V. Vedhachalam v. A.K. Arumuga Mudaliar

In the High Court of Judicature at MadrasDated: 16.09.2009CoramThe Honourable Mr.Justice M.CHOCKALINGAMandThe Honourable Mr.Justice R.SUBBIAHOriginal Side Appeal No.295 of 2009and M.P.No.1 of 2009V.Vedhachalam..Appellant vsA.K.Arumuga Mudaliar..RespondentOriginal Side Appeal filed under Order XXXVI Rule 9 of OriginalSide Rules read with Clause 15 of the Letters Patent, against theorder dated 24.07.2009 passed by a learned single Judge of this Courtin A.No.3200 of 2005 in O.P.No.199 of 2003.For Appellant : Mr.G.Surya NarayananFor Respondent : Mr.C.T.PrabhakarJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM,J.,)Challenge is made to an order of the learned single Judge ofthis Court made in A.No.3200 of 2005 in O.P.No.199 of 2003, wherebythe letters of administration originally granted in that originalpetition was revoked.2. The appeal came to be filed in the following circumstances:The appellant herein filed the original petition, seeking forthe grant of a Letters of administration on the basis of a Willexecuted by one Viruthambal dated 04.12.1998. The appellant cameforward alleging that Viruthambal died on 28.04.2002 and he is hersister's grand son and on her death, the said Will has come intoforce and since there is no other heir other than the appellant beingthe beneficiary under the Will after her death, the Letters ofAdministration was granted. Accordingly, proceedings were initiated.Pending the same, the respondent herein took out the instantapplication to revoke the Letters of Administration, stating that https://hcservices.ecourts.gov.in/hcservices/ Viruthambal executed two other Wills dated 13.12.1978 and also03.09.1990. It is further urged that he is related to the testatrixon husband's side and also is the brother of one BalasubramaniaMudaliar, who died on 30.08.2004. Balasubramania Mudaliar was thehusband of Yamunabai, who is none else than the daughter ofViruthambal and thus, Balasubramania Mudaliar was entitled to inherither undivided share and thus, Balasubramania Mudaliar, on the deathof Yamunabai, was entitled to 1/4th undivided share by operation oflaw, which would devolve upon him.3. The learned single Judge, after hearing the submissions madeand also looking into the relevant provisions of the Hindu SuccessionAct, in particular Section 15(2), took a view that it is a case wherean investigation has got to be made in respect of the claim made bythe respondent on the basis of two Wills and also by operation of lawand it is a fit case where the revocation has got to be ordered andaccordingly, revoked the Letters of Administration and under suchcircumstances, the appeal has arisen before this Court.4. Heard the learned counsel on either side. It is contended bythe learned counsel for the appellant that the averments made in theaffidavit filed in support of the application seeking revocation ofthe Letters of Administration by the respondent herein, wouldindicate that there were two Wills executed by Viruthambal, one on13.12.1978 and another on 03.09.1990 and thus, these two testamentscame into being anterior in point of time and the Letters ofAdministration was sought for in respect of the Will which came intoexistence later and it is not the case of the respondent thatViruthambal had not executed any Will subsequent to the Will dated04.12.1998. Added further the learned counsel that the propertyoriginally belonged to one Murugesa Mudaliar and he died intestateand the property was devolved on two persons, namely, his wifeViruthambal and his daughter Yamunabai, whose husband wasBalasubramaniam and the respondent/applicant claims that he is thehalf brother of Balasubramaniam and Yamunabai died on 19.01.2002issueless and by operation of section 15(2) of the Succession Acton the death of Yamunabai, the property would automatically come toVirudhambal, who died on 28.04.2002, who has executed the Will inquestion and that she was competent to execute the testament and insuch circumstances even by operation of law, the respondent cannotnow make any claim through his brother Balasubramaniam, the husbandof Yamunabai and hence, the order of the learned single Judge isfactually and legally erroneous and has got to be set aside. 5. The Court heard the learned counsel for the respondent andpaid its anxious consideration on the submissions made.6. It is not in controversy that the appellant herein soughtoriginally the Letters of Administration on the strength of the Willexecuted by the testatrix dated 04.12.1998 and accordingly, it was https://hcservices.ecourts.gov.in/hcservices/ also granted. While the matter stood thus, the respondent hereinmade the instant application for revocation of the same on twogrounds namely, (i) the said Viruthambal executed two Wills, one isunregistered and the other is registered dated 13.12.1978 and03.09.1990 respectively; and (ii) the respondent, being the halfbrother of Balasubramaniam, husband of Yamunabai, is entitled to theproperty by the operation of law.7. On the facts of the case, however, it is seen that therespondent is the step brother of one Balasubramaniam, who is thehusband of Yamunabai and on the death of the father of Yamunabai,namely, Murugesa Mudaliar, Yamunabai would get half share and on thedeath of Yamunabai, Balasubramaniam would get 1/4th share and byoperation of law, on the death of Balasubramaniam, his half brotherwould not be entitled to the same and hence, the Letters ofAdministration originally granted has got to be confirmed.8. Apart from the above legal position, now this Court is alsoof the considered opinion that the impugned order has got to be setaside for the following reasons; firstly, the first contention put forth by therespondent before the learned single Judge was thatVirudhambal had executed two Wills namely, 13.12.1978 and03.09.1990, one unregistered and the other registered. It ispertinent to point out that the Letters of Administration wassought for by the appellant on the strength of the Willexecuted by Virudhambal on 04.12.1998, which is subsequent inpoint of time. It is not the case of the respondent thatVirudhambal has not executed any testament subsequently,particularly the Will in question dated 04.12.1998. Undersuch circumstances, the first finding recorded by the learnedsingle Judge that it is a fit case where both the Wills havegot to be investigated does not arise for consideration atall; and secondly, the claim made by the respondent that he willbe entitled to a share in the property since the respondent isthe half brother of the husband of the deceased Yamunabai, whodied issueless, would not arise for the reasons, viz., (i) byoperation of section 15(2) of the Succession Act, he could notmake any claim; and (ii) even assuming to be so, the questionas to the title of the property cannot be decided by thisCourt while exercising testamentary jurisdiction, particularlywhen the question before this Court is as to the issue ofletters of administration on the basis of a Will and nothingmore. Under such circumstances, the above contentions cannot becountenanced both factually and legally and the order of the learnedsingle Judge has got to be set aside. https://hcservices.ecourts.gov.in/hcservices/ Accordingly the impugned order is set aside and the appeal isallowed, leaving the parties to bear their respective costs.Consequently connected M.P.is closed.Sd/Asst. Registrar/true copy/Sub Asst.RegistrarglToThe Sub-Assistant Registrar,Original Side,High Court, Madras-104.+ 1 cc to Mr.G.Surya Narayanan, Advocate, SR.47391/2009.+ 1 cc to Mr.C.T.Prabhakar, Advocate, SR.48646/2009. Judgment in O.S.A.No.295 of 2009TM (CO)A.S./30.09.2009