{"id":87169,"date":"2009-08-03T00:00:00","date_gmt":"2009-08-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/an-vairavan-vs-dr-gnanasekaran-on-3-august-2009-2"},"modified":"2014-09-18T03:13:43","modified_gmt":"2014-09-17T21:43:43","slug":"an-vairavan-vs-dr-gnanasekaran-on-3-august-2009-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/an-vairavan-vs-dr-gnanasekaran-on-3-august-2009-2","title":{"rendered":"An.Vairavan vs Dr.Gnanasekaran on 3 August, 2009"},"content":{"rendered":"
Madras High Court<\/div>\n
An.Vairavan vs Dr.Gnanasekaran on 3 August, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED:03\/08\/2009\n\nCORAM\nTHE HONOURABLE MR. JUSTICE M.M.SUNDRESH\n\nA.S.No.65 of 1998\nand\nC.M.P. No.2209 of 1998\nand\nM.P. No.1 of 2007\n\n1.An.Vairavan\n2.An.Arunachalam @ Arun\n3.Ve.Annamalai\n4.Ve.Mithu Natarajan\t\t\t\t... Appellants\n\nvs.\n\n1.Dr.Gnanasekaran\n2.K.Santhanan\n3.Ve A Ve.Annamalai Chettiar\n4.Rama Vairavan\n5.Rama Chidambaram\n6.Ve A Ve Arunachalam Chettiar\n7.Ve A Ve Muthaiya\t\t\t\t... Respondents\n\nPRAYER\n\nAppeal Suit has been filed under Section 96 of Civil Procedure Code,\nagainst the judgment and decree dated  25.07.1996 made in O.S.No.449 of 1987 on\nthe file of the Principal Sub Court, Trichy.\n\t\t\n!For Appellants\t\t... \tMrs.Hema Sampath\n\t\t\t  \tfor Mr.R.Subramanian\n^For Respondents\n\tR1\t\t... \tMr.S.V.Jayaraman\n\n\tR4 & R5\t\t...\tMr.C.P.Sivamohan\n\n\n\t\t\t\t\t* * * * *\t\n\n:JUDGMENT\t\n<\/pre>\n
\tThe appeal has been preferred by the defendants 3,4,5 and 6 in the suit.
\nThe suit has been filed by the plaintiff against the defendants seeking relief
\nof specific performance of the contract dated 20.06.1983 or in the alternative
\nfor the return of a sum of Rs.4 lakhs with future interest.\n<\/p>\n
\t2. The case of the plaintiff in a nut shell is as follows:\n<\/p>\n
\tThe suit property is a house situated in Colony Road, Thillainagar,
\nTrichy-18. It originally belonged to one VE.A.VE.Meyyammai Achi wife of Vairavan
\nChettiar.  The said VE.A.VE.Meyyammai Achi in a sound disposing state of mind
\nexecuted a will dated 15.01.1977.  In the said will, she appointed her husband
\nas the Executor and Trustee.  Under the will the Executor was directed to take
\npossession and obtained probate letter.  The said Executor shall have the power
\nto dispose of any of the properties mentioned and any such action by him shall
\nnot be liable to be questioned by any person claiming under the will.  The
\nExecutor is also under no obligation to render any accounts to anyone.  If the
\nExecutor dies before carrying out the directions mentioned under the will, then
\nthe Trustees and Executors appointed by him under his will in respect of his
\nproperties shall “IPSO FACTO” become the Trustees and Executors of the will of
\nVE.A.VE.Meyyammai Achi.  The said VE.A.VE.Meyyammai Achi dies on 12.02.1977.
\nThe husband Vairavan Chettiar applied for grant of probate in O.P No.122 of 1977
\non the file of District Court, Trichy and pending the said proceeding, he died.
