, ceremony shall be performed and ten brahmins shall be fed. My asthi (asti) shall be immersed in Banaras.” Ramalakshmi Ammal died on 26.12.1986. P.W.1/ first defendant has taken steps to immerse the Asthi of the deceased Ramalakshmi Ammal. He has sent a letter to Sri Sringeri Jagadguru Sakaracharya Math Properties, at Kedarghat, Varanasi for which a reply, Ex.P.5 has been sent from the said Mutt on 05.01.1987 wherein it is mentioned as follows:
“Dear Sri Masilamaniji,
I am in receipt of your letter and very sorry to hear about the passing away of Smt. Ramalakshmi Ammal. I pray to Bhugawan Vishwamatha, Bhagavathiammapuram Devi and Mother Ganga to bless her soul rest in peace.
You may send the asthi by Regd. parcel for immerse in the Ganga by Vidhipooratha through a Brahmin. This may cost Rs.30/- to Rs.40/- with articles and Brahidakshina. Further, some devotee while sending asthi, send some extra amount to feed some vaideeka Brahmin in this connection. This is left to you.
Yours in Guruseva
Sridhar Bhatt.
For the above said letter, P.W.1 sent a letter, Ex.P.6 and along with said letter, he has also sent Money Order for Rs.75/- towards Charges for immersion of Asthi in Ganga and the balance to be used for feeding Brahmins. Thus, P.W.1 has proved that he has taken steps to immerse the Asthi of the testratrix as per her desire and has sent money for the purpose of immersing of her Asthi in Ganga and also balance the money to be used for feeding Brahmins as desired by the Testatrix.
25. The contention of the plaintiffs is that the seventh plaintiff, P.W.1 and her father Jaganatha Rao performed the last rites of Ramalakshmi Ammal on her death. Both of them have not produced any document. Except, the oral evidence of D.W.1, there is no document to show that either D.W.1/7th plaintiff or her father attended the funeral rites of the testratrix. Ex.P.14, a cash receipt dated 27.12.1986 would show that an amount of Rs.180/- was paid by S. Narasimhan (P.W.3/D3) for burning the body of Ramalakshmi Ammal aged 82 years who died on 26.12.1986 at 3.00p.m. If really either Jaganatha Rao or his daughter P.W.1 were present, any of the relatives would have paid the amount and signed the cash receipts. It is the definite evidence of P.W.2 that the last rites of the deceased were performed by a purohit viz., Rohini Sastrigal and the said rites was arranged by Narasimhan, P.W.3. P.W.3 also deposed that he performed her last rites and one Rohini Sastrigal had come for the said purpose. D.W.1 had admitted that her father was not allowed to perform the funeral rites and lighting funeral pyre. It is the definite case of P.W.1 that she has not gone to the house of Ramalakshmi Ammal before 02.11.1986. There is no reason as to why they should go to the house of Ramalakshmi Ammal on 02.11.1986, even though she was living alone for several years in the said property. No documents are produced to show the presence of D.W.1 and her father in the hospital on 03.11.1986 or till 08.11.1986 on which date, she was discharged. Ex.D.10 certificate was obtained four years after the death of the testatrix. If the version of D.W.1 and her father that they were present in the house of the testatrix on 02.11.1986 and 03.11.1986 and the will was not prepared on 03.11.1986 as alleged by the defendants and if the Will is a forged one, by getting the thumb impression of the testatrix at the later date, I am at a loss to understand as to why P.Ws.2 to 5 should prepare a Will on 03.11.1986 on which date the testatrix was admitted in the hospital. They could very well prepare a Will on some other day either prior to the date of admission of Ramalakshmi Ammal or any other later date after her discharge from the hospital. And if really Jaganatha Rao and his daughter D.W.1 were present in the house as alleged by them, P.W.2 to 5 who are alleged to have prepared the fabricated Will will not select the particular day on which D.W.1 claims to be present in the house, and also on the day on which the testatrix was admitted in the hospital. They could very well conveniently prepare the Will on the some other date. The very fact that the Will is dated 03.11.1986, the day on which afternoon the testatrix was admitted in the hospital itself would show that P.Ws.2 to 5 did not intend to fabricate the Will by getting the thumb impression of the testatrix because no fool on the earth Will select a date in which D.W.1 was present in the house or the date on which the testatrix was