Annakili vs B. Lakshmi

M. Chockalingam, J.—This suit has been filed by the plaintiff for the grant of Letter of Administration to the plaintiff in respect of the

property and credit of the deceased K.Bangaru Chettiar to have effect throughout the whole of Tamilnadu.

The plaint averments are as follows:

One K.Bangaru Chettiar died intestate on 27.10.1981 leaving behind his wife Rajammal and sister Annakili as his legal heirs and he has no other

relations. Due and diligent search has been made for a Will but none has been found. Subsequently the said Rajammal also died intestate on

9.10.1984 leaving no other relations except the plaintiff. The plaintiff being the sister of K.Bangaru Chettiar is the only legal heir to inherit to the

entire estate of the deceased K.Bangaru Chettiar. The said Bangaru Chettiar died childless and leaving behind his widow Rajammal, who also died

on 9.10.1984 and the parents of the said K.Bangaru Chettiar and Rajammal have been predeceased them. The amounts of the assets which are

likely to come into the hands of the petitioner does not exceed in the aggregate sum of Rs.1,39,780/- and the net amount of the said assets after

deducting all items which the petitioner is by law allowed to deduct is only of the value of Rs.1,38,780/-. The petitioner undertakes to duly

administer the property and credit of the said K.Bangaru Chettiar and to make a full and true inventory thereof and exhibit the same before this

court within six months from the grant of letters of administration. Hence, the suit has got to be decreed as prayed for.

The averments in the written statement filed by the defendant are as follows:

It is denied by the defendant that K.Bangaru Chettiar died intestate and it was also denied that Bangaru Chettiar died leaving Rajammal, Annakili

as his heirs. The defendant understands that Rajammal was the wife of one Talakayan, ands the question of Rajammal, being the widow of

Bangaru Chettiar did not arise. The said Rajammal took possession of the properties by force. The deceased Bangaru Chettiar married one

Nagammal, this defendant''s mother as his first wife. After the death of Nagammal, Bangaru Chettiar married Sarasammal alias Saraswathi, as his

second wife. Bangaru Chettiar seems to have developed illicit intimacy with Rajammal. Taking advantage of his illness, Rajammal took possession

of all the assets of the deceased Bangaru Chettiar by force. This defendant filed a suit informa pauperise against Rajammal in application No.4288

of 1983 for recovery of possession of all the assets along with an application for appointment of Receive. The application was dismissed with a

liberty to renew the application after the application is ordered to be registered as suit. During the enquiry in the application, the said Rajammal

died. After the death of Rajammal, one Nagendran filed a suit in O.S.No.7971 of 1984 claiming that he is the heir under the Will of Bangaru

Chettiar and the same was dismissed. Sarasammal, the second wife of Bangaru Chettiar filed an application in Diary No.6504 of 1985 claiming as

the legatee under the Will of Bangaru Chettiar for the relief of recovery of possession against the defendant along with an application for

appointment of Receiver and this Court appointed a Receiver. Even before the appointment of Receiver, this defendant filed petitions for eviction

and the same were allowed. On appeal, the appeal was dismissed. The plaintiff has given notice dated 23.2.1982 alleging that the said Bangaru

Chettiar has left Will as mentioned in the written statement. Hence, the said Bangaru Chettiar died intestate and the Will has not been found is not

true. Bangaru Chettiar died issuless is also false. The defendant is the only daughter of Bangaru Chettiar. The above said Sarasammal filed a

petition for the grant of letters of administration. The said application was converted into a suit in TOS No.1 of 1987. In that suit, the plaintiff herein

was impleaded as second defendant. The plaintiff was aware of the relationship between this defendant and Bangaru Chettiar and also between

Bangaru Chettiar and Sarasammal. After eviction orders were confirmed by this Court, the tenants have set up the plaintiff with a view to defeat

the claim of the defendant in the Rent Control Proceedings. As a matter of fact the plaintiff filed an application to collect the Rents from the

premises at No.49, Perumal Mudali Street, Kondithope, Chennai-79 and the same was ordered on 20.2.1986. This defendant filed an application

to set aside the same and the same was allowed. The plaintiff filed OSA No.70 of 1987 against the said order and the same was also dismissed.

