R. J. Nelson vs Suudari (Died)

S. Palanivelu, J.—This Civil Revision Petition has been filed by the Petitioner seeking to set aside the fair and decreetal order dated 12 4 2012 passed in E A No 209 of 2011 in E P No.118 of 2009 in O S. No. 644 of 1977 on the file of the Principal District Munsif Court, Kuzhithurai.

One Sundari filed a Suit in O.S. No.644 of 1977 on the file of the learned Principal District Munsif. Kuzhithurai for partition and redemption against one Robert Joseph and others A preliminary decree came to be passed on 8 2.1983. Thereafter. Appeals preferred by both parties before the Sub Court. Kuzhithurai in A.S. Nos. 132 of 1983 & 156 of 1983 were allowed. When the matter was taken up before this Court in S.A.No. 2060 of 1984 it was dismissed confirming the judgment of the Lower Appellate Court Thereafter, the Defendants preferred Special Leave Petition before the Supreme Court. It was also dismissed on 1.10.2004 Then, the Plaintiff filed an Application in I.A. No. 74 of 2009 and a final decree was also passed on 3.9.2009. Hence, she initiated Execution proceedings in E.P.No. 118 of 2009 on the file of the learned District Munsif, Kuzhithurai for delivery of the properties, which were allotted to her in the final decree. While execution proceedings are pending, she died Hence, her husband, the First Respondent in this Civil Revision Petition filed an Application in E.A.No. 209 of 2011 to implead him as additional Second Plaintiff/Second Petitioner.

In the Affidavit, he has stated that on 17.4.2007, the Plaintiff Sundari and her husband Chellan executed a joint Will in respect of the properties in question and as per the said Will, if anyone of the spouses dies, after the death of other, he or she has to enjoy till lifetime absolutely and after the lifetime, the properties will vest with the legatees under the Will.

The Application was resisted by the Revision Petitioner by filing counter stating that the Plaintiffs husband has not filed the original Will along with the Petition It is denied that they executed a joint Will The husband of the deceased Plaintiff is not a legal heir of the deceased The deceased had several children and all of them ought to have been impleaded in the proceedings. It is also stated that the signature affixed in the alleged Will is not the signature of Sundari, the Plaintiff. Hence, he is not entitled to the relief on the basis of the alleged Will. It is impermissible in evidence To the knowledge of the Revision Petitioner, the Plaintiff Sundari had executed a will in the year 2010 The First Respondent herein has suppressed all these facts with a view to get illegal gain and the Petition may be dismissed.

The learned Principal District Munsif, Kuzhithurai, after hearing both sides has allowed the impleading Application observing that like any other proceedings, the Will need not be sought to be proved in the Execution proceedings. Hence, the Revision Petitioner, who is the Ninth Respondent in the Execution Petition, is before this Court with this Revision.

Point :

Whether the First Respondent has to be permitted to prosecute the Execution Petition on the death of Sundari ?.

Mr. D. Nallathambi, learned Counsel appearing for the Revision Petitioner would contend that inasmuch as the alleged Will, which, the First Respondent herein, who is the husband of the Plaintiff, relied upon, was not produced before the Executing Court and even if it is averred, it. cannot be taken in a lighter vein; that on the basis of which, he cannot claim any right to continue the Execution proceedings; that the Will should have been proved before the Executing Court as per Section 68 of the Indian Evidence Act and in the absence of any proof, it cannot be said that the First. Respondent herein has derived interest in the property; that even it is alleged in the Petition that. he has filed an Application for impleading himself and on behalf of the other legal heirs of the deceased Sulidari; that he has no locus standi to file the Application alone; that the observation of the Court below in the Execution proceedings is that there is no need to prove the validity of the genuineness of the Will as regards the other proceedings and that at. any angle, the First. Respondent alone could not come into the picture.

