IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.07.2011 Coram The Hon’ble Mrs. Justice R.BANUMATHI AND The Hon’ble Mr. Justice B.RAJENDRAN O.S.A.NOS.83, 165 AND 178 OF 2011 AND M.P.NO.1 OF 2011 O.S.A.No.83 of 2011: 1. Gerald Lobo 2. Raymund Lobo 3. Laura Ann Shahani .... Appellants(Defendants 3 to 5) Vs. 1. Geetha Davis 2. Davis Thomas 3. T.S.Sridharan 4. John Lobo 5. Esther Louise Miranda .... Respondents (R1 given up as (Proposed plaintiffs 3 and 2, not necessary party) Plaintiff, Defendants 2 and 6) O.S.A.No.165 of 2011: T.S.Sridharan .... Appellant (Plaintiff) Vs. 1. Geetha Davis 2. Davis Thomas 3. Johanna Lobo (died) 4. John Lobo 5. Gerald Lobo 6. Reymond Lobo 7. Laura Ann Shahani 8. Esther Louise Miranda ... Respondents (Proposed Plaintiffs 2 and 3, Defendants) O.S.A.No.178 of 2011: John Lobo ... Appellant(2nd Defendant) https://hcservices.ecourts.gov.in/hcservices/ Vs. 1. Geetha Davis 2. Davis Thomas 3. T.S.Sridharan 4. Johanna Lobo (died) 5. Gerald Lobo 6. Reymond Lobo 7. Laura Ann Shahani 8. Esther Louise Miranda ... Respondents (Proposed Plaintiffs 2 and 3, Plaintiff and Defendants 1&3to6) Appeals in O.S.A.Nos.83, 165 and 178 of 2011 are filed under Clause 15 of the Letters Patent read with Order 36 Rule 1 of Original Side Rules, 1956 against the Order of single Judge dated 18.11.2010 in Application No.4141 of 2010 in T.O.S.No.49 of 2001 on the file of this Court. For Appellants : Mr.C.Lakshmi Narain in O.S.A.No.83 of 2011 and for Respondents No.5 to 7 in O.S.A.Nos.165 and 178 of 2011 For Respondents 1 and 2 : Mr.K.F.Manavalan in O.S.A.Nos.83, 165 and 178 of 2011 For Appellant in O.S.A. : Mr.L.J.Vengatesh for No.165 of 2011 and M/s.Pais, Lobo &Alvares Respondent No.3 in O.S.A.Nos.83 and 178 of 2011 For Appellant in OSA.178/2011: Mr.M.S.Krishnan,Sr.Counsel and Respondent No.4 in for O.S.A.Nos.83 and 165/2011 M/s.Sarvabhauman Associates For Respondent No.5 in : Mrs.Chitra Sampath O.S.A.Nos.83 of 2011 and for Respondent No.8 in O.S.A.No.165 & 178 of 2011 COMMON JUDGMENT R.BANUMATHI,J. Challenge in these appeals is the order in Application – https://hcservices.ecourts.gov.in/hcservices/ A.No.4141 of 2010 in T.O.S.No.49 of 2010 dated 18.11.2010, whereby the learned judge has directed 2nd respondent – Davis Thomas to be impleaded in the suit – T.O.S.No.49 of 2001 as co-plaintiff. 2. The contesting defendants in T.O.S.No.49 of 2001 and Plaintiff - T.S.Sridharan - one of the executors in the Will dated 26.10.1984 are the appellants in these appeals. The dispute pertains to last will of Dr.L.C.Lobo dated 26.10.1994. The testator Dr.L.C.Lobo was residing at No.168, Greams Lane, Chennai -600 006 and died on 15.1.1997. He left behind his widowed wife - Johanna Lobo, nephews and nieces, who are the appellants. In his Will dated 26.10.1994, testator appointed (i) 1st respondent – Davis Thomas and (ii) appellant in O.S.A.No.165 of 2011 - T.S.Sridharan as executors, they being empowered to act jointly and severally. In the said Will, testator has provided unconditional right of residence to his wife Johanna Lobo during his life time. It was further provided that the property at No.168, Greams Lane, Chennai – 600 006 would be bequeathed to The Mother Superior, Little Sisters of the Poor, Harrington Road, Chennai subject to the proviso that it would be handed over to them only after the life time of respondents 1 and 2. The testator also stipulated that in the event of death of his wife - Johanna Lobo, the 2nd respondent - Davis Thomas will have the right of residence during his life time and the 1st respondent - Geetha Davis also shall have the right of residence. 