BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:03/08/2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH A.S.No.65 of 1998 and C.M.P. No.2209 of 1998 and M.P. No.1 of 2007 1.An.Vairavan 2.An.Arunachalam @ Arun 3.Ve.Annamalai 4.Ve.Mithu Natarajan ... Appellants vs. 1.Dr.Gnanasekaran 2.K.Santhanan 3.Ve A Ve.Annamalai Chettiar 4.Rama Vairavan 5.Rama Chidambaram 6.Ve A Ve Arunachalam Chettiar 7.Ve A Ve Muthaiya ... Respondents PRAYER Appeal Suit has been filed under Section 96 of Civil Procedure Code, against the judgment and decree dated 25.07.1996 made in O.S.No.449 of 1987 on the file of the Principal Sub Court, Trichy. !For Appellants ... Mrs.Hema Sampath for Mr.R.Subramanian ^For Respondents R1 ... Mr.S.V.Jayaraman R4 & R5 ... Mr.C.P.Sivamohan * * * * * :JUDGMENT
The appeal has been preferred by the defendants 3,4,5 and 6 in the suit.
The suit has been filed by the plaintiff against the defendants seeking relief
of specific performance of the contract dated 20.06.1983 or in the alternative
for the return of a sum of Rs.4 lakhs with future interest.
2. The case of the plaintiff in a nut shell is as follows:
The suit property is a house situated in Colony Road, Thillainagar,
Trichy-18. It originally belonged to one VE.A.VE.Meyyammai Achi wife of Vairavan
Chettiar. The said VE.A.VE.Meyyammai Achi in a sound disposing state of mind
executed a will dated 15.01.1977. In the said will, she appointed her husband
as the Executor and Trustee. Under the will the Executor was directed to take
possession and obtained probate letter. The said Executor shall have the power
to dispose of any of the properties mentioned and any such action by him shall
not be liable to be questioned by any person claiming under the will. The
Executor is also under no obligation to render any accounts to anyone. If the
Executor dies before carrying out the directions mentioned under the will, then
the Trustees and Executors appointed by him under his will in respect of his
properties shall “IPSO FACTO” become the Trustees and Executors of the will of
VE.A.VE.Meyyammai Achi. The said VE.A.VE.Meyyammai Achi dies on 12.02.1977.
The husband Vairavan Chettiar applied for grant of probate in O.P No.122 of 1977
on the file of District Court, Trichy and pending the said proceeding, he died.
Thereafter, the defendants 1 and 2 who are the Executors-Trustees under the will
of Vairavan Chettiar got themselves impleaded as parties and got the probate of
the will on 15.04.1978.
3. The said Executors appointed under the will took possession of estate
of VE.A.VE.Meyyammai Achi. In the will, the deceased VE.A.VE.Meyyammai Achi has
bequeathed the properties equally to be shared among her grandchildren. The
house which is one of the property mentioned in the will was taken possession by
the Executors. Thereafter, the executors entered into an agreement on
20.06.1983 with the plaintiff. The Executors entered into such an agreement,
since it is advantageous to the defendants as it would get more income than the
rent, the sum of the beneficiaries are away and the house is not capable of
division.
4. Apart from the executors, the defendants 1,2,3,5,9 & 10 have signed the
agreement. The 4th defendant has been represented by the mother , 6th defendant
by his father and the defendants 7 & 8 also by their father who executed the
agreement. Thereafter, the executors sought permission from the District Court,
Trichy for the sale of the house. However the said application filed in O.P.
No.122 of 1985 for the grant of permission was withdrawn by the defendants 1 and
2 in view of the objection by the other defendants. In the meanwhile in pursuant
to the agreement the plaintiff has paid a sum of Rs.4 lakhs. The defendants 2
to 10 have received their respective shares out of Rs.4 lakhs. Since in view of
the refusal of the defendants to execute the sale deed, a notice was given on
26.12.1986 expressing the readiness and willingness of the plaintiff and seeking
the defendants to execute the sale deed.
5. Again on 17.03.1987, another notice was given, but no reply has been
given by the defendants to the subsequent notice. Hence, alleging that the
plaintiff is always ready and willing to perform his part of the contract, the
suit has been filed seeking the relief of specific performance with the
alternative plea of return of amount paid.
