Judgment : 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 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-Registrars office as document No.4 of 1943. The said Vijayarangam Chettiar died on 12. 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 23. 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 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 10. 1973 is invalid and for possession of the property and for mesne profits. Pending the said suit, Nithyanandam died on 28. 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 10. 1973 is invalid and for possession of the property and for mesne profits. Pending the said suit, Nithyanandam died on 28. 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 28. 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 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 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. 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 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 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 17. 69 for Rs.3,000 in favour of one Amirthavalli Ammal (2) on 9. 1969 for Rs.4,000 and (3) on 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 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. In the title deeds given, there was no document or Will dated 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. 3. 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 mans 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. 1944, had devolved upon his only son Murugesa Chettiar by inheritance. On the death of Murugesa Chettiar on 26. 1946, the suit property devolved upon his only son Nithyanandam by survivorship. As such, the suit property, on his death on 12. 1944, had devolved upon his only son Murugesa Chettiar by inheritance. On the death of Murugesa Chettiar on 26. 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. 4. 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 29. 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 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 defendants (the then minor) undivided half share in the suit property. 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 defendants (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. 1974 and 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. 5. Onthe above pleadings, the following issues were framed for trial: .(i) Is the suit not maintainable for the reasons spelt out in paragraphs 3 to 6 of the written statement of the defendants. .(ii) Is document dated 2. 1943 a registration copy of which alone is produced by the plaintiff the last Will and testament of C.Vijayarangam Chettiar. (iii) 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. .(iv) Is the plaintiff entitled to the grant of letters of administration as prayed for by her. .(v) Is the suit liable to be dismissed directing the plaintiff to pay to these defendants exemplary costs. .(vi) To what reliefs the parties are entitled. 6. Issues: One Vijayarangam Chettiar son of Cheeyalamswami Chettiar possessed of properties and executed a Will dated 2. 1943 in the presence of witnesses and it was registered. He died on 12. 1944 and after his death, the Will came into effect. He had one son and two daughters viz., Murugesa Chettiar, Rajambal and Parvathy. 6. Issues: One Vijayarangam Chettiar son of Cheeyalamswami Chettiar possessed of properties and executed a Will dated 2. 1943 in the presence of witnesses and it was registered. He died on 12. 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. 7. 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. 8. 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. 8. 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 Chettiars 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. 9. 9. 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 29. 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. 1974 and 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. 10. Defendants 4 and 5 contend that Nithyanandam had every right to deal with the property and he created three mortgages in favour of one Amirthavalli Ammal and to safeguard the property, he sold the suit property and thus the defendants paid the mortgage amount to the mortgagee Amirthavalli Ammal and so, the sale deeds are valid and the plaintiff is not entitled to letters of administration. They further contend that 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 and accordingly where there is no intention to dispose of the estate itself but to give only the profits for the benefit of mans descendants in perpetuity, the bequest is invalid even though coupled with a religious or charitable service and the property which is undisposed of devolves upon his heirs as on intestacy and so, Vijayarangam Chettiar must be deemed to have died intestate inspite of the alleged Will and on the death of Murugesa Chettiar intestate in 1946, the suit property devolved only upon his son Nithyanandam by survivorship and the plaintiff is not entitled to ask for letters of administration. 11. 