SUBBARAJ CHATHIRAREDDIAPATTI Vs. S. RAJENDRAN

JUDGEMENT

(1.) THIS application is filed by the applicant seeking to revoke the grant of the Probate of the Will left by late S. Sulochana made in O.P. No. 341 of 2010, dated 09.07.2010. On notice, on behalf of the respondent, a counter affidavit, dated 19.7.2012 has been filed by her father and guardian S. Rajendran. The applicant is a third party to the original proceedings. The O.P. was filed by the respondent seeking for the grant of probate in respect of the last will, dated 7.2.2007 left by late S. Sulochana. The O.P. was admitted on 15.4.2010. The notice was affixed in the court notice board. The succession duty of Rs. 6000/ -was paid. The notice was also sent to the District Collector. When the matter came up on 25.6.2010, it was directed to be posted before the learned Master for recording evidence. Before the learned Master, the original petitioner examined himself as P.W. 1. He also examined one G. Jayaraman as P.W. 2 being an attesting witness. It was thereafter, this court by an order dated 09.07.2010 had granted probate in favour of the original petitioner.

(2.) IT is the case of the applicant that the testatrix late S. Sulochana was his mother's sister (maternal Aunt). She owned properties at Chathirareddiapatti village, Virudhunagar Taluk. Her husband's name was Srinivasaga Reddiar. They had one daughter by name Vijayalakshmi. The said Vijayalakshmi married the original petitioner. Even though the said Vijayalakshmi was the only daughter, she never took care of her mother and she used to reside with the in the village. Her daughter Vijayalakshmi also died. Thereafter, the connection with her daughter's family was totally cut off. The applicant showered affection and took care of the testatrix by providing medical help. She had executed a Will in his favour on 06.11.2006 and it was registered with the Joint Registrar, No. II, Virudhunagar as document No. 82/2006. By virtue of the Will dated 06.11.2006, the properties were devolved on him and patta was also transferred in his name. He was paying all taxes regularly in her name. He is in possession and enjoyment of the properties. But, during September, 2011, one C. Narayanan residing in Chennai claimed to be the owner of the said lands and had attempted to enter into the properties. He had issued a legal notice and a reply was also sent. The said Narayanan claimed title by virtue of the sale deed dated 26.7.2011 executed by the original petitioner/respondent. In the reply, he claimed that the Will executed by Sulochana on 7.2.2007 was probated and hence the properties devolved upon them. It is only when he applied for a copy of the sale deed, she also got the copy of the Will. He had also instituted a suit in O.S. No. 180 of 2011 before the District Munsif Court, Virudhunagar for declaration of title in her favour. But the probate has been obtained fraudulently. The probate was granted to the respondent on the basis of the forged Will. Further, she was not shown as a party to the proceedings.

(3.) THE respondent when he was driving the bus on 6.4.1994, after completing his work while getting down from the bus, he saw a new born female child. He took the child to his residence and they were taking care of the child. He and his wife had great love and affection for the child. They named the child as Gayathri. The child was admitted to the school, She is now studying in Engineering college. The respondent and his wife and the grand mother Sulochana had great love and affection for the child. The respondent's wife died on 14.05.2004. The respondent and his daughter Gayathri are the only legal heir of Vijayalakshmi. The said Gayathri had attained puberty in February, 2007, for which a celebration was made. At that time, the testatrix came to his residence and took part in the celebration. It was her desire to make permanent arrangement for the welfare of the minor Gayathri. In the celebration, photos were also taken, in which the picture of Sulochana was very much found. Sulochana had executed a Will on 7.2.2007 bequeathing the land of 3 acres 86 cents located at Chathirareddiapati village to her grand daughter Gayathri and had appointed the respondent as the executor. It was after the death of the testatrix, he made arrangement to get the Will probated. All formalities were completed before this court. It was only because he found it difficult to maintain and manage the land on behalf of his daughter, he decided to sell the land. Then as the father and guardian of the minor, he filed O.P. No. 273 of 2011 before this court for the grant of permission to sell the land owned by the minor Gayathri. This court by an order dated 29.4.2011 permitted him to sell the property. One Narayanan had purchased the property by a sale deed dated 26.7.2011. Out of the sale of the property, he received Rs. 2 lakhs as a consideration, which has been deposited in the Indian Bank, High Court Branch. It is only after coming to know that he had sold the land to Narayanan, the applicant had sent a legal notice. The allegation that late Sulochana lived with the applicant was denied. Even assuming that the Will upon which reliance placed by the applicant was true, subsequent to the Will, dated 7.2.2007, the earlier Will, dated 06.11.2006 got automatically cancelled. The application at the instance of a third party is not maintainable. There is no other legal heir for the late Sulochana. Hence no citation need be issued to the applicant.