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C.R. Ramachandra Gowder and ors. Vs. C.P. Nanjappa - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberO.S. Appeal Nos. 26 and 51 of 1965
Judge
Reported inAIR1973Mad179; (1973)1MLJ189
ActsIncome-tax Act - Sections 46(5); Indian Succession Act - Sections 187, 213 and 254 to 257
AppellantC.R. Ramachandra Gowder and ors.
RespondentC.P. Nanjappa
Cases ReferredIn Charu Chandra Pramanik v. Nahush Chandra Kundu
Excerpt:
partnership-partnership property-what is property purchased by a partner with monies of partnership-whether partnership property;succession act (xxxix of 1925), section 213-scope-section complied with prior to decree-probate obtained after suit-makes no difference-suit maintainable;on the questions raised as to (i) whether a property purchased by a partner with the partnership money belong t him or to the partnership firm and (ii) whether a suit instituted by a residuary legatee under a will without obtaining probate or letters of administration prior to the institution of suit is maintainable. ;held, (i) the equitable principle is that property purchased out of moneys provided by a and b, but vested in b alone, is generally held by b upon trust for a and b in the proportions in which.....1. these two appeals arise out of c. s. no. 30 of 1961 filed for recovery of possession of no. 11. general muthiah mudali st. g. t. madras, and o. p. 80 of 1963 filed for the issue of letters of administration with a copy of the will of desai gowder annexed limited to the suit house, which o. p. on caveat filed by the defendants was registered as t. o. s. no. 11 of 1963. both the above matters were directed to be tried together by an order of venkataraman, j., dated 6-8-1963. we shall first take up o. s. a. 26 of 1965 arising out of the main suit c. s. 30 of 1961. the property covered by the suit is a house in general muthiah mudali st. g. t. madras, hereinafter referred to as the suit house. one n. desai gowder, the paternal uncle of the plaintiff's father, ponniah, purchased the suit.....
Judgment:
1. These two appeals arise out of C. S. No. 30 of 1961 filed for recovery of possession of No. 11. General Muthiah Mudali St. G. T. Madras, and O. P. 80 of 1963 filed for the issue of Letters of Administration with a copy of the will of Desai Gowder annexed limited to the suit house, which O. P. on caveat filed by the defendants was registered as T. O. S. No. 11 of 1963. Both the above matters were directed to be tried together by an order of Venkataraman, J., dated 6-8-1963. We shall first take up O. S. A. 26 of 1965 arising out of the main suit C. S. 30 of 1961. The property covered by the suit is a house in General Muthiah Mudali St. G. T. Madras, hereinafter referred to as the suit house. One N. Desai Gowder, the paternal uncle of the plaintiff's father, Ponniah, purchased the suit house in 1909. On Desai Gowder's death, the plaintiff's father got the suit house as a residuary legatee under his Will dated 18-4-1914, and in the division of the family properties between the plaintiff and his two brothers, after the death of the plaintiff's father, the suit house was allotted to the plaintiff's share by an arbitrator chosen by them who made an award and a decree in terms of the award was passed in O. P. 92 of 1952 on the file of the SubCourt, Coimbatore, and that the suit house therefore belongs to the plaintiff solely and absolutely.

The plaintiff's further case is that even apart from the Will the plaintiff and his two brothers being the nearest reversioners to the estate of the said Desai Gowder, on the death of Ambujammal the surviving widow of N. Desai Gowder succeeded to this estate and that by the partition referred to above, the plaintiff became entitled to the suit property absolutely and is entitled to a decree against the defendants for possession of the suit property. The plaintiff's further contention is that Desai Gowder was residing in the suit house till his death in or about 1914, that his father who was brought up by the said Desai Gowder as Abhimana Puthra, was also living in the suit house as a member of the family with Desai Gowder during his lifetime and continued to live in the suit house with his family even after the latter's death and that the defendants who are the sons of the sixth defendant whose sisters (Ambujammal and Nanjammal) had married Desai Gowder and Ramiah Gowder, who was the husband of the sixth defendant were also living in the suit house along with Desai Gowder and that Nanjammal died in 1921 and Ambujammal died in 1948. The plaintiff's case is that Ramiah Gowder was permitted to live in the suit house even during Desai Gowder's lifetime and he continued to live therein with his family even after Desai Gowder's death, in view of the close relationship of Ramiah to the two widows of Desai Gowder, i. e., Ambujammal and Nanjammal.

