Paily Korah and others v. Dr. Ann Zacharia and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940** **OP(C).No. 131 of 2018** **AGAINST THE COMMON ORDER IN OP.NOS:166/2017,168/2017 & 170/2017 IN I.A.NOS:3132/2016,6621/2016 AND 6745/2016 IN L.A.O.P.NO.279/2016 OF THE VITH ADDL.DISTRICT COURT, ERANKULAM.** **----------** **PETITIONER(S)/RESPONDENTS 1 TO 5** **--------------------------------** ## **1 PAILY KORAH,** **S/0.LATE PAILY,RESIDING AT MANJUMMEKUDIYIL, KEERAMPARA VILLAGE,PIN:686681,KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT.** ## **2 PAILY KURUVILA,** **S/O LATE PAILY,MANJUMMEKUDIYIL,KEERAMPARA** **VILLAGE,KOTHAMANGALAM TALUK,** **ERNAKULAM DISTRICT,NOW RESIDING AT 15,CEDAR RIDGE LANE, DIX HILLS,LONG ISLAND,NEW YORK 11746,U.S.A,** **REPRESENTED BY HIS BROTHER PAILY VARGHESE,S/O PAILY, MANJUMMEKUDIYIL,** **KEERAMPARA VILLAGE,KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT,NOW RESIDING AT G-348,MANJUMMEDKUDIYIL HOUSE, PANAMPILLY NAGAR,ERNAKULAM,COCHIN-682036.** ## **3 PAILY VARGHESE,** **S/O.LATE PAILY,MANJUMMEKUDIYIL,KEERAMPARA VILLAGE,KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT,NOW RESIDING AT G-348,PANAMPILLY NAGAR P.O,ELAMKULAM VILLAGE, KANAYANNOOR TALUK,ERNAKULAM DISTRICT, COCHIN-682036.** ## **4 JOLLY,** **W/O.DR.KURUVILA,MANJUMMEKUDIYIL,KEERAMPARA VILLAGE,KOTHAMANGALAM TALUK, ERNAKULAM DISTRICT,NOW RESIDING AT 15,CEDAR RIDGE LANE, DIX HILLS,LONG ISLAND,NEW YORK 11746,U.S.A, REPRESENTED BY HER POWER OF ATTORNEY HOLDER, PAILY VARGHESE,S/O.PAILY, MANJUMMEKUDIYIL,KEERAMPARA VILLAGE,KOTHAMANGALAM TALUK,ERNAKULAM,NOW RESIDING AT G-348,MANJUMMEKUDIYIL HOUSE,PANAMPILLY NAGAR, ERNAKULAM DISTRICT,COCHIN-682036.** **TS** **OP(C).No. 131 of 2018 (O) -------------------------** ## **5 SALI VARGHESE,** **W/O.PAILY VARGHESE,MANJUMMEKUDIYIL, KEERAMPARA VILLAGE,KOTHAMANGALAM TALUK, ERNAKULAM,NOW RESIDING AT G 348, MANJUMMEKUDIYIL HOUSE, PANAMPILLY NAGAR.P.O-682036.** **BY ADVS.SRI.S.SHYAM** **SRI.V.K.BALACHANDRAN** **SRI.KIRAN PETER KURIAKOSE SRI. VINAY KUMAR VARMA** ## **RESPONDENT(S)/PETITIONERS AND 6TH RESPONDENT IN I.A::** **---------------------------------------------------** **1. DR.ANN ZACHARIA,** **W/O.SUBIN JACOB VARGHESE, PRESENTLY RESIDING AT 3315,OAKMOM DRIVE,SUGARLAND,TEXAS,77479,U.S.A.FROM VILLA NO.6,MERIDIAN REGENT SQUARE,V P PETER ROAD,MARADU.P.O,682304,MARADU VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT.** **2. DR.MAREENA SUSAN ZACHARIA,** **W/O.DR.VINEETH PHILIP JOHN,PRESENTLY RESIDING AT 69, STARIN AVE,BUFFALO,NEW YORK,14214,U.S.A..D/O.DR.ZACHARIAH THOMAS AND DR.RACHEL ZACHARIAH ALIAS RAPHEL,PAILY RACHEL, HAILING FROM MANJUMMEKUDIYIL,KEERAMPARA VILLAGE,KOTHAMANGALAM TALUK, ERNAKULAM FROM VILLAGE NO.6,MERIDIAN REGENT SQUARE,V P PETER ROAD,MARADU.P.O,682304,MARADU VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT.** ## **3. DR.ELIZABETH ZACHARIA,** **W/O.DR.JIMMY ABRAHAM,PRESENTLY RESIDING AT 4,ROSEMOUNT DRIVE,BICKLEY,BROMLEY,B.R.I.21,Q.U.K,D/O.DR.ZACHARIAH THOMAS AND DR.RACHEL ZACHARIAH ALIAS RAPHEL, PAILY RACHEL, HAILING FROM VILLA NO.6,MERIDIAN REGENT SQUARE, V P PETER ROAD,MARADU.P.O,682304,MARADU VILLAGE, KANAYANNUR TALUK,ERNAKULAM DISTRICT.