R.Rangaraj vs Kannamal (deceased) & ors.

S.No,Exhibits,Date,Description of documents

1.,P-1,3.11.1931,Sale deed registered as Doc. NMo.1755 of 1931

2.,P-2,2.7.1983,Office copy of Lawyer''s notice issued to the defendants

3.,P-3,-,"Xerox copy of certified copy of judgment in O.S.No.1420/94 on the file of II Assistant City Civil Court, Chennai.

4.,P-4,22.12.2006,Xerox copy of certified copy of Decree in O.S.No.1420/94

5.,P-5,29.9.2009,"Certified copy of judgment in A.s.No.703 of 2007 on the file of FTC II, Chennai

6.,P-6,29.9.2009,Certified copy of Decree is A.S.No.703/2007

,,,

2,D-2,3.12.1980,Original Will executed by K.Dessappa Naidu

The suit has been laid claiming 1/6 th share out of 3553.3 sq.ft of land in the schedule mentioned property. On a careful perusal of the,,,

pleadings and exhibits adduced by the parties, it is seen that an extent of 10660 sq.ft. of land was originally purchased by one Govindasamy",,,

Naidu, Irusappa Naidu and Bangarammal, who are the brothers and sister, jointly in the year 1931 under Ex.P1. It is also admitted by both sides",,,

that Irusappa Naidu died issueless. That being the case, Irusappa Naidu''s share i.e.3553.3sq.ft. would devolve upon his brother and sister,",,,

namely, Govindasamy Naidu and Bangarammal equally and that they became entitled to 3/6 th share each in the entire property purchased under",,,

Ex.P1 sale deed of the year 1931. It is also admitted by both sides that Bangarammal had two issues, one son and daughter namely, Ethirajulu",,,

Naidu and Pattammal. Both of them are equally entitled from the Bangarammal''s share. It is also admitted by both sides that Ethirajulu Naidu died,,,

issueless. Though parties have not clearly pleaded and adduced evidence on this regard, during the course of argument, both counsels fairly",,,

conceded that he died long back and there is no evidence available on record to prove his exact date of death. Similarly, it is conceded by both",,,

sides that Ethirajulu Naidu, one of the children of Bangarammal has released his share in favour of Desappa Naidu, who is only son of the original",,,

owner, Govindasamy Naidu.",,,

If the above undisputed submission is taken into consideration that originally Govindasamy Naidu, after the death of his brother, namely,",,,

Irusppa Naidu, became entitled to 5331 sq.ft. and similarly, Bangarammal is entitled to 5331 sq. ft in the suit properties, Desppa Naidu, had",,,

acquired 5331 sq.ft. from his father Govindasamy Naidu. Similarly, Bangarammal had two children namely, Ethirajulu Naidu and Pattammal and",,,

each of them became entitled to 2662 sq.ft. It is fairly conceded by the learned counsel for the plaintiff in transfer suit that Ethirajulu Naidu, son of",,,

Bangarrammal has released his share in favour of Desappa Naidu. That being the case, Pattammal, the daughter of Bangarmmal, derived an extent",,,

of 2662 sq.ft alone in the entire property. Admittedly, the said Pattammal, had six (6) children. In that case, the plaintiff in partition suit, namely,",,,

Kannammal one of the legal heirs of deceased Pattammal, is entitled to 1/6 th share out of 2662 sq.ft. and not as pleaded in the plaint. At the most,",,,

the plaintiffs together are entitled to 444.7 sq.ft. out of 2662 sq.ft. The issues raised in O.S.No.1226 of 2005 which was subsequently transferred,,,

and numbered as Tr.C.S.No.943 of 2010 are answered accordingly.,,,

Issue Nos. 1 and 3 in TOS No.26 of 2007,,,

The third defendant in the partition suit/plaintiff in testamentary suit, namely, Rangarajan, has propounded the Will 03.12.1980 said to have",,,

been executed by his father Desappa Naidu and the same has been registered on the file of Sembiam Sub-Registrar. On a careful perusal of the,,,