In regard to the business carried on by Desai Gowder during his lifetime under the name and style of N. Desai Gowder and Co., Madras, the Will of Desai Gowder provided that Ramiah and another employee in the business (Rangaswami Aiyangar) were to be taken with Ponnaih as working partners and the business was to be continued. After the death of Desai Gowder the business conducted by Desai Gowder was continued by the partnership consisting of Ponniah. Ramiah and Rangaswami Aiyangar under the name and style of N. Desai Gowder and Co., Madras. Ponniah Gowder in or about 1922 started a business at Coimbatore under the name and style of N. Desai Gowder and Co., Coimbatore and in order to look after the said business he shifted his residence to Coimbatore, entrusting the management of the partnership business at Madras to the aforesaid Ramiah Gowder and the plaintiff's case is that Ramiah Gowder was permitted to continue to live in the suit house with his family till his death in 1957 and that the defendant and Ramiah's widow (6th defendant) continued to live in the suit house under such permission. The plaintiff's further case is that whenever his father came from Coimbatore in connection with the partnership business he used to stay in the suit house during such visits till his death in 1944.

After the death of the plaintiff's father the plaintiff's elder brother was taken in as a partner in the Madras business. The Madras business ceased to function after 1956. Ramiah died in 1957. The plaintiff never put forward a claim to the suit house till Ramiah's death. Soon after Ramiah death the plaintiff sent a notice in April 1958 requesting the defendants to deliver vacant possession of the suit house to which the defendants sent a reply in August 1958 denying the claim and stating that in 1938 the building was reconstructed out of the firm's moneys, that it was agreed at the time that the firm should not charge any interest on the said amount lent for reconstruction, that Ramiah as partner was to continue to reside in the house without rent and that in case the business ceased, either Ramiah Gowder should put back into the firm the money spent on the reconstruction and take a conveyance from the plaintiff's father or the plaintiff's father should put back the amounts into the firm, that according to the said agreement the title deeds of the property were left with Ramiah, that Ramiah as such partner of the business continued to reside in the suit house and supervise the business till his death, that the plaintiff is not entitled to demand vacant possession of the suit house without first putting back into the firm the sum of about Rs. 50,000 advanced by the firm for the reconstruction of the suit house. The plaintiff has filed the present suit denying the arrangement put forward by the defendants in the reply notice dated 12-3-1960 and contending that the defendants' occupation was only permissive, that the business ceased to function, that the building account was independent and that there was no longer any need for supervision of the business after the business ceased and that the plaintiff is entitled to recover vacant possession from the defendants.

2. The substantial defense put forward by the defendants in the written statements filed by them is that the suit house did not belong to the plaintiff solely and absolutely, that the suit house is partnership property, that the plaintiff's father did not live in the suit house at any time, that Ramiah Gowder and the defendants were solely in possession and occupation of the suit house, that the plaintiff or his father was never in possession or occupation of the suit house after 1922 when the plaintiff's father shifted to Coimbatore, that even after the death of Ponniah Gowder in or about 1944 and of the last surviving widow in or about the year 1948, neither the plaintiff nor his brothers ever claimed possession of the suit house nor did they assert that the defendants or their father Ramiah were in permissive occupation of the suit house. The father of the first defendant Ramiah Gowder was staying in the suit house in his own right as a partner of the Madras business and did not occupy the suit house with permission of the plaintiff's or his father. The defendants further reiterated the contentions put forward in their reply notice viz., that the house, which was purchased originally was demolished and as per the agreement between Ramiah Gowder and Ponniah Gowder, that the partnership funds were utilized for reconstruction of the building, that the said property belonged to the partnership although the property stood in the name of Ponniah Gowder as executor under the Will, that it was agreed at that time that the firm should not claim any interest from the partners or rent from Ramiah Gowder for the suit house as he occupied the same as partner to supervise the partnership business and that it was agreed that in case the business ceased to function either Ramiah Gowder should put back into the firm the moneys spent on the reconstruction and take a conveyance from the plaintiff's father or that the plaintiff's father should put back the said amount into the firm and acquire the suit property. The contention of the defendants, therefore, is that the plaintiff is not entitled to recover possession of the suit property on any of the grounds set out in the plaint. The defendants further prayed that the suit is not maintainable without probate or Letters of Administrative having been previously obtained and that it is further barred by limitation.

