Madras High Court
M.Manikandan vs St on 10 September, 2024
C.M.A.(MD)No.648 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 10.09.2024
CORAM :
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
C.M.A(MD)No. 648 of 2023
and C.M.P(MD)No.8370 of 2023
1.M.Manikandan
2.Aarthi ... Appellants/Respondents 2 & 3
Vs.
st
1.Maheswari ..1 Respondent/Petitioner
2.Rajini Mahalingam
3.M.Nagalingam
4.Jambukeswari ...Respondents 2 to 4/Respondents 1, 4 & 6
PRAYER: Civil Miscellaneous Appeal is filed under Section 299 of the
Indian Succession Act, 1925, against the fair order and decreetal order
dated 11.04.2022 passed in Probate O.P.No.2 of 2015 (CNR No.
TNTPO1-004229-2015) on the file of the II Additional District Court,
Tiruchirappalli.
For Appellants : Mr.Mr.D.Rajkumar
for Mr.J.Ashok
For R1 : Mr.S.Meenakshi Sundaram
Senior Counsel
for Mr.M.Senguvijay
R2, R3 : No appearance
R4 : Exparte
https://www.mhc.tn.gov.in/judis
Page No.1 of 11
C.M.A.(MD)No.648 of 2023
JUDGMENT
The appeal has been filed challenging the grant of probate to the 1 st
respondent herein in respect of the Will dated 14.09.2005 executed by the
deceased testator.
2. The facts leading to the filing of the above appeal are as
follows:
a) The testator of the Will, Mr.O.P.Muthaiah had several movable
and immovable properties;
b) He had executed Will dated 14.09.2005 in favour of the 1st
respondent herein and one Parameshwari. The testator died on
21.01.2015. The 1st respondent, one of the beneficiaries, sought for
probate of the Will. She had impleaded the wife and children of her
deceased brother Mahalingam, her other brother Nagalingam and the
husband of her other sister namely, Jeyagandhi as the respondents in the
probate petition;
c) The appellants are the children of the said Mahalingam. They
filed a counter stating that the petition for probate is not maintainable as
all the legal heirs of the deceased testator have not been impleaded; that
the signature in the Will of the testator is not genuine; that the testator
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had executed another Will dated 16.11.2009 in favour of the appellants
and a few other persons in respect of his properties, by which he had
revoked his earlier Will and therefore, the 1st respondent is not entitled to
grant of probate.
3. Before the trial court, the 1st respondent has examined 6
witnesses including herself and one of the witnesses to the Will and
marked Ex.P.1 to Ex.P.40. The appellant had examined the 1st appellant
as P.W.1 and P.W.2 besides marking Ex.R.1 and Ex.R.2.
4. The trial court rejected the contentions of the appellants and
granted probate of the Will dated 14.09.2005.
5. The learned counsel for the appellants submitted that the grant
of probate is liable to be set aside for the following reasons:
i) The 1st respondent had not impleaded all the legal heirs in the
petition for grant of probate;
ii) The signature of the testator in Ex.P.1 has been denied by his
own wife, who was examined as P.W.3;
iii) The testator had executed another Will in favour of the
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appellants dated 16.11.2009 thereby revoking the Will that is sought to
be probated.
iv) The 1st respondent had not complied with the provisions of
Section 263(c) of the Indian Succession Act and therefore, the probate
has to be revoked.
6.a) The learned Senior Counsel appearing for the 1st respondent,
per contra, submitted that even though some of the legal heirs were not
impleaded, their affidavits were marked as Ex.P.8 to Ex.P.11 and
therefore,it cannot be said that probate was sought for without notice to
the legal heirs of the testator.
6.b) The learned Senior Counsel further submitted that P.W.3, who
was aged 92 at the time of her deposition, had made two contrary
statements in her deposition. In one place, she denied the signature and in
other place, admitted the signature of the testator in the Will; and the
other portions in her evidence would show that the Will is genuine; that
the Will marked as Ex.R.2 has not been established in the manner known
to law and hence, the trial court had rightly rejected the said Will; that
even assuming that the appellant had violated any of the provisions of the
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Indian Succession Act warranting annulment or revocation of the Will,
the same cannot be decided in an appeal challenging the grant of probate;
and that it is for the appellant to file an appropriate application for
revocation of Will, which has to be adjudicated on its own merits.
7. The points for consideration in the instant appeal are as follows:
a) Whether the grant of probate is erroneous for not impleading all
the legal heirs of the deceased testator in the petition for probate;
b) Whether the 1st respondent had proved the Will dated
14.09.2005;
c) Whether the appellant had proved the Will dated 16.11.2009
and by the said Will, the testator had revoked the earlier Will dated
14.09.2005; and
d) Whether the 1st respondent had violated the provisions of Indian
Succession Act warranting revocation of the grant of probate.