3. One of the executor - T.S.Sridharan filed O.P.No.414 of 2001 for Probate of the Will on 27.1.2000. In view of the caveats filed by the appellants, the Probate was converted as T.O.S. After three years of death of Dr.L.C.Lobo, who died on 15.1.1997, the Will is being contested by the appellants on the ground that the said Will was executed by the testator under undue influence and not out of his free will and on other grounds. At the time when the Probate O.P was filed, 2nd respondent – Davis Thomas filed consent affidavit dated 25.5.2001 stating that he has no objection for grant of probate in favour of the executant - T.S.Sridharan, the co-executor of the Will. 4. The trial in T.O.S.No.49 of 2001 has commenced in which testator's wife - Johanna Lobo had given evidence on 21.3.2003. Plaintiff Sridharan was examined as P.W.1. In an application application filed by Plaintiff/co-executor of the Will – T.S.Sridharan, Advocate Commissioner was appointed by the High Court for recording the evidence of Johanna Lobo. The Advocate Commissioner has recorded the evidence of Johanna Lobo. The testator's wife – Johanna Lobo died on 11.12.2009. 5. In March, 2010, respondents 1 and 2 filed A.No.4141 of 2010 to appoint Geetha Davis as a Party Receiver to take charge of the property. In the said Petition, it was alleged that Johanna Lobo https://hcservices.ecourts.gov.in/hcservices/ died on 11.12.2009 and the entire property of 9.5 grounds and house was forcibly occupied by the appellants/defendants, the moment Johanna Lobo was taken to the Hospital. In their application, respondents 1 and 2 averred that the defendants had illegally and unlawfuly entered and taken possession to unjustly enrich themselves and that the Wish of testator – Dr.L.C.Lobo is required to be honoured. It is further averred that appellants/defendants had gone to the extent to build a brick wall at the gate thereby illegally blocking the premises, being the only gate at the entrance of premises of land of 9 ½ grounds and the house thereon belonging to Dr.L.C.Lobo. On those allegations, respondents 1 and 2 prayed to appoint the 1st respondent – Geetha Davis as Party Receiver to take charge of the property for maintenance and managing the same pending disposal of the suit and also to punish the defendants for contempt of court with direction to the defendants to hand over possession of the property, being the land and residential building known as "Fox Holes" bearing No.168, Greams Lane, Chennai – 600 006. 6. The defendants have resisted the application. Mr.T.S.Sridharan - the Co-executor filed counter stating that Davis Thomas has given a consent affidavit – a specific no objection to file the Petition for Probate of Dr.L.C.Lobo's Will and having given consent affidavit, Davis Thomas - 2nd respondent cannot withdraw the same. It was further averred that if the 2nd respondent – Davis Thomas wishes to act as executor, he should file separate Petition and obtain Probate and only thereafter he can exercise the right in administering the estate. 7. Denying the allegations in the Application, defendants have filed counter stating that already P.W.1 was cross examined and respondents 1 and 2 are bound by the said proceedings and they cannot seek to implead themselves as the plaintiffs in T.O.S.No.49 of 2001. The defendants have also alleged that they have objected to the Probate being granted on the ground that the Will is not genuine and has been obtained by the 2nd respondent – Davis Thomas by using undue influence and coercion and also on the ground that the alleged Will of Dr.L.C.Lobo was not deposited with the Sub- Registrar as required under the provisions of Section 118 of Indian Succession Act. 8. The learned single Judge held that Ex.P.19 – consent affidavit cannot be construed as a letter of renunciation and that one cannot say that the 2nd respondent – Davis Thomas has renounced his rights for ever. Pointing out that the 2nd respondent is one of the co-executor, the learned single Judge partly allowed the application directing impleading of 2nd respondent as 2nd plaintiff in T.O.S.No.49 of 2001. 