3. The plaintiff as one of the representatives of the residuary legatee, filed O. P. 80 of 1963, for issue of Letters of Administration under the Will dated 18-4-1914 of the deceased Desai Gowder having effect throughout the Madras State and limited to the suit property in O. S. 30 of 1961. On caveat having been entered by the defendants in the suit, the said suit was registered as T. O. S. 11 of 1963. In the said T. O. S. the main question arising for consideration is whether the will dated 18-4-1914 is true and valid and whether the plaintiff is entitled to the Letters Administration even without the production of the original Will of Desai Gowder and whether a limited grant of Letters of Administration could be claimed.

4. As stated above the main suit and the T. O. S. were tried together. The trial Judge held that the Will of Desai Gowder dated 18-4-1914 is true and valid that the plaintiff is entitled to the grant of Letters of Administration even without the production of the original Will of Desai Gowder as the plaintiff in the T. O. S. is the representative of the residuary legatee under the will of Desai Gowder that the plaintiff is entitled to the grant of Letters of Administration with a copy of the Will Ex. D.1 annexed limited to the suit house.

5. On the main suit the trial Judge held that the suit house was reconstructed in 1938 that the entire money for the reconstruction came from the partnership funds, that the suit property was, however, never dealt with as an asset of the Madras firm at any time, that the entries in the account books of the partnership clearly showed that the family of the plaintiff was treated as the owner of the suit house, that in the family partition between the plaintiff and his two brothers the arbitrator C. s. Rathnasabapathi Mudaliar, allotted the suit house to the plaintiff as evidenced by the decree Ex. P.18, passed in terms of the award, that the partnership business ceased to function from about 1956 and that the defendants were in permissive occupation. The trial Judge negatived the defendants' plea of adverse possession and further held that the suit is maintainable as the other suit for Letters of Administration had been decreed as prayed for. In the result, the trial Judge held that the plaintiff was entitled to the suit property and that the defendants are liable for damages for use and occupation at Rs. 300 a month from the date of plaint to the date of delivery of possession.

6. The defendants in the above suits have filed the above two appeals. The principal contentions put forward by the appellants are--

1. The main suit (C. S. 30 of 1961) was not maintainable as probate or Letters of Administration with a copy of the Will annexed had not been obtained prior to the institution of the suit;

2. The suit house having been purchased out of partnership funds and used as residence of the partners, is partnership property divisible and the present suit claiming exclusive title is not maintainable; and

3. Ramiah, and after him the defendants have not been in permissive possession of the suit property but have been in possession in their capacity as such partner.

Before dealing with the contentions put forward above, we propose to deal with the general features of the case............... ............. ................. ............ ............... ......

(His Lordship dealt with the facts of the case and proceeded.)

7. The main question that has to be decided is whether the suit property belongs to the plaintiff as claimed by him or whether it belongs to the partnership as claimed by the defendants. It is admitted that the house which was purchased by Desai Gowder in 1909 was demolished and in its place the present building was put up at a cost of about Rs. 50,000 utilizing the funds of the partnership. The plaintiff relies on the following circumstances in support of his contention :

1. His father was a residuary legatee under the Will (Ex. D.1) and as such entitled to the suit house.

2. The muchilika (Ex. P.17) signed by the plaintiff and his brothers constituting Sri C. S. Ratnasabapathi Mudaliar as an arbitrator to divide the disputed properties between them including the suit house was attested by Ramiah;

3. The suit house was taken into account in the arbitration proceedings as a divisible asset between the plaintiff and his two brothers and the arbitrator Sri C. S. Ratnasabapathi Mudaliar made his award allotting the suit property to the plaintiff ;

4. The suit house has not been shown in the partnership accounts as partnership property. Vide the balancesheets Ex. P. 22 for the year ending 31-3-1959, Ex. P. 26 for the year ending 31-3-1954, P. 28 for the year ending 31-3-1955. P.30 for the year ending 31-3-1956 by way of samples;