Bangaru Chettiar, after the death of the first wife, Nagammal, brought this defendant up, educated her and performed the marriage with

Krishnamurthy. Hence, this defendant is entitled to succeed to the estate of late Bangaru Chettiar. This suit is bad for non joinder of Sarasammal,

who is the widow and second wife of Bangaru Chettiar, who is still alive. Mr.R.Sundararajan, Advocate is said to be having the last Will in his

custody executed by Bangaru Chettiar. As the said Advocate is evading to hand over the Will to the legatees for the reasons best known to him, it

is not possible to get orders from the competent court based on the said Will. But the said Advocate had denied of having the custody of the Will.

The plaintiff has collected more than a sum of Rs.7000/- from the tenants and had not discharged any tax liability, is bound to return or deposit the

same into Court as she has misappropriated the amount. This suit has no basis and the same is liable to be dismissed.

On the pleadings by the respective sides, the following issues were framed:

Whether late Bangaru Chettiar died intestate?

Whether the defendant Lakshmi is the daughter of Bangaru Chettiar (deceased)?

Whether Saraswathi, who is alive, is the widow of late Bangaru Chettiar?

Is not the defendant, being the daughter, the only heir of late Bangaru Chettiar?

Whether the plaintiff, in her capacity as the sister of deceased Bangaru Chettiar, is the only legal heir?

Is the plaintiff entitled to Letters of Adminsitration?

To what relief the parties are entitled?

The plaintiff has filed this suit for grant of Letters of Administration to her in respect of the property, which belonged to Bangaru Chettiar,

alleging that he died intestate and issueless and that she is the only sister of the said Bangaru Chettiar and as the only legal heir to inherit to the

entire estate of the deceased Bangaru Chettiar. The suit is being contested by the defendant by stating that the deceased Bangaru Chettiar did not

died intestate; that the defendant is the only daughter born to Bangaru Chettiar through his first wife Nagammal and on the death of Nagammal,

Bangaru Chettiar married Sarasammal @ Saraswathi; that he had also developed illicit intimacy with one Rajammal, who taking undue advantage

of the illness of Bangaru Chettiar, took possession of all the assets; that on her death, the properties came into possession of the defendant, and

hence, both the reasons for the issue of Letter of Administration, namely Bangaru Chettiar died intestate and issueless, are false, and hence, the

plaint has got to be dismissed.

On the side of the plaintiff, P.W.1 was examined and Exs.P.1 to P.5 were marked. On the side of the defendant, D.W.1 was examined and

Ex.D.1 to Ex.D.6 were marked.

Arguing for the plaintiff, the learned counsel would submit that the plaintiff has originally filed O.P.No.9 of 1986; that on caveat filed by the

defendant, the same was converted into a suit; that one Krishnan Chettiar had seven sons and one daughter; that the said Bangaru Chettiar was

one of the sons of Krishnan Chettiar and the plaintiff was his sister; that the immovable property situated at No.49, Perumal Mudali Street,

Kondithope exclusively belonged to Bangaru Chettiar, who died on 27.10.1981; that he left behind him his sister, the plaintiff herein, as the only

heir; that it is pertinent to note that he died intestate; that the first wife of Bangaru Chettiar was Manthiamma; that on her death, Bangaru Chettiar

married Rajamma; that Bangaru Chettiar had no issues either through Manthiamma or Rajamma; that the said Rajamma died in the year 1984 even

prior to the filing of the present suit; that the assessment order issued by the Corporation of Madras for the period of 1985-86 in respect of the suit

property is filed as Ex.P.3; that Ex.P.4 would evidence the payment of estate duties and is the certificate on discharge in respect of the suit

property issued by the Assistant Controller of Estate Duties; that the contention of the defendant that Bangaru Chettiar had illicit intimacy with

