Madras High Court
R.Sivasubramaniyan vs R.Periasamy on 2 July, 2019
Author: R.Subramanian
Bench: R.Subramanian
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
ORDER RESERVED ON : 12.06.2019
ORDER PRONOUNCED ON : 02.07.2019
CORAM
THE HON’BLE MR.JUSTICE R.SUBRAMANIAN
O.P.No.163 of 2013
1. R.Sivasubramaniyan
2. S.Hariram
3. Arulmigu Akkaraipatti Ponkaliamman,
Arulmigu Akkariapatti Muthusamy and
Arulmigu Molipili Annamar Swami Deities
Arulmigu Varadharaja Perumal Vagaiyara Thirukkoil Devasthanam
Hindu Religious and Charitable Endowments Board (HR & CE)
Vengumbur Village, Erode TL.
Represented by the Executive Officer, R.Chandiran
4. Arulmigu Bhagavathy Amman –Diety
Kalvettuppalayam Village, Vengumbur Post, Unjalur Via,
Erode Dt. Represented by Devotee, S.Ramalakshmi.
…Petitioners
Vs.
1. R.periasamy
2. G.Guhan
http://www.judis.nic.in3. Hemalatha Mutukumar
2
4. Karupyammal
5. Canara Bank, Thamaripalayam Branch,
Karur - Erode Road, Thamaripalayam, Erode Tk
Represented by its Manager
6. State Bank of India, Kodumudi Branch,
Erode T.K Represented by its Manager
7. District Collector,
Erode Periyar District, Office of the District Collector,
Erode.
8. The District Superintendent of Police,
Erode Periyar District,
Office of the District Superintendent of Police, Erode.
PRAYER: This Original Petition has been filed to direct the Administrator-
General of Tamil Nadu under Section 10(1) of the Administrators General
Act, 1963 to collect and take possession of the assets of the estate of
K.S.K.S.Ramasamy (since deceased) situate within the state of Tamil Nadu
and to hold, deposit and realize, sell or invest the same according to the
provisions of the said Act and with the further direction under Section 10(2)
of the Act to file and prosecute such suits or take such proceedings as the
Administrator-General may deem appropriate for the recovery of any
assets, bank deposits, money, moveable or immoveable of the estate of the
deceased.
For Petitioners : Mr.PVS.Giridahr
For M/s.C.M.Krishna Kumar for 1st petitioner
Mr.M.Radhakrishnan
http://www.judis.nic.in For M/s.Profex Associates for petitioners 2 to 4
3
For Respondents : Mrs.Chitra Sampath, Senior Counsel
For Mr.T.S.Baskaran for 1st respondent
Mr.R.Karthikeyan for respondents 2 and 3
Mr.R.Vigneshwaran for 6th respondent
Mr.N.Manokaran, Government Advocate
for respondents 7 and 8
ORDER
This Original Petition has been filed under Section 10 of the Administrators – General Act, 1963 seeking a direction to the Administrator General to collect and take possession of the estate of late K.S.K.S.Ramasamy who died on 16.11.2010 leaving behind his wife Karuppayiammal, two sons viz., the petitioner and the 1st respondent and the respondents 2 and 3 who are his grand-children through his daughter Thangammal.
2. Subsequent to the filing of this Original Petition, Karuppayiammal w/o. K.S.Ramasamy also died on 14.11.2013. According to the petitioner, upon the death of K.S.Ramasamy, the respondents 1 to 3 had taken possession of the properties of K.S.Ramasamy and had excluded him from its enjoyment.
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3. It is also avered in the petition that the 1st respondent is acting with an intention to grab all the properties of the deceased threatening the petitioner with dire consequence if he is to assert his rights over the properties. This led to the petitioner lodging a police complaint alleging an attempt of murder against the 1st respondent on 07.12.2012 with the Director General of Police, Chennai – 4. It is the further claim of the petitioner that the respondents are together committing several acts of waste and the estate of K.S.Ramasamy needs to be protected by vesting the same in the hands of the Administrator General.
4. Though, the Original Petition was filed only by the 1st petitioner, the 2nd petitioner was subsequently impleaded by an order dated 16.09.2014 made in Application in A.No.5537 of 2014. The petitioners 3 and 4 claim that the 1st petitioner had settled certain properties in their favour during the pendency of the Original Petition, as such they are also necessary parties to this Original Petition. Those Applications for impleading in A.Nos.4748 and 4749 of 2017 were allowed by this Court and the petitioners 3 and 4 were impleaded as parties on 28.11.2017.
5. The 1st petitioner had also claimed that the respondents have mis- appropriated a sum of Rs.9 Lakhs, which, according to him, is the sale http://www.judis.nic.inproceeds of the turmeric that was sold during the year 2011. It is the 5 further claim of the petitioner that the 1st respondent refused to allow the regular contractor who was permitted to pluck the coconut from the trees belonging to the estate of K.S.Ramasamy which led to loss and waste of the estate.