admitted in the hospital. The fact that the first defendant, P.W.1 was not present at the time of execution of the Will has admitted by P.W.2 to 5. P.W.4, attester of the Will is the owner of the Pharmacy where P.W.2 was employed. Suggestion by the plaintifss is that P.W.4 an attesting witness is giving evidence to oblige his employee, P.W.2 is not believable. If P.W.4 is an employee under P.W.2, we can understand he may have to oblige his employer. P.W.4 was employer of P.W.2 who has no obligation to help P.W.2, his employee. P.W.4’s evidence inspires confidence. P.W.2 has not derived any benefit under the Will. It is pertinent to note that the plaintiffs do not dispute the thumb impression of Ramalakshmi Ammal under Ex.P.1 Will. P.Ws.4 and 5, the attesting witnesses, have not obtained any benefit under the Will. P.W.3 has been given an option to reside in the property as a tenant as long as he wish and it is pertinent to note that the testatrix has mentioned that Kanagalakshmi, Wife of P.W.3 was looking after her more than her own daughter and hence such concession was given to him. Except that P.W.3, the third defendant was given a right to stay in the preperty as long as he wish, none of the executors i.e., Defendants 1 to 3 (P.Ws.1 to 3) have derived any benefit under the Will. As per the Will, all the properties both movables and the suit properties were bequeathed to 4th defendant, his Holiness Sri Narayananda Bharathi, the Swamigal of the Nilamau Mutt connected with the Sringeri Mutt. It is further mentioned in the Will itself that due to any inconvenience, if any of the testators are not able to carry out the duties, the said Swamigal, fourth defendant shall be approached and acts and deeds shall be entrusted to him. Further it is mentioned in the Will itself that all the movables and the house including the money in the bank standing in her name and everything shall pass to the aforesaid Swamigal and he himself shall be the absolute owner.
26. If really P.Ws 2 to 5 wanted to fabricate the Will, they need not mention the first defendant’s name as one of the executors and need not bequeath the properties in favour of the fourth defendant, the Swamiji. It is pertinent to note that in the beginning of the Will itself, the testatrix has been mentioned as follow:
“The house, in which I am residing viz., No.133, Usman Road, Madras 17, is the self-acquisition of my husband. After his demise, I myself have been protecting, improving and enjoying the same. Since I have become very old, and since I do not have issues of my own and since my relatives had left me many years ago and ceased to have contact with me, and in order to avoid any dispute with regard to this property after my life time, I execute this Will.”
27. Ramalakshmi Ammal has categorically mentioned in the Will itself that her relatives had left her many years ago and ceased to have contact with her and in order to avoid the dispute over this property, she is executing the Will. The defendants would attack that Ramalakshmi Ammal was alone after 1984 and the caveators/plaintiffs have not visited Ramalakshmi Ammal prior to 02.11.1986. In her evidence, in the Cross-examination, D.W.1 admitted as follows:
‘On 01.11.1986 I came to know for the first time that Ramalakshmi Ammal was sick. Before that I have not gone to the house to see her. I and my father went to see Ramalakshmi Ammal on 02.11.1986………’
‘If I had stated in the plaint that the second and third defendants were looking after my grand mother in the Hospital it is not correct.’
Even after the death of Ramalakshmi Ammal, the plaintiffs kept quite for a long time and did not take any steps to assert their alleged title to the property by issuing notice to the tenants for attornement or attempting to collect rents from the tenants. On the other hand, D.W.1’s father Jagannatha Rao has sought financial assistance from P.W.1 Masilamani for his daughter’s marriage. Exs.P.2 and P.3 are letters dated 10.06.1987 and 03.08.1987 sent by Jagannatha Rao, father of the plaintiff requesting P.W.1, Masilamani, Advocate for help for his daughter’s marriage and on 03.10.1987, P.W.1 has given a cheque for Rs.9000/- in favour of Srimathi. Indumathi Shobha, D.W.1 which was acknowledged by D.W.1’s father Jaganatha Rao and her brother Sathyanarayana Rao, the third plaintiff. During cross examination, DW.1(P.W.7) has categorically admitted that under Ex.P.2 and P.3 letters, her father has asked peronsal loan for her marriage.
