Research › Search › Judgment

Madras High Court · body

2015 DIGILAW 1141 (MAD)

B. Radhakrishnan v. S. Vijayalakshmi

2015-02-25

S.VIMALA

body2015
Judgment : 1. This Civil Suit has been filed seeking Letters of Administration on the basis of the Will, dated 18.10.2000, said to have been executed by the late mother, Smt.B.Pappa @ Valliammal of the plaintiff in respect of the property owned and possessed by her at Plot No.892, J-Block, 18th Street, Vaigai Colony, Anna Nagar, Chennai – 600 040. 2. The deceased, Pappa @ Valliammal, was blessed with two sons and two daughters. She died on 27.01.2001, evidenced by Ex.P-4-death certificate, leaving behind the legal representatives, defendants 1 to 3 and the plaintiff. The Legal heirship certificate issued has been marked as Ex.P-5. She executed her last Will and Testament, dated 18.10.2000, (Ex.P-1) which is spoken to by two attesting witnesses, i.e., Exs.P-2 and P-3. 3. The deceased mother had title, as per the settlement deed, dated 18.06.1985. She was in possession and enjoyment of the suit property, by paying electricity charges, property tax payment, etc., which is evidenced by Exs.P-10 and P-9, respectively. She had been exercising her rights, as owner, and on one occasion, she had to execute a mortgage deed (Ex.P-11) which was later redeemed (Ex.P-12). 4. The second defendant issued notice, dated 31.03.2001, claiming partition and separate possession of his 1/4th share over the suit property. The plaintiff sent a reply under Ex.P-16, disputing the right of the second defendant to claim partition over the suit property. 4.1. The second defendant disputed the validity of the Will and claimed it as a forgery; the Will is alleged to have been executed at Kumbam, where the parties are alleged to have no access to that place; no attesting witness was from the native place; there had been a family settlement through an Arbitrator in which it was agreed that plaintiff would be allotted 2/5th share and the remaining two sisters and brother would each be allotted 1/5th share; all the legal heirs signed in the agreement in front of the Arbitrators. 4.2. The second defendant is stated to have executed sale agreements, under Exs.P-19 and 21, (without any right) which were later on cancelled by him, under Exs.P-20 and 22, respectively. 4.3. 4.2. The second defendant is stated to have executed sale agreements, under Exs.P-19 and 21, (without any right) which were later on cancelled by him, under Exs.P-20 and 22, respectively. 4.3. This cancellation of sale agreement was under compulsion, because of the order passed by the District Registrar, giving a finding that the Power of Attorney, which was allegedly executed by the plaintiff and Defendants 1 and 3 were claimed as forged and therefore the documents executed by the second defendant based upon the power of attorney will not have any effect. 5. Under such circumstances, the present petition under Sections 232 and 276 of the Indian Succession Act, XXXIX of 1925 for the grant of Letters of Administration has been filed. 6. Due to the objections raised, the petition was converted into the Civil Suit. The first defendant did not file any written statement. Though Defendants 2 and 3 filed the written statement, they did not contest the proceedings. 7. In fact, the second defendant filed an application to set-aside the exparte order with the delay of 12 long years, for which also the plaintiff expressed No Objection, probably with a view to give an opportunity to the second defendant to contest the proceedings on merits and that the proceedings should attain finality. Even thereafter, the second defendant did not participate in cross-examining the plaintiff and its witnesses. 7.1. The conduct of the second defendant causing irreparable loss to the plaintiff and also creating wrong reflections upon entire judicial system need to be highlighted. The intention to drag on the matter, with manifest irresponsibility, need to be curtailed. Profitability or the incentive in dragging on the matter is evident when the second defendant concocted a Power of Attorney in favour of him, as if the brothers and sisters executed the same and creating the sale agreements in order to enrich himself. The District Registrar has later on found that the Power of Attorney is a forged one. Therefore, it is clear that the Application to set-aside the exparte order should have been filed only with an intention to ensure that plaintiff is not getting the relief and that the grant of relief in favour of the plaintiff may affect his business plan of selling the property. Therefore, it is clear that the Application to set-aside the exparte order should have been filed only with an intention to ensure that plaintiff is not getting the relief and that the grant of relief in favour of the plaintiff may affect his business plan of selling the property. Therefore, imposing penalty alone would send a right signal to those potential litigants who plan to misuse the process of law and also to abuse the judicial system. The second defendant should be made to realize that Court cannot be utilized as a place to perpetuate fraud. Therefore, it is appropriate that the second defendant should be directed to pay costs of Rs.50,000/- to the plaintiff, who suffered on account of the delay. 8. The evidence, oral and documentary, adduced before this Court establishes the fact that the Will executed by the Testator is genuine. Therefore, the plaintiff is entitled to the Letters of Administration. Thus, the suit is decreed with costs, granting Letters of Administration, with the Will annexed, in favour of the plaintiff. The second defendant shall pay cost of Rs.50,000/- to the plaintiff, for having willfully delayed the matter by twelve years.