** **4. PAILY RACHEL ,** **D/O.LATE PAILY,MANJUMMEKUDIYIL KEERAMPARA VILLAGE, KOTHAMANGALAM TALUK,ERNAKULAM NOW RESIDING AT VILLA NO.6,MERIDIAN REGENT SQUARE,V.P.PETER ROADM,MARADU.P.O, PIN-682304,MARADU VILLAGE,KANAYANNOOR TALUK, ERNAKULAM DISTRICT.** ## **BY ADV. SRI.M.N.MATHEW** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 05-06-2018, THE COURT ON 13.06.2018 DELIVERED THE FOLLOWING:** **TS** ## **OP(C).No. 131 of 2018 (O) -------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **----------------------** **EXT.P1 TRUE COPY OF THE PETITION FILED AS I.A.NO:3132 OF 2016 IN L.A.O.P.NO.279 OF 2016 ON THE FILES OF THE 6TH ADDL.DISTRICT COURT,ERNAKULAM. EXT.P2 TRUE COPY OF THE PETITION FILED AS I.A.NO.6621 OF 2016 IN L.A.O.P.NO.279 OF 2016 ON THE FILES OF THE 6TH ADDITIONAL DISTRICT COURT,ERNAKULAM EXT.P3 TRUE COPY OF THE PETITION FILED AS I.A.NO:6745 OF 2016 IN L.A.O.P.NO:279 OF 2016 ON THE FILES OF THE 6TH ADDITIONAL DISTRICT COURT,ERNAKULAM EXT.P4 TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS IN I.A.3132 OF 2016 IN L.A.O.P.NO:279 OF 2016 ON THE FILES OF THE 6TH ADDL.DISTRICT COURT,ERNAKULAM. EXT.P5 TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS IN I.A.6621 OF 2016 IN L.A.O.P.NO:279 OF 2016 ON THE FILES OF THE 6TH ADDL.DISTRICT COURT,ERNAKULAM. EXT.P6 TRUE COPY OF THE OBJECTIONS FILED BY THE RESPONDENTS IN I.A.674V5 OF 2016 IN L.A.O.P.NO:279 OF 2016 ON THE FILES OF THE 6TH ADDL.DISTRICT COURT,ERNAKULAM. EXT.P7 TRUE COPY OF THE COMMON ORDER PASSED BY THE 6TH ADDL.DISTRICT COURT,ERNAKULAM IN EXTS.P1 TO P3 DATED 21.11.2016 EXT.P8 TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT AS I.A.NO:166 OF 2017 IN I.A.NO.3132 OF 2016 IN L.A.O.P.NO:279 OF 2016 ON THE FILES OF THE 6TH ADDITIONAL DISTRICT COURT,ERNAKULAM EXT.P9 TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT AS I.A.NO:168 OF 2017 IN I.A.NO.6621 OF 2016 IN L.A.O.P.NO:279 OF 2016 ON THE FILES OF THE 6TH ADDITIONAL DISTRICT COURT,ERNAKULAM EXT.P10 TRUE COPY OF THE PETITION FILED BY THE 1ST RESPONDENT AS I.A.NO:170 OF 2017 IN I.A.NO.6745 OF 2016 IN L.A.O.P.NO:279 OF 2016 ON THE FILES OF THE 6TH ADDITIONAL DISTRICT COURT,ERNAKULAM EXT.P11 TRUE COPY OF THE OBJECTIONS FILED BY RESPONDENTS 1 TO 5 IN EXT.P8** ## **TS** ## **OP(C).No. 131 of 2018 (O)** ## **-------------------------** **EXT.P12 TRUE COPY OF THE OBJECTIONS FILED BY RESPONDENTS 1 TO 5 IN EXT.P9 EXT.P13 TRUE COPY OF THE OBJECTIONS FILED BY RESPONDENTS 1 TO 5 IN EXT.P10 EXT.P14 TRUE COPY OF THE COMMON ORDER DATED 10.11.2017 IN I.A.NO.166 OF 2017,I.A.NO.168 OF 2017 AND I.A.NO.170 OF 2017 IN I.A.NO.3132 OF 2016,6631 OF 2016 AND 6745 OF 2016 RESPECTIVELY IN L.A.O.P.NO:279 OF 2016 ON THE FILE OF THE 6TH ADDL.DISTRICT COURT,ERNAKULAM EXT.P15 TRUE COPY OF THE PARTNERSHIP DEED DATED 28.3.1983 OF GOOD SHEPHERD TOURIST HOME,ERNAKULAM EXT.P16 TRUE COPY OF THE RE-CONSTITUTED PARTNERSHIP DEED DATED 1.1.1986 EXT.P17 TRUE COPY OF THE PARTNERSHIP DEED DATED 3.12.1986 EXT.P18 TRUE COPY OF THE RE-CONSTITUTED PARTNERSHIP DEED DATED 1.4.1988 EXT.P19 TRUE COPY OF THE RE-CONSTITUTED PARTNERSHIP DEED DATED 1.10.1989 EXT.P20 TRUE COPY OF THE RE-CONSTITUTED PARTNERSHIP DEED DATED 