6. The third defendant has filed a written statement alleging that the
agreement dated 20.06.1983 cannot be specifically enforced against the third
respondent and the same is not valid and binding. It is further stated that the
property is worth about Rs.15 lakhs and the permission of the Pre-Court has not
been obtained. It is further stated that the permission of the Court for
selling the minor’s share has not been obtained and the suit is barred by
limitation.
7. The 4th defendant has filed a written statement stating that the
agreement is not binding on him and his mother was not competent to represent
him in agreeing to sell his share. It is also stated that the agreement is
void, invalid, not binding and unenforceable against the minor. It is also
stated that no permission has been obtained for selling the minor’s share and
the suit property is divisible. It is further stated that the price fixed is
very low and the defendants 1 & 2 have no power to enter into such an agreement.
8. The defendants 7 & 8 have filed a written statement stating that the
property of the minors cannot be sold and they are not bound by the terms of the
agreement. It is further stated that the defendants 1 & 2 and the guardian did
not have the power to effect any transaction without permission of the Court.
9. The 10th defendant has filed a written statement stating that the
permission of the Court has not been obtained and the Executors have no right to
sell the suit properties.
10. Based upon the above said pleadings, the following issues have been
framed.
(1) Agreement dated 20.06.1983 is enforceable? Such
Agreement binds all the defendants?
(2) Is the plaintiff entitled to relief of specific
performance?
(3) Is the suit maintainable?
(4) Is the suit barred by limitation?
(5) What other relief the plaintiff is entitled to?
11. On behalf of the plaintiff, the plaintiff examined himself as P.W.1
and marked Ex.A1 to A7. Ex.A1 is the probate proceeding in which the will dated
15.01.1977 forms part. Ex.A3 is the agreement between the parties. Ex.A4 and
A7 are the notice issued by the plaintiff. Ex.A5 is the receipt given by the
defendants and Ex.A6 is the copy of the petition filed in O.P.No.122 of 1977
seeking permission to sell the suit property before the District Court, Trichy.
On behalf of the defendants, two witness have been examined. The defendants 4 &
7 examined themselves. Only one document has been marked in Ex.B1 on behalf of
the defendants.
12. The Court below on a appreciation of the evidence both oral and
documentary on the side of the plaintiff and defendants as well as the arguments
made by both the sides has decreed the suit for specific performance.
Challenging the same the present appeal has been filed by the defendants 3,4,5 &
6 in the suit.
13. The learned senior counsel for the appellant submitted that the will
dated 15.01.1977 does not give the power of alienation to the Executors, since
they are only Trustees of the properties covered under the will. It is the
further case of the learned senior counsel that, what is given under the will is
only the power of administrative and there is no power to sell the suit
properties. It is further submitted that the power of alienation under the will
is given only to the husband of the testator namely Vairavan Chettiar and not to
the defendants 1 & 2. The learned senior counsel submitted that the judgment
and decree of the Court below is contrary to Section 8 of the Hindu Minorities
and Guardianship Act, since the permission has not been obtained. The learned
senior counsel has also submitted that in view of the failure of the defendants
1 & 2 to get the permission from the Court as required under Section 307 of
Hindu Succession Act, 1925, the suit is liable to be dismissed.
14. According to the learned senior counsel, the readiness and willingness
has not been proved by the plaintiff. The learned senior counsel further
contended that the transaction is void in so far as the 4th defendant is
concerned, since the mother cannot represent the minor. It is further submitted
that even assuming the defendants 1 & 2 have got the power under Section 307 of
Hindu Succession Act, 1925, the same cannot bind the rights of the minors and
therefore the provisions contained in Section 8 of Hindu Minorities and
Guardianship Act, 1956 will have the preference over the Hindu Succession Act,
1925.
15. Per contra, the learned senior counsel for the respondents submitted
that in order to appreciate the intention of data, the will as a whole has to be
read. It is further submitted that a reading of the will would clearly show
that the power has been given to the Executors/Trustees to do any act in so far
as the suit property is concerned and the said action cannot be questioned. It
is further submitted that the defendants being a beneficiaries under a document
cannot question the terms of the said document. In other words, the rights of
the defendants are subject to the provisions of the will. The learned counsel
submitted that it is not even necessary to make the defendants 3 to 10 as
parties and the defendants have derived the power under the will. It is also
submitted that under Section 307 of Indian Succession Act, no application is
necessary seeking the permission from the Court.
