Kanakasabapathi Chetty vs Unnamalai Ammal and Another

Venkataramana Rao, J.—This appeal arises out of an application for probate of a will left by one Varadappa Chetti. The application was

contested by his widow Unnamalai Ammal and it was therefore registered as a suit under the Indian Succession Act. The plaintiff in the suit and his

brother Subramania Chetti since deceased were the sons of the brother of the first wife of the said Varadappa Chetti and they were being brought

up by Varadappa Chetti as their parents were dead. The will propounded is dated the 4th April, 1930 and under it there were bequests in favour

of the plaintiff and his brother and also in favour of Unnamalai Ammal. Unnamalai has put the plaintiff to proof of the will and the validity of the

dispositions and also contended that the plaintiff was not entitled to probate on the ground that he was not appointed executor expressly under the

will nor an executor by necessary implication and that in any event as Subramania Chetti died before the testator she was entitled to all his interest

under the will as on intestacy. The learned District Judge framed several issues including the issue whether the will relied on was true and validly

executed. He found that the will was genuine and validly executed by the testator. Then he went into the respective rights of the parties under the

will and declared that Unnamalai was entitled to a life estate under the will and that it was only after her life that the plaintiff and his brother

Subramania Chetty were to enjoy the property devised under the will. He also held that in regard to the interest of Subramania Chetti there was an

intestacy and with regard to this it seems to us that inasmuch as Subramania Chetti died before the will the testator must be deemed to have died

intestate. But the question is not whether or not there was an intestacy with regard to the interest of Subramania Chetty but the question is, the will

having been proved who is entitled to either probate or letters of administration with the will annexed for the administration of the estate left by the

testator. We are satisfied that on the construction of the will the plaintiff would neither be a residuary legatee nor an executor by necessary

implication. The only question therefore is, who is entitled to grant of letters of administration with the will annexed. Under Sections 234 and 235 of

the Succession Act the person who would prima facie be entitled to letters of administration would be the widow Unnamalai. It seems to us that

the learned Judge was not warranted in dismissing the suit with costs of the first defendant for the simple reason that the plaintiff had come to Court

for establishing the will. The will having been established it is the duty of the Probate Court to direct letters of administration with will annexed, in

cases where no executor had been appointed, to such persons as are under the Act competent to administer the estate, thus avoiding further

expense and litigation. We therefore think that letters of administration with will annexed ought to be issued to the widow.

In regard to the question of security Mr. Raghava Rao represents to us that Unnamalai was appointed receiver in the lower Court and that she

has given security and that the mundi business which was one of the items bequeathed under the will was wound up and the sale proceeds have

been realised and deposited into Court. It is open to the lower Court to take this matter into consideration and fix such security as is necessary in

the circumstances of the case before directing letters of administration to issue.

In regard to the other questions gone into by the learned District Judge which relate to the respective rights of parties under the will, we think it is

unnecessary to go into them and we therefore set aside the findings of the learned Judge on those issues and leave the questions raised by them

open.

As the plaintiff had to come to Court to establish the will the learned Judge was not warranted in depriving him of his costs. The usual practice in

cases where a plaintiff seeks to establish a will under which he has been given a legacy and where the will has not been attacked but the plaintiff is

merely put to proof of it, is to award costs to both parties from and out of the estate.

In the result, we set aside the order of the lower Court and direct the issue of letters of administration with will annexed to Unnamalai on taking

security as aforesaid. The costs of both parties here and in the lower Court will come out of the estate.