P JYOTHI ALIAS ARUNDATHI Vs. SAROJINI

JUDGEMENT

(1.) THESE two appeals O.S.A.9 and 10 of 1978 are filed by the unsuccessful applicant in Appln. Nos.2997 of 1974 and 2667 of 1975 in O.P.252 of 1973 on the file of the Original side of this Court, challenging the common orders dismissing both the applications filed seeking permission to sell the petition mentioned property.

(2.) THE brief facts giving rise to the filing of these appeals are as follows: THE appellant and the respondent are sisters, being the daughters of one Dhanalakshmi Ammal who executed a registered will dated 15 12-1967 by which the testatrix bequeathed the property in question. viz., premises No.75, Perumal Mudali St, Madras - 1, in favour of her two daughters during their life time without powers of alienation and thereafter in favour of the children of both her daughters with absolute right. THE testatrix died on 29-2-1972. As there was no love lost between the sisters, the appellant herein filed O.P.252 of 1973 and obtained. Letters of Administration on 2-5-1974 in respect of the property, viz., her mother's estate, in terms of the will. Subsequently, the respondent filed Applns. Nos.2438 and 2439 of 1974 for revocation of the Letters of Administration issued in favour of the appellant on 2-5-1974 or in the alternative to issue joint Letters of Administration in the names of both the appellant and the respondent. When these applications Nos.2438 and 2439 of 1974 were pending, the appellant herein filed Appln. No.2997 of 1974 seeking permission to seel the property in dispute after inviting offers for the sale both privately and by necessary advertisements, and to invest the net sale proceeds in high interest-yielding securities, on the ground that the respondent had not co-operated with the appellant in administering and managing the estate but on the other hand, the respondent was stultifying the administration of the estate under the evil advice of her husband and as such it was not possible either for the appellant or for the respondent to own, possess and enjoy the property for their manifest advantage and benefit or for the ultimate benefit of their respective children and that as the building was structurally incapable of division by metes and bounds, there was no other alternative except to sell the property. This application was resisted by the respondent in her counter stating that the will does not confer any power of alienation and the terms and conditions of the will left by the testatrix prohibited such alienation during the lifetime of both the appellant and the respondent and that the allegations made in the affidavit of the appellant were incorrect. THE appellant filed a reply affidavit reiterating her averments in her affidavit and adding that since the continued joint ownership and possession of the property was found to be impracticable, it was just and necessary that the application be allowed. When this application, viz., Appln. No.2997 of 1974 was pending, Mohan, J. by a common order dated 7-11-1974, disposed of Appln Nos.2438 and 2439 of 1974, by modifying the order dated 2-5-1974 and directing the Letters of Administration to be issued in the joint names of both the appellant and-the respondent.

(3.) BEFORE adverting to the arguments advanced by the respective counsel, we feel that it would be appropriate to refer to the subsequent development that has taken place in the matter. The appellant herein, after filing these two appeals, filed Appn.No.2270 of 1981 seeking sanction for the sale of the property in question and to direct the sale proceeds to be divided into two halves and to invest the same separately in interest yielding securities or investments directing the payment of interest therefrom to the appellant and the respondent for their respective lives and thereafter their respective children to take the capital or alternatively direct investment of the capital in purchasing the immovable property in the name of the minors. One of the grounds mentioned in the affidavit filed in support of this application was that the building is in a dilapidated condition. To this application, also, the respondent filed her counter and thereafter the applicant (appellant) filed her reply. One Mr.P.S.Raghavendra Rao, a consulting Engineer, at the instance of the applicant (appellant) has also filed a report with an accompanying affidavit, stating that he, at the instance of the applicant (appellant) inspected the premises and prepared the report. Shanmukham, J.by his order dated 13-12-1982, has dismissed Appln.No. 2270 of 1984. Then the applicant on being aggrieved at the dismissal of Application No. 22 70 of 1984, preferred O.S.A. 30 of 1985 which came up for hearing before a Bench consisting of V. Ramaswami and one of us (Singaravelu, J) The Bench passed the following order: "One of us, on an earlier occasion has dismissed an application for grant of permission to sell the property. It is stated that the order is now under appeal. When that order is under appeal, there was no need for filing another application for the same relief. This is one of the grounds on which the learned Judge has dismissed the second application. We do not see any reason to entertain the second application. The appeal fails and it is accordingly dismissed.