Madras High Court
N.Mannammal vs R.Parthasarathy on 15 November, 2021
O.S.A.No.368 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.11.2021
CORAM :
THE HON'BLE MR.JUSTICE T.RAJA
AND
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
O.S.A.No.368 of 2018
and
CMP.No.15802 of 2018
N.Mannammal .... Appellant
Versus
R.Parthasarathy ... Respondent
Original Side Appeal filed under Order XXXVI and Rule 11 read with
clause 15 of the Letters of Patent, to set aside the Fair and Final Order dated
26.06.2018, made in T.O.S.No.1 of 2016 (O.P.No.646 of 2014), passed by this
Court.
For Appellant : Mr.S.Gopinathan
For Respondent : Mr.G.Rajkumar
JUDGMENT
(The Judgment was made by Mr.Justice.D.Bharatha Chakaravarthy)
This Intra Court appeal is filed by the unsuccessful defendant in the
Testamentary Original Suit No.1 of 2016 as against the Judgment and Decree of
the Learned Judge of this Court decreeing the T.O.S.No.1 of 2016, thereby
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granting Letters of Administration with the Will annexed in favour of the
plaintiff in respect of the Last Will dated 13.12.2000 of the deceased one
Ramasamy, S/o. Gopal.
2.The plaintiff / Mr.R.Parathasarathy is the brother of the defendant
Ms.Mannammal. They are both children of late. G.Ramasamy S/o. Gopal and
his wife R. Kannammal. G.Ramasamy died on 16.02.2001. The said
R.Kannammal died intestate on 19.06.2006. On 20.04.2007, the defendant
herein viz., Mannammal joining her four sons also as plaintiffs filed a suit for
partition in O.S.No.4366 of 2007 on the file of the XIII -Assistant Judge, City
Civil Court, Chennai, praying to partition the suit property viz., the house,
ground and premises admeasuring 880 sq.ft., in Plot AP.No.496, 25th Street, 5th
Sector, K.K.Nagar, Chennai – 78, and for delivering the seperate possession of
½ share to her. The plaintiff herein, who was the defendant in the said suit filed
a written statement during January, 2008 stating that the father namely
Mr.G.Ramasamy, executed a Will dated 13.12.2000, thereby granting life estate
to his wife Kannammal and to the plaintiff / Parthasarathy and finally as per the
Will the property is bequeathed to Mr.Ashok Kumar, son of the plaintiff /
Parthasarathy. The aforesaid O.S.No.4366 of 2007 was decreed by Judgment
and decree dated 16.02.2010, by granting partition of one-half share and
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O.S.A.No.368 of 2018
separate possession, in respect of the suit property to the defendant herein, who
was the plaintiff in the said suit. The said suit was decreed on the ground that
the said Will was not marked as a document in the suit after obtaining probate
as per law. The plaintiff herein filed A.S.No.352 of 2010 as against the said
Judgment and decree, on the file of the learned II Additional Judge, City Civil
Court, Chennai and by judgment and decree dated 30.07.2013, the above
appeal was dismissed, confirming the finding of the Trial Court. A Second
Appeal in S.A.No.329 of 2015 was filed by the plaintiff herein on the file of this
Court and the same was pending.
3.When the above partition proceedings were going on, the plaintiff
herein had filed O.P.No.646 of 2014 for grant of Letters of Administration with
the Will annexed under Section 232 and 276 of the Indian Succession Act,
1925. The Original Petition was filed on 07/06/2013 in O.P.Sr. No. 15600/2013
and was taken on file as O.P. No.646 of 2014 on13/10/2014. In the said
petition, in paragraph 9, the petitioner/plaintiff had averred that originally they
had filed the petitioner in O.P.Sr. No. 3559 of 2010, however, the said papers
were lost by their counsel and as such they filed the above petition. The
defendant herein had entered a Caveat and therefore, the Original Petition was
converted as Testamentary Original Suit in T.O.S. No.1 of 2016 by order dated
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24/11/2015 and the defendant herein filed a Written Statement on 24.02.2016
opposing the grant of Letters of Administration. The contentions of the
defendant in the written statement is that if really there was a Will executed by
the father, the plaintiff would have immediately changed all the records of the
property in the name of his son; it is a clear case that Will produced is forged to
grab the property by denying her legitimate right. It is the further submission of
the defendant that the reason adduced by the plaintiff for belatedly filing the
application for grant of Letters of Administration is false and a contradictory
stand was taken in the partition proceedings initiated by her.
