Madras High Court
R.Balu Achari vs Somu Achari on 2 March, 2022
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.
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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
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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
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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
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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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T.O.S.No.22 of 2009
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
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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
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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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T.O.S.No.22 of 2009
ssd
T.O.S.No. 22 of 2009
02.03.2022
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