5. The suit house was shown in the Corporation registers as the property of the plaintiff;

6. The property prior to reconstruction was purchased with the moneys of Desai Gowder and later the sale deed was taken in the name of Ponniah although as executor of the Will of Desai Gowder; and

7. That Ponniah and his sons whenever they came to Madras used to stay in the suit houses.

On the order hand, the circumstances relied upon by the defendants in support of their stand are :--

1. That during the lifetime of Desai Gowder. Ramiah and his family lived in the suit house with Desai Gowder and continued to live there right through without any break till his death and thereafter by the defendants;

2. The reconstruction in 1938 was to enable Ponniah as a partner of the Madras business to live therein in accordance with which Ramiah and his family lived therein and after him to defendants as representatives of Ponniah and firm was not finally dissolved;

3. The amount spent for reconstruction came from the partnership funds;

4. Although the suit house was not shown as partnership property, the amounts spent for reconstruction were included in the balance sheet under the head 'sundry creditors';

5. Ponniah and his sons never resided in the suit house after 1922 when they shifted to Coimbatore;

6. The suit house was not purchased in the name of Ponniah but the sale deed was taken in the name of Ramiah only as an executor;

7. The adjustment in the account of the partnership was only to ward off the claim of the Income-tax authorities who issued notice to the Madras Branch under Section 46(5) of the Income-tax Act;

8. The entry in the Corporation Registers showing the plaintiff as owner is with a view to support his case and cannot be relied upon in support of the plaintiff's title; and

9. The continued adverse possession of the suit property by the defendants and their father resulted in the defendants prescribing title.

8. In support of the contention the learned counsel for the appellant referred to the Bank of England case, (1861) 130 RR 276. The head-note therein runs as follows :--

"There is no rule that where lands are bought by partners in trade and are paid for out of the partnership assets, they of necessity become part of the joint estate; nor, on the other hand that if they are not bought for the purposes of the partnership business they are not joint estate; nor does the form of the conveyance settle the question, which must be determined with reference to all the circumstances of the case.

One of two partners carrying on the business of a leather factory bought lands for the purpose of erecting a residence on part of it and selling the remainder to a Railway Company. He offered a share to his partner who was also desirous of building a house out of town for his residence. The offer was accepted and the purchase-money paid out of the partnership assets; but the conveyance was to the partners in separate moieties, each of which was conveyed to the usual uses to bar dower. The partners at their individual expense build house upon portions of the land set apart for the purpose but the other expenses relating to the land were paid out of the partnership assets. Held, that the whole of the land constituted joint estate".

Lord Justice Turner at page 284 observed as follows :--

"Where land purchased is not merely paid for out of the partnership assets but is bought for the purpose of being used and employed in the partnership trade, it is scarcely possible to conceive a case in which there could be sufficient evidence to rebut the trust, and accordingly in those cases we find the decisions almost if not entirely uniform that the purchased land forms part of the joint estate of the partnership; but where the land is not purchased for those purposes, the question becomes more open, and we have to consider whether the circumstances attending the purchase show that it was made on account of the partners individually, or of any one or more of them in whose name the land may have been bought. These, as it seems to me are the considerations which must guide our determination in the case before us".

9. In Lindley Law of Partnership. Twelfth edition, it is stated at page 361 as follows :--

" The mere fact that the property in question was purchased by one partner in his own name is immaterial if it was paid for out of the partnership moneys for in such a case he will be deemed to hold the property in trust for the firm, unless he can show that he holds it for himself alone. This represents one instance of the application of the equitable principle that property purchased out of moneys provided by A and B but vested in B alone is generally held by B upon trust for A and B in the proportions in which they contributed to the purchase money. Upon this principle it has been held that land purchased in the name of one partner, but paid for by the firm, is the property of the firm, although there may be no declaration or memorandum in writing disclosing the trust and signed by the partner to whom the land has been conveyed. So, if shares in a company are bought with partnership money, they will be partnership property, although they may be standing in the books of the company in the name of one partner only and although it may be contrary to the Company's deed of settlement for more than one person to hold shares in it".