Will, it is seen that Desappa Naidu, executed the Will dated 03.12.1980, bequeathing the entire suit property purchased under Ex.P1 to all his",,,

grand children, except the plaintiff in partition suit, i.e. Kannammal, another daughter of the Desappa Naidu. Of course, there is no reason,",,,

whatsoever, mentioned in the Will for such exclusion. To prove Ex.P1, one of the attesting witnesses, namely Kannappan was examined as",,,

D.W.2, who, in his evidence, has clearly mentioned that he was working in SIMSON Group of companies and at the request of the testator,",,,

Desappa Naidu, he attested the Will and he has also admitted that the Will was signed by the testator Desappa Naidu in his presence and also the",,,

other attesting witness. He also asserted that he had seen the testator signing in the Will and the testator Desappa Naidu has also seen him while,,,

attesting the Will. Similarly, D.W.2 has admitted that the testator was in sound and disposing state of mind while executing the Will. D.W.2 in his",,,

evidence, has categorically stated that he went to the Registrar Office for some other purpose on the said date wherein he saw the testator and at",,,

his request, he attested the Will. As such, no suspicious circumstances whatsoever was brought against the Will in the entire cross examination of",,,

D.W.2.,,,

It is pertinent to note that the Will was executed in the year 1980 and witness was cross examined only on 06.4.2013, i.e., after 33 years from",,,

the date of execution of the Will. Due to long passage of time, there may be some minor contradictions in his evidence, but, that itself would not be",,,

a ground to reject his evidence. When the entire evidence of D.W.2 is carefully perused by this Court, it does not give any inference that the Will",,,

was not genuine one. When the evidence of attesting witness proved the execution, attestation and testamentary capacity of the testator of the Will,",,,

then the entire burden lies on the other side to establish the alleged forgery and fabrication.,,,

It is the main contention of the defendant in the testamentary suit/plaintiff in partition suit that Desappa Naidu has no right to execute the Will in,,,

respect of the entire property as he was not the owner of the entire property. Except this, no suspicious circumstances whatsoever was brought on",,,

record by the contesting defendant, namely, the deceased Kannammal, who was the one of daughters of the testator Desappa Naidu. All other",,,

legal heirs have not contested the suit as they have also been given provision under Ex.P1.,,,

It is the contention of the plaintiff that the property being ancestral in nature, Desappa Naidu has no right to execute the Will. It is to be noted",,,

that admittedly the property has been purchased by Govindasamy Naidu, Irusappa Naidu and Bangarammal jointly. The father of Desappa Naidu",,,

has acquired the property of Irusappa Naidu after his death. After the advent of the Act, 1956, Section 8 of the Hindu Succession Act has come",,,

into play. Therefore, the grand son of Govindasamy Naidu cannot be treated as co-parcenor in the above properties. Similarly, since the",,,

properties devolved upon Govindasamy Naidu from his brother and the property acquired by Desappa Naidu by way of release Deed from one,,,

Ethirajulu Naidu, are also to be treated as separate property of Govindasamy Naidu and Desappa Naidu, there is no question of treating the",,,

property as ancestral property.,,,

Though the plaintiff''s mother in partition suit, namely, Pattammal married Desappa Naidu and since Desappa Naidu himself bequeathed the",,,

entire property, now the plaintiff cannot contend that the property is ancestral property. Hence, this Court holds that the contention of the plaintiff",,,

in partition suit / defendant in TOS in that aspect, cannot be sustained in law.",,,

Though the Will is executed in respect of the entire property purchased under Ex.P1, as already discussed above, Desappa Naidu is actually",,,

entitled to 7995 sq.ft alone by way of release deed from Irusppa Naidu and from Ethirajulu Naidu. That being so, the Will in respect of the entire",,,

property comprised in Ex.P1 cannot be given any effect. However, the Will can be valid only in respect of the extent of 7995 sq.ft. alone. The",,,

remaining extent goes to Patammal''s legal heirs. Since the Will has been proved in the manner known to law and no suspicious circumstances were,,,

brought on record, the same can be given effect to in respect of the actual entitlement of Desappa Naidu. Accordingly, this Court holds that the",,,

plaintiff in TOS.No.26 of 2007 is entitled for grant Letters of Administration in respect of the properties to the extent of 7995 sq.ft alone. Issue,,,