6. The fact that the respondents were using the ambassador car and the motor cycle that belonged to the deceased without proper renewal of the insurance and transfer of the records was also cited by the petitioner as an act of mis-management requiring the estate to be handed over to the Administrator - Genaral. The 1st respondent was also charged with removing of the documents from the house of the deceased when he was hospitalized.
7. The sum and substance of the claim of the petitioner is that the 1 st respondent and the respondents 2 and 3 in collusion had prevented him from enjoying the properties and are committing acts of waste which required administration of the properties by the Administrator General. It is also claimed that the 2nd respondent had borrowed monies from the deceased K.S.Ramasamy and he had not re-paid the same.
8. The Original Petition is resisted by the respondents contending http://www.judis.nic.inthat there is no need or necessity for appointment of an Administrator 6 General. The claims of the petitioner relating to the estate being mis- managed or being wasted are denied by the respondents. The 1st respondent would specifically deny the claim that he attempted to eliminate the petitioner. The other respondents would on the other hand contend that it is the petitioner who had withdrawn the monies from the joint account and had not accounted for the same. It is the further case of the 1st respondent that the petitioner was never in possession of the properties and he always a resident of Chennai. He never took part in the management of the estate of the deceased K.S.Ramasamy either during his life time or thereafter.
9. The 1st respondent would also claim that the proceedings under Section 10 are wholly mis-conceived and there is no substance in the petition. The 1st respondent also contended that from and out of the income of the family properties that are situate at Anna Nagar and Kilpauk which stand in the name of the petitioner and the sister Thangammal were purchased by the family. After the death of Thangammal on 29.10.2008, he had taken care of the family of her sister and her children. It is also claimed that the deceased had borrowed monies from the Canara Bank, Thamaraipalayam Branch as agricultural loan and the Bank has initiated a suit in O.S.No.437 of 2011 for recovery of a sum of Rs.9,14,840/- against the parties to the Original Petition as legal representatives of the deceased http://www.judis.nic.inK.S.Ramasamy. He would also further contend that he had entered into one 7 time settlement with the Bank and discharged the loan. The said one time settlement was also objected to by the petitioner and he has also taken some criminal proceedings challenging the one time settlement.
10. It is the further case of the respondents that he had already filed a suit in O.S.No.156 of 2014 seeking partition and separate possession of the properties that stood in the name of the deceased K.S.Ramasamy. The said suit is pending before the District Court at Erode. According to the respondents, the petitioner without conducting the said suit had filed an application to strike out the plaint. He had also been adopting all kinds of dilatory tactics to delay the partition suit. It is also stated that the petitioner had filed an application in IA.No.29 of 2015 seeking stay of the said suit under Section 10 of the Code of Civil Procedure citing the pendency of this Original Petition. The petitioner, according to the 1st respondent, also sought for transfer of the said suit. The said transfer petition in Tr.CMP.No.441 of 2015 was dismissed by this Court.
11. The sum and substance of the counter statement of the 1st respondent is that the very Original Petition is not maintainable and even assuming that the Original Petition is maintainable the petitioner has to establish that there is a likelihood of the estate being wasted or that there http://www.judis.nic.inis imminent threat of mis-appropriation or deterioration of the estate and 8 such imminent danger requires immediate action. In the absence of any proof regarding the alleged acts of waste or imminent danger of mis- appropriation or deterioration of the property, this Court cannot vest the estate in the hands of the Administrator General for management. It is also the contention of the first respondent that since he has instituted a suit for partition all the reliefs can be obtained in the said suit. Therefore, extraordinary remedy of vesting the estate with the Administrator General does not arise.
12. The 2nd respondent has filed a separate counter, wherein, he had substantially supported the case of the 1st respondent. He has denied that he has borrowed Rs.2,40,000/- from the deceased K.S.Ramasamy by way of cheque dated 19.09.2010.It is also claimed that the sum of Rs.2,40,000/- was actually borrowed by the petitioner from the 2nd respondent and the cheque was issued only in return of the said money. It is also avered that the said amount was deposited by the petitioner himself in a Fixed Deposit in Lakshmi Vilas Bank Ltd., Unjalur Branch. The 2nd respondent also denied that the deceased K.S.Ramasamy was liable to pay a sum of Rs.15 Lakhs to the respondents 5 and 6. The 2nd respondent also referred to the suit filed by the Bank in O.S.No.437 of 2011 and the fact that the same was settled outside the court. The fact that the petitioner had chosen to execute a gift http://www.judis.nic.indeed on 15.04.2014 gifting away the properties mentioned in the schedule 9 to the 4th petitioner and other properties to the 5thpetitioner was also highlighted. On the above grounds the 2nd respondent sought for dismissal of the petition.
13. The petitioner had filed a separate re-joinder to the counter statements filed by the 1st respondent and the 2nd respondent. The re- joinder to the counter statement of the 1st respondent runs to 62 pages and it contains finer details of the history of the family and the incidents that had taken place in the family for over a few decades. I am not repeating those facts because I find that all of them are un-necessary considering the scope of the present proceeding. Similarly a re-joinder has been filed for the counter statement filed by the 2nd respondent. The said re-joinder runs to about 13 pages and it is almost the replica of re-joinder filed to the counter statement of the 1st respondent.
