R KRISHNAMOORTHY Vs. J CHANDRASEKARAN

JUDGEMENT

(1.) ONE Smt. Padmini Chandrasekaran died on 7.6.1980 at Madras leaving behind a registered will dated 20.9.1975. The plaintiff herein Thiru R. Krishnamurthy and one H.B.N. Setty were appointed as executors under the Will. The latter had relinquished his post as such executor by virtue of his being in the Indian Administrative Service. Thereupon the plaintiff filed O.P. 117 of 1981 on the file of this Court under Ss. 222 and 276 of the Indian Succession Act for the grant of probate. By an order dated 28.4.1981 probate was issued to him. Subsequently the husband of deceased Padmini Chandrasekaran came forward with Application No. 1998 of 1982 to revoke the probate granted by this court. According to him the probate was obtained even without disclosing his existence and without any attempt to issue any notice to him. That application was stoutly opposed by the present plaintiff on the ground that the genuineness of the will was not challenged by the husband in the earlier proceedings. A single Judge of this Court has allowed the application and directed revocation of the grant of probate under S. 263 of the Indian Succession Act by his order dated 16.9.1982. And the O.P. was converted as T.O.S. 28 of 1982. Against this order the plaintiff herein preferred O.S.A. 96 of 1983. A Division Bench of this Court allowed the appeal on 24.3.1984. The husband of the testatrix took up the matter in appeal before the Supreme Court in Civil Appeal No. 4462 of 1984. As the parties have agreed to settle the matter between themselves the Supreme Court by its order dated 11.9.1985 set aside the judgment passed by this Court in O.P. No. 117 of 1981 dated 16.9.1982 and in O.S.A. No. 96 of 1983 dated 12.3.1984 and held that on the caveat filed by the husband the matter would be treated as regular testamentary suit in the original side of the High Court and this Court will proceed to dispose of this matter at its convenience but as early as possible.

(2.) WHILE this was pending Application Nos. 17, 18, 19 and 20 of 1989 came to be filed by one minor J. Gnanaprakasam represented by J. Chandrasekaran the husband or the testatrix. Application No. 17 of 1989 was for impleading the said J. Gnanaprakasam as a party in the T.O.S. on the ground that he was adopted on 7.12.1988 as son by the above said J. Chandrasekaran under a registered deed of adoption, that the deceased Padmini Chandrasekaran would become his adoptive mother by such adoption and that he would be her heir. This application was dismissed as absolutely misconceived and consequently the prayer in the other three applications were also rejected.

(3.) WHEREAS the learned counsel for the plaintiff argues that no legal representative of the deceased defendant need be brought on record in this testamentary original suit and it is enough if he is permitted to prove the will in the solemn form by examining attesting witnesses. According to him it is concluded by a ruling of this Court reported in Padmini Chandrasekaran v. Somasundaram Chettiar 78 L.W. 535 = 1965-2- M.L.J. 65 = 1965 (2)M.L.J.P. 65 that the properties have been inherited by Padmini Chandrasekaran as her father's estate. In fact in O.S. 67 of 1980 of Sub Court Pondicherry this position is clearly admitted by the deceased defendant herein. Under S. 15(1) of the Hindu Succession Act the property of a female Hindu dying intestate shall devolve on the heirs mentioned therein. As per S. 15(2) (a) of the said Act notwithstanding anything contained in sub-S. (1) any property inherited by a female Hindu from her father or mother shall devolve in the absence of any son or daughter or husband of the deceased not upon the other heirs referred to in sub-S. (1) but upon the heirs of the father. So the persons mentioned in the memo who are the brothers and adopted son of her deceased husband can never succeed to the estate of Padmini Chandrasekaran and they cannot have any caveatable interest to oppose the grant of probate. The learned counsel for the plaintiff further argues that on the death of J. Chadrasekaran on 31.5.1991 the caveat got terminated or discharged since there are no persons who could succeed him with caveatable interest in the estate of deceased Padmini Chandrasekaran. The caveat has lapsed with the death of the defendant. So it has to be struck off. There is no need to bring on record any legal representative of the deceased defendant and the letter dated 17.7.1991 filed by the counsel for the defendant has to be rejected.