28. The Will dated 03.11.1986 reads as follows:
” I, Koppal Ramalakshmi Ammal, wife of Dr. K.V. Subban Madhyaya alias Dr. Subba Rao, Hindu, Niyogi Brahmin community, residing in premises bearing D.No.133, Usman Road, Thayagaraya Nagar, Madras 17, with absolute memory, and with sound mind, execute this as my last Will and Testatment. By this Will and testament, I hereby revoke all the Wills and testament executed by me prior to this.
The house, in which I am residing viz., No.133, Usman Road, Madras-17 is the self-acquisition of my husband. After his demise, I myself have been protecting, improving and enjoying the same. Since I have become very old, and since I do not have issues of my own and since my relatives had left me many years ago and ceased to have contact with me, and in order to avoid any dispute with regard to this property after my life-time, I execute this Will.
After my life-time, all my properties shall pass to Nilamau Madam (Mutt) connected with Sringeri Mutt. On the annual ceremony days of myself and my husband, ceremony shall be performed and ten brahmins shall be fed. My asthi (asti) shall be immersed in Banaras. Kanakavalli whohas been staying with me and rendering services to me, more than what is expected of from my own daughters and her husband shall continue to remain in the portion on the northern side of my house, in which they are at present residing, paying the rent, as long as they desire.
1. Masilamani Mudaliar, son of Shanmugha Mudaliar, residing in premises No.9, Govindappa Naicken Street, Madras.
2. Narasimhan, son of Sadagopan Iyengar, residing in prmises No.133 Usman Road, Tygaraya Nagar, Madras; and
3. Seenivasan, son of Thirumalachariar, residing in No.33, Nahalakshmi Street, Thyagaraya Nagar, Madras these three shall be the executors and carryout the aforesaid acts and deeds.
On my death, these three individuals shall take the initiative for the first day’s ceremonies and have them performed according to religious rites. If anyone of them is not able to come and attend to these, due to inconvenience, the other two individuals may carry out the aforesaid acts and deeds. If more than one of them are not able to come and attend due to inconvenience, K.K. Sri Narayanananda Bharathi, the Swamigal of the aforesaid mutt, shall be approached and the acts and deeds shall be carried out as desired by him and entrusted to him.
After my life time, my house, the articles, jewels, utensils etc., and they money in the Bank standing in my name and everything shall pass to the aforesaid Swamigal. he himself shall be the absolute owner. I execute this Will with all these contents while in sound memory. I desire that after my life-time, my house shall be kept as the branch of the aforesaid mutt.
Though I belong to Andhra Pradesh, I know Tamil only, because I was brought up in Madurai. I usually sign in Tamil. Since at present, I have shivering in my hand, I am unable to sign properly. Therefore, I affix my left thumb impression herein.”
A perusal of the later portion of the Will would show that the beneficiary will be Swamigal, D.4, who is an individual and he himself will be the absolute owner of the property. In a case in which there are two inconsistent clauses, the latter clause alone will prevail under Section 88 of the Indian Succession Act, 1925.