Per contra, Mr. K.N. Thampi, learned Counsel appearing for the First Respondent would submit that in the earlier proceedings, in E.A. No. 4 of 2012, an Application was filed by the Civil Revision Petitioner for a direction to produce the original Will and that the First Respondent herein filed an Application in E.A. No. 51 of 2011 for amendment to include some of the properties that have been omitted to be mentioned in E.P. No. 118 of 2009 and the same was dismissed, against which, he filed a Civil Revision Petition before this Court in C.R.P.(MD) No. 911 of 2011, which was allowed and the Revision Petitioner did not raise any objection for the conduct of case by the husband and that he is estoppel from raising the objections now, that. since the Revision Petitioner has no interest in the suit property, just like other legal heirs, to question the validity of the Will, he is legally barred from objecting to the Will and. he has no locus standi to plead that the Will should be proved and that the Revision has no merits.

In support of his contention, the learned Counsel for the Petitioner placed reliance upon two judgments of the Hon''ble Supreme Court :

(i) In Jaladi Suguna v. Satya Sai Central Trust, 2008 (8) SCC 521, the Supreme Court has observed as follows:

"15. Filing an Application to bring the Legal Representatives on record. does not amount to bringing the Legal Representatives on record. When an LR Application is filed, the Court should consider it and decide whether the persons named therein as the Legal Representatives, should be brought on record to represent. the estate of the deceased. Until such decision by the Court, the persons claiming to be the Legal Representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the Legal Representative, a decision should be rendered on such dispute. Only when the question of Legal Representative is determined by the Court and such Legal Representative is brought on record, call it be said that the estate of the deceased is represented. The determination as to who is the Legal Representative under Order 22, Rule 5, will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the Legal Representative, any right to the. property which is the subject-matter of the Suit, vis-a-vis other rival Claimants to the estate of the deceased."

(ii) In Suresh Kumar Bansal v. Krishna Bansal, 2010 (2) SCC 162, it is held as follows :

"20. It is now well settled that determination of the question as to who is the Legal Representative of the deceased Plaintiff or Defendant under Order 22, Rule 5 of the Code of Civil Procedure is only for the purpose of bringing Legal Representatives on record for the conducting of those Legal proceedings only and does not operate as res judicata and the inter se dispute between the rival Legal Representatives has to be independently tried and decided in probate proceedings. If this is allowed to be carried on for a decision of an eviction Suit or other allied Suits, the Suits would be delayed, by which only the Tenants will be benefited.

In order to shorten the litigation and to consider the rival claims of the parties, in our view, the proper course to follow is to bring all the heirs and Legal Representatives of the deceased Plaintiff on record including the Legal Representatives who are claiming on the basis of the will of the deceased Plaintiff so that all the Legal Representatives, namely, the Appellant and the natural heirs and Legal Representatives of the deceased Plaintiff can represent the estate of the deceased for the ultimate benefit of the real Legal Representatives. If this process is followed, this would also avoid delay in disposal of the Suit."

The legal position governed the issue in this case is covered by a decision of the Supreme Court in Krishna Kumar Birla v Rajendra Singh Lodha, 2008 (3) CTC 43 (SC ) : 2008 (4) SCC 300, wherein the term "coveatable interest" is explained as follows :

"A caveatable interest is an interest in the estate of the deceased testator which may be affected by grant of probate of the will of the deceased. What would be the caveatable interest would depend upon the fact situation obtaining in each case. No hard-and-fast rule, as such, can be laid down. The test required to be applied is : Does the claim of grant of probate prejudice the right of the caveator because it defeats some other line of succession in terms whereof the caveator asserted his right ?"

The said decision was followed by this Court in S. Ganesan v. S. Kuppuswamy & another, AIR 2009 (NOC) 1375 (Mad), in which, the learned Judge has observed, following the judgment of the Supreme Court. that a person having caveatable interest or not related to the deceased testator cannot. insist upon the Will being proved strictly in accordance with Section 68 of the Indian Evidence Act.