1.4.1992. EXT.P20(A) TRUE COPY OF THE NOTICE ISSUED TO THE REGISTRAR OF FIRMS,THIRUVANANTHAPURAM DATED NIL. EXT.P21 TRUE COPY OF THE RE-CONSTITUTED PARTNERSHIP DEED DATED 17.6.1992. EXT.P22 TRUE COPY OF THE RE-CONSTITUTED PARTNERSHIP DEED DATED 1.4.1992 EXT.P22(A) TRUE COPY OF THE NOTICE ISSUED TO THE REGISTRAR OF FIRMS,THIRUVANANTHAPURAM DATED 1.4.1996 EXT.P22(B) TRUE COPY OF THE POWER OF ATTORNEY DATED 19.12.1994 EXECUTED BY THE 1ST RESPONDENT EXT.P22(C) TRUE COPY OF THE POWER OF ATTORNEY DATED 26.8.1995 EXECUTED BY THE 3RD RESPONDENT EXT.P23 TRUE COPY OF THE RE-CONSTITUTED PARTNERSHIP DEED DATED 30.12.2003.** **TS** ## **OP(C).No. 131 of 2018 (O)** ## **-------------------------** **EXT.P24 TRUE COPY OF THE LETTER OF THE REGISTRAR OF FIRMS (INSPECTOR GENERAL OF REGISTRATION),THIRUVANANTHAPURAM DATED 19.3.1999. EXT.P25 TRUE COPY OF THE LETTER DATED 30.12.2017 OF THE REGISTRAR OF FIRMS(INSPECTOR GENERAL OF REGISTRATION) WITH THE ENCLOSURE.** |**RESPONDENT(S)'EXHIBITS**|**RESPONDENT(S)'EXHIBITS**| |---|---| |**----------------------**|| |**EXHIBIT R1(A)**|**TRUE COPY OF ORDER DATED 8.9.2016 OF THE PRINCIPAL**| ||**MUNSIFF,ERNAKULAM IN EA.NO.76/2016 IN E.P.NO,49/2015**| ||**IN RCP NO.146/2008.**| |**EXHIBIT R1(B)**|**TRUE COPY OF THE IA.NO,2348/2015 DATED 06.7.2015 IN**| ||**OS.NO.113/2015,FILED BY THE 3RD PETITIONER ON HIS BEHALF AS**| ||**ALSO FOR THE OTHER DEFENDANTS/PETITIONERS THEREIN.**| |**EXHIBIT R1(C)**|**TRUE COPY OF THE LETTER NO.F3-21374/2015 DATED 18.9.2015**| ||**WITH THE TRUE EXTRACT OF THE FIRM GOOD SHEPHERED TOURIST**| ||**HOME REGISTERED UNDER NO.1657 OF 1983 OF THE REGISTRAR OF**| ||**FIRMS ,THIRUVANANTHAPURM.**| |**EXHIBIT R1(D)**|**TRUE COPY OF MEMORANDUM ACKNOWLEDGING RECEIPT OF NOTICE**| ||**NO.10/99 TOGETHER WITH A STATEMENT DATED 01.7.1998**| ||**INCORPORATING THE NAMES AND SIGNATURES OF ALLEGED**| ||**CONTINUING PARTNERS, INCOMING PARTNERS AND OUTGOING**| ||**PARTNERS OF THE FIRM GOOD SHEPHERD TOURIST HOME FILED BY**| ||**THE 3RD PETITIONER BEFORE THE REGISTRAR OF FIRMS.**| |**EXHIBIT R1(E)**|**TRUE COPY OF THE ORDER DATED 30.10.2017 OF THE HONOURABLE**| ||**HIGH COURT OF KERALA IN RP NO.646 OF 2017 AGAINST THE**| ||**JUDGMENT IN WPC.NO,18656/2017(SINCE REPORTED**| ||**AS 2018(I)KHC 365).**| |**EXHIBIT R1(F)**|**TRUE COPY OF THE PETITION DATED 23.11.2017 FILED BEFORE THE**| ||**TAHSILDAR(LR) FOR CANCELLATION OF THE ILLEGAL MUTATION**| ||**ORDE AND NOT TO ISSUE TAX RECEIPTS TOT HE 4TH AND 5TH**| ||**PETITIONERS HEREIN.**| |**EXHIBIT R1(G)**|**TRUE COPY OF THE STATEMENT FILED BEFORE THE REGISTRAR OF**| ||**FIRMS DURING THE HEARING OF THE MATTER ON 22.7.2017.**| **TS** ## **OP(C).No. 131 of 2018 (O) -------------------------** |**EXHIBIT R1(H)**|**TRUE COPY OF PETITION DATED 16.9.2017 FILED BEFORE THE**| |---|---| ||**PRINCIPAL COMMISSIONER OF INCOME TAX.**| |**EXHIBIT R1(I)**|**TRUE COPY OF THE ORDER DATED 08.12.2017 OF THE PRINCIPAL**| ||**SUB JUDGE ERNAKULAM IN IA.NO.2348/2015 IN OS.NO,113/2015.**| ||**/TRUE COPY/**| ||**PS TO JUDGE**| **TS 16.06.2018** **C. R.