16. The learned senior counsel also submitted that Section 8 of Hindu
Minorities and Guardianship Act would not apply to the present case, since the
rights have be accrued under the will subject to the condition stipulated
therein. Further it is also submitted that the defendants have received their
share and it is not proper for them to contend otherwise. In so far as the
readiness and willingness is concerned, there is no clause for fixing the time
and the delay is because of the pending proceedings in O.P. No.122 of 1985. The
financial capacity of the plaintiff to pay has not be disputed in the written
statement and also in the evidence. The plaintiff has deposited the entire
amount in pursuant to the judgment and decree of the Court below. Hence it is
prayed by the learned senior counsel that the judgment and decree of the Court
below has to be confirmed and the appeal will have to be dismissed.
17. In the present case, the execution of the will dated 15.01.1977 is not
in dispute. The said will has been executed by the late VE.A.VE.Meyyammai Achi
making her husband Vairavan Chettiar as the Executor/Trustee of the will. The
contents of the will is extracted here under:
I HEREBY APPOINT MY HUSBAND Sri VE.A.Vairavan Chettiar TO BE THE EXECUTOR
AND TRUSTEE UNDER THIS WILL. He shall immediately after my death, take
possession of my Estate and obtain such probate letters of Administration or
Succession Certificate in respect of any part of the Estate as may be necessary
or expedient as he deems necessary and shall pay all debts payable by me, taxes,
funeral and testamentar expenses and Estate duty out of the said Estate and
shall thereafter carry out the directions obtained hereunder.
He shall also have power to dispose of any of my property immovable or
movable, if he deems fit and any such action by him shall not be liable to be
questioned by any person claiming under this Will. Nor shall the Executor and
Trustee be under any obligation to render any accounts to anybody.
If my husband unfortunately passes away before completely carrying out the
directions contained in my Will the Trustee and Executors appointed by him under
his WILL, in respect of his properties shall “IPSO FACTO” become the Trustees
and Executors of my WILL who shall carry out my directions.
18. Hence a perusal of the said will would show that the deceased
VE.A.VE.Meyyammai Achi appointed her husband Ve.A.Vairavan Chettiar as Executor
and Trustee under the will. The power is given to the said person to probate
and administer the will. The power is also given to the said person to carry
out the directions contained in the will. He has also been given the power to
dispose of any property whether immovable or movable if he deems fit and any
such action by him shall not be questioned by anyone claiming under the Will.
He shall also be not liable to render any accounts to anybody.
19. Similarly, the above said will also speaks about the situation in
which the Executor dies before carrying out the directions mentioned in the
will. In such a case the Trustees and Executors appointed by him under his will
shall “IPSO FACTO” become the Trustees and Executors of her will and they shall
carry out the directions mentioned in her will.
20. Therefore, a reading of the said will would clearly show that absolute
power has been given to the original Executor to dispose of the property under
the will and while exercising the said power, no beneficiary can question the
same and he is not liable to give any account for his action. The later portion
of the will also visualizes the situation when the Executor dies and in such an
event, all his powers will have to be exercised by the Executors and Trustees
named in his will.
21. The word IPSO FACTO has been defined in the BLACK’S DICTIONARY as “the
very nature of situation”. Similarly in the AIYAR’S LAW LEXICON, it has been
defined as “automatically”. Applying the said meaning it is very clear that the
will clearly stipulates that the defendants 1 & 2 being the Executors shall
exercise the powers of the original Executor.
22. It is a well settled principle of law that a will should construed as
a whole and the actual meaning will have to be imported. Section 74 of the
Indian Succession Act reads as follows:
Wording of Will: “It is not necessary that any technical words or terms of art
be used in a Will, but only that the wording be such that the intentions of the
testator can be known therefrom”.
Section 82
Meaning of Clause to be collected from entire Will:
“The meaning of any clause in a Will is to be collected from the entire
instrument, and all its parts are to be construed with reference to each other”
23. On a reading of the above said provisions, it is clearly seen that a
will has to be read as a whole and the surrounding circumstances are to be given
effect to. The only conclusion that can be arrived in the present case is that
the defendants 1 & 2 have been given absolute power to deal with the properties
mentioned in the will in the same way as that of the original Executor. It has
been held in Paragraph 33 of the judgment reported in 2009 (3) LW 5 as follows:
How a Will has to be interpreted is no longer res integra. Intention of the
testator must be ascertained from the words used and the surrounding
circumstances. The Court will put itself in the armchair of the testator.