14. Being the proceeding under Section 10 of the Administrators- General Act, 1963 the very scope of the proceeding is summary in nature and confines only to the question whether the estate of the deceased should be vested in Administrator General. Section 10 of the Act reads as follows:-
10.Power of Administrator-General to http://www.judis.nic.in collect and hold assets where immediate action 10 is required.— (1) Whenever any person has died leaving assets within any State exceeding rupees 1[ten lakhs] in value, and the High Court for that State is satisfied that there is imminent danger of misappropriation, deterioration or waste of such assets, requiring immediate action, the High Court may, upon the application of the Administrator-
General or of any person interested in such assets or in the due administration thereof, forthwith direct the Administrator-General
(a) to collect and take possession of such assets, and
(b) to hold, deposit, realise, sell or invest the same according to the directions of the High Court, and, in default of any such directions, according to the provisions of this Act so far as the same are applicable to such assets.
(2) Any order of the High Court under sub-
section (1) shall entitle the Administrator-General
(a) to maintain any suit or proceeding for the recovery of such assets;
(b) if he thinks fit, to apply for letters of administration of the estate of such deceased person;
(c) to retain out of the assets of the estate any fees chargeable under rules made under this http://www.judis.nic.in Act; and 11
(d) to reimburse himself for all payments made by him to respect of such assets which a private administrator might lawfully have made.
15. Considering the scope of Section 10, the only issue that arises for determination in this Original Petition is as to whether the petitioner has made out a case for vesting the estate of deceased K.S.Ramasamy in the hands of the Administrator General for management.
16. Unfortunately, a proceeding which is essentially in the nature of summary proceeding has been conducted like a title suit by the parties. Oral evidence runs to nearly 128 pages. Fortunately the learned counsel appearing for the parties being aware of the scope of the proceeding have not chosen to read the entire evidence except the relevant portions which according to them would justify or negative the prayer.
17. I have heard Mr.PVS.Giridhar, learned counsel for M/s.C.M.Krishnakumar for the 1st petitioner, Mr.M.Radhakrishnan, learned counsel for M/s.Profex Associates for petitioners 2&4, Mr.V.Srikanth for the 3rd petitioner, Mrs.Chitra Sampath, learned Senior Counsel for Mr.T.S.Baskaran for 1st respondent, Mr.R.Karthikeyan, learned counsel respondents 2 and 3, Mr.R.Vigneshwaran, learned counsel for 6th respondent http://www.judis.nic.in 12 and Mr.N.Manokaran, learned counsel for respondents 7 and 8. The 4 th respondent died during the pendency of the Original Petition.
18. Mr.PVS.Giridhar, learned counsel appearing for the 1st petitioner would submit that Section 10 of the Administrators General Act, 1963 empowers the court to vest the estate in the hands of the Administrator General if it is satisfied that there is imminent danger of mis-appropriation, deterioration or waste of such estate requiring immediate action, upon application by the Administrator General himself or by any person interested in such estate or due administration thereof.
19. Above provision according to Mr.PVS.Giridhar empowers the court to divest any person of the estate which has vested in him/her, if the court is satisfied that the requirements of the section exsist. In the case on hand, according to Mr.PVS.Giridhar, the petitioner who is a sharer has been excluded from the enjoyment of the estate and the respondents 1 to 3 are acting in collusion and are committing acts of waste. He would also point out certain admissions in the evidence of RW1, wherein the 1st respondent had admitted that certain lands have been left fallow without cultivation by him.
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20. Drawing my attention to the cross examination of RW1, Mr.PVS.Giridhar, learned counsel appearing for the 1st petitioner would submit that the very fact that some of the lands are lying fallow without being cultivated would itself show that the respondents are committing acts of waste. He would also submit that the 1st respondent had not chosen to account for the cultivation that has been carried on by him in the property belonging to the deceased K.S.Ramasamy. Therefore, according to him, the very fact that the accounts were not submitted for the management of the properties which are admittedly in the hands of 1st respondent would by itself justify request for appointment of Administrator General.
21. Mr.M.Radhakrishnan, learned counsel appearing for the 2nd & 4thpetitioners would also ably support the arguments of Mr.PVS.Giridhar. However insofar as the 2ndpetitioner is concerned, I had by a separate order concluded that the 2nd petitioner has no interest over the properties during the life time of his father and he is an unnecessary party to the Original Petition and had directed his name to be struck off from the array of parties. Therefore, I had not permitted Mr.M.Radhakrishnan to argue on behalf of the 2nd petitioner.
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22. As regards the petitioners 3 and 4, though they have been impleaded as parties to the petition, I find that they have not let in any independent evidence and the settlement deeds said to have been executed in their favour have also not been made part of the record. Be that as it may, the petitioners 3 and 4 cannot have an independent case and they have to stand or fall on the pleadings and evidence of the 1st petitioner.