** **SATHISH NINAN, J. = = = = = = = = = = = = = = = = = = O. P. (C) No.131 of 2018 = = = = = = = = = = = = = = = = = = Dated this the 13[th] day of June, 2018** ## **J U D G M E N T** Paily and Annam had four children - three sons Kora, Kuruvila and Varghese, (herein after referred to as “sons”), and one daughter Rachel (herein after referred to as “daughter”). Paily and Annam executed a joint Will on 26.11.1997. Annam died on 29.12.2003 and Paily on 06.12.2011. The sons and the wives of two of the sons namely, Jolly wife of Kuruvila and Sali wife of Varghese, are legatees under the Will. They filed LAOP 279/16 before the District Court seeking Letters of Administration in respect of the Will. Rachel-the daughter is the respondent in the LAOP. The daughters of Rachel, three in number namely Ann, Mareena and Elizabeth (herein after referred to as “grand daughters”), filed applications as I.A. Nos.3132/16, 6621/16 and 6745/16 seeking to get themselves impleaded in the LAOP. The applications were originally dismissed by O. P. (C) No.131 of 2018 :- 2 :- the learned District Judge. Thereafter, on review applications filed by them, they were impleaded in the proceedings. Challenging the said order, the petitioners in the LAOP are before this Court. 2. Heard Senior Counsel Sri.N.Sukumaran on behalf of the petitioners and Sri.M.M.Mathew, learned counsel appearing on behalf of the respondents. 3. To come on record in a Letters of Administration proceeding, what is relevant is, whether the person who seeks to come on record has a “caveatable interest” in terms of Sections 283 (1)(c) and 284(1) of the Indian Succession Act, or not. Sections 283 (1)(c) and 284(1) of the Indian Succession Act reads thus: “ **283. Powers of District Judge.** —(1) In all cases the District judge or District Delegate may, if he thinks proper,— (a) xxxx xxxx xxxx xxxx (b) xxxx xxxx xxxx xxxx - (c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see O. P. (C) No.131 of 2018 :- 3 :- the proceedings before the grant of probate or letters of administration.” ## “ **284. Caveats against grant of probate or administration** .— ## (1) Caveats against the grant of probate or administration may be lodged with a District Judge or a District Delegate.” The term “caveatable interest” is not defined under the Act. However, what is a “caveatable interest”, has been the subject of deliberation in a series of decisions. There has been slightly different notes. In _**Jagit Singh v. Pamela Manmohan Singh [(2010) 5 SCC 157]**_ the Apex Court has referred the matter for consideration by a Larger Bench in view of the incongruity between _**Krishna Kumar Birla v. Rajendra Singh Lodha and Others [(2008) 4 SCC 300]**_ which accepted a strict construction and _**G. Gopal v. C. Baskar [(2008) 10 SCC 489]**_ which held that a person having even a slight interest is entitled to file a caveat. However, for the present, it would suffice to notice that the person must have some manner of interest or right over the property in respect of which the LAOP is filed. If an order is passed granting Letters of O. P. (C) No.131 of 2018 :- 4 :- Administration, his interests or rights must be affected. If a person is entitled to succeed to the estate of the testator, it could be said that he has a caveatable interest. If the grant of probate would defeat a line of succession, then the person entitled to succeed would have a caveatable interest. The descriptions are not exhaustive. 