29. In the decision reported in Uma Devi Nambiar and Ors. v. T.C. Sidhan (Dead) (2004(2) CTC 287), it is observed as follows:
“11. Will is a translation of the Latin word ‘voluntas’, which was a term used in the text of Roman Law to express the intention of a testator. It is of significance that the abstract term has come to mean that document in which the intention is contained. The same has been the case with several other English law terms, the concrete has superseded the abstract-obligation, bond, contract, are examples (william’s wills and Intestate Succession, page 5). The word ‘testament’ is derived from ‘testatio menties’, it testifies the determination of the mind. A will is thus defined by Ulpian’s “Testamentum est mentis nostraejusta contestatio in id sollemniter facta to post martem nostrum valeat.” Modatinus defines it by means of Volantas. It is ‘voluntatis nostrae just sententia de co squod quis post mortem suam fietei vult (or velit)”; the word ‘justa’ implying in each, that, in order to be valid, the testament must be made in compliance with the forms of law. It means, ‘the legal declaration of a man’s intentions, which will be performed after his death’. A last Will and testament is defined to be ‘the just sentence of our Will, touching what we would have done after our death”. Every testament is consummated by death, and until he dies, the Will of a tesator is ambulatory. Name omne testamentum morte consummatum est; et voluntae testamentoric est embulatoria usque od mortem. (For, where a testament is, there must also of necessity be death of testator. For, a testament is of force there must also of necessity be death of testator. For, a testament is of force after men are dead; otherwise it is of no strength at all while the testator liveth). A ‘Will’, says Jarman, “is an instrument by which a person makes a disposition of his property to take effect after his decease, and which is in its own nature ambulatory and revocable during his life”. (Jarman, on Wills, Ist Edn.p.11) This ambulatory character of a Will has been often pointed out as its prominent characterstic, distinguishing it, in fact, from ordinary disposition by a living person’s deed, which might, indeed postpone the beneficial possession or even a vesting until the death of the disposer and yet would produce such postponement only by its express terms under an irrevocable instrument and a statement that a Will is final does not import an aggregate of man’s testamentary intentions so far as they are manifested in writing, duly executed according to the Statute. (Per Lord Penzance in Leimage v. Goodbhan, L.R.1.P. & D.57, Cited by Fry, J., in Green v. Tribe, (1878)9 Ch D 231). In N.D.Bani’s Law of Succession (Sixth Edition) also about position has been delineated. From various decisions of this Court e.g., Ram Gopal v. Nand Lal, AIR 1951 SC 139, Gnambal Ammal v. Raju Ayyar, AIR SC 1951 SC 103, Raj Bajrang Bhadaur Singh v. Thakurain Bakhraj Kher, 1953 SC 7, Pearey Lal v. Rameshwar Das, AIR 1963 SC 1703, Ramachandra v. Hilda Brite, AIR 1964 SC 1323 and Navneet Lal v. Gokul, AIR 1976 SC 794, the following principles are well established:
(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.
(2) In construing the language of the Will the Court is entitled to put itself into the testator’s armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship the probability that he would use words in a particular sense. But all this is solely as an aid to arriving at a right construction of the Will and to ascertain the meaning of its language when used by that particular testator in that document.
(3) The true intention of the testator has to be gathered not by attaching importance in isolated expressions but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.
(4) The Court must accept, if possible such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The Court will look at the circumstances under which the testator makes his Will, such as the state of his property of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further where on the two reasonable constructions would lead to intestacy that should be discarded in favour of a construction which does not create any such hiatus.
(5) To the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every testament intention contained in the Will.
12. In Kalvelikkal Ambunhi v. H. Ganesh Bhandary, AIR 1995 SC 2491, it was observed that a Will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such a situation, the last intention of the testator is given effect to and it is on this basis that the latter clause is held to prevail over the earlier clause. As observed in Hammond v. Treharne, 1938 (3) All ER 308, if in a Will there are two inconsistent provisions, latter shall prevail over the earlier clause. This is regulated by the well-known maxim ‘cum due inter se pugantia reperiuntur in testamenta ultimum ratum est”. This principle is also contained in Section 88 of the Act which together with its illustrations, provides as under:
“88. The last of two inconsistent clauses prevails:- Where two clauses of gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
Illustrations
(i) the testator by the first clause of his Will leaves his estate of Ramnagar to “A”, and by the last clause of his Will leaves it to ‘B’ and not to ‘A’. B will have it.
(ii)if a man, at the commencement of his Will gives his house to A and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail.”
