M.Senthil Kumar v. P.Dhananjayan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 1-10-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHOSA Nos.50, 76 and 77 of 2008andMP No.1 of 2008 in OSA 50 of 2008andMP No.1 of 2008 in OSA 76 of 2008andMP No.2 of 2008 in OSA 77 of 2008M.Senthil Kumar.. Appellant in OSA 50/2008 & Respondent in OSA 76 & 77/2008vs1.P.Dhananjayan2.N.Balasundaram.. Respondents in OSA 50/2008 & Appellants in OSA 76 & 77/2008Original side appeals preferred under Clause 15 of the LettersPatent read with order XXXVI Rule 1 of O.S. Rules against the order and decreetal order of this Court dated 23.11.2007 in ApplicationNo.1198 of 2006 in O.P.No.755 of 2002 and in Application Nos.4414 and4416 of 2005 in TOS No.15 of 2005 dated 23.11.2007.For Appellants: Mr.C.Umashankar for appellant in OSA 50/2008 and respondent in OSA 76 & 77/2008For Respondents: Mrs.K.Aparnadevi for appellants in OSA 76 & 77/2008 and respondents in OSA 50/2008COMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)All these appeals have arisen from a common order of the learnedSingle Judge of this Court made in Application No.1198 of 2006 in https://hcservices.ecourts.gov.in/hcservices/ O.P.No.755 of 2002 and in Application Nos.4414 and 4416 of 2005 inTOS No.15 of 2005.

The parties hereinafter will be referred to as per the cause title in OSA 50/2008 namely appellant and respondents.

All these appeals came to be filed under the following circumstances. (a) The appellant in OSA 50/2008 filed OP No.755/2002 seeking letters of administration in respect of a Will dated 27.11.1995jointly executed by one Devaki Ammal and her husband Rajendran. Onenquiry, letters of administration was actually issued in his favour by an order dated 28.1.2004. While the matter stood thus, the respondents in OSA 50/2008 filed Application No.1198 of 2006 seeking revocation of the letters of administration alleging that the saidDevaki Ammal died in the year 1996; that subsequently her husbandRajendran has executed the Last Will on 29.6.2000; that under the said Will he has bequeathed one immovable property at Mylapore in favour of Hindu Mission Hospital, Adyar Cancer Institute and MylaiDevaki Ammal – C.G.Rajendran Educational Trust in the ratio of40:40:20, and thus it is a case where the letters of administration originally granted in favour of the appellant was to be revoked. (b) Apart from the above, the respondents on the strength of the said Will dated 29.6.2000, alleged to have been executed by Rajendran, filed OP No.8 of 2004 in which the appellant herein entered appearance by way of caveat and now it has been converted into TOS No.15 of 2005 and the same is also pending before the Court. In that TOS, the plaintiffs therein filed Application No.4414 of 2005to direct the respondent therein to pay damages for the use and occupation of the property by him and Application No.4416 of 2005 to direct the respondent to deposit entire sums of money collected asrent. (c) The learned Single Judge after enquiry allowed ApplicationNo.1198 of 2006 whereby the letters of administration originally issued was revoked, and there arose OSA 50 of 2008. ApplicationNos.4414 and 4416 of 2005 were actually closed since the same, in the opinion of the learned Single Judge, would arise for consideration only after the disposal of TOS No.15 of 2005 filed by the respondents. Under the circumstances, the applicants in ApplicationNos.4414 and 4416 of 2005 have brought forth OSA Nos.76 and 77 of2008 respectively. Thus three appeals are before this Court.

Admittedly, the appellant filed OP No.755 of 2002 for letters of administration on the strength of a Will dated 27.11.1995 jointly executed by Devaki Ammal and her husband Rajendran. The letters of administration on enquiry has been issued in his favour. While the matter stood thus, the respondents filed Application No.1198 of 2006only on the ground that Devaki Ammal died in the year 1996, and thereafter, the last Will was executed by Rajendran on 29.6.2000bequeathing the properties in favour of the applicants in ApplicationNo.1198 of 2006, and that was the Last Will, and this Will was not https://hcservices.ecourts.gov.in/hcservices/ brought to the notice of the Court when OP No.755/2002 was filed seeking letters of administration, and thus in view of the provisions under Sec.263 of the Indian Succession Act, the letters of Administration must be revoked.