4. Do the grand daughters who seek to come on record have a caveatable interest? As per Ext.B1 Sale Deed, the properties described in schedules 'D' and 'E' to LAOP were purchased jointly in the names of the father, mother and all the four children, along with the wife of the eldest son Kora. The property belonged in equal rights to all the seven co-owners. A building was constructed in the property. It was leased out to strangers. On the first and second floors of the building, a partnership firm conducted business as tenant. At some point of time, two of the grand daughters (daughters of Rachel) were admitted to the partnership. It appears that there has been a subsequent re-constitution of the firm whereunder O. P. (C) No.131 of 2018 :- 5 :- one of the grand daughters retired from the firm and the other grand daughter became a partner. The firm continued the business as a tenant of the premises. As per Ext.A1 Partnership Deed dated 01.04.1996, the firm was re-constituted whereunder all the seven co-owners of the property became partners. The building in which the business was being conducted was brought in as a partnership asset. Under Ext.A1, the grand daughters retired from the firm. Subsequently, Annam died. Thereafter, Ext.A2 Partnership Deed was executed between the remaining partners. Exts.A1 and A2 Partnership Deeds are denied by the daughter and grand daughters(Rachel and her daughters). 5. The grand daughters seek to get themselves impleaded in the LAOP on the claim that the property in question having been brought in as a partnership asset and they being partners of the firm have interest over the property and the consequent proceedings in the LAOP. Here, a few facts are relevant─ O. P. (C) No.131 of 2018 :- 6 :- (1) The property was brought in as a partnership asset under Ext.A1 Partnership Deed; (2) Prior to Ext.A1 Partnership Deed, the firm was conducting business in the property as a tenant; (3) The grand daughters were partners of the firm prior to Ext.A1; (4) The grand daughters retired from the firm under Ext.A1; and (5) The genuineness of Ext.A1 is disputed by the grand daughters. If the contention of the grand daughters regarding the genuineness of Ext.A1 is accepted, then they continue as partners of the firm. But then, the property in question does not become a partnership asset since the same was brought in as a partnership asset only under Ext.A1. The property was in the possession of the firm as a tenant. Therefore, they cannot claim any manner of interest over the asset. A mere tenant or the partner of a tenant firm cannot claim a right to get impleaded O. P. (C) No.131 of 2018 :- 7 :- in a Letters of Administration proceeding in respect of the Will of the owner-landlord of the property. In (2008) 4 SCC 300 (supra), the Apex Court accepting the statement of law laid down by the High Court of Rajasthan in _**Jagdish Chander v. State, 1988 RLR 678**_ observed, “A tenant occupying the premises belonging to a