IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.06.2011 CORAM THE HON'BLE MR. JUSTICE V.PERIYA KARUPPIAH Application No.6575 of 2009 in Testamentary O.P.No.73 of 2009 ORDER This application has been filed by the applicants/third party seeking to revoke the order of probate granted in O.P.No.73 of 2009 by this Court on 18.04.2009. 2. The brief facts of the case put forth by the applicants in the petition are as follows: The applicants state that the husband of the deceased i.e., Voor Sriramulu Chetty had already executed a Will on 7.1.1941 which was duly probated in O.P.No.231 of 1941 and he expressed a desire to adopt one Abiramudu, son of P.Andalamma and after such an adoption by the deceased, Abiramudu died on 11.6.1950. The said Voora Sriramulu Chetty's first wife's daughter is P.Andalamma and the applicants are the sons and daughters of the deceased Mrs.P.Andalamma and the grand children of the deceased Voora Sirdeviamma. The applicants are the only legal heirs of the deceased Voora Srideviamma and they are entitled to the properties of the deceased on intestacy. The deceased has mentioned the names of grandsons in the Will which was probated in the above proceedings. The applicants are the only next of kin of the deceased and they are entitled to be impleaded in the above proceedings in O.P.No.73 of 2009 for probate. The Will and Codicil enclosed by the petitioners in the said O.P. were not disclosed to the applicants by the deceased who died on 11.05.2008 and the alleged Will is dated 14.12.2001 and the alleged Codicil is dated 14.1.2008. The petitioners in O.P.No.73 of 2009 are the sons of the deceased brother of Voora Srideviamma who claimed to be the beneficiaries under the alleged Will. The alleged Will and Codicil are fabricated documents and were not executed by the deceased in a sound and disposing state of mind and free Will and therefore, the Will and Codicil are not valid in the eye of law. The petitioners in the main O.P.No.73 of 2009 were aware of the applicants being the grand children of the deceased daughter of Voora Sriramulu Chetty and Voora Srideviamma who are the only legal heirs of the deceased and the petitioners have not disclosed their existence as legal heirs, deliberately even though the executors appointed under the alleged Will are close relatives of the petitioners' mother. The next of kin who are necessary parties to the petition for the grant of probate which mandatorily required them to be impleaded and therefore, the probate order obtained suppressing the legal heirs of the deceased is not sustainable and it would be a just cause to seek for revocation of the order of probate dated 18.4.2009 granted in O.P.No.73 of 2009. 3. The contentions of the respondents are as follows: The respondents deny that the applicants are the next kin of the deceased Voora Srideviamma and that they are necessary parties to be impleaded. The third applicant was very much aware of the probate proceedings and he had signed the consent affidavit for granting the probate in his representative capacity as a trustee of the first respondent/beneficiary, Trust namely Voora Sriramulu Chetty Charities. The third applicant was pressuring their counsel to obtain the order of probate before March 2009 stating that the auditors were insisting the same for enabling him to finalise the accounts of Voora Sriramulu Chetty Trust. The applicants are none other than the brothers and sisters of the third applicant. The 1st, 4th and 5th applicants and the wife of the second and third applicants were the beneficiaries under the Will who have received a sum of Rs.5000/- towards 'manjal kunkumam' expenses as per the Codicil dated 14.1.2008 of the deceased Voora Sridevamma and the third applicant was one of the persons who witnessed the distribution of the same to the persons listed in the Will and he has signed a letter to that effect. Therefore, the applicants were very much aware of the Will and the steps taken by the respondents for obtaining the probate and it was always open for the applicants to have opposed to the grant of probate at that point of time. The respondents deny the averment that the Will and Codicil were fabricated documents and were not executed by the deceased in sound and disposing state of mind. The deceased was in sound and disposing state of mind which fact the applicants are very much aware. The Will dated 14.12.2001 was a registered one. The codicil dated 14.1.2008 is a mere reproduction of the aforesaid Will dated 14.12.2001 and it had excluded the distribution of gold and diamond ornaments contained in the Will dated 14.12.2001 which was distributed by the deceased herself, during her life time. The respondents deny the averment that the applicants were not aware of the Will and codicil. The applicants claim that they are the next kin of the deceased would further water down the wish of the deceased who has stated that her last rites should be performed by the respondents alone. The deceased was taken care by the respondents and she had always stayed along with the second respondent. The copy of the Will and other papers pertaining to the property at No.84, Varadha Muthiappan Street and No.9, Kumarappa Maistry Street were received by the third applicant as early as on 25.5.2009. The present application is filed as an after thought with an ulterior motive. The non mentioning of the reasons in the Will for the exclusion of the names of the applicants does not lead to any suspicious circumstances and it was on her own will and wish of the deceased that the will and codicil had been written by the deceased herself. Hence, the respondents prayed for dismissal of the application as it is not maintainable . 