23. At the outset it should be pointed out that the proceedings under Section 10 of Administrators- General Act is an extraordinary remedy made available to a person interested in the estate to protect the same under certain circumstances. The circumstances that are envisaged by Section 10 are Imminent danger of mis-appropriation, deterioration or waste of such assets requiring immediate action. The scope of Section 10 is essentially a summary proceeding which is to be used as an interim measure to safeguard the estate. That is the precise reason why Section 10 is followed by Section 11 which reads as follows:-
11 - Grant of probate or letters of administration to person appearing in the course of proceedings taken by Administrator-
General - If, in the course of proceedings to
obtain letters of administration under the
provisions of Section 9 or Section 10, -
(a) any person appears and establishes his claim-
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(i) to probate of the will of the deceased; or
(ii) to letters of administration as next-of-kin of the deceased, and gives such security as may be required of him by law; or
(b) any person satisfies the High Court that he has taken and is prosecuting with due diligence other proceedings for the protection of the estate, the case being one in which the obtaining of such probate or letters of administration is not obligatory under the provisions of the Indian Succession Act, 1925 (39 of 1925); or
(c) the High Court is satisfied that there is no apprehension of misappropriation, deterioration, or waste of the assets and that the grant of letters of administration in such proceedings is not otherwise necessary for the protection of the assets; the High Court shall (1) in the case mentioned in clause (a), grant probate of the will or letters of administration accordingly;
(2) in the case mentioned in clause (b) or clause
(c), drop the proceedings; and (3) in all the cases award to the Administrator-
General the costs of any proceedings taken by him under those sections to be paid out of the estate as part of the testamentary or intestate expenses http://www.judis.nic.in thereof.
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24. A reading of Section 11 would show that once a person interested in the estate appears and establishes his claim to Probate of the Will of the deceased or to Letters of Administration as next of kin of the deceased or satisfies the court that he has taken and is prosecuting with due diligence other proceeding for protection of the estate, the High Court is required to drop further proceedings.
25. A combined reading of Section 10 and 11 of the Act would show that the proceedings contemplated under Section 10 are essentially summary proceedings. As already stated, unfortunately the parties have conducted the proceedings as if it is a title suit. The one and the only question that is to be addressed is as to whether the petitioner has established his apprehension that there is imminent danger of misappropriation, deterioration or waste of the estate requiring immediate action of this court.
26. Admittedly, the deceased K.S.Ramasamy died intestate leaving behind certain properties. He had also left behind his wife Karuppayiammal, his two sons viz., the 1st petitioner and the 1st respondent and grandchildren viz., respondents 2 and 3 to succeed to his estate. Therefore it is not as if http://www.judis.nic.inthe estate had no successor and it had not vested in anybody. Under Section 17 8 of Hindu Succession Act the property of a male Hindu who dies intestate vests in his Class I heirs immediately upon his death. The vesting or the devolution cannot be postponed. Therefore, on the death of K.S.Ramasamy on 16.11.2010 his estate vested in the petitioner and the respondents 1 to 4 who are the sons, grandchildren and wife respectively.
27. The intention of legislature in enacting Section 10 of the Act itself is not to divest the person in whom the property has vested. Of course, Mr.PVS.Giridahr, learned counsel appearing for the petitioner would rely upon the judgment of this Court in Gyanambal Vs. Administrator- General of Madras reported in AIR 1955 (Madras) 419, and submit that the powers of court to vest the estate with the Administrator General does not depend on whether the owner had any legal heirs to succeed to the estate or not.
28. Of course, in Gyanambal Vs. Administrator-General of Madras reported in AIR 1955 (Madras) 419, this court had vested the property in the Administrator General upon finding that both Gyanambal and her husband who were only life estate holders were managing the properties without Probating the Will. A specific finding was recorded by the court to the effect that the Administrator General had to have possession of the http://www.judis.nic.inproperty to protect the estate not so much from third parties but from the 18 effects of the administration of the applicant viz., Gyanambal and her husband. The court recorded a specific finding that Gyanambal and her husband were not managing the estate efficiently and the fact that they had failed to Probate the will weighed in the minds of the court in vesting the estate with the Administrator General.
29. Mr.PVS.Giridhar would also draw my attention to the judgment of the Allahabad High Court in Subhas Chandra Pandey vs. Administrator General reported in 1983 ALL.L.J NOC12, wherein the learned Single Judge of the Allahabad High court has held that the object of conferring powers upon Administrator General and causing an obligation on him to apply for Letters of Administration is that the assets of the deceased should be saved from the danger of misappropriation, deterioration or waste.
30. There is no quarrel about the general statement of law to the effect that the court can always vest the estate with the Administrator General if it finds that there is a likelihood of misappropriation or deterioration of the estate. At the same time, if it is demonstrated before the court that a person interested in the estate has taken proceedings to protect the estate and is prosecuting the same with due diligence, the court will have to drop further proceedings. This requirement would show http://www.judis.nic.inthat the nature of the proceedings contemplated is only for protection of 19 the estate during a transition period or interregnum period and it cannot be a permanent affair.
31. Mr.PVS.Giridhar has also invited me to the report of the Law Commission on the Administrators-General Act. The said report gives reasons for widening the area of operation of Administrators General and suggestions of the Law Commission which resulted in amendment of Section 10 of the Act.
