N.S. Paramanandan vs K. Raju and another

A.R. Lakshmanan, J.—The plaintiff abovenamed filed a petition under Ss.232and 276of the Indian Succession Act for grant of Letters of

Administration. By order dated 21.11.1985 made in Application Nos. 1308 and 1309 of 1985, the Original Petition was directed to be numbered

as a suit. Accordingly, O.P. No. 20 of 1985 was converted and registered as T.O.S. No. 29 of 1985. The short facts are as follows:- The plaintiff

and one Kuppuswami Naicker were fostered by one G. Manicka Naicker of Mandaveli, Madras, being his brother''s sons. On 31.3.1937, the

said Manicka Naicker executed a Will in favour of the plaintiff N.S. Paramananda Naicker and Kuppuswami Naicker bequeathing his properties

comprised of house and lands situate at Rayamangalam village, Chengalpattu Taluk. Subsequently, on 23.12.1938, the said Manicka Naicker

executed a Codicil in favour of the plaintiff and the said Kuppuswami Naicker with respect to house property bearing old Door No. 25 and new

Door No. 42, R.K. Mutt Road, Mylapore, Madras. Both the Will and the Codicil were duly registered on the relevant dates. The testator died

subsequently on 23.12.1940, leaving behind the said Kuppuswami Naicker, the plaintiff herein and his widow Kulindhi Ammal as heirs under

Hindu Law. Kuppuswami Naicker was appointed as executor and he did not apply for the grant of probate at any time. The plaintiff filed an

application for grant of probate in O.P. No. 233 of 1961 describing the codicil as Will. The said Original Petition was contested by the said

Kuppuswami Naicker. The said Original Petition was numbered as T.O.S. No. 5 of 1962. In the said suit, the said Kuppuswami Naicker, who

was defendant, at one stage admitted the validity of the documents before Court and expressed no objection for amending the application suitably

by changing the description of the document as codicil instead of Will, and for paying the necessary probate duty. But he did not carry out the

directions of this Court in T.O.S. No. 5 of the 1962 made from time to time. It was for want of necessary funds, the plaintiff herein could not

comply with the directions given by this Court viz., filing of the amendment petition and paying of the necessary probate duty. For non-compliance

of directions given by this Court, the said T.O.S. No. 5 of 1962 was concluded with an order on 28.10.1963 dismissing the suit. The finding of R.

Sadasivam, J., in T.O.S. No. 5 of 1962 is as follows:-

When the suit came up for trial on 18.2.1963 a registration copy of the earlier will of 31.3.1937 was marked as Ex. E1 and the suit document

dated 23.12.1938, on which the plaintiff wanted to obtain probate, was marked as Ex. P1, and arguments were heard on Issue No. 2 in the suit.

By my order dated 18.2.1963, I found that Ex. P1 cannot be considered to be an independent and last Will of Manicka Naicker and that it was

only a codicil to the earlier Will. During the arguments, the learned advocate for the defendant stated that he did not want to dispute the truth and

validity of the codicil Ex. P1 and expressed that he had no objection to the plaintiff amending the petition by asking for probate in respect of the

original of Ex. D1 with the codicil Ex. P1 annexed and to his being appointed as Executor. The learned advocate for the plaintiff had no objection

to the said course. I accordingly permuted the plaintiff to amend the plaint. But though he took several adjournments to amend the plaint and to pay

the necessary additional court-fee, he failed to do so. Finally, on 19.9.1967 the matter came up for orders and I passed an order on that the

application for amendment for limited grant was contrary to the earlier order and cannot be entertained. Thereupon the learned advocate for the

plaintiff took further time till this date to comply with the earlier order and take out probate of the earlier Will in respect of the entire estate. But this

day, the learned advocate for the plaintiff stated that he is not in a position to do so as the plaintiff has no sufficient funds to pay the necessary court

fee and duty. It is clear from what I have stated that the only finding that could be given on Issue No. 2 is that the suit document is only a codicil to

the earlier Will dated 31.3.1937 and that the grant of probate of the suit document alone is not maintainable.