4.With these pleadings, the parties went into trial. On behalf of the
plaintiff, the plaintiff examined himself as PW.1 and one Sadhasivam is the
attesting witness to the Will, was examined as PW.2. The original Will was
marked as Ex.A1 and other documents were marked as Ex.A2 to A7. On behalf
of the defendant, she examined herself as DW.1 and Ex's.B1 to B3 were
marked.
5.Considering the nature of the above mentioned Second Appeal filed
in S.A.No.329 of 2014, the same was taken up for hearing along with the
present T.O.S.No.1 of 2016 and after hearing the arguments of both sides, by a
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Judgment and decree dated 26.06.2018, the learned Judge held that the
Holographic Will is genuine and granted Letters of Administration, rejecting the
original plea of forgery and an additional plea of lack of locus standi. Against
the said Judgment and decree, the present Original Side Appeal in
O.S.A.No.368 of 2018 is filed and taken up for hearing.
6.Heard Mr.Gopinathan, Learned Counsel for the Appellant and
Mr.G.Raj Kumar, Learned Counsel appearing for the Respondent.
7.Mr.Gopinathan, Learned Counsel for the Appellant took us through
the Holographic Will and other records and submitted that as a matter of fact,
the defendant had raised a plea of forgery. She filed an application for
comparing the signature and handwriting by way of application in A.No.6116
of 2016 in T.O.S. No.6 of 2016. However, the said application was dismissed
on the ground that they could not produce any other admitted contemporaneous
signature of the Testator so as to compare. Further he would submit that there is
a delay in filing the application for grant of Letters of Administration, which
raises a suspicion against the Will. It is his further submission that the plaintiff /
Parathasarthy is not bequeathed with the property and ultimately the property is
bequeathed only on his son, Ashok Kumar and therefore, only the said Ashok
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O.S.A.No.368 of 2018
Kumar is a competent person to file the application for grant of Letters of
Administration and this application has been filed by the plaintiff/
R.Parathasarathy, in his individual capacity and therefore in the absence of any
pleadings or documents to show that he is filing the application for grant of
Letters of Administration as an agent of his son, he lacks locus standi to
maintain this petition for grant of Letters of Administration. Therefore, he
would submit that the Learned Judge erred in rendering the finding that the
plaintiff had locus standi to file the present Testementory Original suit and
further finding that the Will is genuine also is liable to be upturned by this
Court.
8.Mr.G. Raj Kumar, Learned Counsel appearing for the respondent
would contend that the Will is a Holographic Will, the same has been duly
proved by examining one of the attesting witnesses. The attesting witness PW.2
was a neighbour and as such was a natural witness to the Will and he is a
retired Government servant who held a responsible position and who did not
have any interest otherwise in the matter and therefore, there was no occasion to
doubt his testimony and he has categorically deposed that the Testator wrote
and signed the Will in his presence and the other attesting witnesses and all the
three of them have signed in the presence of other two. He would further submit
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the attempt of the defendant to plead forgery is bald one and the plaintiff herein
had pleaded about the Will at the very first instance in the partition suit itself.
Only because of the displacement of the original Will by the erstwhile counsel,
there was a delay in filing the application for grant Letters of Administration
and the same cannot be taken as undue advantage by the defendant herein, to
claim a right in the property, while it was not the wish of the Testator. He would
further submit that contention of the Learned Counsel for the Appellant
regarding the locus standi must fail in view of the Section 234 of the Indian
Succession Act, 1925.
9.We have perused the records and material evidence on record, after
hearing the Learned Counsel appearing on either side, the following questions
arise to be decided in the present appeal.
i) Whether or not the finding of the Learned Judge that
the Will of the Testator dated 13.12.2000 as genuine, is
correct?
ii) Whether or not the application for Letters of
Administration, which was later converted as Testamontery
Original Suit, is liable to be dismissed for want of locus standi
of the plaintiff viz., Mr.R.Parathasarathy?