What was all contended by the appellant in whose favour letters of administration was originally granted was that both the properties actually belonged to Devaki Ammal; that it was a jointWill; that though her husband was actually added as party to the Will, he did not have any iota of right in the properties; that on the death of Devaki Ammal in the year 1996, the Will has come into force in respect of the properties of Devaki Ammal; that even assuming Rajendran, the husband of Devaki Amma, has executed a Willon 29.6.2000, as urged by the respondents herein, he had no power to revoke the Will executed by Devaki Ammal or in respect of her properties, and under the circumstances, the respondents had nocaveatable interest to seek for revocation of the Will.

Contrarily, it is contended by the learned Counsel for the respondents that the original Will executed jointly by Devaki Ammaland Rajendran would clearly indicate that the properties belonged to them; that they also reserved the right to revoke the Willthereafter; that accordingly, the said Rajendran has revoked the earlier Will and has executed his Last Will on 29.6.2000, and hence the order of revocation of letters of administration issued by the learned Single Judge has got to be sustained.

After hearing both sides, this Court is of the considered opinion that the order of the learned Single Judge cannot be sustained for more reasons than one. Admittedly, the Will was executed by Devaki Ammal and her husband Rajendran on 27.11.1995, and thereafter Devaki Ammal died. It is contended by the appellant'sside that both the properties belonged to Devaki Ammal. At this juncture, it is pertinent to point out that at the time when the LastWill was executed on 29.6.2000 by Rajendran as urged by the respondents, the Will executed by Devaki Ammal along with her husbandRajendran in the year 1995 in favour of the appellant cannot be cancelled by Mr.Rajendran. Under the circumstances, the revocation of the letters of administration originally granted cannot beordered.

Apart from the above, now it is brought to the notice of the Court that the appellants in OSA Nos.76 and 77/2008 on the strength of the Will dated 29.6.2000 alleged to have been executed by Rajendran, have filed OP No.8 of 2004, and the same on objections raised by the appellant has been converted into a suit, and it is also now pending. All these issues whether there was an adoption of the appellant in OSA 50/2008 which was made by both the spouses, whether the properties actually belonged to Devaki Ammal exclusively as contended by the appellant's side or whether Rajendran had got power to revoke the Will or whether he is competent to execute a Willand whether there was any fraud alleged to have been committed by the appellant in obtaining letters of administration in OP No.755/2002could be actually considered and decided by way of framing necessary https://hcservices.ecourts.gov.in/hcservices/ issues and on appreciation of evidence to be adduced by the parties at the time of trial in that TOS which was originally OP No.8/2004.In such circumstances, it would be fit and proper that the letters of administration till the time cannot be revoked or put an end. ThisCourt is of the considered opinion that till the decisions are taken in TOS No.15 of 2005 where all the above issues have got to be decided, the letters of administration originally granted in favour of the appellant in OSA 50 of 2008 could be kept in force. It is also made clear that letters of administration granted in favour of the appellant will be subject to the result of the suit in TOS No.15of 2005. Both the parties are to await the result in the TOS.Accordingly, the order of the learned Single Judge in ApplicationNo.1198 of 2006 is set aside.

The other two applications namely Application Nos.4414/2005for making payment of damages towards use and occupation and Application No.4416/2005 for depositing the rental would also arise for consideration at the time of the disposal of the original suit. Hence, the order of the learned Single Judge in Application Nos.4414and 4416 of 2005 is set aside, and they are remitted back to the learned Single Judge to be taken up along with the TOS 15/2005. Inview of the circumstances, the learned Single Judge is required to dispose of the suit within a period of six months herefrom.