C R RAMACHANDRA GOWDER Vs. C P NANJAPPA

JUDGEMENT

(1.) THESE two appeals arise out of C. S. No. 30 of 1961 filed for recovery of possession of No. 11. General Muthiah Mudali St. G. T. Madras, and O. P. 80 of 1963 filed for the issue of Letters of Administration with a copy of the will of Desai gowder annexed limited to the suit house, which O. P. on caveat filed by the defendants was registered as T. O. S. No. 11 of 1963. Both the above matters were directed to be tried together by an order of Venkataraman, J. , dated 6-81963. We shall first take up O. S. A. 26 of 1965 arising out of the main suit C. S. 30 of 1961. The property covered by the suit is a house in General Muthiah Mudali st. G. T. Madras, hereinafter referred to as the suit house. One N. Desai Gowder, the paternal uncle of the plaintiff's father, Ponniah, purchased the suit house in 1909. On Desai Gowder's death, the plaintiff's father got the suit house as a residuary legatee under his Will dated 18-4-1914, and in the division of the family properties between the plaintiff and his two brothers, after the death of the plaintiff's father, the suit house was allotted to the plaintiff's share by an arbitrator chosen by them who made an award and a decree in terms of the award was passed in O. P. 92 of 1952 on the file of the Subcourt, Coimbatore, and that the suit house therefore belongs to the plaintiff solely and absolutely. The plaintiff's further case is that even apart from the Will the plaintiff and his two brothers being the nearest reversioners to the estate of the said Desai Gowder, on the death of Ambujammal the surviving widow of N. Desai Gowder succeeded to this estate and that by the partition referred to above, the plaintiff became entitled to the suit property absolutely and is entitled to a decree against the defendants for possession of the suit property. The plaintiff's further contention is that Desai gowder was residing in the suit house till his death in or about 1914, that his father who was brought up by the said Desai Gowder as Abhimana Puthra, was also living in the suit house as a member of the family with Desai Gowder during his lifetime and continued to live in the suit house with his family even after the latter's death and that the defendants who are the sons of the sixth defendant whose sisters (Ambujammal and Nanjammal) had married Desai Gowder and ramiah Gowder, who was the husband of the sixth defendant were also living in the suit house along with Desai Gowder and that Nanjammal died in 1921 and ambujammal died in 1948. The plaintiff's case is that Ramiah Gowder was permitted to live in the suit house even during Desai Gowder's lifetime and he continued to live therein with his family even after Desai Gowder's death, in view of the close relationship of Ramiah to the two widows of Desai Gowder, i. e. , ambujammal and Nanjammal. In regard to the business carried on by Desai Gowder during his lifetime under the name and style of N. Desai Gowder and Co. , Madras, the Will of Desai Gowder provided that Ramiah and another employee in the business (Rangaswami aiyangar) were to be taken with Ponnaih as working partners and the business was to be continued. After the death of Desai Gowder the business conducted by desai Gowder was continued by the partnership consisting of Ponniah. Ramiah and rangaswami Aiyangar under the name and style of N. Desai Gowder and Co. , madras. Ponniah Gowder in or about 1922 started a business at Coimbatore under the name and style of N. Desai Gowder and Co. , Coimbatore and in order to look after the said business he shifted his residence to Coimbatore, entrusting the management of the partnership business at Madras to the aforesaid Ramiah gowder and the plaintiff's case is that Ramiah Gowder was permitted to continue to live in the suit house with his family till his death in 1957 and that the defendant and Ramiah's widow (6th defendant) continued to live in the suit house under such permission. The plaintiff's further case is that whenever his father came from Coimbatore in connection with the partnership business he used to stay in the suit house during such visits till his death in 1944. After the death of the plaintiff's father the plaintiff's elder brother was taken in as a partner in the Madras business. The Madras business ceased to function after 1956. Ramiah died in 1957. The plaintiff never put forward a claim to the suit house till Ramiah's death. Soon after Ramiah death the plaintiff sent a notice in april 1958 requesting the defendants to deliver vacant possession of the suit house to which the defendants sent a reply in August 1958 denying the claim and stating that in 1938 the building was reconstructed out of the firm's moneys, that it was agreed at the time that the firm should not charge any interest on the said amount lent for reconstruction, that Ramiah as partner was to continue to reside in the house without rent and that in case the business ceased, either Ramiah gowder should put back into the firm the money spent on the reconstruction and take a conveyance from the plaintiff's father or the plaintiff's father should put back the amounts into the firm, that according to the said agreement the title deeds of the property were left with Ramiah, that Ramiah as such partner of the business continued to reside in the suit house and supervise the business till his death, that the plaintiff is not entitled to demand vacant possession of the suit house without first putting back into the firm the sum of about Rs. 50,000 advanced by the firm for the reconstruction of the suit house. The plaintiff has filed the present suit denying the arrangement put forward by the defendants in the reply notice dated 12-3-1960 and contending that the defendants' occupation was only permissive, that the business ceased to function, that the building account was independent and that there was no longer any need for supervision of the business after the business ceased and that the plaintiff is entitled to recover vacant possession from the defendants.

(2.) THE substantial defense put forward by the defendants in the written statements filed by them is that the suit house did not belong to the plaintiff solely and absolutely, that the suit house is partnership property, that the plaintiff's father did not live in the suit house at any time, that Ramiah Gowder and the defendants were solely in possession and occupation of the suit house, that the plaintiff or his father was never in possession or occupation of the suit house after 1922 when the plaintiff's father shifted to Coimbatore, that even after the death of ponniah Gowder in or about 1944 and of the last surviving widow in or about the year 1948, neither the plaintiff nor his brothers ever claimed possession of the suit house nor did they assert that the defendants or their father Ramiah were in permissive occupation of the suit house. The father of the first defendant Ramiah gowder was staying in the suit house in his own right as a partner of the Madras business and did not occupy the suit house with permission of the plaintiff's or his father. The defendants further reiterated the contentions put forward in their reply notice viz. , that the house, which was purchased originally was demolished and as per the agreement between Ramiah Gowder and Ponniah Gowder, that the partnership funds were utilized for reconstruction of the building, that the said property belonged to the partnership although the property stood in the name of ponniah Gowder as executor under the Will, that it was agreed at that time that the firm should not claim any interest from the partners or rent from Ramiah gowder for the suit house as he occupied the same as partner to supervise the partnership business and that it was agreed that in case the business ceased to function either Ramiah Gowder should put back into the firm the moneys spent on the reconstruction and take a conveyance from the plaintiff's father or that the plaintiff's father should put back the said amount into the firm and acquire the suit property. The contention of the defendants, therefore, is that the plaintiff is not entitled to recover possession of the suit property on any of the grounds set out in the plaint. The defendants further prayed that the suit is not maintainable without probate or Letters of Administrative having been previously obtained and that it is further barred by limitation.

(3.) THE plaintiff as one of the representatives of the residuary legatee, filed O. P. 80 of 1963, for issue of Letters of Administration under the Will dated 18-4-1914 of the deceased Desai Gowder having effect throughout the Madras State and limited to the suit property in O. S. 30 of 1961. On caveat having been entered by the defendants in the suit, the said suit was registered as T. O. S. 11 of 1963. In the said T. O. S. the main question arising for consideration is whether the will dated 18-4-1914 is true and valid and whether the plaintiff is entitled to the letters Administration even without the production of the original Will of Desai gowder and whether a limited grant of Letters of Administration could be claimed.