- (1.)1. The case of the plaintiff is as follows: One Vijayarangam Chettiar son of Cheeyalamswami Chettiar possessed of properties and executed his last Will and testament at Madras on 6.2.1943 in the presence of witnesses and in the presence of one Elumalai Chettiar whose affidavit is filed with the O.P. for probate and the said Will was duly registered in Madras Sowcarpet Sub-Registrar's office as document No.4 of 1943. The said Vijayarangam Chettiar died on 12.2.1944. The plaintiff is the daughter of Murugesa Chettiar son of Vijayarangam Chettiar one of the legatees under the Will executed by him. The then minors defendants 1 to 3 are the children of the elder brother of the plaintiff and beneficiaries in the said Will. The deceased, at the time of his death left two properties viz., (1) house and ground bearing new door No.25 (old No.24), Mangammal Street, Peddunaickenpet, Seven Wells, George Town, Madras, and (2) Rs.3,5000 lent by him on the security of coconut gardens situate in Thiruvanmayoor Rood, Voorur Village, Saidapet Taluk, Chingleput District belonging to one Manoranjithammal and one P.Chinna Durai Pillai. Even before the execution of the said Will, the said Vijayarangam Chettiar was performing certain charities and he executed the said Will in order to make a permanent provision for the performance of the said charities set out in the Will. In the Will, the said Vijayarangam Chettiar made a provision for the performance of charities to appoint two executors viz., P.Velu Chettiar and P.Kandaswamy Chettiar to administer the properties and to perform charities and directed that the balance of the income of the properties covered by the said Will after meeting the expenses required for taxes and repairs and for the performance of the charities was to go to his daughter Rajambal who was to be in possession of the properties upto her lifetime. It is also provided in the Will that the interest and principal due on the mortgage to the estate dealt with therein was to be received by the executors and utilised for the purpose mentioned in the Will and after the death of Rajambal, the properties are to be taken by Murugesa Chettiar son of Vijayarangam Chettiar and after his life time by his descendants without power of alienation and subject to the performance of the charities. As per the recital in the Will, Rajambal had only a right to possess the properties and enjoy the income thereof after meeting the expenses mentioned in the Will till her life time. After the death of the said Vijayarangam Chettiar, the executors P.Velu Chettiar and P.Kandaswamy Chettiar took over the properties and they were administering them performing the charities and paying the said Rajambal the net income from the properties after meeting the expenses required for taxes, repairs, and performance of the said charities. After the death of the said executors, nobody was appointed as executors. The said Rajambal was in possession and enjoyment of the properties after meeting the expenses. She realised the mortgage amount of Rs.3,500 and improved the properties. She died on 27.3.1970. Murugesa Chettiar, son of the said Vijayarangam Chettiar died even during the life time of Rajambal. On the death of Rajambal, the plaintiff, and her elder brother M.Nithyanandam who is the father of minor defendants 1 to 3 became entitled to the suit property, and to possess it and to perform charities they took over the property and they were jointly possessing and enjoying it by collecting the rents and profits and enjoying the net income after meeting the expenses required for repairs, taxes and charities. The plaintiff is living in a portion of the property from her birth and the remaining portion is being occupied by tenants. The plaintiff learnt that on 1.10.1973, without her knowledge and consent and without any right, necessity or occasion to to so, her elder brother Nithyanandam executed a sale deed in favour of defendants 4 and 5 in respect of the suit property for a sale consideration of Rs.40,000. He had no right to execute the said sale deed and that the sale deed is void ab initio and it confers no title on defendants 4 and 5 being opposed to the terms of the Will. The plaintiff also filed O.S.No.9183 of 1975 pending on the file of the XIV Assistant City Civil Judge, Madras for a decree against the said Nithyanandam and defendants 4 and 5 declaring that the sale deed dated 1.10.1973 is invalid and for possession of the property and for mesne profits. Pending the said suit, Nithyanandam died on 27.8.1981 leaving him surviving the then minor defendants 1 to 3 and his widow Kamakshi who were brought on record in that suit as his legal representatives. The document executed by Vijayarangam Chettiar was all along regarded as a religious trust deed, even though it is styled as a Will because it contains provisions for performance of charities. Defendants in that suit also did not question the marking of the Will. That suit was decreed ex parte and ex parte decree has been set aside on 24.8.1982. So, the question as to whether the said suit is maintainable without the Will being probated or Letters of