11. The entire crux of the matter lies on the tenure of the document Ex.P-1 Will. Ex.P-1 is not the original Will. It is only the registration copy of the Will. The recital in Ex.P-1 is that “Out of income from the properties described hereunder, the aforesaid executors shall, after my life time, pay the taxes, etc., and meet the repair expenses; and out of the remainder, shall pay Rs.5.00 (Rupees five) month after month for the daily pooja and offering to Lord Sundara Vinayagamurthy known as Vellai Pillaiyar, established in Gills Street, Muthyalpet, Madras; Rs.5 (Rupees five) month after the month for the daily pooja and offering to Sri Valli Deivayanai Sametha Subramania Swamy, in the temple known as Vaniga Vysia Subramaniyar temple in Chinna Bazaar Road, Madras; Rs.4.00 (Rupees four) month after month to my younger daughter Parvathy Ammal, wife of P.Velu Chettiar aforesaid, till her life time; feeding to 200 (two hundred) poor people during the Vedarpavi Utsavam, conducted once in a year in Tirupporur Sannidhanam,” Chingleput District, in the Vaniga Vysia choultry in the aforesaid place; spend Rs.20.00 (Rupees twenty) for poor feeding during the Vasantha Utsavam conducted once in a year in Thiruvottiyur Sannidhanam, Chingleput District; pay Rs.5.00 (Rupees five) for the Abishekam and Alankaram during the Panguni Utsavam, conducted once in a year in Sri Sivakami Sundari Sametha Seeyala Sundaranathar Sannidhi, in Sittancheri Village, aforesaid taluk, Chingleput District; thus, after meeting the expenses for these charities, the amount that remains, shall be enjoyed by my eldest daughter, Smt.Rajambal Ammal, till her lifetime. After her life time, my son, Chiranjeevi. Murugesa Chettiar and his heirs, shall enjoy the same from “generation to generation. The aforesaid charities shall be done permanently and forever. No one shall have the right to create any encumbrance, such as mortgage, sale or alienation in any manner, over the properties, mentioned in this Will. From out of the income from these properties, the above mentioned charitable deeds shall be done suitably. My eldest daughter, Rajambal Ammal, shall have the power to collect the amount under the mortgage due to me, and to receive the interest every month, shown as item 2 hereunder. After her life time, my son Chiranjeevi Murugesa Chettiar, shall have the right. My eldest daughter, Rajambal Ammal, shall have the power to collect the amount under the mortgage due to me, and to receive the interest every month, shown as item 2 hereunder. After her life time, my son Chiranjeevi Murugesa Chettiar, shall have the right. After the aforesaid mortgage amount is collected, my eldest daughter and my son, without” spending that amount, shall advance the same on the mortgage of other immoveable property and shall act according to the terms and conditions mentioned herein, with the income therefrom, or shall purchase a suitable immovable property with that available amount, and include with my properties, and utilise income therefrom, as mentioned above. In case, there were to be no heirs to me to do the charities mentioned herein and enjoy the remaining amount, the executors, appointed by me under this Will and detailed hereunder and those, who may act as executors hereafter, shall do. They shall carry out the daily pooja and offerings to Sri Sundaramurthy Vinayagar known as Vellai Pillaiyar, aforesaid, in Gills Street, Madras, and for the Brahmotsava Kainkaryam; the daily pooja and offering to Sri Valli Deivayanai Sametha Sri Subrahmanya Swami known as Vaniga-Vaisyar temple, in Chinna Bazaar Road, Madras; feeding to the “200 poor people during the Vedarpari Utsavam in the Tirupporur Sannidhanam, Chingleput District, during the Brahmotsavam in the Vaniga-Vysya choultry in the aforesaid place and provide food to the Vanigavysias with courtesy, who visit for worship in the afore said Utsavam; pay Rs.5.00 (Rupees five) for the Abishekam and Alankaram to Sri Sivakami Sundari Sametha Sri Seeyala Nathar temple in Sittancheri during Panguni month Utsavam; and spend Rs.20.00 (Rupees twenty) for feeding the poor during Vasantha Utsavam, celebrated once in a year in Tiruvottriyur Sannidhi, Chingleput District. All these charities shall be carried out according to the income. All these charities shall be done permanently and forever. Those who perform these charities shall be blessed with virtuousness.” 12. The recital in Ex.-P1 Will establishes that the legatees and the beneficiaries under that Will are to perform charities and they must meet the expenses as mentioned therein and they Will have to enjoy the balance income from the property. So, doing of charities is must as per the recital in the Will. 13. The recital in Ex.-P1 Will establishes that the legatees and the beneficiaries under that Will are to perform charities and they must meet the expenses as mentioned therein and they Will have to enjoy the balance income from the property. So, doing of charities is must as per the recital in the Will. 13. Learned counsel for the defendants submitted that original Will is not produced and only registration copy of the Will Ex.P-1 is produced and production of original Will is a must and as the original Will is not produced, it cannot be considered that Ex.P-1 is the last Will and testament of the testator and basing upon the registration copy of the Will Ex.P-1, letters of administration cannot be granted. 14. The plaintiff alleged in the plaint that she has learnt that the original Will was given by her brother Nithyanandam to the alienees defendants 4 and 5 at the time of sale of the property by him. The plaintiff as P.W.1 has spoken in her evidence that she filed Application No.3017 of 1993 calling upon defendants 5 and 6 to produce the document executed by her grandfather, but, they did not produce the original document and hence, they filed an affidavit stating that original of that document is not with them and she had gone through the original of Ex.P-1 and her aunt Rajambal had shown her the original of Ex.P-1 and she had gone through it. So, the evidence of P.W.1 is that she took steps for production of the original from the parties who are in possession and as the original is not filed by the parties, registration copy of Ex.P-1 is filed and it can be admitted and basing upon Ex.P-1, letters of administration can be granted. 