30. A clear reading of Ex.P.1 Will would show that Ramalakshmi Ammal, the testatrix, wanted the property to be bequeathed to fourth defendant. In this context, it is necessary to see as to whether the fourth defendant has sold the property and misappropriated the money to himself. The property was sold by a Registered Sale deed Ex.P.15 dated 22.01.1988 to Defendants 5 to 9. The fourth defendant has established Sri Narayanananda Bharathi Trust which is attached with Sringeri Mutt and even Ex.C.4 would show that Registration application of the trust was by a Memorandum of Association dated 15.04.1981 and even on 11.01.1988, the Commissioner of Income Tax has admitted the application of the said Trust under Ex.C.5, the said Trust had been given exemption under Section 80-G of the Income Tax Act. Ex.C.1 is the accounts of the Trust wherein it is mentioned that the sale proceeds of the property, obtained by the Will for Rs.11,99,963.00, was brought in the account of the Trust, Ex.C.2, day book would reveal that the amount was invested in Unit Trust of India. Ex.C.3 is the Income and Expenditure accounts for the year ended 31st March 1988, wherein, in the Assets Column, it is mentioned that Rs.15,10,155.00 is held in Unit Trust of India on behalf of the Trust. As per the order of this Court in Application No.51 of 2003, one Mr. N. Ramachandran aged 72 years, a Chartered Accountant was examined by Commissioner as P.W.8. He has deposed about the documents, Ex.C.1 to C.5. Therefore, from the oral evidence of P.W.8 and Exs.C.1 to C.5, it is clear that the fourth defendant has deposited the sale proceeds of the property obtained under the Will with the Trust which in turn deposited the money as its Asset in Unit Trust of India and therefore it is clear that the money obtained by the sale proceeds of the property was not misappropriated by the fourth defendant nor had he committed any fraud.
31. Normally when genuineness of the Will is contested, the conscience of the Court has to be satisfied by the propounder of the Will by adducing evidence to dispel any suspicion or unnatural circumstances attached to the Will. The above principle has been enunciated in the decision reported in Madhukar D. Shende v. Tarabai Aba Shedage (2002(1) CTC 244), wherein it is held as follows:
“8. The requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, the then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones by Baron Alderson to the Jury in R v. Hodge 1938, 2 Lewis CC 227 may be apposite to some extent – ” The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole: and the more ingenuous the mind of the individual, the more likely was, it considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete”. The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict – positive or negative.
9. It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the Court would not return a finding of ‘not proved’ merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance.
32. In the decision reported in Sridevi and Ors. v. Jayaraja Shetty and Others (2005(2) SCC 784), the Supreme Court has held as under:
“The onus to establish allegations of undue influence, fraud or coercion on the persons making such allegation.”
33. In the decision reported in Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005(1) CTC 443), the Supreme Court has held as under:
“15. Coming to the suspicious circumstances surrounding the Will, it may be stated that although the testator was 80 years of age at the time of the execution of the Will and he died after 15 days of the execution of the Will, the two attesting witnesses and the scribe have categorically stated that the testator was in sound state of health and possessed his full physical and mental faculties. Except that the deceased is 80 years of age and that he died within 15 days of the execution of the Will, nothing has been brought on record to show that the testator was not in good health or possessed of his physical or mental faculties. From the cross-examination of the scribe and the two attesting witnesses, the appellants have failed to bring out anything which could have put a doubt regarding the physical or mental incapacity of the testator to execute the Will.”
34. In the decision reported in Meenakshiammal (Dead) Through Lrs. and Ors. v. Chandrasekaran and another ((2005)1 SCC 280), where the testator was 85 years age, the Supreme Court has held as under:
“18. In the matter of execution of the Will, the evidence of the will, the evidence of D.W.2 shows that D.W.1 had come to fetch him at the behest of Siva. DW.2 wrote the will under the instructions of Siva. Before signing, Siva had read the will. The will was signed in the presence of the attesting witnesses. The said witnesses had attested in presence of Siva. There is no evidence on record to indicate that Siva had become senile. In this connection, it may be pointed out that in October 1978, Siva had alienated one of his several properties for consideration which circumstance shows that he had a sound disposing mind and that there was no substance in the allegation of the plaintiffs that the testator had become senile. As rightly pointed out by the trial Court, it was the plaintiff’s own case, while cross examining DW.1, that Siva was a prudent and wise man. Further, we are in agreement with the view expressed by the trial Court that even in the cross-examination, there was no suggestion put to DW.1 that the signature on Ex.B.8 was not that of Siva. That, in the cross examination, no motive was suggested against DW.2 to D.W5 for supporting the case of the defendants. Further, the evidence indicates that Siva was hale and hearty and he was advised to get the will registered, which he refused, saying that he was in good health and expected to live long.”