The suit is, therefore, liable to be dismissed till this day on account of the fact that the plaintiff wanted to amend the plaint. But he has not so far

amended the plain and he does not propose to do so. The suit has to be dismissed and it is hereby dismissed with costs.

After the dismissal of the sad suit on 28.10.1963, the plaintiff has now filed the present O.P. No. 20 of 1985, which was converted into T.O.S.

No. 29 of 1985, on 31.8.1983 for grant of Letters of Administration with the Will and Codicil annexed of the property, and credits of the

deceased to have effect Limited to the State of Madras and limited to Door No. 42 (Old Door No. 25), R.K. Mutt Road, Mylapore, Madras.

According to the plaintiff, there is no wanton delay in seeking the Letters of Administration before this Court, which was entirely due to the

indigent state of the plaintiff. Under the said Will and Codicil, the plaintiff and the said Kuppuswami Naicker were only entitled to enjoy the

properties during their life time and thereafter, the properties are to devolve upon the respective legal heirs. The right due to the plaintiffs heirs do

not stand extinguished on account of the failure to get the probate or letters of administration. The plaintiff has filed O.P. No. 20 of 1985 as one of

the legatees under the said Will and Codicil, for grant of Letters of Administration limited to the property left in the City of Madras since he is

entitled to do so regarding; the Will under S.57(b) of the Indian Succession Act, 1925. The plaintiff has claimed half share of the estate of the

deceased in his capacity as the foster son of the deceased.

The suit was resisted by the defendants. The contentions are:

i) The present Original Petition for grant of Letters of Administration in respect of the Will dated 31.3.1937 and Codicil dated 23.12.1938,

executed by the late G. Manicka Naicker, is belated. The defendants had filed caveat petitions in Diary Nos. 2913 and 2914 of 1985. Hence, the

plaintiff filed two applications viz., Application Nos. 1308 and 1309 of 1985 for discharging the caveat. The defendants filed their counter affidavit

opposing the discharge of caveat. They contended that the were the adopted sons of the Kuppuswami Naicker and that they being the grandsons

of (sic) Maicka Naicker, were entitled to a share in the property of Manicka Naicker by birth. It is a case of unobstructed heritage and that any

admission alleged to have been made by the defendants father in the earlier probate proceedings would not bind them as they were not claiming the

share through their father. this Court, by order dated 1.11.1985, accepted the contentions of the defendants and dismissed the applications. A

grieved by this, the plaintiff filed two appeal O.S.A. Nos. 99 and 100 of 1986, which were dismissed by a Division Bench of this Court on

15.11.1988.

(ii) The present proceedings are hit by res judicata as the earlier proceeding in T.O.S. No. (sic) of 1962 was dismissed. It is not open to the

plaintiff to rely on an alleged admission of the defendant father in the earlier proceedings and then say (sic) the present proceedings are not affected

by res judicata.

iii) The defendants are the sons of Kuppuswami Naicker and grandsons of the testator. By birth, they are entitled to their share in the properties of

their grandfather de hors their father. It is a matter of record and admission by the plaintiff that the defendants'' father was the adopted son of

Manicka Naicker. These defendants reiterate that their father did not make any admission in the earlier proceedings, and even assuming that there

was any admission, it cannot bind the defendants as they are not claiming through their father but claim through an unobstructed heritage.

(iv) The defendants have been in possession of the property for the past 25 years openly to the knowledge and exclusion of the plaintiff and have

prescribed title by ouster and adverse possession. Even as early as 1975, the defendants have divide the property between themselves and have

been in possession of their respective shares by the own occupation and by letting out to tenant After the life time of Kuppuswami Naicker, these

defendants had to discharge the debts, the disposed of a major portion of the house property in March, 1984. The defendants retained of small

portions for their separate residence. (sic) 1st defendant had raised funds by selling off his if wife''s jewels and by borrowing from third parties a

and effected improvements to his portion. The names of these defendants stand entered in the Municipal Register and also in Revenue Records.

