LAKSHMIKUTTY AMMA Vs. SREEDEVI ANTHARJANAM

JUDGEMENT

(1.) THIS appeal arises out of an order of the District court, Trichur, granting Letters of Administration with the will annexed to the petitioners in Letters of Administration O. P. No. 5 of 1963 of that Court. One narayanan Nambudiri died on 21-12-1961 having executed Ext. D-2 will dated 9-11-1956 (Ext. P1 is the copy of the will) which was the subject matter of the application and the grant. The properties devised were the self acquisitions of the testator, and were dealt with in different schedules to the will. Schedules a to G were bequeathed to the wife and children of the testator, and schedule H to the testator's brother Neelakantan Nambudiri. There was a residuary clause in the will, that in respect of the share of the testator in his illom properties, in respect of any of his properties found undisposed of at the time of his death, and in respect of his own independent verumpattom right over Re. Sy. No. 373/1, these were to go to the children of his brother Neelakantan nambudiri. Neelakantan Nambudiri died on 23 81962. The petitioners who applied for administration are the Nambudiri wife and children of Neelakantan nambudiri, the 1st petitioner, the wife, being Sreedevi Antharjanam. The 1st respondent to the application was another brother of the late Narayanan nambudiri and Respondents 2 to 7 were the Nair wife and the children of narayanan Nambudiri through her. The court below, in the first instance, granted the application, against which, A. S. 30 of 1966 was filed in this court. Upholding the plea that the will had not been properly proved in accordance with law, this Court allowed the appeal, set aside the grant, and remanded the matter to the lower court for fresh disposal in accordance with law. Thereafter, the court below found that the will had been properly proved. It was contended by respondents 2 to 8, that the grant of part of the estate in this case the H schedule and the items covered by the residuary clause, which had been devised to Neelakantan Nambudiri and his children was unknown to law, and could not be countenanced. The court below dealt with the matter as follows: "but it is contended that S. 232 contemplates grant of Letters of the whole estate or of such much thereof as may be unadministered. Admittedly in this proceedings, Letters are not sought for the whole estate. Schedules A to G of the will are not included in the scope of the petition. These properties were bequeathed to respondents 2 to 7. THIS argument is met with the contention that schedules A to G of the will have already been administered and only the petition schedule properties remain unadministered. For two reasons, I cannot accept the contention of the contesting respondents. THIS objection has never been raised in this proceedings at any stage. As I have already observed, even as long back as 1965. the petition was disposed of by this Court. The matter went up in appeal and was subsequently remanded. At no stage was this contention raised. Under those circumstances, the respondents cannot be permitted to raise this contention at this stage. Secondly, the section contemplates grant of Letters, either of the whole estate or of the part which remains unadministered. In view of the fact that the respondents did not raise the objection, it is legitimate to infer that they have already taken possession of Schedules A to G which have been bequeathed to them. If that is so, It must necessarily follow that the estate which remains unadministered consists only of the properties mentioned in the petition. I therefore, find that the objection is without merit. " Against the grant of Letters of Administration with the will annexed thus made by the court below, the 2nd Respondent, the wife of narayanan Nambudiri, has preferred this appeal.

(2.) TWO contentions were raised before us: first that the letters of Administration with the will annexed cannot be granted in respect of a part of the estate of the testator; and second, that the will had been revoked by reason of certain dealings with the properties comprised therein effected by a partition-deed executed subsequent to the will, and evidenced by ext. D-1 dated 10-3-1951.

(3.) COUNSEL for the appellant drew our attention to the fact that the petitioners in the court below have not paid the requisite court-fee on the application. From the records available in this Court, we are unable to see if this has been done or not. COUNSEL appearing for the respondents in the appeal stated that the court-fee had been paid. It is enough for us to draw attention to the provisions of S. 57 of the Court-fees Act under which the court shall make no grant of probate or letters of administration till satisfied that the requisite court fee had been paid.