35. From the decisions cited above, it is clear that age is not the main criteria to decide whether a Will could have been executed with a sound state of mind. The judgments cited above clearly show that persons aged above 80 years can also execute genuine Wills in a sound disposing state of mind. Death of a testator soon after the execution of the Will also cannot be a ground to suspect the genuineness of the Will. In this case, the Will was executed on 03.11.1986 and the testatrix died on 26.12.1986 as proved from Ex.P.7, death certificate issued by the Corporation of Madras and Cash receipts dated 27.12.1986 issued by the Health Department, Corporation of Madras. If really Ramalakshmi Ammal, testatrix continued to be in serious condition and if really D.W.2 and her father Jaganatha Rao were present in the hospital, they would not have got her discharged from the hospital on 08.11.1986 particularly when Ramalakshmi Ammal, the lone lady was possessed of sufficient money and property. Ramalakshmi Ammal though was living alone had six tenants in the property and therefore she should have sufficient funds to meet the medical expenses and if her health was not improved, they would not have brought her back to home after the discharge from the hospital within five days from the date of her admission in the hospital. Therefore, it is clear that Ramalakshmi Ammal should have been admitted in hospital on 03.11.1986 due to vomiting and diarrhea as mentioned by D.W.1 and also admitted by P.Ws.2 and 3. Ramalakshmi Ammal was admitted only in the afternoon on 03.11.1986. But as per her instructions, on 02.11.1986 evening, P.W.5 prepared the Will and the same was executed by the testatrix on the morning of 03.11.1986 at about 8.00a.m and was attested by P.Ws.4 and 5. As already stated, if P.Ws.2 to 5 wanted to fabricate the Will on the strength of getting thumb impression of the testatrix in blank papers, they would not have chosen the date on 03.11.1986, as the date of alleged execution of the Will. If the above persons are clever enough to fabricate the Will, naturally they would have been clever enough to mention some other convenient date in which the testatrix was not admitted in the hospital. There is no bar for P.Ws.2 to 5 even to add a date much prior to her admission in the hospital. It is the admitted evidence of bothsides that Ramalakshmi Ammal has sold some of the properties on 29.08.1986 by executing a sale deed in the Registrar’s Office. If she was having the sound disposing state of mind about two months prior to the date of alleged execution of the Will, Ex.P.1, there is no reason to suspect her sound disposing state of mind at the time of execution of the Will, Ex.P.1.
36. In the instant case, the plaintiffs have not proved their allegations of unsound mind by examining any Doctor and except the evidence of D.W.1, who is the 7th plaintiff, no evidence is available to show that the testatrix Ramalakshmi Ammal was unconscious and could not have executed the Will because of the illness due to Diabetes Mellitus coupled with cerebral Thrombosis. The allegations of the plaintiffs have not been proved by acceptable evidence. The documents relied on by the plaintiffs are the two certificates issued by the Doctor alleged to have attended on the deceased in May 1986 and November 1986. The Doctors concerned have not been examined and it is reported that one Doctor is dead. These certificates by themselves will not prove their contents unless persons issuing the certificates are examined. Even P.W.1 has admitted that D.W.1 visited the house of Ramalakshimi Ammal on two occasions in November 1986. But, he has not specifically stated that D.W.1 was present in the house either on 03.11.1986 or on 02.11.1986. If really the plaintiffs suspected the will, they should have taken action immediately, but Jaganatha Rao, father of the plaintiffs did not file caveat as ordered by the Court along with supporting affidavit. If really the plaintiffs are the Legal Representatives of the deceased, they should have issued notice to the tenants for attornment of tenancy. But they come to file a suit only in the year 1999 at the instance of D.W.2, the Power of Attorney whose husband is also a tenant in the suit property. It is pertinent to note hear that D5 and D9 purchased the property and filed eviction petition against DW.2’s husband (Power Attorney). The defendants would contend that only thereafter D.W.2 to safeguard her husband’s possession to the property induced Jaganatha Rao to file a revocation petition.