Rajammal and grabbed the properties of Bangaru Chettiar was unfounded to the knowledge of the defendant, since Rajammal was the second

wife of Bangaru Chettiar; that the defendant claimed that she was the daughter of Bangaru Chettiar through Nagammal was an utter falsehood; that

the defendant was an orphan, who was assisting Bangaru Chettiar and Rajamma in domestic affairs; that it is true that they performed the marriage

of the defendant; that on the death of the said Rajamma, the defendant forcefully occupied the premises on false pretences; that during the life time

of Rajamma, the defendant filed a suit against her claiming the properties of Bangaru Chettiar; that during the pendency of the suit, Rajamma died;

that taking advantage of the said situation, the defendant got the possession of the property illegally and has come forward with a plea that she is

the daughter of Bangaru Chettiar; that the plaintiff never issued any notice to any Advocate alleging that Bangaru Chettiar has executed a Will in

respect of the suit properties; that during the pendency of the suit, the plaintiff filed an application to collect the rents from the tenants; that the same

was ordered on 26.2.1986, but the same was cancelled by a subsequent order dated 28.4.1986; that the appeal filed by the plaintiff therefrom

was disposed of in February, 1993, wherein the Division Bench directed the defendant to pay a sum of Rs.300/- per month to the plaintiff, but the

defendant has thoroughly disobeyed the order by not making any payment whatsoever; that since she is the only heir of Bangaru Chettiar, Letters

of Administration as asked for by the plaintiff has got to be issued in her favour. In support of the contention of the plaintiff, the learned counsel has

relied on the following decisions; (1) In Re: T.K. Parthasarathi Naidu, , (2) Adarsh Rattan and Others Vs. State Bank of India, Jalandhar, , and (3)

Addagada Raghavamma and Another Vs. Addagada Chenchamma and Another, .

Strongly opposing all the above contentions, the learned counsel for the defendant would submit that the plaintiff''s suit seeking letters of

Administration has to be dismissed as one not maintainable for the reasons that the defendant is the daughter of Bangaru Chettiar through his first

wife Nagamma; that Bangaru Chettiar has left a Will, wherein he has made arrangement in respect of the suit properties, and hence, the plaintiff''s

contention that Bangaru Chettiar had no issues and died intestate have got to be rejected by the Court; that it is true that the grand father of

Krishnan Chettiar had eight children of whom Bangaru Chettiar was one of the sons and the plaintiff was the only daughter; that Bangaru Chettiar

was a Driver in Corporation of Madras; that he married one Nagamma through whom the defendant was born; that the defendant was put in

school by Bangaru Chettiar; that she is studied upto 7th standard; that the record sheets of the defendant under Ex.D.1 and Ex.D.2 would clearly

reveal that Bangaru Chettiar was the father of the defendant; that the puberty function of the defendant was conducted by Krishnan Chettiar and

Bangaru Chettiar; that in an invitation card in that regard, the defendant was shown as grand father of Krishnan Chettiar; that at the time of

marriage of the defendant, Krishnan Chettiar was not alive, but her father Bangaru Chettiar was alive, who performed the marriage on 6.3.1963;

that Bangaru Chettiar has mortgaged the suit property on 16.2.1963 for availing loan to meet the marriage expenses of the defendant, wherein it

has been clearly recited that the loan was availed for the marriage of his daughter; that apart from the same, he also availed loan from George

Town Co-operative Bank; that Ex.D.4 is the xerox copy of the genealogy submitted by Bangaru Chettiar at the time of availing the said loan; that

her father''s first wife Mandhiamma gave birth to a son, who died subsequently; that Rajamma was not the wife of Bangaru Chettiar as contended

by the plaintiff; that Rajamma was the wife of one Thalakkai, who is alive even now; that Bangaru Chettiar owned lots of properties; that when