9. We have heard Mr.C.Lakshmi Narain, learned counsel https://hcservices.ecourts.gov.in/hcservices/ appearing for the appellants in O.S.A.No.83 of 2011, who are Respondents No.5 to 7 in O.S.A.Nos.165 and 178 of 2011, Mr.K.F.Manavalan, learned counsel appearing for respondents 1 and 2 in all the appeals, Mr.L.J.Venkatesh, learned counsel appearing for Appellant in O.S.A.No.165 of 2011, who is Respondent No.3 in O.S.A.Nos.83 and 178 of 2011 and Mr.M.S.Krishnan, learned Senior Counsel along with Ms.P.T.Asha appearing for appellant in OSA.178 of 2011, who is Respondent No.4 in O.S.A.Nos.83 and 165 of 2011 and Mrs.Chitra Sampath, learned counsel appearing for respondent No.5 in O.S.A.Nos.83 and 165 of 2011, who is Respondent No.8 in O.S.A.No.178 of 2011. 10. Mr.M.S.Krishnan, the learned Senior counsel appearing for appellant in O.S.A.No.178 of 2011 contended that after giving consent affidavit in 2001, 2nd respondent has not chosen to participate in the proceedings and when the 2nd respondent has given a consent affidavit he cannot retract from it. The learned Senior Counsel would further contend that the learned single Judge erred in laying unnecessary emphasis on the word "renounced", which was not mentioned in Ex.P.19. It was further contended that Davis Thomas has not filed any separate affidavit withdrawing his authorisation to T.S.Sridharan to file the O.P, whereas only 1st respondent – Geetha Davis has filed the affidavit and the learned single Judge did not consider the same in proper perspective. It was further submitted that the learned judge failed to note that the application for impleading respondents 1 and 2 / plaintiffs was filed in March 2010 nearly ten years after the commencement of proceedings and the application is filed only to drag on the proceedings and causing unnecessary expenses to the appellants. 11. Reiterating the above submissions, learned counsel Mr.C.Lakshmi Narain appearing for the appellants in O.S.A.No.83 of 2011 would also submit that inspite of the executor - Mr.T.S.Sridharan diligently prosecuting the T.O.S proceedings and 2nd respondent having given consent affidavit, 2nd respondent – Davis Thomas is estopped under law seeking to be impleaded once again as proposed plaintiff. 12. Mr.L.J.Vengatesh, learned counsel appearing for appellant – Mr.T.S.Sridharan would contend that according to the Will of late Dr.L.C.Lobo dated 26.10.1994, appellant – T.S.Sridharan and 2nd respondent – Davis Thomas came to be appointed as executors to act jointly and severally and the 2nd respondent having given consent to T.S.Sridharan to get Probate now he cannot join in these proceedings and his only course is to file a fresh Probate O.P. It was further contended that Davis Thomas has made the testator and his mother Hermione Lobo to deposit huge amounts in the Company in which Davis Thomas was a Senior Executive and the Company has become defunct, which is now beyond recovery. The learned counsel would further submit that the executor of the Will - T.S.Sridharan https://hcservices.ecourts.gov.in/hcservices/ has taken all steps to protect the property and the allegations levelled against him are baseless. 13. The learned counsel Mrs.Chitra Sampath, learned counsel appearing for respondent No.5 in O.S.A.Nos.83 and 165 of 2011, who is Respondent No.8 in O.S.A.No.178 of 2011 also reiterated the submissions. 14. Learned counsel Mr.Manavalan appearing for respondents 1 and 2 has submitted that the moment Mrs.Johanna Lobo was taken to the hospital the defendants have forcibly occupied the entire property of 9.5 grounds and the house and defendants had gone to the extent to build a brick wall at the entrance gate thereby illegally blocking the premises. It was further submitted that respondents 1 and 2, being the legatees, were under the impression that the plaintiff would take care of their interest in the matter and learnt that the plaintiff – co-executor of the Will has not taken steps to protect the property and therefore the 2nd respondent has taken steps to implead himself and the learned single Judge has rightly ordered the 2nd respondent to be impleaded as co-plaintiff. 