On 31.7.1991, I framed the following issues for trial:

Whether the suit is not hit by the principles of res judicata inasmuch as the earlier proceedings for the same relief in T.O.S. No. 5 of 1962 was

dismissed?

Whether the defendants have not prescribed for title by ouster and adverse possession?

Whether the Will was executed by Manicka Naicker in a sound and disposing state of mind and true, valid and binding on the defendants?

Whether the suit is in time?

Whether the plaintiff is entitled to have the Letters of Administration issued respecting the last will dated 31.3.1937 and Codicil dated

23.12.1938 of Late G. Manicka Naicker?

On behalf of the plaintiff, he alone was examined as P.W. 1 and cross-examined by the defendants. None was examined on behalf of the

defendants. Ex. P1 to P6 were marked on behalf of the plaintiff and no exhibit had been marked on the side of the defendants.

I have heard the arguments of Mr. S. Balasubramanian on behalf of the plaintiff and Mr.K. Sampath on behalf of the defendants. Let me now

consider the issues.

Issue Nos. 1, 2 and 4:- As stated above, the suit arises out of O.P. No. 20 of 1985 where the plaintiff herein sought to probate the Will

executed by late Manicka Naicker. The defendants disputed the validity of the Will and filed caveat. The plaintiff opposed the caveat application

and filed Application Nos. 1308 and 1309 of 1985 for (sic) Bench of this Court dismissed both the appeals. Thereafter, the Original Petition was

converted into T.O.S. No. 29 of 1985.

The only point raised by Mr. S. Balasubramanian, Learned Counsel for the plaintiff, is that the Will had been accepted by the defendants'' father

and that the admission is binding on the sons. Hence, it is to be seen whether the Will had been accepted by the defendants'' father and if it is

established that there was no admission and that even assuming without admitting that there was an admission, it is not binding on the sons then the

case of the plaintiff has to fail.

It is argued by Mr. K. Sampath, Learned Counsel for the defendants, that the defendants father Kuppuswami Naicker was the

respondent/defendant in T.O.S. No. 5 of 1962 wherein he contended that the document sought to be probated in O.P. No. 233 of 1961 was only

a Codicil and that the original Will was dated 31.3.1937. In his counter statement, in paragraph 3 he stated that the defendant does not admit the

truth and genuineness of the document described as the last will and testament in paragraphs 4 and 5 of the plaint nor does he admit the same as

the last Will and testament of G. Manicka Naicker. The late Manicka Naicker was not of sound disposing state of mind two years prior to his

death, according to the defendants. By order dated 18.2.1963, this Court held that the defendant had no objection to the plaintiff amending the

petition by asking for probate in respect of the original of Ex. D1 with the Codicil Ex. P1 and directed the plaintiff to amend the plaint and pay

additional court fees. Subsequently, this Court passed the final order on 28.10.1963. The first issue in that suit was, whether the suit document

dated 23.12.1938 was executed by Manicka Naicker while in a sound disposing state of mind and whether it is valid. R. Sadasivam, J., held that

inspite of sufficient grant of time, the plaintiff has not amended the plaint and consequently, the learned Judge dismissed the suit. Hence, in my view,

it is clear that there was no admission by the father, and that all that he had conceded was that he had no objection for the amendment of the

petition.

Secondly, even assuming without editing that there was an admission by the father of the defendants, in my view it is not binding on the

defendants. The defendants are not claiming under their father. Their consistent case is that their right is one of unobstructed heritage. In fact, in

Application Nos. 1308 and 1309 of 1985, the main contention of the defendants was that Kuppuswami Naicker is the son of Manicka Naicker,

the testator, and that the defendants have a right by birth as the grandsons of Manicka Naicker. It was further contended in those applications that