Bangaru Chettiar was sick and bedridden, it was the defendant, who took care of him; that at the time he informed the defendant that he had

executed a Will and the properties would devolve on her after his life time; that on the death of Bangaru Chettiar, all the properties were taken by

Rajamma; that the defendant filed a suit against Rajamma during her life time disputing her contention that she was the wife of Bangaru Chettiar;

that the defendant filed an application No.4506 of 1983, which was dismissed and the certified copy of the same is filed as Ex.D.5; that

subsequent to the death of Rajamma, the defendant got possession of the suit properties; that she has vacated all the twelve tenants in the premises

and also inducted new tenants, who are presently occupying the same; that after the death of Rajamma, one Nagendran filed proceedings before

City Civil Court claiming himself to be a foster son of Bangaru Chettiar and the same has been dismissed; that the said Nagendran was the

Rajammal''s elder brother, Perumal''s son; that it is pertinent to note that after the death of Bangaru Chettiar, the defendant, Rajamma and two

others went to see the Advocate Sundararajan, who was in the custody of the Will executed by Bangaru Chettiar, but the Advocate refused to

hand over the Will by stating that he would divide the property and give them equal shares to all; that the plaintiff herself has issued a notice through

her Advocate demanding the original Will; that the xerox copy of the said notice was handed over by the counsel for the plaintiff to the defendant,

which was marked as Ex.D.6; that one Sarasu, who claimed to be a legatee under the Will executed by Bangaru Chettiar, filed T.O.S.No.1 of

1987 and the same was dismissed for default; that under the stated circumstances, the defendant is the only heir of Bangaru Chettiar, and hence, all

the contentions put forth by the plaintiff are false and unfounded and the suit has got to be dismissed.

The petition originally filed by the plaintiff seeking letters of administration, on a caveat by the defendant, has been converted into the instant suit.

The plaintiff has brought forth his request specifically stating that she is the sister of Bangaru Chettiar; that he died intestate and issueless, and

hence, by operation of law, she is the only heir, and hence, the letters of administration has to be granted in her favour. The prime defence is that

the defendant is the daughter of Bangaru Chettiar through his first wife Nagamma; that Bangaru Chettiar has made proper arrangement in respect

of the suit property by executing a Will, and hence, the suit has got to be dismissed. Admittedly, one Krishnan Chettiar had two wives by name

Mangamma and Pappamma. He had eight children through his wife wife Mangamma and had no issues through the second wife, Pappamma. Out

of the eight children, Bangaru Chettiar got married and all his brothers died as bachelors. The only daughter of Krishnan Chettiar was the plaintiff.

Thus, it is an admitted position that the plaintiff herein is the only sister of Bangaru Chettiar. It is not in dispute between the parties that the suit

property situated in Door No.49, Perumal Mudali Street, Kondithope, Madras exclusively belonged to the said Bangaru Chettiar. At this juncture,

it remains to be stated that the defendant, who claims to be a daughter of Bangaru Chettiar through his first wife Nagamma and that Bangaru

Chettiar has executed the Will in respect of the suit property, has to prove the same. Needless to say that this Court in exercise of its testamentary

jurisdiction ordinarily the court is not expected to go into the question and decide as to whether the defendant is the daughter of Bangaru Chettiar.

But it has to be noted that if the defendant is able to show that either she is the daughter of Bangaru Chettiar through his first wife Nagamma or

Bangaru Chettiar has made arrangement in respect of the suit property by executing a Will, no doubt, the court has to deny the relief asked for by

the plaintiff. In view of the peculiar circumstances of the case, the court has to go into the said question only to the extent whether the defendant

has produced a prima facie proof in that regard to deny the relief to the plaintiff.