15. It is borne out by the evidence that the plaintiff took steps calling upon defendants 5 and 6 to produce the original Will by filing Application No.3017 of 1993, but that original Will has not been produced by them. So, adverse inference has to be drawn since the plaintiff had taken steps for production of the original Will and as the parties who are in possession of the same did not produce the original Will and the plaintiff was not able to produce the original Will and accordingly the registration copy of Ex.P-1 is admissible in evidence as secondary evidence. 16. 16. In Irudayam Ammal v. Salayath Mary , (1972)2 MLJ. 508 : A.I.R. 1973 Mad. 421, a Division Bench of this Court has held that in case of non-production of material document by party, adverse inference must be drawn. The Supreme Court has held in Gopal Krishnaji v. Mohd. Haji Latif, A.I.R. 1968 S.C. 1413, that when a party in possession of best evidence which would throw light on the issue in controversy withholding it, the court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie and him. Registration copy of the document is a prima facie evidence of its execution in the absence of any other evidence. In the instant case, the plaintiff has taken steps by calling upon the parties to produce the Will and the original was not produced inspite of such notice and so, adverse inference has to be drawn and the non-production of the original document is not a big matter so as to affect the case of the plaintiff since registration copy of the Will is admissible in evidence as secondary evidence as the primary evidence could not be produced. So, I find that the non production of the original Will is not a material defect and the registration copy Ex.P-1 can be acted upon and the plaintiff can base here claim on the registration copy Ex.P-1. 17. Sec.213 of the Indian Succession Act deals with the right as executor of legatee when established. It reads thus: “No right as executor or legatee can be established in any Court of Justice, unless a court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.” Sec.213 provides that letters of administration can be provided on the original Will or with an authenticated copy of the Will. Registration copy of the Will is an authenticated copy of the Will. As the plaintiff has taken steps for production of primary evidence and has produced the secondary evidence by filing registration copy of the Will which in an authenticate document and as per Sec.213 of the Indian Succession Act, the plaintiff is entitled to ask for grant of letters of administration basing upon the registration copy of the Will. As the plaintiff has taken steps for production of primary evidence and has produced the secondary evidence by filing registration copy of the Will which in an authenticate document and as per Sec.213 of the Indian Succession Act, the plaintiff is entitled to ask for grant of letters of administration basing upon the registration copy of the Will. So, the suit is maintainable even though original of the Will is not filed and the plaintiff is entitled to seek her remedy by filing registration copy of the Will Ex.P-1. 18. Ex.P-1 is the registration copy of the Will executed by Vijayarangam Chettiar. The subject Will is a registered document. The plaintiff alleged that the attestors to that document are no more and none of the executors are alive now and her junior maternal uncle has filed an affidavit stating that he had seen the execution of the document by her grandfather and he is also no more and he died in 1989 after filing of the suit. She is conversant with the terms and conditions of the document Ex.P- 1. She further states that her aunt Rajambal told her about the existence of the Will and she was six years old at the time of death of Vijayarangam Chettiar. She further states that Rajambal brought up her from her childhood and Rajambal was directed to perform some charities and directed to pay Rs.4 to effect repairs. She further states that she had also seen and read the original Will and she could not produce the original Will as she is not having the same. The executors are also no more. The Will was executed in 1943. So, none of the witnesses connected with the execution and attestation of the Will is available now to speak with regard to the due execution and attestation. 19. The plaintiff examined P.W.2 the Sub-Registrar, Sowcarpet, Madras. He brought book No.3, volume 5 and the thumb impression register in respect of the subject Will. He has spoken with regard to the record available and he has stated that the book which he brought contains the Will executed by Vijayarangam Chettiar on 2. 1943 and it was registered on 2. 1943. P.W.2 also brought the thumb impression register which shows the thumb impression of Vijayarangam Chettiar. He has spoken in his evidence that Ex.P-1 registration copy of the Will was granted by their office. 1943 and it was registered on 2. 1943. P.W.2 also brought the thumb impression register which shows the thumb impression of Vijayarangam Chettiar. He has spoken in his evidence that Ex.P-1 registration copy of the Will was granted by their office. He specifically states that on a perusal of the thumb impression in the register, it is seen that the thumb impression is of Vijayarangam Chettiar. Ex.P-40 has been attested by the Sub Registrar himself. So, the evidence of P.W.2 proves that the original of Ex.P-1 was registered and the thumb impression of Vijayarangam Chettiar is available in the office register. 