Kuppuswami Naicker has been described as the adopted son of Manicka Naicker, in several documents and that in O.P. No. 233 of 1961 in

paragraph 2, the plaintiff himself has described the defendants'' father Kuppuswami Naicker as the adopted son of Manicka Naicker. Even in

those applications, the words ""adopted son"" have been struck off and ""foster sons"" have been inserted. The learned single Judge accepted the

contentions of the defendants and held that it is a case of an unobstructed heritage and that the rights of the caveators cannot be taken away. The

findings were affirmed by a Division Bench and have become final. Hence, the plaintiff cannot be permitted to contend that the admission of the

father is binding on the sons. Further, the Codicil does not have an independent existence and it has to go with the Will. There is nothing to show

that the original of the Will was made available for Kuppuswami Naicker to see. The concession was dependent on the production of the Will,

which was not done.-

Even assuming without admitting that it is binding, the defendants can re-agitate it as laid down by the Karnataka High Court in the decision

reported in H.L. Kumar v. Jayamma (sic). In the above decision, K. Jagannatha Shetty. J., as he then was, held as follows:-

The Court has jurisdiction to permit a person who had expressly assented to the grant of probate to come forward to oppose the grant. There is

no such inhibition under the Act. If the Court adopts a contrary attitude, genuine oppositions or claims may be defeated by technicalities. So long

as the Court had not acted upon the assent and granted the probate, it would be well within its jurisdiction to permit the party to oppose the grant.

The Act and the Rules do not provide to the contrary

It is seen from the above decision that even the person who originally conceded can reagitate the question. Once it is established the

defendants'' claim is one of unobstructed heritage and that any concession alleged to have been made by the father is not binding on the sons, the

question is, whether the plaintiff can rely on the Will without proving the same as required in law. It is stated supra that the validity of the Will was

disputed by Kuppuswami Naicker. The defendants have also in unambiguous terms disputed the validity of the Will. While so, the plain tiff has not

proved the Will as required in Ss.68and 69of the Evidence Act read with S.63of the Succession Act. There is no pleading that the attestors are

dead or that the plaintiff had knowledge about execution and attestation of the Will. In the absence of proper pleading, the plaintiff cannot make an

attempt to prove the Will. The ipse dixit oral evidence of the plaintiff is far from satisfactory. As per the recital in the Will, he was eight years old. It

is incredible that he should remember the year of Manicka Naicker''s death. I have carefully gone through his evidence and watched his demeanour

in the witness box. Whenever inconvenient questions were put, the answer is that he does not remember.

It is urged by Mr. Sampath, Learned Counsel for the defendants, that the presumption under S.90of the Evidence Act is not available to, the

plaintiff for the reason that the Will has not come from proper custody. The defendants'' father was appointed as the executor. There is no

explanation as to how the plaintiff got hold of the document. It has been suggested to him that the plaintiff had stolen the document.

The next contention of Mr. K. Sampath Learned Counsel for the defendants is that the filing of the Original Petition and Testamentary, Original

Suit is defective. Order 25of the High Court Original Side Rules deals with testamentary and intestate matters. Order 25 Rule (sic) prescribes the

mode of filing. Sub-S.4(c) says that an affidavit of one of the attesting witnesses, (sic) procurable as required in Rule 13. Hence, in my view, the

presentation of the Original Petition itself is defective, which goes to the root of the matter. Therefore, the Original Petition and the Testamentary

Original Suit have to be dismissed on this score. Similarly, S. 281 of the Indian Succession Act says that the petition for probate has to be verified

by at least one of the witnesses in the Will. This requirement has not been done.

It is further argued by Mr. K. Sampath, Learned Counsel for the defendants, that the suit is an abuse of the process of Court. The plaintiff

wants to come to Court at his will and pleasure. It must be noticed that the Will is of the year 1938 and after two abortive attempts the plaintiff has

again come to Court after a lapse of 22 years. The delay, in my view, is inordinate and unexplained. There is no explanation at all as to why the

plaintiff has approached this Court belatedly. Rule 9 specifically says that the reason for delay has to be explained in the petition. In this case, it has

not been done. The reason for the delay is, that he had no money. There is no explanation as to what he was doing all these years from 1940. He

admits that he became a major in 1944 and that he had income from the property and that he sold away some property. In 1963, the court fee

payable was only Rs. 200/-. There is no explanation at all for the belated filing. The suit suffers from delay and laches. In my view, it has to be