testator was held not to have any caveatable interest in the property of the testator”. On the other hand, if Ext.A1 Partnership Deed is accepted, the grand daughters cease to be partners and therefore, the claim regarding interest over the asset in the capacity as partners cannot be sustained. Therefore, viewed either way, the grand daughters do not have any manner of interest. They are not entitled to get impleaded in the LAOP. 6. The court below has mainly given two reasons for allowing the impleading application. Firstly, that the grand daughters who seek to get themselves impleaded have similar status as that of the daughters-in-law of Paily and Annam. Secondly, the O. P. (C) No.131 of 2018 :- 8 :- property has already been transferred to the partnership firm as per Exts.A1 and A2 Partnership Deeds. As noticed supra, the daughters-in-law are legatees under the Will while the grand daughters are not. The observation of the court below that they are having similar status as that of the grand daughters, is not correct. Coming to the finding regarding transfer of assets to the firm, the grand daughters project a case that the property was already transferred to the partnership and hence the testators did not have right over the property. The court below has observed that the argument of the grand daughters is based on Section 152 of the Succession Act which deals with “Ademption of legacies”. Therefore, essentially the title of the testator to the subject of bequest at the time of his death, is under challenge. Such a person cannot be said to have a caveatable interest. A person who denies the title of the testator cannot be said to have a caveatable interest. In 2008 (4) SCC 300 (supra), the Apex Court observed thus, “In fact the appellants have disentitled themselves from lodging O. P. (C) No.131 of 2018 :- 9 :- a caveat as they are questioning the title of the testatrix as also her right to execute a will.....”. (Also _**Ittyanath Madathil Madhavi v. Sree Rama Varma (AIR 1969 Ker. 256**_ and _**In re N. Narasimhan and another AIR 1975 Mad. 330)**_ . In a proceeding for grant of probate, the question of title does not arise for determination. All that is adjudicated is regarding the genuineness of the Will. Here it would be relevant to refer to the observations by the Apex Court in _**Ishwardeo Narain Singh v. Kamta Devi (AIR 54 SC 280)**_ :- “The Court of Probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court”. The interest claimed as caveatable interest must not be one in derogation of the title of the testator. On this ground also they are not entitled O. P. (C) No.131 of 2018 :- 10 :- to come on record. 7. Therefore, viewed in any manner, the grand daughters who seek to get themselves impleaded do not have a caveatable interest and are not entitled to come on record. In the result, the original petition is allowed. The order dated 10.11.17 in I.A. Nos.166/17, 168/17 and 170/17 in LAOP No.279/16 of the VI[th] Additional District and Sessions Judge is set aside. The impleading applications will stand dismissed. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge O. P. (C) No.131 of 2018 :- 11 :-