Administration being obtained would again be racked up in the course of the trial of that suit. In order to avoid dispute, the plaintiff has now been advised by way of abundant caution to obtain Letters of Administration in respect of the deed dated 5.2.1943 executed by the deceased Vijayarangam Chettiar. The necessity of letters of administration arose now only. Hence the delay in filing the O.P. Which is neither wilful nor wanton. The plaintiff has not made any application for letters of administration of the property of the deceased to any District Court or any other High Court for probate of any Will of the deceased. The original Will is not available with the plaintiff and it is in possession of defendants 4 and 5 the purchasers of the property from Nithyanandam, the same having been handed over to them by the seller along with the title deeds relating to the property. Hence, the registration copy of the said Will is produced. The petition is filed for grant of letters of administration in favour of the plaintiff.
(2.)DEFENDANTS 4 and 5 filed written statement contending as follows: These defendants were served with a xerox copy of the certified copy of the Will dated 6.2.1943. The plaintiff has not been bequeathed anything and she is not entitled to any property. The plaintiff is neither beneficiary nor legatee under the Will. Under the provisions of Part IX of the Act, probate can be granted only to the executor appointed under a Will. The executors appointed under the Will are not there. The Will also clearly prescribed the line of succession of executors in the event of the death or relinquishment by them or their successors. There is no explanation whether the executors probated the alleged Will or not. The plaintiff has no locus standi to apply for letters of administration. Sec.237 of the Act provides for probate of the copy of a lost Will. There is no corresponding provision for the grant of letters of administration with respect to the copy of lost Will. The application by the plaintiff for the grant of letters of administration with registration copy of the alleged Will does not disclose the provisions of law under which such relief is claimed. The alleged Will refers to an earlier Will by the testator dated 2.3.1939 and specifically revokes the same. Nithyanandam the brother of the plaintiff had in fact executed three simple mortgages over the suit property viz. (1) on 14.7.69 for Rs.3,000 in favour of one Amirthavalli Ammal (2) on 10.9.1969 for Rs.4,000 and (3) on 8.4.1970 for Rs.2,000. The negotiations of Nithyanandam for the sale of the suit property was with a view to salvage and save what he could and in the process of arriving at a deal of sale of the same with these defendants. In the title deeds given, there was no document or Will dated 2.6.1943 executed by the late Vijayarangam Chettiar as now alleged by the plaintiff. The mortgagee Amirthammal advanced a total sum of Rs.9,000 on the security of the property. The title deeds were examined by advocate and then the defendants purchased the property. The defendants paid the mortgage dues to the mortgagee Amirthavalli Ammal at the request and on behalf of Nithyanandam the sum of Rs.11,200 in full as recited in the sale deed and took delivery of all the title deeds relating to the suit property from her getting subrogated to all her rights according to law. The said Nithyanandam on the same date purchased the house ground and premises in Royapuram in the same registration office for a sum of Rs.19,000 in the name of his wife Kamakshi Ammal and the said consideration amount representing what he could salvage and save by the sale of the suit property to these defendants. The said Nithyanandam and his wife Kamakshi Ammal sold away the Royapuram property for a consideration of Rs.24,000. The plaintiff took a hostile attitude and instituted O.S.No.9183 of 1975. These defendants, after purchase, are the full and absolute owners of the suit property and the plaintiff is not entitled to letters of administration.
Defendants 4 and 5 filed additional written statement contending as follows: A Hindu testator is not allowed to tie up his property indefinitely or in perpetuity so as to prevent its devolution in accordance with law. Accordingly where there is no intention to dispose of the estate itself but to give only the profits for the benefit of man's descendants in perpetuity, the bequest is invalid even though coupled with a religious or charitable service. The property which is thus undisposed of devolves upon his heirs as on intestacy. So, on the facts and in the circumstances of the instant case, the deceased Vijayarangam Chettiar must in law be deemed to have died intestate inspite of the alleged Will. As such, the suit property, on his death on 12.2.1944, had devolved upon his only son Murugesa Chettiar by inheritance. On the death of Murugesa Chettiar on 26.6.1946, the suit property devolved upon his only son Nithyanandam by survivorship. The plaintiff has no right, title or interest upon the estate of the deceased Vijayarangam Chettiar and she has no right to ask for grant of letters of administration.

