A.S. Murthy vs D.V.S.S. Murthy

Madhava Reddy, J.—This appeal is directed against Judgment and decree in O.S. No. 40/66 on the file of the Additional Chief Judge, City Civil Court, Hyderabad. The 1st defendant is the appellant herein. The plaintiff's suit for recovery of plaint schedule properties which comprise of a house bearing No. 3-5-4 and 3-5-5 situated at Ramkote, Hyderabad and for the recovery of a sum of Rs. 9,725/- and a sum of Rs. 13,000/- being the value of the moveable property was decreed by the trial Court against defendants 1 to 5.

The 1st defendant is the son of the 1st plaintiff. The 2nd defendant is the father-in-law of the 1st defendant. The 3rd defendant is the power of Attorney holder of the plaintiff and the 4th defendant is the tenant of the suit house. The 5th defendant is the purchaser of the suit house from the 1st defendant, Dr. Brahmanandam, the 1st plaintiff had secured a Life interest in the suit house under a will executed by his wife on 10-3-1960. It is his case that while he was living in that house, on 25-2-1965 at about 3-00 P.M. defendants 1 and 2 entered his house dragged him out and forcibly took him in a taxi to Madugula village in Sangareddy Taluk and kept him under wrongful conferment. There the 2nd defendant requisitioned the services of the 3rd defendant and by threat and intimidation took some letters and documents from him. On 17-3-1965 defendants 1 to 3 took him in a taxi from Maendugula village to Khammam town and kept him in house managed by Kirana Maerchant by name Burla Sambasiva Rao. There they administered him some drugs and intoxicants as a result of which he became unconscious and mentally subjugated to the defendants. By threat, coercion and fraud the defendants obtained his signatures on the papers between 20-3-1965 and 30-3-1965. They also similarly obtained signature on a general power Of attorney in favour of the 3rd defendant authorising him to present the documents for registration. On the strength of the signatures obtained on blank withdrawal forms of the Bank, the 2nd defendant withdrew on 21-4-1965 a sum of Rs. 9,725/- from the Savings Bank account of the plaintiff with the Bank of Baroda, Hyderabad. Defendants 1 to 3 also obtained a release deed dated 3-3-1965 at Khammam in respect of the agricultural lands mentioned in schedule I of the planint and in respect of the residential house mentioned in Schedule II. The 1st defendant thereafter executed on uscfrauctuary mortgage on 22-3-1965 in favour of the 4th defendant and delivered possession of the suit house to him. The 1st defendant after removing the plaintiff from the house illegally sold away the entire furniture valuable books, utensils and other movable properties shown in Schedule III of the plaint valued at Rs. 13,000/-. The 1st defendant sold away the plaint schedule house to No. 5th defendant. The plaintiff therefore prays for the cancellation of the release deed dated 30-3-1965 and for declaration that the release deed dated 30-3-1965 is void for being put in possession of the suit house for a decree for recovery of Rs. 9,725/- against defendants 1 and 2 jointly and severally and for delivering the money and articles mentioned in Schedule III or to pay its value of Rs. 13,000/-.

While defendants 3 and 4 remained exparte, the 1st defendant filed a written statement denying all the allegations except that his mother Lakshmi Narasamma had executed a will in favour of his father in respect of the suit house. He denied that any documents were executed by the plaintiff under threat, coercion or intimidation. He asserts that they were executed by the plaintiff voluntarily because the plaintiff bad borrowed moneys from the 4th defendant and that the 4th defendant, pressed for payment, the 1st defendant executed the mortgage deed in favour of the 4th defendant. He denied the existence of any moveables and also that he had removed them. He asserted that the release deed was executed voluntarily at the instance of his well-wishers and alleged that the suit was filed at the instance of one Rukkamma who is exercising undue influence upon his father during his old age. During the pendancy of the suit, the 1st defendant sold the house to the 5th defendant and the 5th defendant was impleaded as a party to the suit.