The learned Counsel for the First Respondent placed reliance upon a decision of this Court in Elizabeth. Antony v. Loagmore, 1985 (1) MLJ 16. The operative portion of the judgment on this point goes thus :

"12......Since the Petitioner was not in any manner related to the deceased testatrix, there is no question of her claiming any interest in the estate of the deceased in her capacity as heir, but for the will dated 12th March, 1962. Equally the Petitioner has not placed before the Court the will dated 23rd June 1975 stated to have been executed by Zoe Enid. Browne to establish that under the will dated 12th March, 1963 stated to have been executed by Mary Aline Browne, some interest given to the Petitioner under the will dated 23rd June, 1975 of Zone Enid Browne. is liable to be in any manner affected or otherwise displaced, by the grant of letters of administration in respect of the will dated 12th March, 1962 stated to have been executed by Mary Aline Browne. Having regard to these considerations, the Petitioner cannot be stated to have satisfactorily established. that she has a caveatable interest justifying her opposition to the proceedings initiated by the Respondent herein for the grant of letters of administration of the will dated 12th March, 1962 alleged to have been executed by Mary Aline Browne."

From the above settled proposition of law, it has to be necessarily observed that the parties, who are objecting to the Will and who asked the other party to prove the Will, should have caveatable interest in the property and that if the Defendants have no proprietary right, then they are legally precluded from pleading that the Will has to be proved in accordance with law.

The learned Counsel for the Petitioner also says that as per Section 214 of the Indian Succession Act, the First Respondent should have obtained the succession certificate and in the absence of the same, he cannot claim to continue the Execution proceedings.

Section 214 of the Indian Succession Act, goes thus :

"Proof of representative title a condition precedent to recovery through the Courts of debts front debtors of deceased persons.-

(1) No Court shall�

(a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased persons or to any part thereof, or

(b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming, of -

(i)a Probate or Letters of Administration evidencing the grant to him of administration to the estate of the deceased, or

(ii)a Certificate granted under Section 31 or Section 32 of the Administrator-General''s Act, 1913, and having the debt mentioned therein, or

(iii) a Succession Certificate granted under Part X and having the debt specified. therein or

(iv) a Certificate granted under the Succession Certificate Act, 1889, or

(v) a Certificate granted under Bombay Regulation No. VII of 1927 and, if granted after the first day of May, 1889, having the debt specified therein.

(2) The word ''debt'' in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. "

In I. Basha Khan v. K. Selvaraj and others, AIR 1999 Mad 374, the learned Judge has observed that it. is only when a Legal Representative files a fresh Application for execution, Section 214 of the Indian Succession Act will stand attracted. In case the decree is for recovery of debt and decree holder happens to die before or after filing of the Execution Petition, Section 214 of the Indian Succession Act would come to play. But, when the decree is not for recovery of debt and it is for some other relief, Section 214 of the Indian Succession Act is not attracted. Section 214(2) of the Indian Succession Act would clarify the term "debt".

But, in the present case, the Suit is not for recovery of debt and it is for delivery of the property. Hence, Section 214 of the Indian Succession Act need not be invoked in this case.

In Rangaswami Naicker v. Ranganzmal (died by proposed L.R and another), 1968 (2) MLJ 610, it is observed that the Executing Court is the proper Court. to determine the question whether the Will is genuine and the property in question was bequeathed to the Claimant.

In view of the above enunciative and authoritative judicial pronouncements, the settled legal position is that the parties who oppose the production of Will and. expect. the parties. who rely upon the Will, to prove the same, should have got caveatable interest or any proprietary claim over the property and if it is not so, the question of proof of Will under Section 68 of the Indian Evidence Act does not arise.

Further, when the First Respondent was prosecuting C.R.P.(MD) No.911 of 2011 before this Court, as the legal heir of the deceased, the Revision Petitioner did not make any opposition and hence, his defence that the First Respondent could not prosecute the Execution Petition should be denied.

In such view of the matter, this Court does not find any infirmity or illegality in the order passed by the Court below and hence, the same deserves to be confirmed and it is, accordingly, confirmed. The Civil Revision Petition is devoid of merits, which has to suffer dismissal. The point is answered accordingly.

In fine, the Civil Revision Petition is dismissed. Consequently, the connected Miscellaneous Petition is also dismissed. No costs.