SAKUNTHALA Vs. VIJAYALAKSHMI

JUDGEMENT

(1.) 1. The case of the plaintiff is as follows: One Vijayarangam Chettiar son of Cheeyalamswami Chettiar possessed of properties and executed his last Will and testament at Madras on 6.2.1943 in the presence of witnesses and in the presence of one Elumalai Chettiar whose affidavit is filed with the O.P. for probate and the said Will was duly registered in Madras Sowcarpet Sub-Registrar's office as document No.4 of 1943. The said Vijayarangam Chettiar died on 12.2.1944. The plaintiff is the daughter of Murugesa Chettiar son of Vijayarangam Chettiar one of the legatees under the Will executed by him. The then minors defendants 1 to 3 are the children of the elder brother of the plaintiff and beneficiaries in the said Will. The deceased, at the time of his death left two properties viz., (1) house and ground bearing new door No.25 (old No.24), Mangammal Street, Peddunaickenpet, Seven Wells, George Town, Madras, and (2) Rs.3,5000 lent by him on the security of coconut gardens situate in Thiruvanmayoor Rood, Voorur Village, Saidapet Taluk, Chingleput District belonging to one Manoranjithammal and one P.Chinna Durai Pillai. Even before the execution of the said Will, the said Vijayarangam Chettiar was performing certain charities and he executed the said Will in order to make a permanent provision for the performance of the said charities set out in the Will. In the Will, the said Vijayarangam Chettiar made a provision for the performance of charities to appoint two executors viz., P.Velu Chettiar and P.Kandaswamy Chettiar to administer the properties and to perform charities and directed that the balance of the income of the properties covered by the said Will after meeting the expenses required for taxes and repairs and for the performance of the charities was to go to his daughter Rajambal who was to be in possession of the properties upto her lifetime. It is also provided in the Will that the interest and principal due on the mortgage to the estate dealt with therein was to be received by the executors and utilised for the purpose mentioned in the Will and after the death of Rajambal, the properties are to be taken by Murugesa Chettiar son of Vijayarangam Chettiar and after his life time by his descendants without power of alienation and subject to the performance of the charities. As per the recital in the Will, Rajambal had only a right to possess the properties and enjoy the income thereof after meeting the expenses mentioned in the Will till her life time. After the death of the said Vijayarangam Chettiar, the executors P.Velu Chettiar and P.Kandaswamy Chettiar took over the properties and they were administering them performing the charities and paying the said Rajambal the net income from the properties after meeting the expenses required for taxes, repairs, and performance of the said charities. After the death of the said executors, nobody was appointed as executors. The said Rajambal was in possession and enjoyment of the properties after meeting the expenses. She realised the mortgage amount of Rs.3,500 and improved the properties. She died on 27.3.1970. Murugesa Chettiar, son of the said Vijayarangam Chettiar died even during the life time of Rajambal. On the death of Rajambal, the plaintiff, and her elder brother M.Nithyanandam who is the father of minor defendants 1 to 3 became entitled to the suit property, and to possess it and to perform charities they took over the property and they were jointly possessing and enjoying it by collecting the rents and profits and enjoying the net income after meeting the expenses required for repairs, taxes and charities. The plaintiff is living in a portion of the property from her birth and the remaining portion is being occupied by tenants. The plaintiff learnt that on 1.10.1973, without her knowledge and consent and without any right, necessity or occasion to to so, her elder brother Nithyanandam executed a sale deed in favour of defendants 4 and 5 in respect of the suit property for a sale consideration of Rs.40,000. He had no right to execute the said sale deed and that the sale deed is void ab initio and it confers no title on defendants 4 and 5 being opposed to the terms of the Will. The plaintiff also filed O.S.No.9183 of 1975 pending on the file of the XIV Assistant City Civil Judge, Madras for a decree against the said Nithyanandam and defendants 4 and 5 declaring that the sale deed dated 1.10.1973 is invalid and for possession of the property and for mesne profits. Pending the said suit, Nithyanandam died on 27.8.1981 leaving him surviving the then minor defendants 1 to 3 and his widow Kamakshi who were brought on record in that suit as his legal representatives. The document executed by Vijayarangam Chettiar was all along regarded as a religious trust deed, even though it is styled as a Will because it contains provisions for performance of charities. Defendants in that suit also did not question the marking of the Will. That suit was decreed ex parte and ex parte decree has been set aside on 24.8.1982. So, the question as to whether the said suit is maintainable without the Will being probated or Letters of Administration being obtained would again be racked up in the course of the trial of that suit. In order to avoid dispute, the plaintiff has now been advised by way of abundant caution to obtain Letters of Administration in respect of the deed dated 5.2.1943 executed by the deceased Vijayarangam Chettiar. The necessity of letters of administration arose now only. Hence the delay in filing the O.P. Which is neither wilful nor wanton. The plaintiff has not made any application for letters of administration of the property of the deceased to any District Court or any other High Court for probate of any Will of the deceased. The original Will is not available with the plaintiff and it is in possession of defendants 4 and 5 the purchasers of the property from Nithyanandam, the same having been handed over to them by the seller along with the title deeds relating to the property. Hence, the registration copy of the said Will is produced. The petition is filed for grant of letters of administration in favour of the plaintiff.