In Navneet Lal v. Gokul [(1976) 1 SCC 630]it has been held:
8. From the earlier decisions of this Court the following principles, inter
alia, are well established:
(1) In construing a document whether in English or in vernacular the fundamental
rule is to ascertain the intention from the words used; the surrounding
circumstances are to be considered; but that is only for the purpose of finding
out the intended meaning of the words which have actually been employed. (Ram
Gopal v. Nand Lal)
(2) In construing the language of the will the court is entitled to put itself
into the testator’s armchair (Venkata Narasimha v. Parthasarathy) and is bound
to bear in mind also other matters than merely the words used. It must consider
the surrounding circumstances, the position of the testator, his family
relationship, the probability that he would use words in a particular sense…
But all this is solely as an aid to arriving at a right construction of the
will, and to ascertain the meaning of its language when used by that particular
testator in that document. (Venkata Narasimha case and Gnanambal Ammal v. T.
Raju Ayyar)
(3) The true intention of the testator has to be gathered not by attaching
importance to isolated expressions but by reading the will as a whole with all
its provisions and ignoring none of them as redundant or contradictory. (Raj
Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer)
(4) The court must accept, if possible, such construction as would give to every
expression some effect rather than that which would render any of the
expressions inoperative. The court will look at the circumstances under which
the testator makes his will, such as the state of his property, of his family
and the like. Where apparently conflicting dispositions can be reconciled by
giving full effect to every word used in a document, such a construction should
be accepted instead of a construction which would have the effect of cutting
down the clear meaning of the words used by the testator. Further, where one of
the two reasonable constructions would lead to intestacy, that should be
discarded in favour of a construction which does not create any such hiatus.
(Pearey Lal v. Rameshwar Das)
(5) It is one of the cardinal principles of construction of wills that to the
extent that it is legally possible effect should be given to every disposition
contained in the will unless the law prevents effect being given to it. Of
course, if there are two repugnant provisions conferring successive interests,
if the first interest created is valid the subsequent interest cannot take
effect but a Court of construction will proceed to the farthest extent to avoid
repugnancy, so that effect could be given as far as possible to every
testamentary intention contained in the will. (Ramachandra Shenoy v. Hilda Brite
Mrs)’.
{See also Arunkumar and Anr. v. Shriniwas and Ors.[(2003) 6 SCC 98 = 2003-4-
LW.713]}
This aspect of the matter has recently been considered in Bajrang Factory Ltd.
v. University of Calucutta [(2007) 7 SCC 183 = 2008 – 1-L.W.201]wherein it was
held:
39. With a view to ascertain the intention of the maker of the will, not only
the terms thereof are required to be taken into consideration but also all
circumstances attending thereto. The will as a whole must, thus, be considered
for the said purpose and not merely the particular part thereof. As the will if
read in its entirety, can be given effect to, it is imperative that nothing
should be read therein to invalidate the same.
40. In construing a will, no doubt, all possible contingencies are required to
be taken into consideration, but it is also a well-settled principle of law that
only because a part of a document is invalid, the entire document need not be
invalidated, if the former forms a severable part. The legatee admittedly did
not have any issue, nor did he adopt or appoint any person. In a situation of
this nature, effect can be given to Clause 12 of the will, if it is read as
occurring immediately after Clause 5 of the original will. As the said clause
stands on its own footing, its effect must be considered vis-`a-vis Clause 6,
but the court may not start with construction of Clauses 6 and 7, which may lead
to a conclusion that Clause 5 is also invalid. The contingencies contemplated by
Clause 6 may not have any effect on Clause 7, if it does not take place at all.
The property which should have been purchased with the sale proceeds could have
been the subject-matter of the bequest and in terms thereof the University of
Calcutta became the beneficiary on the death of the original legatee. We do not
find any reason as to why the same cannot be given effect to. We have indicated
hereinbefore that it is possible to construe Clause 7 of the will and in fact a
plain reading thereof would, thus, lead to the conclusion that it merely
provides for an option given to the legatee to take recourse thereto. We have
also indicated hereinbefore that the term “devise” in the context of Clause 7
does not carry any meaning and, therefore, the same for all intent and purport
should be substituted by the word “desire”. As a matter of fact, the appellant
in the copy of the will supplied to us had also used the word “desire” in place
of the word “devise”, which would also go to show that even the appellant
understood Clause 7 in that fashion. Clause 7, if so read, will have no
application to the properties which were to be substituted in place of the
immovable properties belonging to the testator. The benefit of the sale
proceeds, thus, in absence of any action on the part of the legatee in terms of
Clause 7 shall also vest in the University. Moreover, the questions as to
whether the deed of sale purported to have been executed by the legatee in
favour of Chamong Tea Co. Ltd. or other instruments executed by him in favour of
the appellants herein are pending for consideration before the High Court which
may have to be determined on its own merit. In the event the said transactions
are held to be void, the question of giving any other or further effect to
Clause 6 of the will may not arise.