20. The persons who are connected with the execution and attestation of the document Ex.P-1 is not alive and available now to speak about the valid execution and attestation of Ex.P-1 such an ancient document. Ex.P-1 Will is a registered one. One Elumalai who knows about the Will has filed an affidavit, but during the pendency of the suit, he too died. Simply because none of the witnesses is available to speak about the due execution of the Will which is a registered one, it cannot be brushed aside. In Indu Bala v. Manindra Chandra, A.I.R. 1982 S.C. 133 it has been held that: “The mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Sec.63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testators mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testators mind was not free. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testators mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testators mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will” might be unnatural and might cut off wholly or in part near relations. Any and every circumstance is not a ‘suspicious’ circumstance. A circumstance would be ‘suspicious’ when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.“ In Jaswant Kaur v. Amrit Kaur , A.I.R. 1977 S.C. 74 it has been held that: ”In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the courts conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will “is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will.” 21. Sec.69 of the Evidence Act provides with regard to proving of the Will by examination of atleast one of the witnesses. In the instant case, none of the witness is available to speak with regard to the due execution of the Will. Sec.69 of the Evidence Act provides with regard to proving of the Will by examination of atleast one of the witnesses. In the instant case, none of the witness is available to speak with regard to the due execution of the Will. Only with regard to the registration copy of the Will, P.W.2 has been examined who speaks with regard to Ex.P-1 and also the thumb impression of the testator available in the register of their office. By long lapse of time, the witnesses connected with the suit document were not able to be examined. Since it is a registered document and it is also of the year 1943, non examination of the attestors to the Will Ex.P-1 Will not make it invalid unless it has been proved by acceptable evidence that the Will Ex.P-1 is surrounded by suspicious circumstances. No such evidence is available in this case with regard to any suspicious circumstances surrounding the Will. The testator of the Will has clearly provided for the descendants of his only son Murugesa Chettiar under that Will, after the death of the life estate-holder Rajambal. In the absence of any suspicious circumstances surrounding the Will, it can be safely concluded that Ex.P-1 was validly executed and it was registered. The life estate-holder was enjoying the properties and after her, the son of Murugesa Chettiar viz. Nithyanandam had taken possession of the property and disposed of the same. So, it can be safely concluded that the original of Ex.P-1 is a true and valid document. 22. As per the recital in the document Ex.P-1, the charities mentioned therein are to be done and after the lifetime of the life estate holder, the daughter of the testator Vijayarangam Chettiar, his only son Murugesa Chettiar shall have right over the property and the mortgage amount and it should be spent as recited therein by purchasing immovable property and after the death of Murugesa Chettiar, his descendants shall enjoy the same from generation to generation without power of alienation as per the recital in Ex.P-1. 23. Learned counsel for the defendants submitted that as per the law existing then, only male heirs were entitled to take the property and so, Nithyanandam alone had the right to enjoy the property and the daughter the plaintiff is not entitled to any right over the property and she is not entitled to letters of administration. 24. 23. Learned counsel for the defendants submitted that as per the law existing then, only male heirs were entitled to take the property and so, Nithyanandam alone had the right to enjoy the property and the daughter the plaintiff is not entitled to any right over the property and she is not entitled to letters of administration. 24. Learned counsel for the plaintiff submitted that the word ‘santhathi’ includes female heirs also and it denotes both male and female members and since the word ‘santhathi’ refers to descendant, both male and female heirs of Murugesa Chettiar are entitled to have right over the property and so, the plaintiff is entitled to her right over the property and she is entitled to letters of administration. 