J. Srinivasan (Died) and Vs. S. Venkataraman @ Balaji - Court Judgment

Excerpt:
- t.n. estates (abolition & conversion into ryotwari) act, 1948 [act no. 26/1948]. sections 5(2) & 67; [a.p. shah, cj, mrs. prabha sridevan & p. jyothimani, jj] suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. -- t.n. estates (abolition & conversion into ryotwari) act, 1948. sections 5(2) & 67; suo motu revisional powers held, on a bare reading of the provisions of section 5(2) of the act, it is clear that the power conferred on the director by section 5(2) to cancel or revise any of the orders, acts or proceedings of the settlement officer is very wide. in the first place, the director need not necessarily be moved by any party in that behalf, and the power could be exercised either on an application by an aggrieved person or suo motu. for example, if the director comes to know that contrary to the scheme of the act or due to misrepresentation or fraud played, a patta had been granted to a person under the relevant provisions of the act, then to set right that mistake, the director should be enabled to exercise his power so as to effectuate the scheme of the act and to implement the purpose behind the act. the fact that the rule making authority has prescribed procedure in exercise of the powers under section 67 for making an application to the director does not mean that the suo motu power which is explicit in section 5(2) of the act is in any way curtailed or taken away. therefore, the contention of the respondent that making an application is sine qua non for invoking the power under section 5(2) of the act is not tenable. m. chockalingam, j.1. this intra-court appeal challenges an order of dismissal made by the learned single judge of this court in application no. 3800 of 2004 whereby the request of the first appellant husband seeking revocation of the letters of administration granted in o.p. no. 312 of 2001, was denied.2. the court heard the learned counsel on either side.3. admittedly, o.p. no. 312 of 2001 was filed seeking letters of administration in respect of the will executed by one j. rukmani. the court of testamentary jurisdiction ordered the same on 18.9.2001. the above application was filed by one srinivasan, the husband of the second appellant, alleging that the said rukmani obtained letters of administration dated 23.3.1978 from the court for the estate of her brother g.v. shandilya; that the respondent in the application was the son of the applicant's sister one saroja srinivasan; that taking advantage of the close relationship, he got the will executed on 18.4.1994 by exercising coercion and undue influence over the mother of the applicant; that the testatrix was repeatedly telling that she is going to leave the property with the applicant and that he was a legatee under the will; but, he has not admitted the proper execution, and thus the order by the court granting probate was to be revoked; that by way of abundant caution, the applicant has also filed a caveat petition no. 37 of 2001; but, no summons were served on the applicant; that it was also not served on the counsel; that he was entitled to be served with a notice of the proceedings independently of the caveat; that there was no reason for the said rukmani the mother of the applicant, to disinherit the applicant in respect of the property which she was administering, and hence it was to be set aside.4. the application was contested by the respondent stating that the said rukmani inherited the property as per the operation of law; that she was granted letters of administration in op no. 89 of 1978; that as per the hindu succession act also, the said rukmani became the sole legal heir of the deceased brother to succeed to the estate; that it devolved upon her after his death in full, and she became the absolute owner; that there was neither coercion nor undue influence; that from the year 1985 to 1997, the respondent was away; that he was not aware of the will; that the applicant never questioned the execution of the will; that on one hand, he denied the execution of the will by the testatrix and on the other, he contended that without his consent, the probate of the same should not have been granted; that admittedly, caveat was filed by the applicant on 28.2.2001; that the probate application was presented on 2.4.2001; that the notice of filing with copies were served on the caveator; that the notice was served through the court on his counsel on record; that it was proper as per the rules and practice; that no steps were taken by the applicant pursuant to the service, and hence the caveat was discharged on 31.7.2001; that the probate was granted on 18.9.2001; that despite the knowledge of the entire proceedings, he had not taken steps till the said application was filed in 2004; that apart from that, he has also filed o.s. no. 634 of 2002 on the file of the city civil court in chennai seeking permanent injunction to restrain the respondent from interfering with the possession and enjoyment of the property; that this application was hopelessly barred by limitation, and hence it was to be dismissed.5. the learned single judge after hearing the submissions made by the counsel