The next decision cited by the learned counsel is Debi Parshad v. Jai Ram Dass, . That was a case of a lease. The learned Judge after referring to Section 14 of the Partnership Act stated as follows :--

"In the

Indian Partnership Act by Pollock and Mulla, 1st Edition, at page 40 the statement of law on the point under consideration is stated to be that land bought in the name of one partner, and paid for by the firm out of the profits of the partnership business, is partnership property unless a contrary intention appears. In the present case payments made to the lessors are shown in the partnership accounts.

Finding as I do that the partnership paid for the lease, the lessee rights are partnership property."

10. In Sundarsanam Maistri v. Narasimhulu Maistri, (1902)ILR 25 Mad 149 the following observation was relied upon :--

"It was further contended by the learned Advocate General that the three years period of Limitation prescribed by Article 106 would be inapplicable to houses and lands purchased by the first defendant from the profits of the partnership. This contention would certainly hold good if it had been alleged and proved that from time to time, portions of the assets of the partnership were by the agreement of the partners, withdrawn from the partnership and converted into land or house to be owned by the partners as co-owners.

In the absence, therefore, of any such allegation and proof, lands and houses bought in the name of one partner and paid for by the firm or from the profits of the partnership business are prima facie partnership property.

The case is therefore governed by the ordinary rule that, unless a contrary intention appears by express agreement or by the nature of the transaction, property bought with money belonging to the firm is deemed to have been bought on account of the firm." (Bank of England case was referred to).

11. In Snell's Principles of Equity. Twenty-fifth edition, at page 165, the following passage was relied upon by the learned counsel for the appellant :--

"Another common case of an implied or resulting trust is where on a purchase property is conveyed into the name of someone other than the purchaser.

"The clear result of all the cases, without a single exception is that the trust of a legal estate, whether freehold, copyhold or leasehold; whether taken in the names of the purchasers and others jointly or in the names of others without that of the purchaser; whether in one name or several; whether jointly or successive results to the man who advances the purchase-money. This is a general proposition supported by all the cases, and there is nothing to contradict it; and it goes on a strict analogy to the rule of common law, that where a feoffment is made without consideration, the use results to the feoffer.

The doctrine applies to pure personality as well as land. It also applies where two or more persons advance purchase-money jointly and the purchase is taken in the name of one only in which case there is a resulting trust in favor of the other or others as to so much of the money as he or they advanced."

12. In the present case the property in question was purchased in 1909 and Desai Gownder was living in the property. Ramiah was also associated with Desai Gownder even during his lifetime and he was living in the same property. After the reconstruction of the house by utilization of partnership funds. Ramiah one of the partners of the firm was living in the same property. The mere fact that it was not shown in the balance-sheets of the firm as partnership property, will not, alter the character of the property and the further circumstances that the Arbitrator who decided the disputes between the plaintiff and his brothers made an award on basis that the suit property is the separate property belonging to Ponniah and divisible among the plaintiff and others also will (not) alter the character of the property. The fact that the suit property was the subject of division will not alter the character of the property, as there is no decision on that question. The mere fact that the muchalika by the three brothers requesting Sri. C. S. Rathinasabapathy Mudaliar to effect a division was attested by Ramiah will not amount to an admission that the suit property belonged to Ponniah alone. On the other hand. Ramiah's occupation of the suit house even prior to the death of Desai Gownder is a circumstance to be taken into account in ascertaining whether the plaintiff is the owner.

Under Section 110 of the Evidence Act when the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. The plaintiff is now asserting that he is the owner and it is for him to establish his title. The facts established in the case do now show that the plaintiff has established that Ponniah had exclusive title to the suit property. On the other hand, the various circumstances, viz., Ramiah's continued occupation of the suit property his signing the plan submitted to the Corporation Exs. D.14 and D.18 showing that he is the owner of the property, that the demand on him for payment of corporation dues quit rent demands etc., and his payment thereof for a long period, that the performed Graha Pravesam ceremony after the construction of the suit house in his name and fixing of marble tablet on the wall of the suit house in his name and of his naming building as "Ayodhya" when admittedly Ponniah and his wife and the members of his family were present at the Graha Pravesam function in addition to the circumstances enumerated above all negative the plaintiff's claim of Ponniah's exclusive ownership. The issue of quit rent receipts Exs. P.47. P.49 and P.51 and demand notices in the name of the plaintiff's father appears to have been got up as a result of the correspondence between the plaintiff and the authorities without reference to Ramiah or the defendants and that by itself in our opinion is not of much consequence.

