Madras High Court
L.Mohanamurthy vs G.Kalaivani on 22 March, 2022
T.O.S.No.69 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.03.2022
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
T.O.S.No. 69 of 2013
L.Mohanamurthy ..Plaintiff
-Vs-
G.Kalaivani ..Defendant
This Suit has been filed under Sections 232 and 276 of the Indian
Succession Act XXXIX of 1925 for the grant of Letters of Administration.
For Plaintiff : Mr.N.A.Nissar Ahmed &
Mr.I.Kowser Nissar
For Defendant : Set ex-parte on 16.04.2013
JUDGMENT
The plaintiff has originally filed a petition in O.P.No. 571 of 2008,
for grant of Letters of Administration. Since caveat has been filed in Caveat
No.3223 of 2012 on 17.12.2012, Registry was directed to verify and
convert the said O.P. Into T.O.S., on 13.12.2013. Thereafter, the said
petition was converted as a suit and was renumbered as T.O.S.No. 69 of
2013.
https://www.mhc.tn.gov.in/judis
T.O.S.No.69 of 2013
2. The case of the plaintiff as stated in the Original Petition is as
follows:
One R.Loganathan, who is the father of the plaintiff and
defendant had died on 16.10.2002 at No.28/40, Sivan Koil Street,
Koyambedu, Chennai – 107, where he was then ordinarily resided and
had possessed the property within the state of Tamilnadu along with his
brother K.R.Angamuthu bearing Door No.184, comprised in S.No.141/7,
Koyambedu village, measuring an extent of 1840 sq.ft., and all that land
and building bearing new door no.28, Old Door No.40, Sivan koil Street,
Koyambedu Village, measuring an extent of 6876 sq. ft., under a registered
sale deed dated 29.03.1972 bearing Doc.No.948/72. The certified copy of
last Will and Testament of the said Loganathan was duly executed by him
at Chennai on 04.05.1995 in the presence of witnesses. The testator had
bequeathed the subject property to the plaintiff, who is his son. Further,
the testator had stated that the property would devolve with full powers of
alienation to the plaintiff and in the property bearing door no.184,
koyambedu village, the available extent after land acquisition is only an
extent of about 900 sq.ft., out of about 1840 sq.ft.,
https://www.mhc.tn.gov.in/judis
T.O.S.No.69 of 2013
(ii) The plaintiff further states that inspite of diligent search, the
original Will is not traceable and the certified copy of the above said Will,
which is his father's last Will in respect of the aforesaid property is filed.
The said Will dated 14.05.1995 had been registered on the file of SRO,
Anna Nagar as Doc.No.65/95. The said Will was executed at Chennai on
04.05.1995 and the testator had appended his signature as well as his left
thumb impression in the presence of two witnesses, namely, Andalammal,
who is the mother of the plaintiff and defendant and wife of the testator and
one Palani. Under the said Will, none has been appointed as executor and
the plaintiff is intending to secure letters of administration in respect of the
aforesaid property arising under the subject Will. The plaintiff is not able
to procure the affidavits of the attesting witnesses, as he is not aware of the
1st attesting witness namely, Palani and as the 2nd attesting witness, who is
none other than the mother of the plaintiff has joined hands with the
defendant, who is the sister of the plaintiff and has suppressed the Will and
filed a suit for partition before this Court. The plaintiff is not able to procure
the affidavits of any of the attesting witnesses.
(iii) Also, the plaintiff submits that there is no application made to
any district court or delegate or to any other High Court for Probate of any
https://www.mhc.tn.gov.in/judis
T.O.S.No.69 of 2013
Will of the said deceased or letters of administration with or without the
Will. Hence the plaintiff prays to grant the relief as mentioned in the present
suit.
3. According to the learned counsel for the plaintiff, the Will was
executed by R.Loganathan father of the plaintiff 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 plaintiff contends that the
plaintiff undertakes to duly administer the property and credits of the said
R.Loganathan 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
before this Court within six months from the date of grant of letters of
administration. Therefore, the learned counsel for plaintiff has sought for
grant of letters of administration in respect of the Will executed by
R.Loganathan.
https://www.mhc.tn.gov.in/judis
T.O.S.No.69 of 2013
5. Heard the submissions of the learned counsel for the plaintiff
and perused the documents available on record.
6. The Original Petition has been filed in the year 2008.
Subsequent to that, after converting the said petition into the T.O.S., in the
year 2013, notice has been ordered and the same has been served on the
sole defendant on 18.02.2020. Despite repeated adjournments, the sole
defendant has not filed written statement. Hence the defendant was set
exparte on 21.04.2021 and the plaintiff was directed to adduce Ex-parte
evidence. Thereafter, an application in A.No.3898 of 2021 has been taken
out by the plaintiff seeking permission to receive certain necessary
documents, as additional documents and to mark them as Ex.A.7 to Ex.A.9
to prove the signature of one of the attestor, viz., Andalammal and to show
that the said attestor to the Will is no more and same was allowed by this
Court on 29.10.2021.