The 1st plaintiff executed a will in favour of the 2nd plaintiff on 2-10-1968. On the death of the 1st plaintiff, the 2nd plaintiff came on record purporting to have been entitled to the plaint schedule properties on strength of the will The defendants denied that will set up by the 2nd plaintiff was forged. They also pleaded that without obtaining the probate the 2nd plaintiff was not entitled to continue this suit.

The trial Court after framing the appropriate issues held that the 1st plaintiff had executed the will dated 2-10-1968 in favour of the 2nd plaintiff and that the 2nd plaintiff was entitled to continue the suit. It also held that the release deed was obtained by fraud coercion and threat and is void. It further held that defendants 1 to 3 had obtained signatures on blank withdrawal forms by coercion, in intimidation and by fraud and that the 2nd defendant withdrew the money from the Bank and that defendants 1 and 2 are in possession of the same and are consequently bound to repay the same to the plaintiff. It however held that there was no proof of the existence of the moveables. In the result, it decreed the plaintiff's suit except of regards the movables.

In this appeal by the 1st defendant, the only points urged by Mr. Sriramulu, the learned counsel for the appellant are;

(1) that without obtaining a probate, the 2nd plaintiff was not entitled to continue the suit and recover the plaint schedule properties;

(2) that in as mach as the amount was withdrawn only by the 2nd defendant who has since died, the 1st defendant cannot be held liable to pay any amount to the plaintiff.

point No. 1:--The appellant contends that in as much as the 2nd plaintiff claims right to the plaint schedule properties is under a will executed by the 1st plaintiff on 2-10-1968 be was bound to obtain probate as laid down by the Indian Succession Act, 1925. As admittedly the 2nd plaintiff has not obtained any probate. Therefore, according to the appellant be is not entitled to establish his right as a legatee in view of S. 213 of Indian Succession Act. In support of this contention, he places reliance upon the decision of the Supreme Court in Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson Vs. Isolyne Sarojbashini Bose and Others, and of Kerala High Court is Geevarghese Geevarghese and Another Vs. Issahak George and Others,

Before we proceed to consider the above decisions, we may refer to S. 213 of the Succession Act which according to the learned counsel for the Appellant, disentitles him from establishing his right to the suit properties as a legatee. S. 213 of the Indian Succession Act in so for as it is relevant for our present purpose reads as follows:

Right as executor or legatee when established.--

(1) No right as executor or legatee can be established in any Court of Justice, painless a Court of Competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of the authenticated copy the will annexed.

(2) This section shall not apply in the case of wills made by Mohammedan and shall only apply--

(i) in the case of wills made by any Hindu, Buddhist, Sikh, or Jains where such wills are of the classes specified in clauses (a) and (b) of section 657, and

(iii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amemament) Act, 1962 Where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay and where such wills are made outside these limits, in so far as they relate to immoveable property situate within these limits.

It would be seen that S. 213 prohibits among others any legatee from establishing in any court of Justice, any right claimed under a will without obtaining a probate of the will or letters of administration. Sub-section (2) of S. 213 excludes certain wills from the application of sub-section (1) of S. 213. So far as the wills made by Mohammadans are concerned S. 213 (1) does not apply at all. With respect to wills made by Hindus, S. 213 (1) has only a limited application. Wills made by a Hindu to which the prohibition under S. 213 (1) is applicable are those classes of wills which are specified in classes (a) and (b) of S. 57 of the Succession Act. Clauses (a) and (b) of S.57 with which alone we are concerned read as follows:

5/. Application of certain provisions of Part to a classes of wills made by Hindu, etc,--The provisions of this Part which are out in Schedule III shall, subject to the restrictions and modifications specified therein apply--

(a) to all wills and codiciles made by any Hindu, Budhist, Sikh or Jain on or after the first day of September, 1870, within the territories which at the said date were subject to the lieutenant Governor of Bengal or within local limits of the ordinary original Civil jurisdiction of the High Courts of Judicature all Madras and Bombay; and

(b) to all such wills and codicils made outside these territories and limits so for as relates to immoveable property situate within these territories or limits and

A reading of that clause makes it clear that the prohibition contained in S. 213 (1) applies to wills by Hindus on or after 1st day, of September 1870 within the territories which at the said date were subject to the Jurisdiction of the lieutenant Governor of Bengal or within the local limits of the ordinary original Civil Jurisdiction of the High Courts of Judicature at Madras and Bombay.