After careful consideration of the evidence adduced both oral and documentary, the court is of the considered view that the defendant has not

even produced prima facie evidence to hold either of the above. According to the plaintiff, Bangaru Chettiar, after the death of his first wife

Nagamma, married Rajamma; that Bangaru Chettiar was surviving by his second wife, Rajamma and she died on 11.7.1985. A certificate was

issued by the Corporation of Madras as to the death of Rajamma, wherein Rajamma is described as the wife of late K.Bangaru Chettiar. The

contents of Ex.P.2 document is not disputed by the defendant''s side. The defendant has clearly averred that on the death of Bangaru Chettiar,

Rajamma took possession of all his assets, which constrained the defendant to file a suit informa pauperise against Rajamma in Application

No.4506 of 1983 for recovery of all the assets and the said application was dismissed with a liberty to renew the application after the application

was ordered to be registered as a suit and during enquiry of the application, Rajamma died and the defendant got into the possession of the

property. The defendant has also given evidence as per the above averment. This would be indicative of the fact that Rajamma was in possession

of the suit property and on her death, the defendant has got into possession of the property in the year 1984 and continues to be in possession of

the same till today. It is pertinent to note that the defendant''s application in A.No.4506 of 1983 filed against Rajamma was dismissed by this Court

as evidenced under Ex.D.5. The defendant has much relied on three documents, namely, Exs.D.1, D.2, school record sheets and Ex.D.3, a

registration copy of the mortgage executed by Bangaru Chettiar in the year 1963. Exs.D.1 and D.2 are the record sheets issued to the defendant,

wherein her date of birth is shown as 15.2.1951 and her father''s name is shown as Bangaru. It is pertinent to note that the said Bangaru Chettiar

has not signed in the said documents. The fact that it was Bangaru Chettiar, who educated the defendant is not disputed by the plaintiff. Since the

date of birth of the defendant is well shown in both the above documents, the defendant would have well applied for birth certificate and filed the

same to show that she was born to Bangaru Chettiar through his first wife Nagamma, but has not done so. The other document relied on by the

defendant cannot also advance the case of the defendant. Under Ex.D.3, Bangaru Chettiar has mortgaged the suit property on 16.2.1963, wherein

it is recited that he executed mortgage for a loan of Rs.3000/- for performing the marriage of his daughter. It is contended by the defendant''s side

that the marriage referred to in Ex.D.3, mortgage deed, was that of the defendant. The defendant has deposed that her marriage took place on

6.3.1963 and invitation card for the marriage was printed in the name of her father. As could be well seen from Exs.D.1 and D.2, record sheets,

the defendant was born only on 15.2.1951, and hence, at the time of execution of Ex.D.3, mortgage, the defendant was only 12 years old. The

contention of the defendant''s side that she was married in 1963 when she was 12 years old cannot be believed, since it is highly improbable. While

there was a marriage invitation card, the defendant has not chosen to file the same. According to the defendant''s side, the said Bangaru Chettiar

availed loan from George Town Co-operative Bank and Ex.D.4 is the statement of Genealogy submitted by his father at the time of availing loan.

As per the statement given by him, Rajamma was shown as his first wife and Sarasamma as the second wife. At this juncture, it has to be pointed

out that it is the case of the plaintiff that Rajamma was the first wife of Bangaru Chettiar and not Nagamma as stated by the defendant. On the

contrary, it is contended by the defendant that Nagamma was the first wife of Bangaru Chettiar and she was born to Bangaru Chettiar through

Nagamma. The statement given by Bangaru Chettiar under Ex.D.4 would point to the truth of the contention of the plaintiff that Rajamma was the

first wife of Bangaru Chettiar and not Nagamma as contended by the defendant. The learned counsel for the defendant would submit that the

defendant is shown as the only one daughter of Bangaru Chettiar. The Court cannot agree with this contention for the simple reason that nowhere

the defendant has stated that she was born either to Rajamma or Sarasamma, who were the first and second wives of Bangaru Chettiar, as shown

in the statement made by him. It is not disputed by the plantiff that the defendant was put in School by Bangaru Chettiar and her marriage was also

performed by him. But, it is the specific case of the plaintiff that the defendant, who had nobody to depend and who was assisting them in the

household, was brought up by them and taking advantage of the same, she got into possession of the property after the death of Bangaru Chettiar.

