N S PARAMANANDAN Vs. K RAJU

JUDGEMENT

(1.) THE plaintiff above named filed a petition under Ss. 232 and 276 of the Indian Succession Act for grant of Letters of Administration. By order dated 21.11.1985 made in Application Nos. 1308 and 1309 of 1985, the Original Petition was directed to be numbered as a suit. Accordingly, O.P. No. 20 of 1985 was converted and registered as.

(2.) THE short facts are as follows:? THE plaintiff and one Kuppuswami Naicker were fostered by one G. Manicka Naicker of Mandaveli, Madras, being his brother's sons. On 31.3.1937, the said Manicka Naicker executed a Will in favour of the plaintiff N.S. Paramananda Naicker and Kuppuswami Naicker bequeathing his properties comprised of house and lands situate at Rayamangalam village, Chengalpattu Taluk. Subsequently, on 23.12.1938, the said Manicka Naicker executed a Codicil in favour of the plaintiff and th e said Kuppuswami Naicker with respect to house property bearing old Door No. 25 and new Door No. 42, R.K. Mutt Road, Mylapore, Madras. Both the Will and the Codicil were duly registered on the relevant dates. THE testator died subsequently on 23.12.1940, leaving behind the said Kuppuswami Naicker, the plaintiff herein and his widow Kulindhi Ammal as heirs under Hindu Law. Kuppuswami Naicker was appointed as executor and he did not apply for the grant of probate at any time. THE plaintiff filed an application for grant of probate in O.P. No. 233 of 1961 describing the codicil as Will. THE said Original Petition was contested by the said Kuppuswami Naicker. THE said Original Petition was numbered as T.O.S. No. 5 of 1962. In the said suit, the said Kuppuswami Naicker, who was defendant, at one stage admitted the validity of the documents before Court and expressed no objection for amending the application suitably by changing the description of the document as codicil instead of Will, and for paying the necessary probate duty. But he did not carry out the directions of this Court in T.O.S. No. 5 of the 1962 made from time to time. It was for want of necessary funds, the plaintiff herein could not comply with the directions given by this Court viz., filing of the amendment petition and paying of the necessary probate duty. For non-compliance of directions given by this Court, the said T.O.S. No. 5 of 1962 was concluded with an order on 28.10.1963 dismissing the suit. THE finding of R. Sadasivam, J., in T.O.S. No. 5 of 1962 is as follows:? ?When the suit came up for trial on 18.2.1963 a registration copy of the earlier will of 31.3.1937 was marked as Ex.E1 and the suit document dated 23.12.1938, on which the plaintiff wanted to obtain probate, was marked as Ex.Pl, and arguments were heard on Issue No. 2 in the suit. By my order dated 18.2.1963, I found that Ex.Pl cannot be considered to be an independent and last Will of Manicka Naicker and that it was only a codicil to the earlier Will. During the arguments, the learned advocate for the defendant stated that he did not want to dispute the truth and validity of the codicil Ex.P1 and expressed that he had no objection to the plaintiff amending the petition by asking for probate in respect of the original of Ex. D1 with the codicil Ex.Pl annexed and to his being appointed as Executor. THE learned advocate for the plaintiff had no objection to the said course. I accordingly permitted the plaintiff to amend the plaint. But though he took several adjournments to amend the plaint and to pay the necessary additional court-fee, he failed to do so. Finally, on 19.9.1963 the matter came up for orders and I passed an order on that the application for amendment for limited grant was contrary to the earlier order and cannot be entertained. THEreupon, the learned advocate for the plaintiff took further time till this date to comply with the earlier order and take out probate of the earlier Will in respect of the entire estate. But this day, the learned advocate for the plaintiff stated that he is no position to do so as the plaintiff has no sufficient funds the necessary court fee and duty. It is clear from stated that the only finding that could be give is that the suit document is only a codicil to the earlier Will dated 31.3.1937 and that the grant of probate of the suit document alone is not maintainable. THE suit is, therefore, liable to be dismissed till this day on account of the fact that the plaintiff wanted to amend the plaint. But he has not so far amended the plaint and he does not propose to do so. THE suit has to be dismissed and it is hereby dismissed with costs.?

(3.) ON behalf of the plaintiff, he alone was examined as P.W. 1 and cross-examined by the defendants. None was examined on behalf of the defendants. Ex. P1 to P6 were marked on behalf of the plaintiff and no exhibit had been marked on the side of the defendants.