13. The learned counsel for the respondent commented upon the second defendant's admission that the suit property has not been dealt with as an asset of the Madras firm. The said admission could only be read along with the balance-sheets on the basis of which this admission could have been made and not on the real facts of the case. The learned counsel for the respondents further commented upon the non-examination of the first defendant. In our opinion, this will not mater, as the burden is only upon the plaintiff to establish his title to the suit property. The learned counsel for the respondents referred to the claim of the third partner T. S. Rangaswami Iyengar in his letters dated 14-6-1955 raising a question as to why the amount standing to the credit of S. N. P. Desai Gownder was not charged with interest and for a valuation of the stock as on 1-4-1956. Ramiah in his letter Ex. P. 27 dated 31-8-1955 addressed to S. N. P. Desai Gownder stated that it was not possible to take the market value of all the assets as on 1-4-1955 and in order to ward off a possible suit by Rangaswami Iyengar, offered to pay Rs. 17,000/- in settlement of the claim. If the suit property was not the partnership property, there was no reason why Ramiah should have been afraid of a claim from the other partner Rangaswami Iyengar and his anxiety to foreclose the claim by payment of Rs. 17,000/-. This in our opinion amply shows the suit house is partnership property.

14. Taking all the relevant circumstances into account and the fact that Ramiah was throughout a partner of the firm residing in the suit property as such partner, we have no hesitation in coming to the conclusion, that the suit house is partnership property. The third partner's account was settled and thereafter the partnership consisted of only the representatives of Ponniah and Ramiah and even between them all other properties were divided. The suit house is thus the only property liable to be divided between the plaintiff and the defendants and we hold that they are entitled to a half share each.

15. The result is the suit house has to be divided into two shares, the plaintiff taking one such share and the defendants the other. To avoid division of the house we called upon the respondents' counsel his client not being a resident of Madras, to value the house so that the defendants, who are in possession, could retain the house and pay the value of other half share to the plaintiff. But the respondents through their counsel stated that they were equally anxious to have possession of the house. In the above circumstances there is no alternative other than to divide the house into two shares. The question as to the feasibility of division will be decided in appropriate proceedings.

16. The other remaining question deals with the maintainability of the suit without obtaining probate or Letters of Administration prior to the institution of the present suit C. S. No. 30 of 1961 which was filed on 5-5-1961. The plaintiff anticipating an objection from the defendants filed O. P. No. 80 of 1963 on 28-1-1963. The said O. P. is for the grant of Letters of Administration with a copy of the Will dated 18-4-1914 annexed and being limited to the Madras house which is the subject-matter of C. S. No. 30 of 1961. Before dealing with the maintainability of the suit we will consider the validity of the will.

17. The trial Judge went into the truth and validity of the Will and held that the Will of Desai Gownder dated 18-4-1914 is true and valid and the plaintiff is entitled to the grant to Letters of Administration even without the production of original Will of Desai Gownder. The original Will appears to have been filed in O. S. No. 8 of 1948 on the file of the Sub Court, Coimbatore and was taken return of after the suit was disposed of and the case of the plaintiff is that he lost the Will Subsequently. There is no reason why the plaintiff who got back the original Will from the Court should suppress the original Will and rely on a registration copy, if really the original Will was available with him. The learned Judge went into the question whether the execution of the Will by Desai Gownder was in a sound and disposing state of mind. P.W. 2 aged 80 years who was present at the time of the execution of the Will, was examined and as all the attesting witnesses are dead, the learned Judge relied upon the evidence of P.W. 2. We see no reason to differ from the finding of the learned Judge that the Will was duly executed while Desai Gowder was in a sound and disposing state of mind.

