T.O.S.No.22 of 2009
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :02.03.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
T.O.S.No. 22 of 2009
1. R.Balu Achari
2. R.Kubendran ..Plaintiffs
-Vs-
Somu Achari ..Defendant
This Suit has been filed under Sections 232, 255 and 276 of the
Indian Succession Act XXXIX of 1925 for the grant of Letters of
Administration.
For Plaintiffs : M/s Menon & Goklaney Associates &
Lakshmi Manickam
For Defendant : Set ex-parte on 04.03.2021
JUDGMENT
The plaintiffs have originally filed a petition in O.P.No. 290 of 2004, for grant of Letters of Administration. Since caveat has been filed on 21.07.2007, Registry was directed to verify and convert the said O.P. into T.O.S., on 27.07.2009. Thereafter, the said petition was converted as a suit and was renumbered as T.O.S.No. 22 of 2009. 1/9 https://www.mhc.tn.gov.in/judis T.O.S.No.22 of 2009
2. The case of the plaintiffs as stated in the Original Petition is as follows:
(i) The defendant is one of the son of Rangachari born through the first wife, viz., Navaneethammal [other legal heirs are, Indirani, expired in the year 1986, Dilli Achari and Chandru Achari]. After the demise of Navaneethammal in the year 1940, the said Rangachari married Savithri Ammal. The plaintiffs, as well as one Lalitha and one Subramani are the sons and daughter of Rangachari born through the second wife, viz., Savithri Ammal. The said Rangachari expired on 14.04.1986 at No.44, S.M.V. Koil Street, Triplicane, Chennai – 600 005, where he was ordinarily then resided and he had possessed the properties within the state of Tamilnadu. The last Will and Testament of late Rangachari was duly executed by him on 10.05.1979 and was registered as Document No.11 of 1979 in the office of the Sub Registrar, Triplicane, Chennai in the presence of the witnesses.
(ii) By the said Will, the deceased Rangachari appointed Savithri Ammal, as sole executrix and she died on 24.09.1995 without having proved the Will. Further, the Will has been signed by two witnesses, namely, M.Chandran and C.Sekar and both of the witnesses had expired, hence the third party affidavit has been filed to prove the signature of the 2/9 https://www.mhc.tn.gov.in/judis T.O.S.No.22 of 2009 testator, as no one is available to prove the signature of the attesting witnesses.
(iii) Also, the plaintiffs submits that there is no application made to any district court or delegate or to any other High Court for Probate of any Will of the said deceased or letters of administration with or without the Will. Hence the plaintiffs prays to grant the relief as mentioned in the present suit.
3. According to the learned counsel for the plaintiffs, the Will was executed by Rangachari, father of the plaintiffs as well as defendant. Even according to the learned counsel, provisions are also made to the Will and the defendant remained ex-parte and the Will is also proved by submitting necessary documents.
4. Further, the learned counsel for the plaintiffs contends that the plaintiffs undertakes to duly administer the property and credits of the said Rangachari deceased in any way concerning his Will by paying first his debts and then the legacies therein bequeathed so far as the assets will extend and to make a full and true inventory thereof and exhibit the same 3/9 https://www.mhc.tn.gov.in/judis T.O.S.No.22 of 2009 before this Court within six months from the date of grant of letters of administration. Therefore, the learned counsel for plaintiffs has sought for grant of letters of administration in respect of the Will executed by Rangachari.
5. Heard the submissions of the learned counsel for the plaintiffs and perused the documents available on record.
6. The Original Petition has been filed in the year 2004. Subsequent to that, after converting the said petition into the T.O.S., in the year 2009, notice has been ordered and the same has been served on the sole defendant on 09.10.2020. Despite repeated adjournments, the sole defendant has not filed written statement. Hence the defendant was set exparte on 04.03.2021 and the plaintiffs were directed to adduce Ex-parte evidence.
7. Accordingly, 1st plaintiff, namely, Balu Achari adduced evidence in his favour and on behalf of 2nd plaintiff as P.W.1 on 24.02.2022. He filed a proof affidavit and he had stated in the proof affidavit that himself and the 2nd plaintiff are entitled for grant of letters of 4/9 https://www.mhc.tn.gov.in/judis T.O.S.No.22 of 2009 Administration and 7 documents, viz., Exhibits Ex.P.1 to Ex.P.7 were marked to prove the claim. Among the documents filed by the plaintiffs, which were marked as Ex.P.1 to P.7, Ex.P.1 is the last Original Will, Ex.P.2 is the original death certificate of Mr.Rangachari, who died on 14.04.1986. Ex.P.3 is the Original death certificate of late Savithriammal and Ex.P.4 to Ex.P.7 are the consent affidavits of the other legal heirs stating no objection to grant Letters of Administration to the plaintiffs.
8. On a careful consideration of the oral and documentary evidence, it is clear that the plaintiffs are the sons born to Rangachari and Savithriammal. Further, the other legal heirs born to Rangachari and Savithriammal, viz., R.Lalitha and R.Subramani and the other legal heirs born to Rangachari and Navaneethammal, viz., R.Dilli Achari and R.Chandru Achari had given their consent affidavits to grant letters of administration to the plaintiffs, which is evident through Ex.P4 to Ex.P7. Morever, one legal heir, namely, Indira, born to Rangachari and Navaneethammal died in the year 1986 and the other legal heir, viz., defendant remained Exparte. Further, Ex.P.1, which is the original Will has also been marked.
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9. In view of the above stated position and considering the fact that the evidence of P.W.1 and documents filed on behalf of the plaintiffs remain unchallenged and taking note of the fact that there is no rebuttable evidence against the case of the plaintiffs and that the consent affidavits have also been filed by the other legal heirs, except the defendant, who remained exparte and one Indirani, who expired in the year 1986, this Court is of the view that the plaintiffs have proved their case and entitled to the grant of Letters of Administration.
10. Accordingly, the Testamentary Original Suit is ordered and a direction is issued for the grant of Letters of Administration to the plaintiffs, as the contesting witnesses, two persons, viz., M.Chandran and C.Sekar are no more and as no one is available to prove the signature of the testator, third party affidavit has been filed to prove the said signature of the testator. Moreover, the Will executed by the deceased Rangachari having effect throughout the State of Tamil Nadu.
11. The plaintiffs are also directed to execute a Security bond for a sum of Rs.25,000/- in favour of the Assistant Registrar (O.S.II) High 6/9 https://www.mhc.tn.gov.in/judis T.O.S.No.22 of 2009 Court, Madras. The plaintiffs are further directed to render true and correct accounts once in a year.
.03.2022 ssd 7/9 https://www.mhc.tn.gov.in/judis T.O.S.No.22 of 2009 Exhibits produced on the side of the plaintiffs:
S.No Exhibits Description
01 P-1 Original Will of late Rangachari
02 P-2 Original Death Certificate of late Rangachari
03 P-3 Original Death Certificate of late Savithriammal
04 P-4 Consent affidavit of Dilli Achari
05 P-5 Consent affidavit of Chandru Achari
06 P-6 Consent affidavit of Subramani Achari
07 P-7 Consent affidavit of Lalitha
Witness examined on the side of the plaintiffs: P.W.1. - Mr.R.Balu Acharu V.BHAVANI SUBBAROYAN,J.
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