7. Accordingly, on behalf of the plaintiff, his wife, namely,
Shantha adduced evidence as P.W.1 on 21.04.2021 and 14.12.2021
respectively. She filed a proof affidavit and she had stated in the proof
affidavit that she is entitled for grant of letters of Administration and 10
documents, viz., Exhibits Ex.P.1 to Ex.P.10 were marked to prove the
https://www.mhc.tn.gov.in/judis
T.O.S.No.69 of 2013
claim. Among the documents filed by the plaintiff, which were marked as
Ex.P.1 to P.10, Ex.P.1 is the last Original Will dated 04.05.1995, Ex.P.2 is
the original death certificate of Mr.Loganathan, who died on 16.10.2002,
Ex.P.3 is the Original Legal Heir certificate of Mr.Loganathan, Ex.P.6 is the
letter of authorisation dated 21.04.2021 issued by the plaintiff in favour of
wife, Shantha to depose on his behalf, as he is suffering from speech
imparity, Ex.P.7 is the original death certificate of Andalammal, who is the
wife of Loganathan and mother of the plaintiff and defendant and Ex.P.4
and P.5 are the legal and reply notice issued and received by the plaintiff
respectively.
8. On a careful consideration of the oral and documentary
evidence, it is clear that the plaintiff and defendant are children of
R.Loganathan and Andalammal, further, the said R.Loganathan died on
16.10.2002 and the said Andalammal died on 29.02.2012. To evidence
such facts, Ex.P.2, Ex.P.3 and Ex.P.7 were marked and Ex.P.3 is the legal
heir certificate. Further, Ex.P.1, which is the original Will dated 04.05.1995
has also been marked.
9. In view of the above stated position and considering the
evidence of P.W.1 and documents filed on behalf of the plaintiff remain
unchallenged and taking note of the fact that there is no rebuttable
https://www.mhc.tn.gov.in/judis
T.O.S.No.69 of 2013
evidence against the case of the plaintiff, this Court is of the view that the
plaintiff has proved his case and entitled to the grant of Letters of
Administration. Accordingly, the Testamentary Original Suit is ordered and
a direction is issued for the grant of Letters of Administration to the
plaintiff, as the contesting witnesses, two persons, viz., one Palani could
not be found and another person, viz., Andalammal, who is the mother of
the defendant and plaintiff as well, is no more and to prove the signature of
the said Andalammal, Ex.P.8 and Ex.P.10 were marked, [which are original
partition deed attested by the said L.Andalammal and two lease
agreements, Ex.P.10], hence it is proved in accordance with law.
Moreover, the Will executed by the deceased R.Loganathan having effect
throughout the State of Tamil Nadu.
10. The plaintiff is also directed to execute a Security bond for a
sum of Rs.25,000/- in favour of the Assistant Registrar (O.S.II) High Court,
Madras. The plaintiff is further directed to render true and correct
accounts once in a year.
22.03.2022
ssd
https://www.mhc.tn.gov.in/judis
T.O.S.No.69 of 2013
Exhibits produced on the side of the plaintiff:
S.No. Exhibits Date Description
1. P-1 14.05.1995 Last original Will registered as
Doc.No.65/95 by SRO, Annanagar
2. P-2 16.10.2002 Original Death Certificate of
Mr.Loganathan
3. P-3 22.11.2022 Original Legal Heir Certificate of
Mr.Loganathan
4. P-4 03.05.2007 Office Copy of the legal notice
issued by the plaintiff
5. P-5 23.05.2007 Office copy of reply notice
6 P-6 21.04.2021 Letter of authorisation issued by
the plaintiff in favour of his wife,
Shantha to depose on his behalf
7 P-7 29.02.2012 Original Death Certificate of
L.Andalammal
8 P-8 16.10.2002 Original Partition Deed attested by
Andalammal
9 P-9 22.02.2003 Original affidavit and letter of
indemnity executed by
Andalammal
10 P-10 22.05.2001 Original two lease Agreements
executed by R.Loganathan
Witness examined on the side of the plaintiff:
P.W.1. - Mrs.Shantha
22.03.2022
https://www.mhc.tn.gov.in/judis
T.O.S.No.69 of 2013
V.BHAVANI SUBBAROYAN,J.
ssd
T.O.S.No. 69 of 2013
22.03.2022
https://www.mhc.tn.gov.in/judis