Further the original of the said Will appears to have been filed in a later litigation commenced by Borammal widow of a nephew of Desai Gowder for enhancement of maintenance. Though Ponniah was not specifically referred to as an executor in the said Will, he is a residuary legatee and is entitled to all the properties of Desai Gowder after the lifetime of his widows subject to the dispositions made by the testator. The last widow of Desai Gowder died in 1948. The plaintiff father Ponniah did not obtain probate or letters of administration with the Will of Desai Gowder annexed, though he administered the estate of the deceased Desai Gowder. The administration of the estate has not yet been completed. The learned trial Judge, therefore, held that the sons of Ponniah will be entitled to apply for letters of Administration with a copy of the Will of Desai Gowder annexed either under Section 232 or 233 of the Indian Succession Act. The plaintiff's younger brother N. S. P. Desai has sworn to an affidavit stating that he has no objection to the grant of letters of Administration to the plaintiff.

18. The next question which was raised was whether the plaintiff will be entitled to grant of letters of Administration limited to the suit house and whether the suit is not maintainable as the administration of the estate is over. In view of the fact that the administration of the estate of Desai Gownder relating to the suit house is not over yet, the learned Judge rightly held that the plaintiff is entitled to the grant of Letters of Administration. The contention of the learned counsel for the appellant is that the probate or Letters of Administration not having been obtained prior to the institution of C. S. No. 30 of 1961, the said suit is not maintainable.

19. The learned counsel for the appellant relies upon the Full Bench decision in Ghanshamdoss Narayandoss v. Gulab Bi Bai, (1927) ILR 50 Mad 927 =(AIR 1927 Mad 1054) (FB). There a defendant resisting a claim made by the plaintiff as heir-at-law was held not entitled to rely in defense on a Will executed in his favor at Madras in respect of property situate in Madras, when the Will is not probated and no Letters of Administration with the will annexed had been granted. Section 187 of the Indian Succession Act corresponding to Section 213 of the Act XXXIX of 1925 was held to be a bar to every one claiming under such a will, whether the plaintiff or the defendant.

20. In Chandra Kishore Roy v. Prasanna Kumari Desai, (1911) ILR 38 Cal 327 (PC) the Judicial Committee held that so long as the compliance with Section 187 of the Indian Succession Act 1863, was prior to the decree the fact that it was obtained after institution of the suit made no difference. In Charu Chandra Pramanik v. Nahush Chandra Kundu, ILR 50 Cal 49 = (AIR 1923 Cal 1) the above decision of the Privy Council was referred to and followed. It is unnecessary to refer to the further decision cited by the learned counsel. In the present case the Letters of Administration was granted prior to the decree in C. S. No. 30 of 1961. We, therefore, see no substance in the contention put forward by the learned counsel for the appellant.

21. The learned counsel for the appellant further contended that the grant of the Letters of Administration in respect of the suit house is illegal. In this connection the learned counsel cited the judgment in T. K. Parthasarthi Naidu. wherein their Lordships held that the petitioner could not be granted Letters of Administration in respect of his share of property and that probate or letters of administration with or without the Will annexed must, as a general rule, relate to all the properties, that is the entire estate of the deceased and only in exceptional cases falling under Sections 254 to 257 of the Indian Succession Act (XXXIX of 1925), could probate or letters of Administration, limited to specific items or a fraction of the estate be granted. In this case the estate of the deceased was administered without obtaining a probate or letters of administration and the only property in respect of which the administration is not completed is the suit house. In the above circumstances we consider that the learned Judge was right in granting Letters of Administration with the Will annexed in respect of the suit house.

22. We see nothing illegal in the grant of Letters Administration in respect of the suit house, which is the only property of the testator in Madras City. We, therefore, see no substance in any of the contentions raised by the learned counsel for the respondent.

23. In the result, the decree in C. S. No. 30 of 1961 is modified by declaring the plaintiff's half right in the suit property. The plaintiff will be entitled to damages for use and occupation of the half share in the suit house from the date of the plaint till delivery of possession (i.e.) half of Rs. 300/- after meeting his share of the taxes for the said period. Subject to the above modification, the appeal O. S. A. No. 26/65 is dismissed in other respects. There will be no order as to costs throughout.

24. O. S. A. No. 51 of 1965 is dismissed. There will be no order as to costs.

25. Order accordingly.


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