15. There is no dispute that in May 2001, at the time when Probate O.P.No.414 of 2001 was filed, the 2nd respondent had given consent affidavit (marked as Ex.P.19) stating that he has full faith and confidence in T.S.Sridharan and he has 'no objection' for grant of Probate in favour of T.S.Sridharan. The main contention of appellants is that having given the consent affidavit in May 2001, 2nd respondent cannot withdraw it after ten years and seek to implead himself as a co-plaintiff. 16. The learned Senior Counsel Mr.M.S.Krishnan would contend that having given consent affidavit 2nd respondent ought not to have been permitted to retract his renunciation and seek to implead himself as a co-plaintiff. The learned Senior Counsel would further submit that Ex.P.19 - Consent affidavit would amount to renunciation falling within the ambit of Section 230 of Succession Act. Placing reliance upon a decision of H.H.DODDA GANGADHARAIAH VS. V.H.CHANNABASAVAIAH AND ANOTHER, (AIR 1970 MYSORE 139), it was contended that renunciation of executorship became complete when the application under his signature was made and Court had no power to allow the executor to retract from the renunciation. 17. As per Section 230 of Indian Succession Act, the executor can renounce his executorship only in the presence of Judge i.e., in open Court. "Renunciation" is not effective until it has been recorded and filed before the Court. A mere intention to renunciation is not the same as actual renunciation. The consent affidavit filed by the 2nd respondent stating '..... no objection.....' for grant of Probate in favour of co-executor of https://hcservices.ecourts.gov.in/hcservices/ the Will T.S.Sridharan cannot be construed as a "renunciation" within the meaning of Section 230. In our considered view, mere filing of consent affidavit saying "no objection" for grant of Probate to Co-executor cannot be construed as "renunciation" in the eye of law. 18. Much arguments were advanced commenting upon the conduct of the 2nd respondent contending that after ten years the 2nd respondent cannot be permitted to withdraw the renunciation/no objection given by him. Of course, in T.O.S.No.49 of 2001, trial had commenced in 2003. The Advocate Commissioner recorded the evidence of Johanna Lobo on 9.4.2003. Johanna died on 11.12.2009. Plaintiff – T.S.Sridharan has given evidence as P.W.1 and he has been cross examined by the defendants and the matter is part-heard. 19. The main contention of the appellants is that the 2nd respondent had not participated in the proceedings for nearly ten years and after lapse of time he is sought to be impleaded as the co-plaintiff. Since the suit is part heard, it would complicate the issues involved. Of course, after giving consent affidavit in 2001, the 2nd respondent has not chosen to participate in the proceedings. He has filed the application – A.No.4141 of 2010 only in March 2010. In their affidavit, respondents 1 and 2 have averred that after the death of Johanna Lobo, the defendants have taken forcible possession of the property. Johanna Lobo died on 11.12.2009. During the life time of Johanna Lobo, respondents 1 and 2 have been under the impression that Johanna Lobo has been diligently pursuing the matter. Therefore, the non-participation of the 2nd respondent in the proceedings for about 7 years cannot be put against respondents 1 and 2. 20. In their affidavit, respondents 1 and 2 have stated that the moment Johanna Lobo was taken to the Hospital the defendants have forcibly occupied the property and have taken law into their hands. It is further averred that the defendants have gone to the extent to build the brick wall at the gate thereby blocking the premises being the only gate at the entrance of the premises and illegally preventing respondents 1 and 2, who are having life interest in the property. 