32. Contending contra, Mrs.Chitra Sampath, learned Senior Counsel appearing for the respondents would submit that appointment of Administrator General and vesting the estate in the Administrator General can be done only when there is no other person who is entitled to Letters of Administration or management of the estate.
33. Inviting me to read Section 10 and 11 conjointly, the learned Senior Counsel would submit that once a person establishes his claim to Probate of Will of the deceased or Letters of Administration as next of kin or satisfies the court that he had taken and is prosecuting with due diligence the other proceeding for protection of estate, it is incumbent on the High Court to drop further proceedings.
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34. Therefore, according to her, the very scope of the proceeding contemplated under Section 10 is to vest the estate in the Administrator General when there is no other person who would inherit the estate. Pointing out that the 1st petitioner himself and the respondents 1, 2 and 3 are the Class I heirs of the deceased K.S.Ramasamy, the learned Senior Counsel would submit that the property had vested in them already as sharers and by this process of invoking Section 10, the petitioner cannot seek to divest the property which had already vested in them.
35. The learned Senior Counsel would also place considerable reliance upon the judgment of the Hon’ble Supreme Court in Thayarammal Vs.Kanakammal and others reported in (2005) 1 Supreme Court Cases 457, wherein, the Hon’ble Supreme Court considered the scope of the provisions of Section 10 of the Administrators General Act, 1963 as well as that of the Official Trustees Act. While doing so, the Hon’ble Supreme Court observed as follows:-
“Similarly, the High Court can appoint an Administrator General under the Administrators General Act of 1963 only in case there is none to whom letters of administration in exercise of its powers of grant of probate and letters of administration under the Indian Succession Act can be granted.” http://www.judis.nic.in 21
36. No doubt, the case before the Hon’ble Supreme Court arose under different circumstances where this court had directed the Official Trustee and Administrator General to take over the properties of a religious Trust. While considering as to whether this court have given such a direction, the Hon’ble Supreme court found that the state enactment viz., Tamil Nadu Hindu Religious and Charitable Endowments Act provides for administration of properties belonging to religious and charitable Trusts. Therefore, when there is a competent Authority to manage the properties under the said enactment, the Administrators General Act or the Official Trustees Act cannot be used to direct takeover of such management by the Administrator General or the Official Trustee as the case may be.
37. However, the observations of the Hon’ble Supreme Court are very clear to the effect that the High Court can appoint an Administrator General only in case there is none to whom Letters of Administration in exercise of powers of grant of Probate and Letters of Administration under the Indian Succession Act can be granted. If that be the case I am at a loss to see as to how the estate can be vested in the Administrator General when there are Class I heirs entitled to succeed to properties under Section 8 of the Hindu Succession Act.
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38. Mrs.Chitra Sampath, learned Senior Counsel would also invite my attention to the judgment of the Division Bench of the High Court of Rajasthan, in Chandra Shekhar Dave Vs. Administrator General of the State of Rajasthan reported in 2000 SCC Online Raj 152, wherein, the order of the learned Single Judge dismissing the application under Section 10 was challenged and the Division Bench had held as follows:-
“From the reply of the respondents, it is very much clear that a petition being Civil Misc. Case No.43/98 for issuance of probate is already pending in the Court of District Judge, Pali in respect of alleged Will to be executed by the deceased in favour of the Shrimali Brahman Samaj Sansthan and in that petition, the appellant-petitioner is also shown as non- applicant No.1. When this being the position, the whole prayer and submissions which the appellant-petitioner wants by this Court under the garb of Sec.10 of the Act of 1963, he should have taken before the Court of District Judge, Pali in the said petition and in our considered opinion, that is the best forum for granting the relief for which the present application u/S.10 of the Act of 1963 was filed by the appellant- petitioner. From this point of view alone, this http://www.judis.nic.in 23 special appeal deserves to be dismissed, as the matter is already sub-judice with the civil court of competent jurisdiction, which is competent to pass orders under the provisions of Order 39 or Order 40 Rule 1 r/w.Sec.151 of CPC even in matters of probate and grant of administration, while dealing with the matters of granting probate and letters of administration under the provisions of Indian Succession act, 1925.”
39. Relying upon the above observations the learned Senior Counsel appearing for the 1st respondent would submit that very application under Section 10 is not maintainable. She would further submit that in any event the 1st respondent has already instituted a suit for partition and the same is pending before the competent court and therefore this court has to drop all further proceedings in this application, in the light of the mandate imposed by Section 11 of the Act.
40. She would also contend that on facts except the interested testimony of PW1 there is nothing on record to show that there is imminent danger of misappropriation or deterioration or waste. The mere fact that some of the heirs are in possession of the properties cannot be a ground to vest the estate with the Administrator - General. She would also draw my http://www.judis.nic.inattention to the evidence of RW1, wherein, according to her, he had very 24 clearly stated that the petitioner has not been prevented from enjoying the properties of the deceased K.S.Ramasamy. In fact according to the learned Senior Counsel for the 1st respondent, it is the petitioner who has been draging his feet without conducting the partition suit. She would also contend that the petitioner has done everything possible to delay the partition suit.