37. The plaintiffs have given a General Power of Attorney to D.W.2 on 04.06.1999 to file a suit on their behalf. But there is no undertaking that any amount spent by D.W.2 shall be reimbursed by the plaintiffs. After execution of the Power of Attorney on 04.06.1999, a suit has been filed on 09.06.1999 in C.S.No.980 of 1999 on behalf of the plaintiffs by D.W.2 in her capacity as Power of Attorney. It is pertinent to note that in the plaint, the address of all the plaintiffs have ben given as that of No.1, Marutham Street, MGR Nagar, Chennai 600 078. If all the plaintiffs were residing at Madras at the time of filing of the suit, what is the necessity to appoint D.W.2 as their power of Attorney is not explained. In the decision reported in Janki Vashdeo Bhojwani and Anr. v. Industrial Bank Ltd. and Ors. (AIR 2005 SC 439), the Honorable Supreme Court has held as follow:
“13. Order III, Rules 1 and 2, CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2, CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.”
38. From the facts as discussed above and applying the various decisions of the Honourable Supreme Court, it can be safely concluded that Ex.P.1 Will dated 03.11.1986 is true, genuine and valid and hence probate can be issued as prayed for.
Issue: (ii) Whether a decree for delivery of possession can be granted in favour of the plaintiffs against Defendants 5 to 9 as asked for?
39. Neither in the plaint nor in the written statement, allegations have been made that D5 and D9 are not bonafide purchasers. Even though written statement in the T.O.S was filed much later, no where it is mentioned that D5 and D9 are not bona fide purchasers. In the application for revocation, which was filed two and half years later, the value of the property is mentioned as Rs.17 lakhs. A.No.3928 of 1988 to revoke the probate was filed seven months after the execution of the sale deed in favour of D5 and D9.
40. In C.S.No.980 of 1999, the plaintiffs have valued the suit property only at Rs.12 lakhs as seen in para-16 of Page-11 of the plaint. As per Section 30 of the Court Fee Act, in a suit for recovery of possession, the market value of the property must be mentioned and not the notional value. Therefore, even according to the plaintiffs the market value of the property was Rs.12 lakhs even in the year 1999, when they filed the suit. It is not in dispute that at the time of the purchase of the property, Income Tax Clearance Certificate was also obtained. Therefore, the contentions of the plaintiffs that the property was undervalued and sold to D5 and D9 are not true and the fact that the sale proceeds of the property obtained by the Will, were brought on record in the Trust Account and deposited with Unit Trust of India as the Asset of the Trust, would clearly establish that D.4, Swami Narayananda Bharathi did not commit any fraud. The money obtained by sale of the property is owned by the Trust and not by any individual. Further, the plaintiffs have not made any specific allegation against P.W.1, Masilamani, Advocate. The allegation that P.W.3 purchased the flat from the money obtained, though not pleaded in the plaint was suggested when he was examined as witness. P.W.3 has produced documents to show that he has purchased a flat under Ex.P.11measuring 450 sq.ft by selling jewels of his wife. Ex.P.12 is the receipt issued by G.R.T.Thangamaligai Jewelerry at T.Nagar, Madras, according to which P.W.3 has sold various gold jewels to the value of Rs.68,520/- on 17.01.1991. Ex.P.13 is the receipt issued by Vummudi Pangaru Jewellers for selling gold Chain to the value of Rs.15,768/-. Thus P.W.3 has sold the jewels for more than Rs.84,000/- and purchased the flat for a price of Rs.1,10,000/-. The will was executed on 03.11.1986, but the flat was purchased on 21.01.1991, i.e, more than 2 years after the execution of the Will. Thus, P.W.3 has filed document to show as to how he purchased the flat by selling the jewels of his wife.
41. As far as D5 and D9 are concerned they claim to be the bonafide purchasers. The property was purchased on 22.01.1988, i.e., five months after the grant of probate of the Will.