dismissed. In this connection, I may draw support from the decision reported in Susma Bala Devi v. Anath Nath Tarafdar (sic) wherein it has been

observed as follows:-

Although delay by itself cannot be a ground for refusing grant of probate but delay by itself is a term pregnant with meaning. It shows that there

should not be anything else to obstruct the grant of probate except an objection on the score of delay. Held on facts that suspicious circumstances

were pointed out one after another and delay of fifteen years in not probating the Will coupled with equally long silence, in the circumstances of the

instant case, created a good deal of suspicion and unfortunately for the profounder of the Will this suspicion had not been fully removed.

I also draw support from the decision of the Supreme Court reported in Bhoop Singh v. Union of India (sic) wherein it has been held as follows:-

A person cannot be permitted to challenge the termination of his service after a period of twenty two years, without any cogent explanation for the

inordinate delay merely because others similarly dismissed had been reinstated as a result of their earlier petitions being allowed. Accepting the

petitioner''s contention that the petitioner is entitled to the relief of reinstatement like the others dismissed with him and then reinstated and the

question of delay or laches does not arise would upset the entire service jurisprudence. It is expected of a government servant who has a legitimate

claim to approach the Court for the relief he seeks within a reasonable period. This is necessary to avoid dislocating the administrative set-up after

it has been functioning on a certain basis for years. The impact on the administrative set-up and on other employees is a strong reason to decline

consideration of a state claim unless the delay is satisfactorily explained and is not attributable to the claimant. The lapse of a much longer

unexplained period of several years in challenging termination in the case of the petitioner is a strong reason not to classify him with the other

dismissed constables who approached the Court earlier and got reinstatement. Secondly inordinate and unexplained delay or laches is by itself a

ground to refuse a relief to the petitioner, irrespective of the merit of his claim. Article 14 or the principle of non-discrimination is an equitable

principle and, therefore, any relief claimed on that basis must itself be founded on equity and not be alien to that concept. Grant of the relief to the

petitioner, in the present case, would be inequitable instead of its refusal being discriminatory.

In my opinion, the plaintiff has not been vigilant. Hence, he has to suffer as the well known maxim goes Vigilantibus, non Domtientibus, Jura

Subveniunt, i.e., Laws assist those who are vigilant, not those who sleep over their rights.

Nextly, it was argued that the plaintiff is not a fit person to act as an executor. Admittedly, he has alienated many items and thus acted against

the interest of the estate. It is also found in the order in T.O.S. No. 5 of 1962. Hence, this Court can take judicial notice of the fact that after

alienating all the properties, the plaintiff has deliberately waited till Kuppuswami Naicker dies and thereafter moves this Court in the year 1985. As

per S.303of the Indian Succession Act, he is an executor of his own wrong and is not entitled to be appointed It may be relevant to point out that

the plaintiff had sold away most of the proper ties in 1960''s and thereafter sought to probate the Will in respect of Limited estate. Permission was

refused by a Division Bench of this Court by reversing the decision of the learned single Judge. The case is reported in NS. Paramananda Naicker

In re (1985) (I) M.L.J., 443 : O.S.A. No. 136 of 1984), In the above case, the defendants were not made parties. Hence, as rightly contended by

Mr. K. Sampath, Learned Counsel for the defendants, the decision in 1985 (1) M.L.J., 443, is not binding on them. It is a well settled proposition

of law that if the defendants had been made parties, then, they could have brought it to the notice of the Court about the conduct of the plaintiff and

things would have been different.

