P M MANI Vs. P S MOHANKUMAR

JUDGEMENT

(1.) T.O.S. No. 36 of 1987 :This suit is filed for issue of a probate in respect of a Will dated 6-5-1968 executed by Madurai Muthu Mudaliar.

(2.) C.S. No. 1620 of 1993 : This suit is filed for a declaration that the plaintiffs are entitled to 1/3rd shares of the plaint schedule mentioned properties i.e. each 1/6 share, for a direction to the second defendant to furnish accounts for the management of the suit properties from 10-7-1971, for a direction to the defendants to pay mesne profits, for allotment of plaintiffs' share by dividing the suit properties into metes and bounds, and for costs.

(3.) The plaint averments in TOS 36/87 are as follows : The father of the plaintiff by name Madurai Muthu Mudaliar was ordinarily residing at No. 29 (Now 14) Subramania Mudali Street, Madras 7, and he died on 10-7-91. At the time of his death, he left behind him the following legal heirs viz. (1) Karpagam Ammal (wife); (2) P. M. Selvasigamani (son); (3) P. M. Mani (son); (4) P. M. Kamalanathan (son); (5) Puspaveni (daughter); (6) Mangalaveniammal (daughter); (7) Hamsaveni (daughter) and (8) Pankajammal (daughter). Apart from the above legal heirs, the deceased left no other surviving heirs. The mother of the deceased pre-deceased him. He executed his last Will and Testament on 6-5-1968 and registered the same at Madras on the same day. The said Will was executed by the testator in sound disposing mind in the presence of witnesses. The plaintiff was appointed as Executor in the said Will. Two sons of the deceased viz. P. M. Selvasigamani and P. M. Kamalanathan had filed an application No. 2415/82 and in the said application, the plaintiff was directed to file the original Will of the deceased. Since the original Will was misplaced and not traceable, the plaintiff filed a counter to the said application stating that the Will being a registered one, a certified copy of the same may be filed by the applicants and that the plaintiff would produce the original Will as and when it is traced. Prior to the said application, there were negotiations for an amicable settlement, but all attempts failed. Plaintiff's younger brother P.M. Kamalanathan, plaintiff's mother Karpagammal and the plaintiff's sisters Puspaveni, Mangalaveni, Hamsaveni, Pankajammal had all agreed for an amicable settlement and as an outcome of the discussion, the plaintiff's younger brother P. M. Kamalanathan had released his share in favour of the plaintiff, and the plaintiff's mother and sisters have also released their share if any in this favour, as per the release dated 3-3-83. Plaintiff's elder brother's son P. S. Mohankumar and P. S. Parameswaran have filed a suit in O.S. No. 3192/83 on the file of the IV Assistant City Civil Court, Madras. The plaintiff has come forward with the present suit after a long duration for the reasons that he was under the impression that his elder brother having filed the said application would proceed further in the matter, but he has not done so; that there is no possibility for any amicable settlement between the parties; and that because the plaintiffs in O.S. 3192/83 have falsely alleged that the property in the hands of the testator was ancestral, even though it has been specifically and categorically stated in the Will that the property in the possession of the testator was self-acquired. Hence, the delay in filing the suit may be condoned. Therefore, probate may be issued as prayed for.