P B SRINIVASAN Vs. T P S VARADHAN

JUDGEMENT

(1.) THESE two original petitions have been filed by the second son and the widow of a predeceased son of one late Dr. P. B. Annangarachari under the provisions of the Indian Succession Act (XXXIX of 1925) (hereinafter referred to as the Act ). The proceedings concern the registered will of late Dr. P. B. Annangarachari which is of the date 26th april, 1973. The respondent in the two petitions is the executor appointed under the said will. O. P. No. 200 of 1979 is preferred under section 301 of the Act for the removal of the respondent as executor appointed under the will, o. P. No. 212 of of 1979 is one filed under sections 192 and 194 of the Act for a direction to the respondent to deliver to the petitioners possession of the X-Ray unit known as T. Nagar X-Rays, situate at No. 99, Usman Road, T. Nagar, madras-17, on the ground, that the respondent has no lawful title to be in possession thereof. Before the respective cases of the parties are considered on merits, it becomes necessary to set out certain events which have preceded the institution of the present proceedings. Even during the life-time of late dr. P. B. Annangarachari, the respondent seems to have been put in charge of the X-Ray unit at the premises in question. This is also evident from Exhibit p-9, copy of a letter addressed by the respondent to late Dr. P. B. Annangarachari, dated 23rd April, 1972, and copy of the reply dated 2nd october, 1972, written by late Dr. P. B. Annangarachari to the respondent. THESE two letters disclose that there was a register of dissatisfaction by the respondent with regard to the notes of instructions given by late Dr. P. B. Annangarachari over the manning of the X-Ray Unit and that was repelled by late dr. P. B. Annangarachari pointing out to the respondent that his complaint was in bad taste and ignored actual facts. On 28th April, 1973, late Dr. P. B. Annangarachari executed the will in question under the original of Exhibit P-1 (which is a photostat copy) bequeathing the properties to his second son, the first petitioner, and the widow of his pre-deceased son, the second petitioner herein. The petitioners are the beneficiaries with regard to the X-Ray unit and as stated above, the executor appointed under the said Will is the respondent.

(2.) ON 8th September, 1973, late Dr. P. B. Annangarachari gave a general power under Exhibit P-7 to Dr. S. Srinivasachari, who is his eldest son-in-law. Under this general power, Dr. S. Srinivasachari was given the power to take charge of the running of the X-Ray unit, maintain accounts expand the sections, collect moneys due and payable to the X-Ray unit and do all further acts and things necessary for the purpose of efficiently running the X-Ray unit. It was further declared that the said power is irrevocable for a period of three years from the date of its execution. Dr. S. Srinivasachari seemed to have entered into an arrangement with the respondent, permitting him to run the X-Ray unit and agreeing to certain conditions. The arrangement was agreed to be in force from 1st April, 1976 till 31st March, 1979, and the understanding was that if any of the conditions stipulated was not adhered to, the arrangement should be revoked. The arrangement was reduced to writing and the document in the handwriting of Dr. S. Srinivasachari has been marked in this case as Exhibit R-1. It does not bear the signature of either party. The contents of Exhibit R-1 run as follows: "i, T. P. S. Varadhan, residing at 44-A, Thambiah reddy Street, Madras-33, hereby agree to run the T. Nagar X-Rays in the same premises under the following terms and conditions:' 1. To take X-Rays and collect all money due to the department and run the Department efficiently. 2. To pay the proprietor Dr. P. B. A. or to his nominee or to his heirs in the event of his death, a sum of Rs. 100 (Rupees one hundred only) per day. 3. To pay into any S. B. a/c Rs. 10 (Rupees Ten only) as a reserve fund for renewal and repairs. 4. To pay the bills of purchase of films, chemicals, stationery and printing and also electricity. This agreement shall be in force from 1st April, 1976 to 31st March, 1979 and shall be revoked if any of the above conditions being not adhered to. " Two other slips in the handwriting of Dr. S. Srinivasachari are also found annexed to Exhibit R-1 and they have been marked as Exhibits R-2 and R-3. An unauthenticated copy of the Income and Expenditure account of the X-Ray unit for the year ending 31st March, 1978 has been filed, and marked in this case as Exhibit P-6. Late Dr. P. B. Annangarachari died on 26th January, 1979. After his death, troubles brewed between the parties and the correspondence that has come to be exchanged between them has been marked as Exhibits P-2 to P-5. From the said correspondence, it is clear that the respondent has chosen to claim a leasehold right over the X-Ray unit and this has precipitated the petitioners to institute the present proceedings for the reliefs set out above.

(3.) TO a question by this Court as to what are the rights of the respondent over the X-Ray unit after 31st March, 1979, his learned counsel could not give any convincing answer. It would be far-fetched to describe the arrangement under Exhibit R-1 as one of lease. Even assuming it could be characterised as an arrangement of lease of the X-Ray Unit, it came to an end with the lapse of March, 1979. How any right or obligation under it could survive and survived beyond 31st March, 1979, there is no tenable explanation. The learned counsel attempted to bring his client's claims as those of a lessee holding over within the ambit of the provisions of the Transfer of property Act. This is a patent misconception, both in law and on facts. Such is not the plea of the respondent either in his pleadings or in his evidence. It does not require further consideration. Before parting with this aspect, it must be pointed out that the oral evidence placed in this case has gone beyond the scope of the real controversy, which alone need be solved in this case. As to in what capacity or under what authority the respondent is still holding possession, his evidence at pages 126 to 128 of the transcript of evidence is interesting ; and the same is extracted hereunder ; (Extracts omitted-Ed. ).