8. As regards the 1st point, the admitted facts are that the deceased
testator had four sons namely, Mahalingam, Nagalingam, Jambulingam
and Dharmalingam and three daughters namely, Jeyagandhi,
Parameshwari and Maheswari. Admittedly, at the time of filing of the
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petition, Mahalingam was no more and the legal heirs of the Mahalingam
were impleaded as the respondents. Nagalingam was impleaded as the
respondents. However, Jambulingam was not impleaded as respondent.
Likewise, Jeyagandhi, one of the daughters, was not alive at the time of
filing the petition, and her husband, one R.Shanmugam was impleaded as
the respondent. The other daughter Parameshwari was not impleaded as
party admittedly. The said Shanmugam also died pending disposal of the
petition for probate and his legal heirs were thereafter impleaded as party.
Thus, in effect, Jambulingam and Parameshwari were not made as
parties. However, the question of non-joinder of the two legal heirs in the
petition for probate does not arise since both Parameshwari and
Jambulingam had filed affidavits, ExP.8 and Ex.P.9 respectively, before
the trial court, by which, they had stated that they had no objection
whatsoever in allowing the petition for probate and that the Will
executed by the testator was a genuine Will.
9. The appellants had not sought for cross-examining either the
said Parameshwari or Jambulingam. It is also not their case that the
affidavits are not genuine. In such circumstances, this Court is of the
view that merely because these two legal heirs were not impleaded as the
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respondents, the order granting probate cannot be set aside. The point
No.1 is answered accordingly.
10. As regards the 2nd point, the 1st respondent had marked the
Will, Ex.P.1, which has been attested by two witnesses. P.W.2 is one of
the witnesses to the Will. The Will is a registered Will. The 1st respondent
had also examined P.W.4 and P.W.6 to prove the registration. P.W.2, the
witness, who attested the Will had stated that she along with one
Jegadheesan had signed the Will in the presence of the testator and the
testator had signed the Will in their presence. The Will thus has been
established in accordance with law. It is also proved by the 1st respondent
that the other witness was no more.
11. The learned counsel for the appellant pointed out that in a
portion of the evidence of the deceased, P.W.3, who was aged 92 years at
the time of her deposition, stated that the signature in the Will was not
that of her husband. In other portion of her deposition, it is seen that she
had admitted the signature of her husband. The evidence of P.W.3 would
further reveal that the testator had executed the Will in a sound state of
mind by taking into consideration the interest of all his legal heirs. That
apart, P.W.6 was examined by the 1st respondent to prove that the Will
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was registered on the file of the Sub Registrar's Office. In such
circumstances, this Court is of the view that the finding of the Tribunal
that the 1st respondent has proved the Will is in accordance with law and
hence deserved to be confirmed. The point No.2 is answered accordingly.
12. As regards the third point, it is seen that the Will dated
16.11.2009 is an unregistered Will. The evidence of the witness to the
said Will, namely, R.W.2, who is a stranger does not inspire confidence.
The other witnesses to the Will was not examined. Further all the other
legal heirs have supported the Will dated 14.09.2005. There is no
reference to the earlier Will, which was a registered Will in the Will
relied upon by the appellants.
13. For all the above reasons, the Will relied upon by the
appellants marked as Ex.R.2 was disbelieved by the trial court and
rightly so. The point No.3 is answered accordingly.
14. As regards the 4th point for consideration, it is the submission
of the learned counsel for the appellants that the 1 st respondent, to whom
the probate was granted had willfully and without any reasonable cause
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violated the condition stipulated in Section 263(e) of the Indian
Succession Act. Section 263 of the Indian Succession Act deals with
revocation or cancellation of the probate, if the person, to whom the
probate is granted, does not comply with the condition within a period of
one year from the grant of probate willfully.
15. The question as to whether there is subsequent violation after
the grant of probate cannot be decided in an appeal challenging the grant
of probate. It is open to the appellant to proceed in accordance with law
in the event of any violation warranting revocation or annulment of grant
of probate. The point No.4 is answered accordingly.
16. Hence, this Court is of the view that the grant of probate in
favour of the 1st respondent is in accordance with law and hence, the
order passed by the trial court is confirmed.
17. In fine, this appeal is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
10.09.2024
Index : Yes / No
Neutral Citation : Yes / No
CM
https://www.mhc.tn.gov.in/judis
To
1. II Additional District Court, Tiruchirappalli.
2. The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,Madurai.
https://www.mhc.tn.gov.in/judis
SUNDER MOHAN, J.
CM
Judgment made in
10.09.2024
https://www.mhc.tn.gov.in/judis