In Anil Kak v. Kumari Sharda Raje and Ors. [2008 (6) SCALE 597 = 2008-3-L.W.723]
it is stated:
The testator’s intention is collected from a consideration of the whole Will and
not from a part of it. If two parts of the same Will are wholly irreconcilable,
the court of law would not be in a position to come to a finding that the Will
dated 4.11.1992 could be given effect to irrespective of the appendices. In
construing a Will, no doubt all possible contingencies are required to be taken
into consideration. Even if a part is invalid, the entire document need not be
invalidated, only if it forms a severable part. [See Bajrang Factory Ltd. and
Anr. v. University of Calcutta and Ors. [(2007) 7 SCC 183 = 2008-1- LW.201]}
In Halsbury’s Laws of England, Fourth edition, Volume 50, page 332-33, it is
stated:
462. Leading principle of construction: The leading principle of construction
which is applicable to all wills without qualification and overrides every other
rule of construction is that the testator’s intention is collected from a
consideration of the whole will taken in connection with any evidence properly
admissible, and the meaning of the will and of every part of it is determined
according to that intention’.
In Shyamal Kanti Guha (D) Through LRs. and Ors. v. Meena Bose 2008 (9) SCALE 363
= 2009-1-L.W.201, it is stated:
Keeping in mind the aforementioned backdrop, the Will should be construed. It
should be done by a Court indisputably placing itself on the arm- chair of the
testator. The endeavour of the Court should be to give effect to his intention.
The intention of the testator can be culled out not only upon reading the Will
in its entirety, but also the background facts and circumstances of the case.
Following the said principles, we have no hesitation to hold that the title to
the said property vested in the appellant.
24. Therefore, on a consideration of the said legal position this Court is
of the opinion that the contention of the learned senior counsel for the
petitioners cannot be accepted. In the judgment reported in 2009 2 MLJ 104
(Shyamal Kanth Guha (D) Through Lrs. and others Vs. Meena Bose), the Hon’ble
Supreme Court has held that while interpreting a will the intention of the
testator has to be taken into account and in order to ascertain the said
intention the will has to be read in entirety and the background and facts and
circumstances have also to be take note of.
25. In so far as the contention of the learned senior counsel for the
appellants that in view of Section 8 of the Hindu Minorities and Guardianship
Act, 1956, the same also does not merit acceptance. In the present case, the
legatees get the benefit under the will. There is no difference between a minor
and a major in so far as the legatees are concerned. There is no dispute that
the power has been given to the Executors to take a decision in the interest of
beneficiaries. Therefore, when a person gets his right under a document which
in this case “a will” he cannot question the terms of the said document. In
other words, the defendants cannot “approbate” or “reprobate”. Section 8 of the
Hindu Minorities and Guardianship Act would not be applicable in a case of this
nature. The learned senior counsel for the appellants relied upon Section 7 of
the Hindu Minorities and Guardianship Act to contend that the said Act will have
preference over the other enactments. However in the present case, the issue
involved is not with respect to the application of Indian Succession Act, 1925
over and above the Hindu Minorities and Guardianship Act, 1956, but the question
of implementation of the directions given under will. Therefore, the only
question to be decided is about the intention of the testator.
26. The learned senior counsel for the appellants has relied upon the
judgment reported in AIR 1987 Punjab 215 (Darbara Singh Vs. Karminder singh and
others), AIR 1982 Orissa 194 (Laxman Hota Vs. Rama Chandra Hota and others), AIR
1968 MadhyaPradesh 150 (Ramchandra Vs. Manikchand and another), AIR 1974 SC 1892
(Kugu Collieries Ltd. Vs. Jharkhand Mines Ltd. and others), AIR 1932 Bombay 604
(Mahommed Hussein Vs. Bai Aishabai and others), in support of his contention to
show that the agreement is unenforceable, since the permission as required under
the Hindu Minorities and Guardianship Act has not been obtained in so far as the
minors are concerned. The learned senior counsel for the appellants has also
relied upon the judgment reported in AIR 1971 Kerala 239 (Ayissa and anothers
Vs. Prabhakaran), 1991 Madhyapradesh 340 (Johri and others Vs. Mahila Draupati
alias Dropadi and others), 1980 1 MLJ 486 (Sundaramoorthy and another Vs.
