IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 01.09.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.No.271 of 2009 K.R.Suresh Babu .. Appellant. Vs. 1. S.Vadivelu 2. Spastic Society of TamilNadu, Taramani Road, Taramani, Chennai - 600 113. 3. Guild of Service Central, No.18(Old No.28), Casa Major Road, Egmore, Chennaai - 600 008. .. Respondents This appeal has been preferred under Order 36 Rule 1 of O.S.Rules with under Clause 15 of Letters Patent Act against the order dated 27.7.2009 made in Application No.2923 of 2008 in O.P.No.599 of 2007. For Appellant : Mr.K.Ramu For Respondent : Mr.P.Chandrasekaran for R1 JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges an order of the learned Single Judge of this Court in Application No.2923 of 2008 in O.P.No.599 of 2003 whereby the application seeking to discharge the caveator/appellant filed by the respondent herein was allowed. 2. The appeal came to be filed on the following facts and circumstances. The petitioner who is the respondent herein filed O.P. seeking for grant of probate in respect of the last will of the testatrix dated 3.2.2001. The petitioner is the executor appointed under the Will. The O.P. was filed on 25.4.2007. Subsequent to the representation, it was taken on file on 21.7.2007. Then, O.P. was https://hcservices.ecourts.gov.in/hcservices/ taken up on 19.3.2008 and the matter was posted for recording evidence. P.W.1 was examined along with the attesting witness P.W.2 and 11 exhibits were marked on the side of the petitioner. On 1.4.2003, P.W.3, the second attesting witness was examined and Ex.P12 was also marked. At that stage, Caveat No.48 of 2008 was filed by Sakuntala Sambandam and D.Sambandam and the same was taken up for consideration. Another Caveat in Caveat No.84 of 2007 was filed by one kalaraj and another Caveat No.85 of 2007 was filed by Ananthakumar. All the caveats were taken up for consideration. After rejection of those caveat petitions, the matter reached the final stage. At that time, the Caveat No.57/2008 was filed by Suresh Babu, the appellant herein, claiming to be the brother of the testatrix's husband. He filed an affidavit in support of the application alleging that he was proper and necessary party to be impleaded. He has also contended that since there was no Class-I heirs for the testatrix and as he is the textatrix husband's brother, he is class II heir and opportunity has to be given to him in the proceedings in the O.P. The petitioner in the O.P. filed an application No.2923 of 2008 to discharge the caveator/appellant. Both the parties were heard and the materials were looked into by the learned single Judge and the learned Single Judge took a view that the appellant has no caveatable interest and allowed Application No.2923 of 2008 which is the subject matter of challenge before this Court. 3. The only contention putforth by the learned counsel for the appellant before the learned single Judge is that admittedly, the appellant has got caveatable interest in the property. It is an admitted position that he is the brother of the testatrix's husband. It is also an admitted position that there was no class-I heirs. When the property was to be devolved upon the testatrix in the absence of the testament, it would devolve upon her husband also and actually, he is Class-II heir. Under such circumstances, he has got right in the property and he has also right to oppose the proceedings in the O.P., since, he is having caveatable interest. Therefore, the order of the learned single Judge has got to be set aside. 4. Per contra, it is contended by the learned counsel for the respondent that the appellant is not having caveatable interest and he is not a necessary party; that number of applications have already been filed stating that they have got caveatable interest but all the applications were rejected; that the learned Single Judge has pointed out though the proceedings were initiated by persons including the appellant, they have done so, in order to grab the property of the testatrix; that in the absence of any materials to show that they have caveatable interest, the applications are dismissed and the same has been rightly done by the learned single Judge and hence, the order of the learned Single Judge has got to be affirmed. 5. The Court paid its anxious consideration on the submissions made on either side. https://hcservices.ecourts.gov.in/hcservices/ 6. The only question that would arise for consideration before the Court is that whether the appellant has got caveatable interest in the property and whether he should be given an opportunity to oppose the proceedings before the learned Single Judge in the O.P. 7. The respondent made the O.P. on the strength of the last Will of the testatrix. The testatrix, as could be seen from the available materials, executed three Wills on 1.7.1986, 28.7.1988 and 3.2.2001. The two Wills have been superseded by the third one which is the subject matter of O.P. before the learned single Judge. It is also true that the earlier applications filed by the Caveator were actually rejected at the instance of the O.P. Petitioner and now, that cannot be a reason to reject the contention putforth by the appellant side. In a given situation like this, the Court has to look into whether the appellant has caveatable interest. It would be apt and appropriate to reproduce Section 263 of the Indian Succession Act which reads as follows: "263. Revocation or annulment for just cause – The grant of probate or letters of administration may be revoked or annulled for just cause. Explanation – Just cause shall be deemed to exist where - (a) the proceedings to obtain the grant were defective in substance; or (b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or (c) the grant was obtained by means of an untrue allegation of a fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently; or (d) the grant has become useless and inoperative through circumstances; or (e) the person to whom the grant was made has wilfully and without reasonable cause omitted to exhibit an inventory or account in accordance with the provisions of Chapter VIII of this Part, or has exhibited under that