GANESHAMMAL Vs. V ARUNACHALAM

JUDGEMENT

(1.) The application is for revocation and annulment of the grant of Probate in favour of the petitioner in O.P. No. 625/2000 with respect to the property more fully set out in the application and with respect to the Will "fraudulently obtained and made up by the respondent" till the veracity and genuineness is on the following allegations: The first applicant is the mother of the other applicants residing at No. 15, "F" Block, Pensioners' Lane, Perambur Barracks, Chennai-600 012. They are the legal representatives of deceased Vasudevan, who passed away on 10-11-1993. Even during the life time of Vasudevan, the applicants were in absolute possession and enjoyment of the property and after the death of Vasudevan, they had become the owners. Legal heirship certificate was also issued to the applicants by the Tahsildar on 29-12-1994 wherein it is clearly mentioned that Vasudevan left behind the applicants as his legal representatives. The applicants have the necessary documents like Birth Certificates, School Certificates, etc. to prove beyond doubt that the first applicant is the wife and the other applicants are the daughters of late Vasudevan and that they are the only legal representatives of Vasudevan. Vasudevan had not executed any Will and even if any such Will had been produced by the respondent in the application, it is a fabricated document made by him. He is in no way related to Vasudevan. The respondent and the lady by name Thilortha alias Santha Bai are trying to grab the properties belonging to the applicants. The respondent is a professional land grabber and in no way related either to the applicants or to Vasudevan or Thilortha alias Santha Bai. In 1994 the respondent had filed a criminal complaint in C.C. No. 2520/94 against the applicants. The same was dismissed and in the same year, the respondent and Thilortha alias Santha Bai filed O.S. No. 1135/94, in which the applicants entered appearance and filed a written statement. The suit was also dismissed. The applicants had been persistently declaring before the Police Station, the X Metropolitan Magistrate's Court and in the Second Assistant City Civil Court that they are the legal representatives of late Vasudevan and that they have the necessary proof for the same. They have been further maintaining that the Will set up by the respondent is a fraudulent one and a caveat also had been lodged long time back. The respondent, in spite of all the legal proceedings, without disclosing the applicants' name and without informing the Court and without making them as parties in the O.P. for Probate, fraudulently by misrepresenting the facts and by hiding and not disclosing the earlier proceedings, has somehow or other managed to obtain the Probate of the Will. It is a blatant act of forgery and against the rules as laid down for obtaining Probate. Revocation and annulment are asked for for a just cause. The respondent having obtained the grant fraudulently, is trying to assert his ownership and also attempting to dispossess the applicants by using unfair methods. He is also illegally trying to effect mutation and change of name and ownership with respect to the property in question in all public records. In these circumstances, the application has been taken out.