Question No.1
10.At the very first instance while filing the written statement in
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O.S.No.4366 of 2007 itself, in paragraph No.3 of the written statement, the
plaintiff herein had disclosed about the Will dated 13.02.2000 including the fact
that he and his mother are given a life estate and that finally the property is
bequeathed on his son / Mr.Ashok Kumar. It is in this context, the Learned
Judge accepted the reasons given by the plaintiff that immediately after the suit,
the plaintiff handed over the original Will to the erstwhile counsel, who
misplaced the Will in their office and only thereafter the entire case papers
pertaining to the OP.SRNo.3559 of 2010 was traced and then the Original
Petition was filed in a proper form in the year 2013. Therefore, the delay by
itself doesn't raise any suspicion. Further, even though the defendant had filed
an application for comparing the signature in the Will, in the absence of
contemporaneous signature, such an exercise of obtaining expert findings could
not be undertaken.
11.Under these circumstances, the Learned Judge by himself looking
into the Ex.A1 Holographic Will, coupled with the unimpeachable evidence of
the attesting witness namely PW.2, had found that the Will to be a genuine. On
a careful perusal of the material evidence on record, first, the Will is duly proved
and passes the 'proof of Will' scruitiny as laid down by the Hon'ble Supreme
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Court of India in Janki Narayan Bhoir -Vs- Narayan Namdeo Kadam1, thereby
complywing the requirements of Section 68 of the Evidence Act and Section 63
of the Indian Sucession Act, as the Original Will is produced, and the attesting
witness is examined as PW-2, who has identified his signature and that of the
testator and deposed that he and the otherwitness saw the testator signing the
Will and that all three of them signed in the presence of the other two,
witnessing them duly subscribing their name. Apart from proof of execution of
Will, the Hon'ble Suprme Court of India, in H. Venkatachala Iyer -Vs- B.N.
Thimmarajamma and others 2 has in paragraphs 19-21, has laid two other
requirements, (a) that the propounder should let in satisfactory evidence that
Will was signed by the testator, that the testator was at the relevent time was in
a sound and disposing state of mind, that he understood the nature and effect of
dispositions and put his signature to the document of his own free will; (b) If
there are any suspicious circumstances surrounding the Will, the same has to be
dispelled and has also broadly explained what factors would amount to
suspicious cricumstances. In this case, there is no pleading as to the state of
mind or capacity of the testatotor nor there is any plea as to the suspcious
cirumstances, but the plea is one of total forgery. Once the said plea fails and
that the Holographic Will is found to be executed by the testator, there is no
1 2003 2 SCC 91
2 AIR 1959 SC 443
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O.S.A.No.368 of 2018
difficulty in holding that the Will is genuinue. Therefore, in our considered view
that the Learned Judge has rightly come to the said conclusion and accordingly
the above Question No.1 is answered.
Question No.2
12.As far as the plea regarding the locus standi is concerned, the
Learned Judge, answered the same by considering the recitals of the Will that
when the ultimate beneficiary is the son of the plaintiff, it can be construed that
he can be acting on behalf of the son. It is further held that the son of the
plaintiff was living abroad, considering Section 243 of the Indian Succession
Act, that the Letters of Administration can be granted to the attorney or an
agent, it has to be construed that the father is acting on behalf of his son. The
Learned Counsel for the Appellant would contend that no such construction
should be permitted in the absence of any specific averments to that effect in the
Original Petition and in the absence of any Power of Attorney document
executed by the son in favour of his father and the petition should be dismissed.
We reject the submissions of the Learned Counsel for the Appellant for the
following reasons:-
i) the defendant in her written statement dated 24.02.2016 has not
pleaded so. Therefore, the question of locus standi is being raised without any
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pleading.
ii) even assuming that plea can be raised as a legal question, still, it
cannot be countenanced. Part IX of the Indian Succession Act, 1925, deals with
the grant of probate and Letters of Administration. Section 217 lays down that
the grant of (1)probate and (2)Letters of Administration with Will annexed and
the grant of (3) Letters of Administration of the assets of the deceased in case of
intestate succession, shall be in accordance with the provisions contained in Part
IX.