21. In their counter, the appellants have denied the allegation that they have built a brick wall illegally blocking the premises at the entrance. The defendants further averred that the entire 42 grounds is having a common compound wall at the periphery of the entire property and there was an urgent need to secure the property. It is further averred that the compound wall has crumbled and only to secure the property they have constructed the brick wall. https://hcservices.ecourts.gov.in/hcservices/ 22. Per contra, the learned counsel appearing for the plaintiff would submit that on 11.12.2009 on hearing the news about the death of Johanna Lobo even at about 9.00 A.M, the defendants have trespassed into the property of the deceased and illegally locked the premises and the gates at the entrance to the property and the defendants even prevented the last rites of Johanna Lobo being conducted at her own residence. The learned counsel for plaintiff would further submit that the property is a valuable property situated in a prominent area in the city just opposite to the Apollo Hospital and property is worth several crores. It was further submitted that the defendants have committed acts of criminal and house trespass with scant respect to the proceedings before the Court and regarding the unlawful acts of the defendants, the executor/plaintiff had also taken steps in December 2009 for initiating contempt proceedings. Even though the Contempt Petition is said to have been filed in December 2009, the same was not pursued. Since the T.O.S. is pending, it would not be appropriate for us to express any opinion regarding the allegations and counter allegations regarding the possession of the property. Suffice it to note that having regard to the seriousness of the allegations it would be appropriate that the Executor takes immediate steps in the Suit to protect the property. 23. In fact, the plaintiff/executor is said to have filed the Petition to appoint The Mother Superior, Little Sisters of the Poor Harrington Road, Chennai as the Court Receiver to take charge of the schedule property. It is for the Receiver to take such appropriate steps. The learned counsel appearing for the appellants/defendants and the learned counsel for respondents 1 and 2 have stated that they have no objection for impleading the Mother Superior, Little Sisters of the Poor, Chenai, being the ultimate beneficiaries as one of the defendant in the Suit. 24. In so far as the point raised in these appeals, the learned single Judge directed the 2nd respondent be impleaded as co- plaintiff. As pointed out earlier, the 2nd respondent has made allegations against the plaintiff/co-executor, if the 2nd respondent is added as co-plaintiff, it is doubtful whether together they can get along with the Suit for early disposal. In such view of the matter, the 2nd respondent, being one of the co-executor of the Will, it would be appropriate that he be impleaded as one of the defendants, as he would be also proper and necessary party to safeguard the interest of the property. Further, he, being a co- executor in the Will, as we have held that he has not renunciated his position, he is definitely entitled to be a party though not as a co-plaintiff but definitely as a defendant in the T.O.S. 25. In the result, the order passed by the learned single Judge dated 18.11.2010 made in A.No.4141 of 2010 in T.O.S.No.49 of https://hcservices.ecourts.gov.in/hcservices/ 2001 is modified directing the 2nd respondent be impleaded as the 7th defendant. As the counsel appearing for the appellants/defendants and the plaintiff have no objection for impleading Mother Superior, Little Sisters of the Poor Harrington Road, Chennai as one of the defendants in the suit, the Plaintiff shall take necessary steps to implead her as one of the defendants. The appeals are disposed of accordingly. However, there is no order as to costs. Consequently, the connected miscellaneous petition is closed. usk Sd/- Deputy Registrar //True Copy// Sub Asst. Registrar Copy to: The Sub-Asst.Registrar Original Side High Court Madras. + 2 ccs to M/s. Pais, Loba & Alvares, Advocate SR No.42932 + 1 cc to Mr. Manavalan, Advocate SR No.43079 + 1 cc to Mrs. Chitra Sampath, Advocate SR No.42975 JRG(CO) SR/25.7.2011 Judgment in O.S.A.Nos.83, 165 and 178 of 2011 https://hcservices.ecourts.gov.in/hcservices/