42. In the decision reported in Crystal Developers v. Smt. Asha Lata Ghosh (dead) through Lrs. and Ors. (2005(1)LW 387), the Supreme Court, while considering the position of the third party purchaser who purchased the property of the probate proceedings, has held as under:
“Grant of probate establishes the genuineness of the will and the person in whose favour probate is granted is entitled to convey title arising out of the Will probated by Court. It may happen that the propounder did not take appropriate steps to notify other heirs before obtaining probate but the third party who acts bonafide and deals with the grantee cannot be made answerable to the fraud or misdeeds committed by the Executor.”
In para 30 of the same Judgment, the Supreme Court has further held that under Section 332 of the Indian Succession Act, the revocation of the probate shall operate prospectively and not retrospectively. The Honorable Supreme Court further held as follow:
“31. As stated above, it is submitted on behalf of the plaintiffs that probate dated 31.07.1981 was void as the Will of Balai chand was not proved in accordance with Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. Learned Counsel for the plaintiffs further submitted that on revocation of the probate the grant becomes void ab initio and would obliterate all previous dealings by the executor performed during the continuance of the probate.
32. We do not find merit in the above arguments. As stated above, section 273 refers to conclusiveness of the probate as to the representative title. It establishes the factum of the Will and the legal character of the executor and all the property of the deceased testator from the date of the death of the testator, as along as the grant stands. Under Section 41 of the Evidence Act, the grant operates as judgment in rem and can be set aside on the ground of fraud or collusion provided it is pleaded and proved by the party so alleging.(see: Lady Dinbai Dinshaw Petit and Ors. v. The Dominion of India & another reported in AIR 1951 Bombay 72). It is, therefore, not a pure question of law. As stated above, revocation will not operate retrospectively so as to obliterate all intermediate acts of the executor performed during the existence of the probate, however, if the intermediate acts are incompatible with the administration of the estate, they will not be protected. That the conclusiveness under section 273 is of validity and contends of the will.”
43. As per the decision of the Hon’ble Supreme Court, revocation of a Probate shall operate prospectively and not retrospectively. A Probate operates as a judgment in rem. As far as this case is concerned, defendants 5 to 7 have purchased the property on 22.1.1988, during the period when the Probate of the will was granted by this court on 2.7.1987. Since Defendants 5 to 7 have purchased the property when the Probate was in force and for valuable consideration, I hold that they are bona fide purchasers and revocation of the Probate subsequently will not operate as a bar for the title to the property. Therefore Defendants 5 to 7 cannot be ordered for redelivery of possession of the property to the plaintiffs.
44. Since Ex.P.1, Will is held as true, genuine and valid, the question whether the plaintiffs are entitled to claim the suit property as agnates need not be discussed in detail. However, it is pertinent to note that the plaintiffs are very far distant relatives, i.e., plaintiffs are related to testatrix in the following manner: “The testatrix husband K.V. Subba Rao’s grand father is said to be the brother of Great-Great-Grand Father of the plaintiffs.” The contention of the learned counsel for the defendants is that for the purposes of Succession, Sapindaship was originally confined to three degrees of agnatic kindred in ascent and in descent, the term ‘Sapinda’ referring only to those who were connected by the undivided oblation.” (para-502 of P-909 reported in Mayne’s Hind Law -15th Edition) need not be gone in detail since the Will is held to be true, genuine and valid.
Issue: (iii) Whether a notice is necessary to the Commissioner, H.R.& C.E., for the reasons stated in the written statement?
45. The contention of the plaintiffs is that since the property has been bequeathed to a religious mutt, a notice to the Hindu Religious and Charitable Endowment Department is necessary. This court has already held that as per the Will, the 4th defendant was made as a legatee of the Will, who is entitled to the suit property. In view of the findings that as per the Will, the 4th defendant has become the absolute owner of the suit property and not the Mutt, notice to Hindu Religious and Charitable Endowment Department is unnecessary.
46. In the result, the suit in C.S.No.980 of 1999 is dismissed with costs. In T.O.S.No.32 of 2000(O.P.No.135 of 1987), Probate is issued.