4. The contentions of the reply filed by the third applicant would be thus: The acts of the respondents constitute an act of misleading the Court as the Testatrix died leaving no heirs or next of kin. The second and the third applicants used to perform the yearly ceremony of the testatrix's husband who is their maternal grand father and the respondents were no where in the picture. The third applicant did not receive the copy of the Will and other papers as stated in para 15 of the counter. He was asked to sign the papers on behalf of the charity and he signed the papers in full confidence on them. The first respondent is his co-brother and the 2nd respondent is his brother- in-law (wife's brother) and the relationship led him to believe them and he signed them. The codicil is mere a reproduction of the earlier will is not correct and the detailed reading of both the will and codicil will prove otherwise and the probate granted may be revoked and the matter may be disposed of on merits. 5. The respondents filed a Testamentary Original Petition in O.P.No.73 of 2009 before this Court seeking for the grant of probate of a Will dated 14.12.2001 and the Codicil dated 14.01.2008 executed by the testatrix namely Voora Sri Devamma. The respondents as petitioners have impleaded the beneficiary Trust namely Voora Sri Ramulu Chetty Charity and its trustees as respondents and probate was granted in favour of the respondents/petitioners as the executors of the said Will and the applicants herein have filed the present application seeking to claim as interested persons coming under the category of next of kin and they were omitted to be impleaded as parties and the non-citation of the applicants would result, the grant of probate as invalid and therefore, seek for revocation of the order of grant of probate. 6. Heard Mr.P.K.Sivasubramaniam, learned counsel appearing for the applicants and Mr.R.Umashankar, learned counsel appearing for the respondents 1 and 2. 7. Learned counsel for the applicants would submit in his arguments that the testatrix namely Voora Sridevamma was the second wife of one Voora Sriramulu Chetty. He would further submit that the said Voora Sriramulu Chetty had a first wife by name Voora Sri Deviamma and through her, he got a daughter by name P.Andalamma and the said Andalamma is the mother of the applicants 1 to 5 and one Abiramudu, a deceased brother of applicants. He would further submit that the said Abiramudu was taken in adoption by the said Voora Sridevamma, the testatrix, but he died bachelor on 11.6.1950. He would further submit that the said Voora Sridevamma is said to have executed the Will and appointed the respondents as executor excluding the applicants from inheriting the immovable properties but was stated to have given certain benefits of movable properties which is not true and the grant of probate without citing the applicants who are interested persons cannot be sustained in view of the provisions under Section 263 of the Indian Succession Act. He would also draw the attention of the Court that the applicants would come as the next kin of the testatrix in view of the provisions of Hindu Succession Act and they would inherit the property belonging to the testatrix in the absence of the Will and therefore, they ought to have been cited as parties to the proceedings but it was not done by the respondents. He would further submit in his argument that the provisions laid down in Order XXV Rule 4 of O.S. Rules coupled with Form 55 of Appendix II of the Original Side Rules of this Court would require the respondents/petitioners to implead the next of kin of the testatrix and the absence of impleadment of next of kin would lead to revocation of the probate order passed by this Court as per the provisions of Section 263 of Indian Succession Act and its explanation and illustration. He would cite the judgment of this Court reported in 2002 (2) MLJ 407 (V.Arunachalam, In re) in support of his argument. He would also bring it to the notice of this Court, yet another judgment of this Court reported in 1995(2) LW 852 (Panchanathan S. v. Ellappan etc. and others) for the similar principle. Therefore, they would request the Court to revoke the order of probate made in O.P.No.73 of 2009 on 18.04.2009. 8. Learned counsel appearing for the respondents would submit in his arguments that the applicants have no bonafide to question the order passed by this Court granting probate in favour of the respondents. He would further submit that it is true that Abiramudu son of P.Andalamma was adopted by Voora Sridevamma and the said adopted son pre-deceased the adopted mother and therefore, there is no significance in the death of the adopted son. He would also submit that once the adoption of a person has been completed, his relationship with the natural parents would be terminated and he would be considered as the son of the natural parents and therefore, on the death of Abiramudu, the natural mother of P.Andalammal nor her legal heirs will get any right over the estate of Abiramudu. He would further submit in his arguments that Voora Sridevamma, the testatrix who was the second wife of Voora Sriramulu Chetty was entitled to the properties and the applicants will not become the legal heirs of the deceased testatrix Voora Sridevamma. Therefore, he would submit that they cannot be called as the next of kin of Voora Sridevamma and they need not be impleaded nor cited as respondents