Nos. 1 and 3 are answered accordingly.,,,

Issue No:2:,,,

Yet another contention of the learned counsel for the plaintiff in partition suit is that there was a delay in filing the petition for letters of,,,

administration. It is to be noted that all the legal heirs, except the plaintiff in partition suit, were bequeathed to the property. That apart, it is the",,,

specific contention of the plaintiff in testamentary suit that since all the legal heirs did not co-operate then and there, there was a delay in filing the",,,

Testamentary suit. This reason is quite explanatory and is acceptable. When there are many legal heirs, the delay is normally bound to occur in",,,

view of the non co-operation by them. Therefore, mere delay in coming to Court cannot be a ground to disbelieve the Will, which is a genuine one",,,

and otherwise, proved in the manner known to law.",,,

Insofar the judgments in the case of Apoline D Souza v. John d Souza; Benga behera v. Braja Kishore Nanda; Rani Purnima Debi v. Kumar,,,

Khagendra Narayan Deb and Susama Bala Devi and Others v. Anath Nath Tarafdar and others, (cited supra) as relied on by the learned counsel",,,

for the plaintiff in partition suit are concerned, absolutely, there is no dispute with regard to the legal principles set out therein. Whereas in this case,",,,

the evidence of the attesting witness satisfies the conscience of this Court and that there was no suspicious circumstances whatsoever brought on,,,

record.,,,

Similarly, in judgment in T.Ponnalagi v. RM.Ramachandran and others (cited supra), though it is held that non impleadment of necessary party",,,

itself is a ground to revoke the Letters of Administration, Section 278 of the Indian Succession Act 1925 mandates all the family members and",,,

other relatives of the deceased, and their respective residence to be written in the petition.",,,

On a careful perusal of the petition for grant of letters of administration, it is seen that originally they have not been arrayed all the legal heirs",,,

except contesting caveator. Though Original legal heirs have not been arrayed as respondents, the contesting defendant has been impleaded in the",,,

Original Petition. In the entire pleadings of paragraph 6 of the petition, the details of all the legal heirs have been given. Section 278 (b) of the",,,

Indian Succession Act does not mandate that they should be made as parties. As per Section 278 (b), the list of the legal heirs should be",,,

mentioned in the petition.,,,

In any event, even assuming that the plaintiff in testamentary suit has not complied with the mandate of Section 278 (ii), it is to be noted that in",,,

the connected suit, they were all made as defendants and they have been given a chance. The Will, in question, is not disputed by any other legal",,,

heir except one of the daughters of the testator. In the comprehensive suit, all the legal heirs were made as defendants. They remained ex parte.",,,

Hence, this Court is of the view that mere not arraying them as parties in the TOS, itself is not a ground to non-suit the Will, which is otherwise,",,,

proved in the manner known to law. This issue is answered accordingly.,,,

In the result, The suit in TOS.No.26 of 2007 is decreed in part granting Letters of Administration to the plaintiff in TOS.No.26 of 2007 in",,,

respect of 7995 sq.ft alone and not in entirety as pleaded with the following conditions:,,,

(i). The Letters of Administration, having the effect limited to the State of Tamil Nadu, shall be issued in favour of the plaintiff in respect of 7995",,,

sq.ft alone as per the Will dated 03.12.1980.,,,

(ii). The plaintiff is directed to duly administer the estate of the deceased.,,,

(iii). The plaintiff shall execute a security bond for a sum of Rs.25,000/- (Rupees Twenty Five Thousand only) in favour of the Assistant Registrar",,,

(O.S-II), High Court, Madras.",,,

(iv). The plaintiff is further directed to render true and correct accounts once in a year.,,,

Insofar as the suit in Tr.C.S. No. 943 of 2010 is concerned, preliminary decree is passed dividing the extent of 2662 sq.ft into 6 equal shares",,,

and allot such share to the plaintiff. considering the relationship between the parties, there shall be no order as to costs.",,,