RAKKAMMAL Vs. P R MEYAPPAN AMBALAM

JUDGEMENT

(1.) (Judgment of the Court was delivered by Nainar Sundaram, J.) This Civil Miscellaneous Appeal is directed against the judgment and decree of the District Court. Ramanathapuram at Madurai on O.P. No. 1 of 1984. The first respondent in the Original petition is the appellant herein. Petitioners 1 to 7 in the Original Petition are respondents 1 to 7 herein and the second respondent in the original petition is the eighth respondent herein. We are referring to the parties as per their nomenclature in the Original Petition. The petitioners sought the following reliefs in the Original Petition: ?It is therefore prayed that this Honourable Court may be pleased to grant an order of Letters of Administration or Ancillary Probate which ever is necessary in respect of the estate of the deceased Velu Ambalam in favour of the petitioners 1 to 3 as well as in favour of the second respondent and to grant such other reliefs as this Honourable Court may deem fit and proper in the circumstances of the case and thus render justice.?

(2.) THE material allegations in the petition in O.P. No. 1 of 1984 run as follows: Velu Ambalam owned immovable and movable properties, both in India and Malaya. Velu Ambalam, when in a sound disposing state of mind, executed a Will dated 19.12.1965 at Muar in Malaya, bequeathing all his properties to petitioners 4 to 7 appointing petitioners 1 to 3 and the second respondent as executors. Velu Ambalam died on 27.3.1973 in India. After his demise, the original Will was produced before the High Court of Malaya at Muar for obtaining an order of probate and an order of probate was granted by the High Court of Malaya. THE first respondent filed the suit O.S. No. 32 of 1976 on the file of the Subordinate Judge, Sivaganga for a declaration of title to the properties, set out in the plaint schedules and for recovery of possession. Petitioners 3 to 7, who are defendants in the suit, contested it and yet and suit was decreed on 14-7-1977. Against the judgment and decree in O.S. No. 32 of 1976, A.S. No. 581 of 1977 was preferred by petitioners 3 to 7 to this Court and that appeal was dismissed on 18.6.1982. As against that decision, L.P.A. 20 of 1983 has been preferred by petitioners 3 to 7 and the same is pending. THE decisions in O.S. No. 32 of 1976 and A.S. No. 581 of 1977 have held that obtaining of Ancillary Probate from a competent Court in India is a must for effectuating the Will.

(3.) WE then take up the allegations that the decision as per Ex. B3 under which probate of the Will of late Velu Ambalam was granted by the High Court of Malaya at Muar was vitiated by fraud or collusion. Here again, the pleadings, namely, the objections put forth on behalf of the first respondent are totally devoid of particulars. Under the law, it is necessary to plead fraud specifically and give particulars of the fraud. The burden of proof of fraud is on the person, who alleges fraud, which should be proved by cogent evidence. Courts have always laid down that in the matter of proof of fraud, suspicion cannot take the place of proof and fraud should be proved by direct cogent evidence. Conjectures and suspicions cannot take the place of proof. The same principles govern the allegations of collusion also. In the statement of objections, put forth by the first respondent, WE are not able to find specific allegations of any specific fraud or collusion in obtaining the probate as per Ex. P3. In the said circumstances, we have to eschew this contention, put forth on behalf of the first respondent.