Defendants 1 and 2 filed written statement contending as follows: The suit property originally belonged to their paternal great grandfather Vijayarangam Chettiar on whose death, the suit property devolved by survivorship on his son Murugesa Chettiar the only coparcencer of the Hindu joint family constituted by Vijayarangam Chettiar and Murugesa Chettiar at the time of death of Vijayarangam Chettiar. During the life time of Murugesa Chettiar, the suit property was owned, possessed and enjoyed by Murugesa Chettiar and his son Nithyanandam the then co parcencers of the said Hindu joint family. On the death of Murugesa Chettiar in 1946, the suit property devolved by survivorship upon his son Nithyanandam, the other coparcencer of the said Hindu joint family. From the date of the death of the said Murugesa Chettiar, the head of the Hindu joint family, Nithyanandam, father of defendants 1 to 3 was possessing and enjoying the suit property. The second defendant was born on 24.9.1973 in the said Hindu joint family as son of the said Nithyanandam. Hence, on the birth of the second defendant, the number of coparceners of the said Hindu joint family has increased to two and as such the suit property had devolved by survivorship upon Nithyanandam (father) and the second defendant Srinivasan (son). The said Nithyanandam as head and Kartha of the said Hindu joint family was managing the suit property. The second defendant by birth in the said Hindu joint family became entitled to half share in the suit property. The father of defendants 1 to 3 Nithyanandam seems to have sold the entire suit property to defendants 4 and 5 on 1.10.1973 suppressing the fact that the property is a coparcenary property being owned and possessed by the Hindu joint family constituted by himself and the second defendant. Nithyanandam did not obtain permission from competent court for selling the second defendant's (the then minor) undivided half share in the suit property. The second defendant and his undivided half share in the suit property are not bound by the sale of the suit property by Nithyanandam in favour of defendants 4 and 5. Defendants 1 and 3 were born on 15.5.1974 and 2.3.1977 and they are also coparceners of the said Hindu joint family within the meaning of the Hindu Succession (Amendment) Act, 1989 and are entitled to their legal shares in the suit property. The defendants claim with respects to the suit property is subject to proof of the said Will alleged to have been executed by late Vijayarangam Chettiar. The plaintiff has got no right either under the Will in respect of which letters of administration is sought for or under the general law as Murugesa Chettiar died before the advent of the Act 30 of 1956.