25. The Supreme Court has held in G.Appaswami Chettiar v. Sarangapani Chettiar G.Appaswami Chettiar v. Sarangapani Chettiar G.Appaswami Chettiar v. Sarangapani Chettiar , 91 L.W. 141, that the words “putra pouthra santhathies” would indicate son, grandson and descendants and it includes the adopted son also and the word ‘santhathi’ indicates both male and female heirs. In Sundararamier, K.M.S.L. v. K.V.Sarojini Sundararamier, K.M.S.L. v. K.V.Sarojini Sundararamier, K.M.S.L. v. K.V.Sarojini , 97 L.W. 169, it has been held that: “the words” Jeshta varisu “ and” santhathi paramparaiyaga “ used in the deed of trust executed in 1919 would indicate only the eldest male heir of the executant or female heirs as well and what when in 1919, a Hindu governed by Mitakshara law spoke of ‘varisu’ and ‘santhathi’ one can naturally infer that he would have had in in his mind only such persons who would be entitled in law to succeed to his property and who would be in a position to transmit the interest in the property to his heirs. When such a person stated that the trusteeship should” devolve on his it could be presumed that the words ‘jeshta varisu’ and ‘santhathi’ were used in a restricted sense meaning only male heirs. Under the circumstances then prevailing and under the ordinary notion of persons governed by Mitakshara Law, the son, the grandson and the great grandson were considered to be the legal heirs and competent to perform the oblations of a deceased Hindu. The females succeeded to the property of a male only in the absence of a male heir and they in turn took only a limited estate. The females succeeded to the property of a male only in the absence of a male heir and they in turn took only a limited estate. That being the case, it would be natural to presume that the executants of the trust deed would have thought of only the male line while prescribing the devolution of the office of trustee. This should be particularly so because they were making an endowment for the performance of the worship in “Krishnan Koil, the deity being brought to the family coconut tope and special pooja being performed. In the light of this provision one can naturally expect that a devout Hindu should have thought that the pooja should be performed by the eldest male member of the family. It is a matter of common knowledge that among Hindu families, particularly joint families, when religious ceremonies are performed, the eldest male member of the family is given importance.” 26. Generally speaking, “Santhathi” means descendants which includes both male and female heirs. The document Ex.P-1 was executed in the year 1943. As per the principles laid down by the Division Bench of this Court in Sundararamiers case, 97 L.W. 169, the law governing at the time of execution of the Will in the year 1943 has to prevail and if a person who has to succeed to his properties, it would refer only to male heirs and it can be inferred that the testator had the mind only to give to his male heirs because of the then existing law in the year 1943. But, in the instant case, the document Ex.P-1 does not relate to succeed to the estate of the testator. Certain provisions have been made in the Will Ex.P-1 with regard to performance of charities and only balance amount has to be taken by the descendants of the testator. On going through the recital in the Will Ex.P-1, it can be safely concluded that the testator had the intention and mind to provide for his daughter to have right over the property upto her life time and then only to give to his son Murugesa Chettiar for himself and for his descendants without any power of alienation to conduct the trust and to enjoy the remaining income. The testator had provided for enjoyment of the remaining income after carrying out charities by his son Murugesa Chettiar and then his descendants. The testator had provided for enjoyment of the remaining income after carrying out charities by his son Murugesa Chettiar and then his descendants. So, the document clearly proves that after performing the charities, the balance amount has to be taken by murugesa Chettiar and his descendants for their enjoyment. There is no succession to the properties to take it absolutely. Only after doing the charities, remaining income has to be taken by the descendants of Murugesa Chettiar. Only a right of enjoyment of the remaining income is given under the Will. No absolute right is given to the descendants of Murugesa Chettiar. Since provision is made under the Will for doing charities and as Trust has been created and as right is given to the legatees only for enjoyment of the remaining income after performing the charities, it cannot be stated that only male members should inherit the property as per the then existing law that was prevailing at the time of the Will. Life estate was given to Rajambal, daughter of Vijayarangam Chettiar to enjoy the income till her life time after doing the charities. So, the intention of the testator is to do charities and take the remaining income for their personal enjoyment. Life estate was given to the female legatee under the Will Ex.P-1. So, it is well evident from the recital of the Will Ex.P-1 that the testator had the intention to give even to the female legatees income for their life time and only with that intention, he created the life estate in favour of his daughter Rajambal to enjoy the net income after doing the charities till her life time. So, it is well evident from the intention of the testator expressed in the Will that he had the intention to give right to female legatees to enjoy the income till their lifetime. 