on either side and looking into the materials available, made an order of dismissal of the application. hence this appeal.6. advancing arguments on behalf of the appellants, the learned senior counsel mr.ram mohan would submit that it is not in controversy that in that op, the second appellant's husband srinivasan filed a caveat; but, no notice was served upon him; and that the service of summons on the counsel would not suffice. added further the learned senior counsel that in the instant case, he was actually the son of the testatrix which is an admitted position; that there was no reason why he should be disinherited; that even on the day when the matter was taken up for consideration, the counsel's name was not even printed; that the learned single judge has not adverted to his attention either on the factual or the legal position in the matter; that it is a case where he sought for revocation under section 263 of the indian succession act, and hence the order of the learned single judge has got to be set aside.7. in support of his contention, the learned senior counsel relied on the decisions of the apex court reported in 2003 air scw 3105 shanta g.z. mehta v. sarla j. mehta and ors. and in (2009) 1 mlj 182 (sc) g. gopal v. c. baskar and ors.8. the learned counsel for the respondent in his sincere attempt of sustaining the order put forth his submissions.9. the court paid its consideration on the submissions made.10. it is not in controversy that the respondent herein made o.p.312 of 2001 for getting probate in respect of the will of one j. rukmani dated 18.4.1994. it is also an admitted position that the first appellant husband srinivasan filed a caveat petition no. 37 of 2001, and only thereafter the op was taken on file. the notice was actually directed to be served. accordingly notice was served. even as per the averments in the affidaivt, it would be quite clear that the summons were served upon the counsel for the caveator. but, despite the same, there was no objection raised. under the circumstances, the caveat was discharged on 31.7.2001, and thus the first appellant husband srinivasan was shown as fourth respondent while all other three respondents have actually put forth their consent affidavits. it was also taken into account by the court. at this juncture, it remains to be stated that the service of summons on the counsel for the caveator is a sufficient service. the caveat was filed even before the filing of op 312/2001, and despite service of summons, no objection was raised. in such circumstances, now the appellants cannot be allowed to say that there was no service proper on the caveator. the caveat was filed through a counsel, and the service of summons was made actually. the court has also recorded the same. since no objection was raised, it has also been discharged on 31.7.2001; but, the order came to be passed on 18.9.2001 thereafter.11. apart from the above, certain factors are noticed by the court. the order came to be passed on 18.9.2001. after obtaining the probate, the respondent herein issued a notice to the first appellant husband srinivasan to vacate and hand over possession of the property within a period of two months, and this was actually served upon srinivasan on 27.11.2001, and he also made a reply on 22.1.2002 wherein he has actually pointed out that the grant of probate was not proper, and rukmani had no absolute power over the property so as to execute a will. even questioning her competency to execute the will, the said reply was given. it is further pertinent to point out that the first appellant husband srinivasan filed o.s. no. 634 of 2002 on the file of the city civil court for permanent injunction restraining the respondent from interfering with the possession and enjoyment. added circumstance is the suit filed by the respondent herein in o.s.2922 of 2002 seeking ejectment of the first appellant husband srinivasan from the property. while all these have come into, it would be quite clear that the first appellant husband srinivasan could not be allowed to plead that he had no knowledge about the proceedings or the grant of probate. while the probate was actually granted on 18.9.2001, the instant application came to be filed on 16.9.2004 after a long lapse of time. the intervening circumstances were the notice, reply and the suits by the parties. all would clearly indicate that he had got full knowledge about the proceedings; but he did not come forward to set it aside. now the application filed under section 263 had no legs to stand. that apart, not only there must be substance but also cause to set it aside. unless and until he is able to show the same, the relief cannot be granted. this court is unable to notice anything, and apart from long lapse of time, it was only an invention in order to drag on the proceedings. now the contentions put forth by the learned senior counsel for the appellants do not carry any merit whatsoever. under the circumstances, the learned single judge was perfectly correct in dismissing the application, and it does not require any disturbance in the hands of this court.12. in the result, this original side appeal is dismissed leaving the parties to bear their costs.