It is nobody's case that the will in question was made by a Hindu subject to such jurisdiction. The only other wills executed by a Hindu to which the prohibition contained in S. 213 (1) applies, are the wills though made outside the territories referred to in clause (a) of S. 57 relate to immoveable properties situate within these territories or limits. Admittedly none of the suit properties are situate within the aforesaid territorial limits. In view of sub-clause (2) of S. 213 although the will is executed by a Hindu, in as much as it is a will covered by clauses (a) and (b) of S. 57 the prohibition contained in S. No. 213 (1) does not apply.

We may now examine the decision of the Supreme Court which undoubtedly lays down that a legatee claiming under a will when seeking to establish his ownership to the property as a legatee cannot establish his right without obtaining probate or letters of administration, Section 213 bars the legatee from establishing his right as a legatee under the will without obtaining the probate or letters of administration. The question whether the will set up in that case was one to which S. 213 (1) applies to all or not, did not fall for consideration either before the lower Courts or before the Supreme Court. The judgment proceeded upon the footing that it was one such will which required a probate or letters of administration to be obtained. The contention therein was that even for obtaining probate or letters of administration, the right to the property has to be established and that was negatived. In the case which came up for consideration before Kerala High Court in Geevarghese Geevarghese and Another Vs. Issahak George and Others, the parties were Christians. One Chairman Daniel, the husband of the 2nd defendant therein had executed a will and that Chairman Daniel and his widow the 2nd defendant together executed Ex. D-3 will. The testator there in was an Indian Christian and decision therein proceeded on the footing that probate or letters of administration was required to be taken and the question whether S. 213 (2) applied to the facts of the case or met did not come up for consideration. Same of the above decisions are therefore authority of the proposition that unless a legatee under a will executed by a Hindu in respect of properties situate in the territory subject to the jurisdiction of the Andhra Pradesh High Court and executed by a person not residing with the territory subject to the Lieutenant Governor of Bengal or the Original Civil Jurisdiction of the Madras or Bombay High Courts cannot establish his right to the property without obtaining probate or letters of administration. As discussed above, S. 213 (2) excludes wills executed by persons residing in the State of Andhra Pradesh in respect of properties situate in Andhra Pradesh from the prohibition contained in S. 213 (1) of the Act. Hence even without obtaining probate or letters of administration the legatees are entitled to establish their right to the properties. The first contention of the appellant must therefore fail and is accordingly rejected. The decree of the trial Court cannot be assailed on this ground.

The only other point urged by the 1st defendant is that the decree in respect of Rs. 9,725/- if at all should have been granted only against the 2nd defendant and he alone had drawn the amount. The finding of the trial Court that both the 1st and 2nd defendant bad acted in concert and had exercised coercion and criminal intimidation and played fraud on the 1st plaintiff and obtained signatures on blank withdrawal forms was not challenged and no evidence was placed before us. The future finding that amount so drawn was in the possession of defendants 1 and 2 also was not challenged before us. So long as finding stands, we do not see how the 1st defendant, appellant can escape the liability to refund the amount withdrawn in the above circumstances. Merely because, the 2nd defendant has died, the 1st defendant cannot be absolved of the liability for, the liability in both is joint and several. The second ground of attack on the decree of the trial court also therefore fails and is accordingly rejected. In the result we see no merit in this appeal and accordingly dismiss the case. As the respondents have not entered appearance and are not present in person, there will be no order as to costs. The 1st defendant-appellant shall pay the Court fee.