41. He had filed an application under Order VII Rule 11 which was rejected by the court and he has challenged the said order in CRP.No.3495 of 2019 in this court. Apart from doing so he has also filed a Revision to strike out the plaint under Article 227 in CRP.No.2960 of 2017 apart from filing an application in I.A.No.249 of 2015 seeking stay of the suit and I.A.No.9 of 2016 seeking a reference on a non- existent question of law to this court. Therefore, according to the learned counsel, the very application under Section 10 is misconceived and the same is liable to be dismissed.
42. Mr.R.Karthikeyan, learned counsel appearing for the respondents 2 and 3 has adopted the arguments of Mrs.Chitra Sampath, learned Senior Counsel.
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43. The learned counsel for the other respondents would submit that they are not very much interested in the outcome of the Original Petition as the claim of the Bank viz., 5th respondent has already been settled.
44. I have considered the rival submissions. Though at the first blush the arguments of Mr.PVS.Giridhar regarding maintainability of the Original Petition under Section 10 are very attractive, a deeper examination of the consequence of appointment of Administrator General and the purpose of the very enactment viz., Administrators General Act, 1963 would dispel the initial attraction.
45. As rightly pointed out by Mrs.Chitra Sampath, learned Senior Counsel appearing for the 1st respondent on the death of a male Hindu his estate devolves on his heirs immediately and they become the owners of the property. The machinery provided under the Administrators-General Act, 1963 is not one aimed at divesting of estates which are already legally vested in a person. A combined reading of Section 10 and 11 of the Act would undoubtedly show that the whole scheme of the Act is to provide for a preservation of estate to which there is no one to succeed.
46. The very fact Section 11 imposes an obligation on the court to http://www.judis.nic.indrop further proceedings if it is shown that any person interested in the 26 estate has taken and is prosecuting with due diligence other proceedings for protection of the estate would indicate the very object of the enactment.
47. The observations of the Hon’ble Supreme court in Thayarammal Vs.Kanakammal and others reported in (2005) 1 Supreme Court Cases 457, on the scope of the proceeding under section 10 of the Administrators – General Act would show that the power to appoint or the power to vest the estate in the Administrator General can be exercised only when there is none to whom Letters of Administration could be granted under the Indian Succession Act. After the advent of the Hindu Succession Act, 1956, Section 8 of the Act very clearly provides that the estate of male Hindu who dies intestate shall vest in his Class I heirs. In the case on hand, there are at least 5 Class I heirs including the petitioner.
48. The Division Bench of the Rajasthan High Court had also in Chandra Shekhar Dave Vs. Administrator General of the State of Rajasthan reported in 2000 SCC Online Raj 152, had also pointed out the scope of the proceedings. The fact that certain proceedings for grant of Probate was pending and the reliefs that are sought for in the application under Section 10 could be effectively sought for under Order 39 and 40 read with Section 151 of the Code of Civil Procedure was held to be a factor to http://www.judis.nic.inbe taken into account while deciding the application under Section 10. I am 27 in respectful agreement with the views expressed by the Division Bench. In the case on hand the suit for partition in O.S.No.156 of 2014 is already pending on the file of the District Court, Erode and all the reliefs that are sought for under Section 10 can be obtained in the said suit as pointed out by the Division Bench of the Rajasthan High Court either under Order 39 or 40 of the Code of Civil Procedure.
49. Even conceding that the application is maintainable, I do not find that the petitioner has satisfied the requirements of Section 10 to the effect that there is imminent danger of misappropriation or deterioration or waste of estates requiring immediate action. All that has been pointed out from the evidence on record is that the respondents 1 to 3 have been in possession of the properties of K.S.Ramasamy after his death and have prevented the petitioner from enjoying the same. This claim is stoutly denied by the respondents 1 to 3. In fact the 1st respondent had filed a suit seeking partition of the estate. Though, it is stated that the 4th respondent Karuppayiammal, mother of the petitioner and the 1st respondent was not looked after well by the 1st respondent etc., the 1st respondent had in fact claimed that the mother has left a Will in his favour bequeathing her share to him. This question will have to be decided only in the suit which is already pending.
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50. Mr.PVS.Giridhar, learned counsel would contend that the 1st respondent have not accounted for the income from the properties for all these years. The 1st respondent had in his evidence stated that he is in possession of some of the properties belonging to K.S.Ramasamy and he has been cultivating the same.
51. The petitioner has not filed any application seeking any accounts either in this Original Petition or in the partition suit that is pending. It is always open to him to work out his rights. The mere fact that one sharer is in possession of the properties and he has not accounted for income there from, in my opinion, cannot amount to the property being in imminent danger of misappropriation or deterioration or waste requiring immediate action of this court.
52. I am therefore of the considered opinion that the petitioner has not made out a case for vesting the properties in the hands of the Administrator General. The oral evidence in this case runs to several pages and several documents have been marked. A perusal of the entire evidence of the petitioner as well as the documents produced by him would at best establish that there are some disputes in the enjoyment of the properties of http://www.judis.nic.inthe deceased K.S.Ramasamy between the brothers. Other than that, I do 29 not find any material to establish the basic fundamental requirements of Section 10 to enable this court to vest the estate with the Administrator General.