27. Under Ex.P-1 Will the legatees beneficiaries are prevented from alienating or encumbering the property. So, the intention was to keep the property in tact and to do charities as recited in Ex.P-1 and enjoy only the remaining income by the descendants of Murugesa Chettiar after his life time. 27. Under Ex.P-1 Will the legatees beneficiaries are prevented from alienating or encumbering the property. So, the intention was to keep the property in tact and to do charities as recited in Ex.P-1 and enjoy only the remaining income by the descendants of Murugesa Chettiar after his life time. Since such a provision for enjoying the income alone after doing charities by the legatees beneficiaries is made, by applying the law prevailing at the time of execution of Ex.P-1, it cannot be stated that only male heirs are entitled to inherit the property and not the female heirs. The question of inheritance does not arise in this case since only aright to enjoy the property after doing the charities is given to the legatees/beneficiaries under the Will. Even as per the law prevailing at the time of execution of Ex.P-1, women were entitled to ask for maintenance till their life time and the female heirs were entitled to the right of maintenance till their life time. The female heir of Vijayarangam chettiar Rajambal was given such a right i.e., life estate till her life time. So, the crux of the matter lies on the document. As per that document, the legatees beneficiaries have the right only to enjoy the properties after doing charities. Doing charities is a must as provided under the Will and only after doing the charities and meeting other expenses mentioned therein, the descendants of Murugesa Chettiar have the right to enjoy the remaining income. So, only with the intention of giving the remaining income after doing charities to enjoy it for their lifetime without power of alienation by the descendants of Murugesa Chettiar the testator has executed the Will Ex.P-1. So, the word “Santhathi” mentioned in Ex.P-1 refers to both male and female descendants. If there is no provision in the Will for doing charities and absolute right is given to the legalees or beneficiaries, then of course, it can be contended that as per the then existing law, only male heirs are entitled to take the property. The case on hand is not like that. As per the recital of the document Ex.P-1, the legatee beneficiary must perform charities as recited therein i.e., doing poojas, feeding poor people, etc., and also after meeting other expenses, remaining income has to be taken by the legatees beneficiaries. The case on hand is not like that. As per the recital of the document Ex.P-1, the legatee beneficiary must perform charities as recited therein i.e., doing poojas, feeding poor people, etc., and also after meeting other expenses, remaining income has to be taken by the legatees beneficiaries. So, the descendants of Murugesa Chettiar were given only a right to enjoy the remaining income after doing the charities. So, both the male and female descendants of Murugesa Chettiar have got right in the remaining income after doing charities as mentioned in Ex.P-1. So, the plaintiff being daughter of Murugesa Chettiar is also entitled to the remaining income along with her brother Nithyanandam after doing the charities and the plaintiff is entitled to maintain the suit. 28. Counsel for the defendants submitted that the recital in Ex.P-1 is against the rule of perpetutity and a perpetual prohibition and creating such a right to be taken by the descendants indefinitely cannot be made in a document and the recital in the document Ex.P-1 against the rule of perpetuity and perpetual disability cannot be done prohibiting the descendants from alienating or taking absolute right and the document Ex.P-1 suffers from the said infirmity and Ex.P-1 is not valid on this ground also. 29. Of course, perpetual disability cannot be created in a document. Only when without creating any charge and the entire right under the property is given and permanent prohibition is given from inheriting the property and document was to the effect that only descendants have to take the property without power of alienation, then permanent disability arises and the rule of perpetuity applies. In the instant case, charities to be done is provided in the document Ex.P-1 and only the balance amount has to be taken by the descendants. Since charities to be done are provided, the legatees beneficiaries are entitled only to the remaining income. The rule of perpetuity Will not arise and Ex.P-1 is a valid document and male and female descendants of Murugesa Chettiar are entitled to enjoy the remaining income after doing the charities. 30. Since charities to be done are provided, the legatees beneficiaries are entitled only to the remaining income. The rule of perpetuity Will not arise and Ex.P-1 is a valid document and male and female descendants of Murugesa Chettiar are entitled to enjoy the remaining income after doing the charities. 30. The case of the plaintiff is that the executors Velu Chettiar and Kandasami Chettiar were performing charities after the death of Vijayarangam Chettiar and after them, nobody was appointed as executors and Rajambal was enjoying the net income after meeting the expenses and after the death of Rajambal, Murugesa Chettiars son Nithyananadam and daughter the plaintiff became entitled to possess the property and performed charities and they also took up the property in joint possession and without the knowledge and consent of the plaintiff, her brother Nithyanandam sold the property to defendants 4 and 5 and the sale deed is void ab initio and she has filed O.S.No.9183 of 1975 pending on the file of the XIV Assistant City Civil Judge, Madras and an ex parte decree was passed and then it was set aside and as the Will has to be probated, the plaintiff has come forward with the petition for grant of letters of administration. 31. As per the contents of the document Ex.P-1, male and female descendants are entitled to enjoy the income after doing charities. The plaintiff being one of the legatees is entitled to letters of administration. 32. In the result, the suit is decreed. Letters of administration is granted to the plaintiff. No costs.