It is pertinent to note that after the death of Bangaru Chettiar, Rajamma was in possession of the suit property for a period of three years till her life

time and the defendant, who filed a suit for recovery of possession of the suit property, has got into possession of the property on the death of

Rajamma. Under the above stated circumstances, this court is unable to see even prima facie evidence on the defendant''s side to show that she

was the daughter of Bangaru Chettiar through his first wife Nagamma.

Insofar as the second contention of the defendant''s side that Bangaru Chettiar has executed a Will in respect of the suit property is concerned,

the defendant has not placed any material before this court to agree with the same. The defendant has relied on a xerox copy of a notice alleged to

have been sent by the plaintiff to an Advocate by name Sundararajan that he was in custody of the Will alleged to have been executed by Bangaru

Chettiar. This fact was denied by the plaintiff during the cross examination. Had it been true that Bangaru Chettiar had actually executed a Will and

the same was in the custody of the said Advocate Sundararajan, the defendant could have taken steps to summon the Advocate for production of

the alleged Will or atleast the original of the notice alleged to have been sent by the plaintiff. The defendant has also deposed that Bangaru Chettiar

has informed her that he has already executed a Will, which was in the custody of an Advocate Sundararajan and on his death, herself, Rajamma

and two others went to the Counsel and demanded the original Will, but without handing over the same, he informed them that he would divide the

property into four equal shares. If the defendant naturally believed that there was a Will in the custody of the said Advocate, she would have taken

steps to obtain the same, but has not taken any steps from 1981 till date. She has also further added in her evidence that one Sarasu has initiated

proceedings in TOS No.1 of 1987 claiming herself as legatee under the Will executed by Bangaru Chettiar; that she has given life interest and

thereafter the property should devolve on the children of the defendant and the same was dismissed for default. The defendant has not placed any

materials in respect of TOS No.1 of 1987 based on a Will alleged to have been executed by Bangaru Chettiar. All the above would clearly show

that except the bald assertions made by the defendant that Bangaru Chettiar has executed a Will in respect of the suit property, no material is

placed before the Court. Under the stated circumstances, the contention of the defendant''s side that Bangaru Chettiar has executed a Will in

respect of the suit property does not merit any acceptance.

As stated above, it is an admitted position that the plaintiff is the only sister of Bangaru Chettiar and the defendant has not proved her defence

stating that she was the daughter of Bangaru Chettiar through his first wife Nagamma or he has made some arrangements in respect of the suit

property by executing a Will. Under the stated circumstances, the court is unable to see any legal impediment in granting the relief of Letters of

Administration to the plaintiff. The defendant is at liberty to initiate separate proceeding for a declaration of her status as a daughter of Bangaru

Chettiar through his first wife Nagamma. In view of the circumstances stated supra, the court is of the considered view that letters of administration

can be granted to the plaintiff for a limited period of two years, within which, the defendant can initiate proceedings as stated above. The plaintiff

can also move for an appropriate order, if necessary, before this court, after the said period of two years are over.

In the result, this suit is decreed. Issue letters of administration in favour of the plaintiff for a period of two years only. She should render a true

and proper account once in a year. She should also execute a security bond for a sum of Rs.10,000/- in favour of the Assistant Registrar (O.S.II),

High Court, Madras. It is also made clear that during the said period of two years, the plaintiff cannot create any encumbrance or alienation over

the property without the permission of the court. The plaintiff is given liberty to move for an appropriate order, if and when required, before this

court, after the said period of two years are over. There shall be no order as to the costs. In view of the disposal of the TOS, the application

No.1572 of 2002 is dismissed as one devoid of merits.