Chapter an inventory or account which is untrue in a material respect." The above would indicate that so long as he is able to show caveatable interest and that he is not having adverse interest, opportunity should be given to him. 8. Admittedly, the appellant is the testatrix's husband brother. It is also quite clear, in the instant case, there is no Class-I heirs available and by operation of law, Class-II would become as heir. The Supreme Court while deciding a similar matter in (Basanti Devi Vs Ravi Prakash Ram Prasad Jaiswal) reported in (2008) 1 SCC 267 dealt with a similar rule 683 framed by the Bombay High Court and considered that an heir includes even agnates and cognates under the Hindu Succession Act. In paras 12 and 13 of the said judgement, it has been observed as follows: https://hcservices.ecourts.gov.in/hcservices/ "12. Parliament enacted the Hindu succession Act, 1956 to amend and codify the law relating to intestate succession among Hindus. Section 3 (f) of the Hindu Succession Act defines "heir" to mean any person, male or female, who is entitled to succeed to the property of an intestate under the Act. Section 15 of the Act lays down the general rules of succession in the case of female Hindus in the following terms: "15. General rules of succession in the case of female Hindus – (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, - (a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Nothwithstanding anything contained in sub-section (1), - (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter), not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband for from her father-in- law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband." 13. For the purpose of ascertaining as to who would be heirs of the husband if the deceased didl not leave any sons and daughters or husband; reference has to be made to Section 8 of the Act which reads as under: "8. General rules of succession in the case of males. - The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter- (a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule; (b)secondly, if there is no heir of Class I, then upon the heirs, being the https://hcservices.ecourts.gov.in/hcservices/ relatives specified in class II of the Schedule; c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased." It is, therefore, not correct to say that agnates of the deceased are not heirs." From the very reading, it would be quite clear, in a given case where female dies intestate, by operation of law, the property, firstly devolves upon class-I heirs and in the absence of the same, it would devolve upon class-II heirs, the heirs of the husband. Needless to say, by operation of section 8 of the Act, the appellant herein is having caveatable interest as the heir of the husband of the testatrix. Now, in the instant case, in the absence of testament, when a person comes before the Court alleging that he is having caveatable interest, the test what has got to be applied is to see whether he will get a division of the property or whole of the property. For doing so, the appellant should be allowed to participate in the proceedings, hence, he is the necessary party. 9. In the instant case, the learned single Judge has pointed out number of decisions in order to fortify his decision. But the Court is of the opinion that all those decisions can be applied at the time of considering, whether the Will is true, genuine or valid document and whether it was properly executed or not. Now, at this earliest point of time, the only question arise is whether the appellant who comes before the Court has got caveatable interest or not. The Court is of the considered opinion that the appellant is able to show caveatable interest, apart from that, the respondent is unable to show, what adverse interest, the appellant holds. Merely because number of applications were filed by the caveators and they are opposed by the O.P. Petitioner stating that it was an attempt made to grab the property, cannot be a reason to reject the application filed by the appellant. The Court is of the opinion that the appellant has got caveatable interest, hence, the order of the trial Court has to be set aside. 10. Accordingly, the order dated 27.7.2009 passed by the trial Court is set aside. The appeal is allowed leaving the parties to bear their costs. Consequently, M.P.No.1 of 2009 is closed. Vsi 01.09.2009 This Appeal having been posted on Monday the fifth day of October 2009 'For Being Mentioned' subsequent to the order of this Court dated 1.09.2009 and made herein in the present of Mr.K.Ramu Advocate for Appellant and of Mr.P. Chandrasekaran Advocate for the first respondent, the Court made the following order. https://hcservices.ecourts.gov.in/hcservices/ (Order of the Court was made by M. CHOCKALINGAM, J.) This matters appears for being mentioned. 2. The learned Counsel for the first respondent brought to the notice of the Court that the appeal filed by the appellant herein has been allowed, and now the probate has been revoked, and considering the age of the first respondent, it would be fit and proper that the proceedings should come to an end early, and hence time has got to be stipulated. 3. The learned Counsel for the appellant would submit that it is a case where the OP has got to be converted into TOS, and he has to receive summons and file the written statement, and issues have got to be framed, and the parties have to go for trial. In apraisement of the circumstances, this Court is of the view that considering the age of the first respondent, an octogenarian, it has got to be taken early. The Counsel for the appellant undertakes to file vakalath within a period of a week from the time of conversion of OP into TOS and thereafter, file the written statement as early as possible. The trial Court is required to complete the trial proceedings within a period of six months herefrom. Nsv 5.10.2009. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To The Sub Assistant Registrar, Original Side, High Court, Madras. + 1 cc to Mr. P.Chandrasekaran, Advocate SR No.50323 OSA.No.271 of 2009 PKB(CO) SR/16.9.2009 EU/15.10.2009 https://hcservices.ecourts.gov.in/hcservices/