Unknown vs Nil
2022 Latest Caselaw 10339 Mad

                                                                         C.M.A.No.4316 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 16.06.2022

                                                      CORAM :

                                     THE HONOURABLE MS.JUSTICE P.T.ASHA

                                                 C.M.A.No.4316 of 2019


                     1. Angayee
                     2. Ammachi
                     3. Varadahrajan
                     ( P2 and P3 added as parties
                     as per order in I.A.No.1 of 20169
                     dated 01.04.2019-Petition amended
                     as per Order in I.A.No.2 of 2019,
                     dated 03.04.2019)                                       ...Appellants

                                                          Vs.

                     Nil                                                     ... Respondent


                     Prayer:- This Civil Miscellaneous Appeal has been filed under Section
                     299 of the Indian Succession Act, 1925, against the fair and decretal
                     order dated 05.07.2019 made in Probate O.P.No.5 of 2018 on the file of
                     the Principal District Judge, Namakkal District.


                                      For Appellant       : Mr.C.Veera Raghavan




https://www.mhc.tn.gov.in/judis
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                                                                                  C.M.A.No.4316 of 2019


                                                       JUDGMENT

Aggrieved by the order passed by the Principal District Judge,

Namakkal dated 05.07.2019, rejecting the petition filed by the appellants

for grant of probate, the appellants/petitioners are before this Court.

2. The brief facts stated in the petition are as follows:-

The properties situated at Chandrasekarapuram Village, which are

the petition mentioned properties, were the ancestral properties of one

Alagammal, the paternal grand mother of the petitioner, Muthu

Padaiyachi, the paternal grand father of the petitioner and Ammaiyappan,

the father of the petitioner since 1972 by virtue of Patta. Patta has been

granted in the joint names of the aforesaid persons. They have been

enjoying the properties jointly. The said Alagammal died on 12.06.1985.

Muthu Padaiyachi died on 07.09.1988 and Ammaiyappan died on

29.01.1996. The said Muthu Padaiyachi and Alagammal, apart also, had

four daughters, Angayee, Ammachi. Chinnapillai @ Ammachi and

Arayee. It is the case of the first petitioner that a joint Will was executed

by the said Alagammal, Muthu Padaiyachi and Ammaiyappan on

27.04.1984 bequeathing the properties on the first petitioner. Therefore,

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C.M.A.No.4316 of 2019

on their demise, the properties devolved on the appellants herein, namely,

Angayee, Ammachi and Varadahrajan. They would submit that the

petition for grant of Probate has been filed by them.

2. The learned Principal District Judge, Namakkal, by his order

dated 05.07.2019, dismissed the said application on the ground that the

petitioners have failed to implead the daughters of Muthu Padaiyachi

and Alagammal, who are entitled to the ancestral properties and

therefore, the petition was bad for non-joinder of necessary parties.

Challenging the same, the appellants are before this Court.

3. Heard the learned counsel for the appellants and perused the

materials available on record.

4. The petition has been filed under Sections 222 and 276 of

the Indian Succession Act, 1925. Before proceeding to discuss the case

on hand, it is necessary to first discuss as to whether the very petition for

grant of Probate is maintainable before the District Court at Namakkal.

For this purpose, it is necessary to extract the provisions of Sections 57

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C.M.A.No.4316 of 2019

and 213(1) and 213(2) of the Indian Succession Act, 1925.

57. Application of certain provisions of Part to a

class of Wills made by Hindus, etc-

The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply-

(a) to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such Wills and codicils made outside those territories and limits so far as relates to immovable properties situate within those territories or limits; and

(c) to all Wills and Codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b);

Provided that marriage shall not revoke any such Will

or codicil.

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

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C.M.A.No.4316 of 2019

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 Muhammadans 2 [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 3 [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 properties situate within those limits.

5. A combined reading of the two sections would make it

abundantly clear that Probate or Letters of Administration is

contemplated in respect of Wills executed by Hindu, Buddhist, Sikh or

Jaina within the territories mentioned in Section 57(1) of the Indian

Succession Act, 1925, which finds a repetition in Section 213(2) of the

Act. If the case on hand is considered, it is seen that the Will in question

has been executed at Rasipuram. The properties, which are the subject

matter of the Will, are also situate at Chandrasekapuram Village,

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C.M.A.No.4316 of 2019

Rasipuram, Namakkal. Therefore, on both these grounds, there is no

necessity to obtain a Probate or a Letters of Administration in respect of

the Will in question. Further, the joint Will has been executed as early as

in the year 1984 by the said Alagammal, Muthu Padaiyachi and

Ammaiyappan in favour of the first petitioner, Angayee. However, the

proceedings have been initiated in the 2018 and there was no explanation

for the delay.

6. Considering the fact that the filing of the petition itself is

without jurisdiction and taking into account the enormous delay, I see no

reason for allowing the appeal. Although the reasoning by the Appellate

Court is erroneous and out of context, however, the very maintainability

of the petition is in question. Accordingly, the Civil Miscellaneous

Appeal is allowed. No costs.

16.06.2022 Index :Yes/No Speaking Order: Yes/No

srn To

1. The Principal District Judge, Namakkal District.

2. The Section Officer, V.R.Section, High Court, Madras

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C.M.A.No.4316 of 2019

P.T.ASHA.J,

srn

C.M.A.No.4316 of 2019

16.06.2022

https://www.mhc.tn.gov.in/judis