13.Section 222 of the Act, lays down that Probate will be granted only
to the Executor appointed by the Will. It is further laid down that appointment
may be express or by necessary implication. The Illustration to the said Section
clearly states that if any person is appointed as 'residuary legatee' that would
amount to appointment of an executor by implication. In the instant case, there
is no executor appointed in the Will nor there is any residuary legatee.
14.This situation is governed by Section 234 of the Act. It is useful to
extract Section 234 of the said Act hereunder:-
“234. Grant of administration where no executor,
nor residuary legatee nor representative of such legatee: When
there is no executor and no residuary legatee or representative
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of a residuary legatee, or he declines or is incapable to act, or
cannot be found, the person or persons who would be entitled to
the administration of the estate of the deceased if he had died
intestate, or any other legatee having a beneficial interest, or a
creditor, may be admitted to prove the Will, and letters of
administration may be granted to him or them accordingly.”
(Emphasis supplied)
15.Therefore, it would be clear that where there is no executor or
residuary legatee, any person, who could be entitled to the administration of the
estate, if the deceased had died as intestate or any other legatee having
beneficial interest can both apply, prove the Will and Letters of Administration
may be granted to such person. In this case, firstly, if the Will is not there the
plaintiff being a son would be entitled to apply for Letters of Administration and
therefore he has locus standi.
16. Secondly, on a careful perusal of the recitals of the Will, which is
extracted below, would also make it so clear that the plaintiff is given a limited
life estate and as such is a legatee having a beneficial interest. The Will reads as
follows :-
“vdJ fhyj;Jf;F gpd; me;j ,y;yj;ij vd; kidtp
fz;zk;khSk;. kfDk;. mtdJ FLk;gj;jhUk; mDgtpj;J
tuntz;oaJ/ mtu; brhj;jpd; ngupy; ve;jtpj tpy;y';fj;ija[k;
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Vw;gLj;jf;TlhJ/
vd; kidtp fhyj;Jf;Fg; gpwF me;j ,y;yk; vd; kfd;
ghh;j;jhrhujp kfdhd mjhtJ vd; ngud; mnrhf; Fkhu;f;F
me;j rfy ghj;jpa';fs; clDk; nru ntz;oaJ/”
17.Therefore, the plaintiff, has locus standi also as a legatee having
beneficial interest . Thus, for the above said reasons and also for the reason
given by the Learned Judge that when the son is the ultimate beneficiary who is
abroad and that the father can be construed as acting on behalf of the son, we
hold that the plaintiff had locus standi to file the present application for grant of
Letters of Administration and accordingly, we answer the Question No.2.
18.The Learned Judge has framed two issues in the above
Testamentary Original Suit, they are:
i) Whether the Will dated 13.02.2000 is executed
by G.Ramasamy is true and genuine?
ii) To what other reliefs, the plaintiff is entitled?
The Learned Judge has answered the first issue in the affirmative and found the
Will as true and genuine. For the reasons and decisions recorded supra, we
affirm the finding of the Learned Judge regarding this issue. In respect of the
issue number two, the Learned Judge has granted Letters of Administration
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having the effect limited to the State of Tamil Nadu in favour of the plaintiff in
respect of the Will dated 13.02.2000, until the petitioner's son obtain Letters of
Administration and he has directed the plaintiff duly administer the estate of the
deceased and to execute a surety bond for a sum of Rs.25,000/- and he has
directed to prove the true and correct accounts once in a year. We affirm all the
reliefs granted by the Learned Judge as under the second issue also while
clarifying that it is not mandatory for petitioner's son to once again apply for
letters of administration as we have found the Will to be true and genuine and
already the title being vested in him and the possessory title will vest after the
life estate is given to the petitioner.
19.Thus, we find that there are no merits in the appeal and the appeal
stands dismissed. However, there will be no order as to costs. Consequently, the
connected miscellaneous petition is closed.
(T.R.J.,) (D.B.C.J.,)
15.11.2021
Index : yes
Speaking order
klt
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O.S.A.No.368 of 2018
T.RAJA, J.
AND
D.BHARATHA CHAKRAVARTHY, J.
klt
To
The Sub Assistant Registrar, (Original Side),
High Court, Madras.
O.S.A.No.368 of 2018
and
CMP.No.15802 of 2018
15.11.2021
https://www.mhc.tn.gov.in/judis