in the O.P. He would further submit that the lineal descendants and the consanguine descendants would become the kindred of any person of Schedule- I as per Section 25 and 26 of the Indian Succession Act and the applicants will not come under the definition of kin of the deceased testatrix Voora Sridevamma and therefore, she is not entitled for any legal heirship. He would also submit in his argument that the third applicant was very much aware of the testamentary proceedings and his wife and the first applicant's wife are also the beneficiaries under the Will and they received the money to the tune of Rs.5,000/- each towards their "Manjal Kunkumam". Therefore, they are estopped from questioning the probate order passed by this court. He would also submit that they had given their consent impliedly and therefore, the prayer of the applicants may be dismissed and the grant of probate may be upheld. 9. I have given anxious consideration to the arguments advanced on either side. 10. Indisputably Voora Sriramulu Chetty was the propositor and he married one Voora Srideviammal as his first wife and he got a daughter namely one P.Andalamma and the said Andalamma gave birth to the applicants 1 to 5 and one son namely Abiramudu. It is further submitted that the said Voora Sriramulu Chetty married a similar named person, Voora Sridevamma for the second time and he had no issues through the said second wife. It is also an admitted fact that the said Voora Sridevamma adopted the said Abiramudu one of the sons of P.Andalamma, the daughter of Voora Sriramulu Chetty through his first wife. The said first wife was already dead and thereafter only the said Voora Sriramulu Chetty contracted his marriage with Voora Sridevamma as his second wife. The daughter, P.Andalamma was also dead. The said Voora Sriramulu Chetty died on 16.1.1941. The said adopted son Abriramud died as bachelor on 11.6.1950. It is also an admitted fact that Voora Sridevamma passed away on 11.05.2008. 11. According to the respondents, the said Voora Sridevamma had executed a Will in respect of the property which she got from her husband Voora Sriramulu Chetty through the Will dated 1.1.1941 executed by him and subsequently probated in O.P.No.231 of 1941 and the said Will was executed by the Testatrix, Voora Sri Devammal was before the attesting witnesses on 14.12.2001 and the same was registered as document No.111 of 2001 of Sub-Registrar, T.Nagar dated 14.01.2008 by the said testatrix bequeathing all her movable and immovable properties. It is also the further case of the respondents that it was the last Will executed by her and the respondents in the said O.P.No.73 of 2009 are the main beneficiaries and the first applicant and the third applicant are impliedly benefited as their wives were given each Rs.5,000/- towards "Manjal Kunkumam" as directed in the said Will. However, it has been registered by the applicants herein that they are the next kin of the testatrix Voora Sridevamma and they ought to have been impleaded already as respondents in the O.P. which is mandatory. It is the further case of the applicants that Form 55 of Appendix II coupled with Order XXV Rule 4 of the Original Side Rules would require the persons of next of kin to be cited as respondents. Since the applicants were not impleaded as respondents in O.P., the probate order passed by this Court in the absence of next of kin of the testatrix and is squarely attracted under section 263 of the Indian Succession Act and as per the explanation and illustration made therein, the grant of probate order has to be revoked. The said case of the applicants has been strongly repudiated by the respondents that the applicants are not at all coming under the definition of next kin and they would not be covered either as lineal descendants or consanguine descendants to come under the definition of kindred as per Sections 25 and 26 of Indian Succession Act and Schedule-I of the Indian Succession Act. In order to appreciate the contentions raised on either side, it is very much essential to come through the definition of kindred in Indian Succession Act. Sections 24, 25 & 26 of the Indian Succession Act are very much relevant. In section 24 it has been categorically laid down as follows: 24. Kindred or consanguinity. Kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor. 1. Consanguinity. Consanguinity or kindred is defined to be "vinculum personarum ab eodem stipite descendentium", i.e., the connection or relation of personsdescendedfrom the same stock or common ancestor. 2. Kindred. The definition of "kindred" given in this section does not apply to Hindus, because it is limited to blood relations and excluded those who are related by marriage; whereas the word "kindred" when applied to Hindus includes relation by marriage (e.g., son's wife.) However, the kindred mentioned in Section 24 of the Act has been distinguished that it would not apply to Hindus because it is related to blood relations and excludes those who are related by marriage. 12. Admittedly, the parties herein are Hindus. Therefore, the relationship of kindred cannot be gone into according to Indian Succession Act. But, we have to see as to whether the applicants would be covered under the definition legal heirs of Voora Sridevamma and in the absence of testamentary succession, whether the applicants would come as legal heirs to inherit the property. The respondents are none other than the brothers of the said Voora Sridevammal whereas the applicants are the sons and daughters of the deceased daughter (P.Andalamma) or deceased daughter of the husband of the testatrix. It is no doubt true that there was no issue for the testatrix Voora Sridevammal and she adopted one of the sons of the said P.Andalamma as her son and the said adopted son Abiramudu also died i.e., pre-deceased the testatrix on 11.6.1950. Therefore, the said property was in tact with Voora Sridevamma at the time of alleged execution of Will. There is no controversy that the property was obtained by her from her husband Voora Sriramulu Chetty. 