(2.) A counter has been filed by the respondent denying the various allegations in the affidavit in support of the application and has further stated as follows : The property originally belonged to Vasudevan. He was very friendly with the respondent for more than 25 years. He lived as a bachelor and did not marry anybody. His sister Thilortha alias Santha Bai was deserted by her husband Kannayiram. She lived along with her mother and brother Vasudevan. After her mother's death during 1970 Santha Bai lived with her brother Vasudevan. Vasudevan, after retirement from service, started a shop "News Mart" and for distributing the daily newspaper, he appointed one Panneerselvam as his office boy and only he performed the last rites of Vasudevan as per Hindu Custom. Vasudevan lived with his pension from the Army and from the Government and also from the meager profits available from the News Mart. He availed loan from Indian Bank, Otteri, and the respondent stood as surety. Sometimes Vasudevan used to take loan from the respondent also. In 1993 Vasudevan suffered with an ailment of severe cough. As nobody was with him, the respondent admitted him at Chetpet T.B. Hospital. After clinical test was done, he was directed to take treatment at General Hospital, Chennai, where it was diagnosed as lungs T.B. He was admitted in General Hospital for three days and was discharged later on. At that time he had no family members to look after him and his sister. For the expenses incurred for his medical expenses, he executed a Will in the presence of three witnesses. He died on 10-11-1993 leaving behind his only sister Thilortha alias Santha Bai as his legal heir to succeed to his estate. Nobody other than his sister stayed with him in his house. Under the Will dated 27-7-1993 Vasudevan bequeathed his property in favour of his sister Thilortha alias Santha Bai. The respondent was appointed to administer the property. In view of that, he filed the petition for Probate and the same was granted on 25-9-2000. During his long association with Vasudevan, he never saw the applicants in the house. The original name of the first applicant is Beulah, Christian by religion. The other applicants are married to Christians. They continued to be Christians by religion. They are not entitled to any relief in the matter, since they belonged to Christian religion. Vasudevan did not embrace Christianity at any time. He belonged to Hindu Balija Naidu Community. The applicants are not his legal heirs. They cannot claim any interest in the estate of deceased Vasudevan. They did not enjoy the property during the life time of Vasudevan. The question of ownership does not arise. The documents produced are not genuine. They had not been obtained from the competent authority. They are not relevant for the purpose on hand. None of the documents contains the signature of Vasudevan. The Will dated 27-9-1993 is a genuine one. The present application has been filed to blackmail him with ulterior motive. Against the dismissal of the criminal case, the respondent has preferred a criminal appeal before this Court. The suit in O.S. No. 1135/94 was dismissed for default as the respondent was laid down with epilepsy, high blood pressure, etc. Suitable applications for restoration have been taken out. No notice of caveat was received by him. No misrepresentation was made to the Court. The applicants have not disclosed their family background. They are influential people and with the help of rowdy elements, they did not allow the respondent to see the house. The respondent reserves his right to call for the records for the job done by deceased Vasudevan, both as Ex-serviceman and in the Judicial Department. The first applicant did not receive even a single pie after the demise of Vasudevan from his benefits. The certificates do not relate to deceased Vasudevan. Marriage between the first applicant and Vasudevan has to be proved with documentary evidence. Vasudevan joined the Army on 4-6-1941 and due to his health problem, he was discharged on 13-1-1946. As he had served in the Army, the property situate at No. 15, F Block Pensioners' Lane, Chennai-12, was allotted to him. In the same year he served as Peon at Saidapet Sub Court and then he was promoted as L.D.C., and joined in the District Court. He also served as interpreter. Finally he retired from service in 1973. The affidavit in support of the application for revocation is bereft of particulars. The applicants have no caveatable interest in the matter. None of the requirements under S. 262 is satisfied. No grounds are made out for revocation.

(3.) A reply affidavit has been filed on behalf of the applicants by the fourth applicant reiterating the contents of the main affidavit. The further fact set out is that the beneficiary under the alleged Will, viz. Santha Bai died long back on 10-11-1995 leaving behind no issue. The respondent even without disclosing about the death of the beneficiary and without even telling that she had not left any issue, fraudulently by abusing the process of Court, had obtained Probate behind the applicants back. At the time of Vasudevan's death it was raining. The first applicant was feeling giddy and after closing the doors, all the applicants went to the tea shop to have tea. At that time, the respondent locked the house. Immediately the applicants rushed to the Police Station and gave a complaint about the illegal locking of the house. The Police Officials accompanied them, broke the lock of the house and gave back possession to the applicants. They went inside the house and saw that the house had been ransacked. The respondent took away the box and all the belongings of Vasudevan and all the documents and filed them in this Court as typed set. In the criminal complaint, the applicants had mentioned about the theft of documents by the respondent. The first applicant became sick in the year 1958. She took a vow that she would get converted to Christianity if she became all right. After she became all right, she embraced Christianity. The trouble arose and Vasudevan deserted the first applicant and thereafter they were living separately. Vasudevan used to beat the first applicant and that too in the school itself at Perambur Barracks Corporation School. The respondent cannot take up the plea that the applicants are Christians and therefore they are not entitled to the properties of Vasudevan. The documents filed along with the typed set are all genuine documents issued by competent authorities long back. During the period the applicants resided in the subject property, the respondent used to frequent their house only as a friend. The applicants never dreamt that the respondent, a close friend, would go to the extent of obtaining a Probate on a fraudulent and forged Will and that too after the passing away of the only beneficiary, who had no issue. In 1994, the respondent demanded money from the applicants stating that he had spent money for the medical expenses of Vasudevan. Though there was no evidence of his spending, still the applicants agreed to give the medical expenses in the presence of local Headman, but all of a sudden, the respondent changed his mind and after three months issued a notice through his lawyer. As late as 2-12-2001 the respondent and other people came to the applicants' house and demanded money and threatened that if they did not give the money, the house would not go to anybody. In these circumstances, the order granting Probate has to be revoked.