(2.) DEFENDANTS 4 and 5 filed written statement contending as follows: These defendants were served with a xerox copy of the certified copy of the Will dated 6.2.1943. The plaintiff has not been bequeathed anything and she is not entitled to any property. The plaintiff is neither beneficiary nor legatee under the Will. Under the provisions of Part IX of the Act, probate can be granted only to the executor appointed under a Will. The executors appointed under the Will are not there. The Will also clearly prescribed the line of succession of executors in the event of the death or relinquishment by them or their successors. There is no explanation whether the executors probated the alleged Will or not. The plaintiff has no locus standi to apply for letters of administration. Sec.237 of the Act provides for probate of the copy of a lost Will. There is no corresponding provision for the grant of letters of administration with respect to the copy of lost Will. The application by the plaintiff for the grant of letters of administration with registration copy of the alleged Will does not disclose the provisions of law under which such relief is claimed. The alleged Will refers to an earlier Will by the testator dated 2.3.1939 and specifically revokes the same. Nithyanandam the brother of the plaintiff had in fact executed three simple mortgages over the suit property viz. (1) on 14.7.69 for Rs.3,000 in favour of one Amirthavalli Ammal (2) on 10.9.1969 for Rs.4,000 and (3) on 8.4.1970 for Rs.2,000. The negotiations of Nithyanandam for the sale of the suit property was with a view to salvage and save what he could and in the process of arriving at a deal of sale of the same with these defendants. In the title deeds given, there was no document or Will dated 2.6.1943 executed by the late Vijayarangam Chettiar as now alleged by the plaintiff. The mortgagee Amirthammal advanced a total sum of Rs.9,000 on the security of the property. The title deeds were examined by advocate and then the defendants purchased the property. The defendants paid the mortgage dues to the mortgagee Amirthavalli Ammal at the request and on behalf of Nithyanandam the sum of Rs.11,200 in full as recited in the sale deed and took delivery of all the title deeds relating to the suit property from her getting subrogated to all her rights according to law. The said Nithyanandam on the same date purchased the house ground and premises in Royapuram in the same registration office for a sum of Rs.19,000 in the name of his wife Kamakshi Ammal and the said consideration amount representing what he could salvage and save by the sale of the suit property to these defendants. The said Nithyanandam and his wife Kamakshi Ammal sold away the Royapuram property for a consideration of Rs.24,000. The plaintiff took a hostile attitude and instituted O.S.No.9183 of 1975. These defendants, after purchase, are the full and absolute owners of the suit property and the plaintiff is not entitled to letters of administration.

(3.) UNDER the Will Ex.P-1, one Velu Chettiar and one Kandasami Chettiar were appointed as executors to administer the property and perform charities as per the provision made in the Will and directed that the balance income from the properties covered by the said Will, after meeting the expenses required for taxes and repairs and for performance of charities, was to go to his daughter Rajambal who was to be in possession of the properties upto her life time. The document also provides that the interest and principal due on the mortgage to the estate dealt with therein was to be received by the executors and utilised for the purpose mentioned in the Will. The Will further provides that after the death of Rajambal, the properties are to be taken by Murugesa Chettiar son of Vijayarangam Chettiar and after his life time by his descendants without power of alienation and subject to the performance of the charities. UNDER the Will, the said Rajambal had only a right to possess the properties and enjoy the income thereof after meeting the expenses specifically mentioned therein.