Lastly, it was argued by Mr. K. Sampath, Learned Counsel for the defendants, that the suit is also hit by the principle of res judicata. The

earlier suit, wherein four issues were framed, was dismissed and the decision has become final, according to Mr. K. Sampath, Learned Counsel

for the defendants. He relied on the decision reported in Cannanore Bank Ltd., v. Pattarkandy Arayanveettil Madhavi AIR 1912 Madras 41. Full

Bench, wherein it has been observed as follows:-

Order 21, Rule 63 applies to all orders which are against claims preferred under Rule 58. The test to see whether an order is under Rule 63 is

whether the order is against the claimant or the decree-holder, but that does not mean that the order must involve an adjudication on the merits

after investigation. If the petitioner has in fact asked to be allowed to withdraw the petition and the Court has acquiesced in the course, it may very

well be that the order would not be an adverse order within the meaning of the rule, but it cannot be said that because a claimant says to the Court

that he does not press the petition and consents to an order of dismissal, it is not an adverse order....Therefore where the order Petition not

pressed. It is dismissed'' is passed on a petition which falls within Rule 58 and the petitioner has not sought rights it is obviously an order which is

against him and requires him to file a suit within a year from the date of the order if he wishes to re-open the matter.

Mr. K. Sampath, Learned Counsel for the defendants also relied on the decision reported in Thaher Unnissa Begum v. Sherfunnisa Begum

(sic) wherein Panchapakesa Ayyar, J., has held as follows:-

if a claim petition under Order 21 Rule 58is not pressed and is dismissed without obtaining the permission of the Court to withdrawn without

prejudice to the rights of the petitioner, the dismissal would amount to an adverse order within the meaning of Order 21 Rule 63 and when such an

order is not set aside by filing a suit within one year, as contemplated under Order 21 Rule 63, it will become conclusive and the same claim cannot

be agitated again.

The learned Judge has also followed the Full Bench decision reported in Cannanore, Bank Ltd. v. Pattarkandy Arayanveettil Madhavi (sic).

As rightly contended by Mr. K. Sampath, Learned Counsel for the defendants, the learned single Judge and the Division Bench while deciding

the applications left the issues to be decided in the suit. Hence, it is open to the defendants to raise the same in this suit. I am, therefore, of the

view, that the suit is barred by the principle of res judicata.

On the foregoing discussions, I hold on Issue No. 1 that the suit is hit by the principles of res judicata. On Issue No. 2 I hold that since it

relates to the prescription of title by ouster and adverse possession, that controversy is not decided in this probate proceeding. Hence, the said

point is left open to be agitated at the appropriate stage. On Issue No. 4, I hold that the suit is not in time.

Issue No. 3:- According to Mr. K. Sampath, Learned Counsel for the defendants, it has already been submitted that the plaintiff has not

proved proper execution as required in Ss.68and 69of the Evidence act read with S.63 of the Indian Succession Act. There is no pleading that the

attestors are dead or that the plaintiff had knowledge about execution and attention of the Will. Hence, in my view, in the absence of proper

pleading, the plaintiff cannot make an attempt to prove the Will. The ipse dixit oral evidence of the plaintiff is far from satisfactory. As per the

recital in the Will, the plaintiff was eight years old and an such, it is incredible than he should remember the year of Manicka Naicker''s death. Even

in the earlier proceedings the validity of the Will was questioned. It was specifically stated in the statement of objections that late Manicka Naicker

was not of sound disposing state of mind two year prior to his death and that the pen did not follow the mind, One of the issues framed in the

earlier (sic) 23.12.1938 was executed by Manicka Naicker while in a sound disposing state of mind and whether it is valid. As already stated, the

plaintiff allowed that suit to be dismissed and hence the objections raised in the statement of objection could not be considered. When the plaintiff

is reagitating the matter in the present suit, he cannot just rely on the alleged admission made by the defendants'' father. The defendants'' father had

specifically disputed the validity of the Will and the disposing state of mind of Manicka Naicker. In the present proceedings also the defendants

have specifically disputed the validity of the Will, in paragraph 9 of the statement of objections. Therefore, on Issue No. 3 I hold that the plaintiff

has not proved that the Will was executed by Manicka Naicker in a sound and disposing state of mind and that the same is true, valid and binding

on the defendants. For the fore-going reasons, I hold on Issue No. 5 that the plaintiff is not entitled to have the Letters of Administration issued

respecting the last will dated 31.3.1937 and Codicil dated 25.12.1938 of late G. Manicka Naicker. Accordingly, the suit is dismissed. However,

there will be no order as to costs.