53. The entire evidence both the oral and documentary would at best establish that there had been some misunderstanding between the brothers in enjoyment of the property and nothing more. I desist from examining the records in detail and expressing any opinion on the said evidence since any such exercise would affect the case of the parties in the partition suit that is pending in the District Court, Erode.
54. The 1st petitioner during the pendency of the suit had settled certain properties in favour of the petitioners 3 and 4 which are temples maintained by Trustees. Surprisingly, the Trustees have sought to implead themselves as petitioners in this petition without seeking possession of the property. The learned counsels for the Trustees are unable to explain the stand now taken by them. If the temples viz., petitioners 3 and 4 are claiming as settlees under the 1st petitioner it is open to them to proceed with the suit for partition which is already pending before the District Court.
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55. A perusal of the pleadings, oral and documentary evidence leaves a lingering doubt in my mind as to the object of the 1st petitioner in initiating and conducting these proceedings. Definitely it is not one to preserve the estate. The entire proceeding has been conducted in such a manner that it leaves no doubt in my mind that it is the result of spite and vengeance that the 1st petitioner has against the respondents 1 to 3.
56. I am unable to resist observing that the parties have placed themselves in a very unfortunate situation in conducting a summary proceeding for more than 6 years. For the above reasons I do not see any merits in this Original Petition. This Original Petition is dismissed. However with a view to pave way for a amicable resolution of the dispute, I desist from imposing costs. I hope that the 1st petitioner, who is an Advocate, at least now sees reason and proceeds with the partition suit so that the whole family can be at peace.
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dsa
Index : Yes/No
Internet : Yes/No
Speaking Order/ Non-speaking order
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Witnesses examined on the side of the petitioners:-
PW1 – Mr.R.Sivasubramaniyan Exhibits marked on the side of the petitioners:-
EX.P1 (Series 9 sheets) - Photocopies of Memorandum of understanding arrived by the Tenants with the petitioner for taking lands of the deceased on lease for a period of 11 months.
EX.P2 (Series 11 sheets) - Original letter dated 13.01.2011 addressed to R1, R2 and R3 along with Postal Receipts of R1 and R3 with Statement of Accounts.
EX.P3 (Series 2 Nos.) -Original Postal Acknowledgment Card of R1 and R3.
EX.P4 (Series 9 sheets) -Original letter dated 19.03.2011 addressed to R1 along with statement of expenses EX.P5 (Series 2 Nos.) -Original Postal Acknowledgment Card of R1 and R3.
EX.P6 - Original letter dated 30.03.2011 sent by the petitioner to R1 and R3.
EX.P7 -Original Postal Acknowledgment Card by R1.
EX.P8 (Series 4 Nos.) -Original letter dated 07.04.2011 sent by the petitioner addressed to R1, R2 and R3 with the original Postal Slip of R1 and R3 and acknowledged by the R2 in the letter itself.
EX.P9 (Series 2 Nos.) - Original Postal Acknowledgment Card from R1 and R3.
EX.P10 -Original letter dated 28.04.2011 sent by the petitioner addressed to http://www.judis.nic.inR1, R2, R3 with original Postal receipt from R1 and acknowledged by the R2 32 in the letter itself.
EX.P11 -Original Postal Acknowledgment from R1.
EX.P12 - Original death certificate of my father K.S.Ramasamy, who died on 16.11.2010.
EX.P13 - Original letter dated 23.05.2011 given by one Mr.Duraisamy, Coconut Contractor.
EX.P14 (Series 3 sheets) - Photocopies of letter dated 13.06.2011 sent by the petitioner addressed to R1, R2 and R3.
EX.P15 - Original returned cover for EX.P14 with endorsement refused. EX.P16 - Photocopy of Demand Draft dated 07.10.2011 bearing No.143203. EX.P17 (series 7 sheets) - Photocopies of letter dated 06.02.2012 sent by the petitioner addressed to R1, R2 and R3 along with statement of expenses. EX.P18 - Original Postal Acknowledgment from R1 with original Postal Receipt.
EX.P19 (Series 4 sheets) -Photocopies of letter dated 09.06.2012 sent to R1, R2 and R3 by the petitioner with statement of accounts. EX.P20 - Original Postal Acknowledgment from R1.
EX.P21 -Photocopy of notice sent by the petitioner to R2 dated 25.07.2012. EX.P22 - Copy of Lawyer's Reply dated 17.08.2012 for EX.P21. EX.P23 (Series 6 sheets) - Original letter dated 03.09.2012 sent by the petitioner addressed to R1, R2 and R3 along with Statement of Accounts with 3 Nos. of original postal receipts.
http://www.judis.nic.in 33 EX.P24 (Series 2 Nos.) - Original Postal Acknowledgment from R1 and R3. EX.P25 - Copy of letter sent by the petitioner addressed to Deputy General Manager, Catholic Syrian Bank Limited, Thrissur, Deputy General Manager, Catholic Syrian Bank Limited, Coimbatore together with enclosure letters. EX.P26 - Photocopy of letter sent by the petitioner to Director General of Police, Chennai with request for providing Police Protection to him. EX.P27 - Photocopy of complaint dated 09.01.2013 given by me to the Inspector of Police, Kodumudi Police Station.