On the above pleadings, the following issues were framed for trial:

"Is the suit not maintainable for the reasons spelt out in paragraphs 3 to 6 of the written statement of the defendants".

"Is document dated 6.2.1943 a registration copy of which alone is produced by the plaintiff the last Will and testament of C.Vijayarangam Chettiar".
If the answer on issue No.2 in favour of the plaintiff, is the subject property No.25, Mangammal Street, Seven Wells, Madras-1 bequeathed to Murugesa Chettiar absolutely and succeeded to by Nithyanandam the brother of the plaintiff as his heir absolutely on his death intestate on 20.6.1946.
"Is the plaintiff entitled to the grant of letters of administration as prayed for by her".
Is the suit liable to be dismissed directing the plaintiff to pay to these defendants exemplary costs.
"To what reliefs the parties are entitled".

Issues: One Vijayarangam Chettiar son of Cheeyalamswami Chettiar possessed of properties and executed a Will dated 6.2.1943 in the presence of witnesses and it was registered. He died on 12.2.1944 and after his death, the Will came into effect. He had one son and two daughters viz., Murugesa Chettiar, Rajambal and Parvathy. Rajambal and Parvathy are no more and there are no heirs to them. The plaintiff is the daughter of Murugesa Chettiar son of Vijayarangam Chettiar who was one of the legatees in the Will. Nithyanandam is the brother of the plaintiff and son of Murugesa Chettiar. He is also no more now. Defendants 1 to 3 are children of the said Nithyanandam the elder brother of the plaintiff and who are the beneficiaries in the said Will.

(3.)UNDER the Will Ex.P-1, one Velu Chettiar and one Kandasami Chettiar were appointed as executors to administer the property and perform charities as per the provision made in the Will and directed that the balance income from the properties covered by the said Will, after meeting the expenses required for taxes and repairs and for performance of charities, was to go to his daughter Rajambal who was to be in possession of the properties upto her life time. The document also provides that the interest and principal due on the mortgage to the estate dealt with therein was to be received by the executors and utilised for the purpose mentioned in the Will. The Will further provides that after the death of Rajambal, the properties are to be taken by Murugesa Chettiar son of Vijayarangam Chettiar and after his life time by his descendants without power of alienation and subject to the performance of the charities. UNDER the Will, the said Rajambal had only a right to possess the properties and enjoy the income thereof after meeting the expenses specifically mentioned therein.
The plaintiff contends that the said Vijayarangam Chettiar was in possession and enjoyment of the properties and performing the charities till his life time and after his death, the two executors Velu Chettiar and Kandasami Chettiar took over the properties and they were administering them and performing charities and they were paying the said Rajambal the net income and after the death of the executors, nobody was appointed as executors and the said Rajambal got into possession and she was enjoying the income after meeting the expenses and she also realised the mortgage amount of Rs.3,500 mentioned in the Will and improved the suit property and even during the life time of Rajambal Murugesa Chettiar's son and daughter Nithyanandam and the plaintiff became entitled to the property and to possess it and to perform charities they also took over joint possession and they were enjoying the rent and profit and the plaintiff was also living in a portion of the property from her birth. But, here brother Nithyanandam who had no right to execute the sale deed, sold the properties to defendants 2 to 5 and the sale deed is void ab initio to the terms of the Will and hence, the plaintiff has come forward with this suit for grant of letters of administration. The plaintiff further contends that the Will provides for performing charities and alienation is completely prohibited and having regard to the provision of performance of charities contained in the Will, it is a religious trust deed even though it is styled as a Will and the trust must be performed as per the direction in the Will and the descendants of Vijayarangam Chettiar had no right to alienate the property and so, the alienation is invalid and so, the plaintiff is entitled to letters of administration.

Defendants 1 to 3 contend that the defendants are the coparceners in respect of the properties since it is a Hindu joint family property and after the death of Vijayarangam Chettiar in the year 1944, the suit property devolved by survivorship upon Murugesa Chettiar the only coparcencer of the Hindu joint family and on the death of Murugesa Chettiar, the same devolved by survivorship upon Nithyanandam the other coparcencer of the Hindu joint family and he was in possession and enjoyment of the suit property and Nithyanandam had no right to sell the entire property and it is a coparcenary property and the second defendant was born on 24.9.1973 in the said Hindu joint family and the suit property devolved by survivorship upon Nithyanandam the father and the second defendant the son and the second defendant by birth is entitled to half share in the suit property and defendant 1 and 3 were born on 15.5.1974 and 2.3.1977 and they are also coparceners of the Hindu joint family and they are also entitled to their legal shares in the suit property and the plaintiff has no right under the Will to seek for letters of administration.