FRANK SAMUEL ARUL Vs. DR. J.S. WINFRED

JUDGEMENT

(1.) THIS application is filed by the applicant / 3rd party seeking to implead him as proposed 10th defendant in the suit in order to enable him to participate in the proceedings. Heard Mr. S.Jegannathan, learned counsel for the applicant / 3rd party and Mr. K. Harishankar, learned counsel for the first respondent / plaintiff and Mr. S.W. Kanagaraj, learned counsel for the respondents 2 to 6 / defendants 1 to 5. No appearance for the respondents 7 to 10 / defendants 6 to 9.

(2.) THE learned counsel for the applicant / third party would submit in his argument that the applicant was the son of one Mrs. Gladys Florence Arul, who was the sister of Mrs. Grace Winfred and both of them were daughters of Mr. S. Sathyanathan, who was the absolute owner of the suit property. He would further submit in his arguments that the said Sathyanathan died leaving his two daughters, viz. Mrs. Grace Winfred and Mrs. Gladys Florence Arul as his only heirs to succeed to the suit property. Subsequently, the first daughter namely, Mrs. Grace Winfred, who inherited half of the suit property, died on 16.11.1990 leaving behind her four daughters, namely, Mrs. Ida Abraham, Mrs. Irene Paul, Mrs. Indra Colombus, and Mrs. Iris Packiadurai and one son D.J.S. Winfred, the first respondent / plaintiff herein. The said second daughter Mrs. Gladys Florence Arul, the mother of the applicant also died on 24.09.1933 leaving the applicant as her only son to inherit her = share of the suit property. He would further submit that however the said Mrs. Grace Winfred continued to live in the entire house, since it was not partible and the same was permitted by the mother of the applicant and the applicant out of love and affection. He would further submit that one of the daughters of Mrs. Grace Winfred, namely, Irene Paul filed a suit in O.S.No.5061 of 1995 on the file of the I Assistant City Civil Court against the other legal representatives seeking title of the entire property on the basis of a Will forging the signature of Mrs. Grace Winfred, which includes the = share of the suit property belonging to the applicant. He would further submit that the applicant was not included as a proper party in the said suit. He would further submit that since some of the defendants disputed that the said Will was not probated, O.P. has been filed before this Court in O.P.No.446 of 1996 and it was subsequently converted into T.O.S.No.5 of 2000 and the same is pending. He would further submit that even though the applicant is entitled to = share in the suit property through his mother, he was not impleaded in the said suit as well as in this T.O.S. and he is also one of the caveatable interest holders as = share of the property belonging to him. Therefore, the applicant has to be impleaded as 10th defendant in the suit as necessary party.

(3.) THE learned counsel for the first respondent / plaintiff would submit in his argument that the suit was converted from the Original Petition and the said proceedings are purely governed under the provisions of O.S. Rules. He would further submit in his arguments that when the O.P. has been filed for the grant of probate on the basis of a Will executed by the mother of the petitioner in the O.P, it was a non -contentious proceedings and in view of the objections raised by some of the defendants, it was converted into a contentious proceedings in the form of T.O.S. and even after the conversion into a suit, the impleadment of the parties would be only governed under the relevant provisions of O.S. Rules. He would also submit in his argument that the testatrix, namely, Mrs. Grace Winfred had executed the Will and the said Will was sought to be probated and in the testamentary proceedings, the persons, who are having caveatable interest alone can be impleaded as parties and the points for consideration to be decided would be as to whether the Will said to have been executed by the testatrix Mrs. Grace Winfred was made in a sound and disposing state of mind in the presence of two attesting witnesses and was it the last Will of the testatrix ? When such a point has to be decided, the requirement of the presence of the applicant as proposed 10th defendant would be of no avail. He would further submit in his arguments that the proprietary or the right, title of the testatrix in disposing the property cannot be questioned in a testamentary proceedings. He would further submit that the Forum would be somewhere else, which may be a Civil Court and either in a suit filed by the aggrieved party or in a suit filed by any 3rd party, the applicant could have sought for impleadment. He would further submit in his arguments that the question of title of the testatrix cannot be gone into in a testamentary proceedings and it has been laid down in the various judgments of the Hon'ble Apex Court as well this Court. He would also refer to a judgment of the Hon'ble Apex Court reported in : 2008 (4) SCC 300 (Krishna Kumar Birla vs. Rajendra Singh Lodha and others) in support of his argument. He would also submit that the applicant could have filed a separate suit claiming = right in the suit property, if really his case was true and genuine, or, he may seek impleadment in a civil suit, whether the parties have subjected this property for partition and separate possession or declaration of this right whatsoever it may be. He would therefore, request the Court that the presence of the applicant as 10th defendant is not at all necessary in the testamentary suit, where the title of the testatrix cannot be questioned. He would further submit in his arguments that the judgments cited by the learned counsel for the applicant are in respect of the impleadment of the parties in regular suits pending before the Civil Court and those judgments would not be made applicable to the present case, since it is a Testamentary Original Suit (T.O.S.). Therefore, he would request the Court to dismiss the application.