Shanmugha Nadar and others), in support of her case to contend that the
agreement entered into by an incompetent person not being the natural guardian
cannot be enforced. Therefore, the learned counsel submitted that the suit will
have to be dismissed.
27. There is no difficulty in appreciating the principle of law that a
minor’s individual property cannot be sold without obtaining the permission as
required under the Hindu Minorities and Guardianship act. Similarly an
incompetent person cannot enter into agreement either for sale or purchase on
behalf of the minor. However in the present case on hand, the above said
rulings have no application in view of the fact that the defendants 1 & 2 being
the Executors have got the powers to deal with the property which they
administer under the will. Therefore this Court is of the opinion that the said
judgment’s relied upon by the learned senior counsel for the appellants are not
applicable to the present case for the simple reason that the rights of the
defendants accrue and emerge under the will and therefore they cannot question
the same.
28. The next contention of the learned senior counsel for the appellants
is that the very fact that the defendants 1 & 2 have not obtained the permission
under Hindu Minorities and Guardianship Act from the Court as well as under
Indian Succession Act, 1925 would itself show that the plaintiff is aware of the
legal hurdles and hence the suit is liable to be dismissed. The said contention
is also in the opinion of the Court cannot be accepted. A reading of Sections
307(1) and 307(2)(1) of Indian Succession Act, 1925 would clearly show that no
application is warranted when the Executor sells the property covered by a will
when such a power is given to the Executor. Therefore, the contention of the
learned senior counsel for the appellants does not merit acceptance.
29. In so far as the readiness and willingness is concerned, the learned
counsel for the appellants submitted that the plaintiff has not proved the same.
According to the learned senior counsel the suit has been filed belately after
waiting for a long time. The learned senior counsel has also relied upon the
judgment reported in 1998 (1) CTC 181 (Vasantha and others Vs. M.Senguttuvan)
and 1997 (1) CTC 160 (Seeni Ammal Vs. Veerayee Ammal), to contend that a duty
is cast upon the agreement holder to prove the readiness and willingness as
contended by the learned senior counsel for the respondents in the present case
the plaintiff is a Doctor. The financial capacity of the plaintiff has not been
questioned by the defendants. It is further seen that the plaintiff is having a
dispensary running his hospital. The said averments regarding readiness and
willingness was also not disputed in the written statement as well as the
evidence. It is further seen that the plaintiff has deposited the entire amount
in pursuant to the orders of the Court. When the Court has asked the plaintiff
about the time required under Order 20 Rule 12(a) of C.P.C., the plaintiff
sought for time and paid the amount within the said time. Therefore, the said
contention of the learned senior counsel for the appellants that the plaintiff
has not proved the readiness and willingness to execute the sale deed, is also
rejected. It is also to be noted that the plaintiff could not come to the Court
in view of the pending proceedings and only after the withdrawal of the petition
before the Court, the plaintiff has come before the Court. Therefore, there is
every justification for the delay in approaching the Court.
30. This Court also will have to see the conduct of the parties. In the
present case, it is not in dispute that the defendants have received the money.
The guardians of the defendants have received the money on behalf of the minors.
The reason stated that the rent that would fetch by letting the building would
be less was also found acceptance by the Court below. Moreover, the defendants
have been living in different places and therefore the defendants 1 & 2 being
the Executors have thought fit in the interest of the defendants to sell the
suit property. Hence in view of the findings given above and on a reading of
the will, the contention of the learned senior counsel appearing for the
respondent is to be accepted that it is not even necessary to include the other
defendants in the agreement in view of the power conferred upon the defendants 1
& 2 under the will. Therefore, looking from the said angle also this Court is
of the opinion that the appeal deserves to be rejected.
31. For the reasons stated above and on a consideration of the materials
available on record, this Court is of the opinion that the appeal filed by the
appellants is liable to be rejected and accordingly the same is dismissed. No
costs. Consequently, the connected C.M.P. and miscellaneous petition are
closed.
cs
To
The Principal Sub Court,
Trichy.