13. Now, we have to see whether the applicants are the legal heirs in accordance with the Hindu Succession Act in the absence of the alleged will executed by Voora Sridevamma. Voora Sridevamma died on 11.5.2008 i.e., after the passing of Hindu Succession Act. Therefore, the provision of Section 15 of the Hindu Succession Act is applicable to determine her heirship. For better understanding, Section 15 of the Hindu Succession Act is extracted hereunder. 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 Sec. 16, (a) firstly, upon the sons and daughters (including the children of any pre-deceased 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. Notwithstanding 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 pre-deceased 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 or from her father-in-law shall devolve in the absence of any son or daughter of deceased including the children of any pre- deceased 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. 14. According to section 15 if the heirs of the husband are available for inheriting the property of the deceased they would be considered as legal heirs. The husband of Voora Sridevamma died on 16.1.1941, sufficiently, prior to the introduction of Hindu Succession Act. Whether such heirship on the date of death of husband is applicable or the date of death of the wife to be taken as the opening date of ascertainment of heirship of the husband is the question to be determined. In the judgment of the Honourable Apex Court reported in (1998) 5 SCC 368 (Seethalakshmi Ammal v. Muthuvenkatarama Iyengar and another), the answer is given in paragraph No.4 which reads as follows: . "4. In order to decide who are the heirs of a female Hindu under category (b) of Section 15(1) one does not have to go back to the date of the death of the husband to ascertain who were his heirs at that time. The heirs have to be ascertained not at the time of the husband's death but at the time of the wife's death because the succession opens only at the time of her death. Her heirs under Section 15(1)(b) will have to be ascertained as if the succession of her husband had opened at the time of her death. Thus, if at the time of Gomathi Ammal's death, there is any heir of her husband who fits the description in the Schedule of being the widow of his predeceased son, she will be one of the heirs entitled to succeed. The status of the heir must be determined at the time of the death of the female whose heirs are being ascertained. The appellant was the widow of a predeceased son on the date when Gomathi Ammal died. Therefore, the learned Single Judge was not right in coming to the conclusion that the appellant is not an heir of Gomathi Ammal." 15. According to the said judgment of the Honourable Apex Court, the Succession to heirship one's husband would open at the time of the death of wife and not on the date of death of husband. In this case, the testatrix died on 11.5.2008. Therefore, it has to be deemed that the succession opens only on 11.5.2008 for the heirship of her husband Voora Sriramulu Chetty. If we go through the heirship of Voora Sriramulu Chetty, as on 11.5.2008, in accordance with the Hindu Succession Act, provisions of Section 8 is applicable. According to Section 8, the relatives specified in Class-I would include son and daughter of the pre-deceased daughter. Admittedly, the mother of the applicants P.Andalamma was the daughter of Voora Sriramulu Chetty who pre deceased the testatrix Voora Sri Devamma. Therefore, the applicants are coming under Class-I heirs of Voora Sriramulu Chetty. In turn, they would become the legal heirs of Voora Sri Devamma in the absence of testamentary succession. Therefore, we could easily come to the conclusion that the applicants are the legal heirs of Voora Sridevamma and therefore, they are also interested persons and they would come as the next kin of the testatrix Voora Sridevamma. 16. As regards the judgment of this Court reported in 2009(6) MLJ 1150, it has been categorically laid down as follows: "15. The Supreme Court in Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal (2008) 1 SCC 267: (2008) 1 MLJ 1263 has observed in paragraphs 19 to 21 as follows at pp. 1267 and 1268 of MLJ: 19. Reliance has been placed by Mr.Bhatt on a decision of this Court in Ishwardeo Narain Singh v. Kamta Devi AIR 1954 SC 980 wherein, inter alia, it was held: "2. ... The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court." 20. The Probate Court, indisputably, exercises a limited jurisdiction. It is not concerned with the question of title. But if the probate has been granted subject to compliance with the provisions of the Act, an application for revocation would also lie. 21. In Chiranjilal Shrilal Goenka v. Jasjit Singh (1993) 2 SCC 507 whereupon again Mr.Bhatt relied upon, this Court held: "On a conspectus of the above legal scenario we conclude that the Probate Court has been conferred with exclusive jurisdiction to grant probate of the will of the deceased annexed to the petitioner(suit) ; on grant or refusal thereof, it has to preserve the