EX.P28 - Original CSR dated 10.01.2013 for the complaint in EX.P27. EX.P29 - Photocopy of the complaint dated 11.06.2013 given by me to the Inspector of Police, Kodumudi Police Station.
EX.P30 - Original CSR dated 23.06.2013 for the complaint in EX.P29. EX.P31 - Photocopy of affidavit filed in support of A.No.3615 of 2013 in this O.P before this Hon'ble Court.
EX.P32 is the photocopy of affidavit filed in support of A.Nos.2840 and 2841 of 2014 in this O.P. EX.P33 (series) - Copies of Judges Summons and affidavit filed in support of A.No.6451 of 2015.
Ex.P34 – Turmeric Sale Vouchers dated 15.04.2010. Ex.P35 - Turmeric Sale Vouchers dated 24.05.2010. Ex.P36 - Turmeric Sale Vouchers dated 15.09.2010. http://www.judis.nic.inEx.P37 – Partition deed dated 07.06.1970. 34
Ex.P38 – Memorandum of deposit of title deeds dated 31.11.2002. Ex.P39 – Copy of plaint in OS.No.437 of 2011.
Ex.P40 – Photocopy of 1st respondent's family card. Ex.P41 – Original letter written by 1st respondent to the petitioner dated 01.02.1993.
Ex.P42 - Original letter written by 1st respondent to the petitioner dated 15.07.1995.
Ex.P43 – Photocopy of deceased's family card.
Ex.P44 – Agreement for purchase dated 19.01.2000. Ex.P45 – Original Encumbrance certificate dated 24.08.2012. Ex.P46 – Original unregistered lease deed dated 20.12.2004. Ex.P47 – Photocopy of the registered lease deed dated 23.12.2004. Ex.P48 – Photocopy of the FMB sketch dated 12.07.1977. Ex.P49 - Photocopy of the FMB sketch dated 25.07.1977. Ex.P50 - Photocopy of the FMB sketch dated 23.07.1977. Witnesses examined on the side of the respondents:-
Mr.R.Periyasamy, R.W.1 Exhibits marked on the side of the respondents:-
Ex.R1 – Copy of plaint in O.S.No.156 of 2014. Ex.R2 – Written statement filed in O.S.No.156 of 2014. Ex.R3 – Written statement filed by the 5th defendant. Ex.R4 – Death certificate of PW1's mother. Ex.R5 – Copy of Will dated 09.04.2013. http://www.judis.nic.in 35 Ex.R6 – Patta bearing No.94 in respect of property owned by PW1's father. Ex.R7 - Patta bearing No.94 in respect of property owned by PW1's father. Ex.R8 – Extract of 'A' Register.
Ex.R9 - Extract of 'A' Register.
Ex.R10 - Patta bearing No.977 in respect of property owned by PW1's father. Ex.R11 - Patta bearing No.1016 in respect of property owned by PW1's father.
Ex.R12 - Patta bearing No.1016 in respect of property owned by PW1's father.
Ex.R13 - Patta bearing No.1189 in respect of property owned by PW1's father.
Ex.R14 - Patta bearing No.1346 in respect of property owned by PW1's father.
Ex.R11 - Patta bearing No.1478 in respect of property owned by PW1's father.
Ex.R12 – Land owners details for patta No.1016. Ex.R13 - Land owners details for patta No.1189. Ex.R14 - Land owners details for patta No.1346. Ex.R15 - Land owners details for patta No.1478. Ex.R16 – Kist.
Ex.R17 – Photographs of the mother of the petitioner. Ex.R18 – Letter of petitioner to Superintendent of Police. Ex.R19 – Letter of Petitioner to Inspector of Police. Ex.R20 – Letter of petitioner to Addl. Director General of Police (Law and Order.
Ex.R21 – Legal notice by petitioner's wife. Ex.R22 – Legal notice by petitioner.
Ex.R23 – Sale deed executed by K.S.Ramasamy to Sundaram Fabrics Pvt. http://www.judis.nic.inLtd., 36 Ex.R24 – Certified copy of sale deed executed by K.S.Ramasamy to Sundaram Fabrics Pvt. Ltd., Ex.R25 – E-mail sent by petitioner to 2nd respondent. Ex.R26 – Price of Turmeric from June 2009 to December 2015. Ex.R27 – Settlement deed executed by petitioner and Ramsamy to 1st respondent dated 05.10.2009.
Ex.R28 – Letter sent by petitioner dated 28.04.2011. Ex.R29 – Lease deed executed dated 20.01.2011. Ex.R30 – petitioner's reply to legal notice dated 17.08.2012. Ex.R31 – Cheque issued to the 2nd respondent.
02.07.2019 dsa http://www.judis.nic.in 37 R.SUBRAMANIAN.J., dsa O.P.No.163 of 2013 02.07.2019 http://www.judis.nic.in