\nThereafter, the defendants 1 and 2 who are the Executors-Trustees under the will
\nof Vairavan Chettiar got themselves impleaded as parties and got the probate of
\nthe will on 15.04.1978.\n<\/p>\n
\t3. The said Executors appointed under the will took possession of estate
\nof VE.A.VE.Meyyammai Achi. In the will, the deceased VE.A.VE.Meyyammai Achi has
\nbequeathed the properties equally to be shared among her grandchildren.  The
\nhouse which is one of the property mentioned in the will was taken possession by
\nthe Executors.  Thereafter, the executors entered into an agreement on
\n20.06.1983 with the plaintiff.  The Executors entered into such an agreement,
\nsince it is advantageous to the defendants as it would get more income than the
\nrent, the sum of the beneficiaries are away and the house is not capable of
\ndivision.\n<\/p>\n
\t4. Apart from the executors, the defendants 1,2,3,5,9 & 10 have signed the
\nagreement.  The 4th defendant has been represented by the mother , 6th defendant
\nby his father and the defendants 7 & 8 also by their father who executed the
\nagreement.  Thereafter, the executors sought permission from the District Court,
\nTrichy for the sale of the house.  However the said application filed in O.P.
\nNo.122 of 1985 for the grant of permission was withdrawn by the defendants 1 and
\n2 in view of the objection by the other defendants. In the meanwhile in pursuant
\nto the agreement the plaintiff has paid a sum of Rs.4 lakhs.  The defendants 2
\nto 10 have received their respective shares out of Rs.4 lakhs.  Since in view of
\nthe refusal of the defendants to execute the sale deed, a notice was given on
\n26.12.1986 expressing the readiness and willingness of the plaintiff and seeking
\nthe defendants to execute the sale deed.\n<\/p>\n
\t5. Again on 17.03.1987, another notice was given, but no reply has been
\ngiven by the defendants to the subsequent notice.  Hence, alleging that the
\nplaintiff is always ready and willing to perform his part of the contract, the
\nsuit has been filed seeking the relief of specific performance with the
\nalternative plea of return of amount paid.\n<\/p>\n
\t6. The third defendant has filed a written statement alleging that the
\nagreement dated 20.06.1983 cannot be specifically enforced against the third
\nrespondent and the same is not valid and binding.  It is further stated that the
\nproperty is worth about Rs.15 lakhs and the permission of the Pre-Court has not
\nbeen obtained.  It is further stated that the permission of the Court for
\nselling the minor’s share has not been obtained and the suit is barred by
\nlimitation.\n<\/p>\n
\t7. The 4th defendant has filed a written statement stating that the
\nagreement is not binding on him and his mother was not competent to represent
\nhim in agreeing to sell his share.  It is also stated that the agreement is
\nvoid, invalid, not binding and unenforceable against the minor.  It is also
\nstated that no permission has been obtained for selling the minor’s share and
\nthe suit property is divisible.  It is further stated that the price fixed is
\nvery low and the defendants 1 & 2 have no power to enter into such an agreement.\n<\/p>\n
\t8. The defendants 7 & 8 have filed a written statement stating that the
\nproperty of the minors cannot be sold and they are not bound by the terms of the
\nagreement.  It is further stated that the defendants 1 & 2 and the guardian did
\nnot have the power to effect any transaction without permission of the Court.\n<\/p>\n
\t9. The 10th defendant has filed a written statement stating that the
\npermission of the Court has not been obtained and the Executors have no right to
\nsell the suit properties.\n<\/p>\n
\t10. Based upon the above said pleadings, the following issues have been
\nframed.\n<\/p>\n
(1) Agreement dated 20.06.1983 is enforceable? Such
\n    Agreement binds all the defendants?\n<\/p>\n
(2) Is the plaintiff entitled to relief of specific
\n    performance?\n<\/p>\n
(3) Is the suit maintainable?\n<\/p>\n
(4) Is the suit barred by limitation?\n<\/p>\n
(5) What other relief the plaintiff is entitled to?\n<\/p>\n
\t11. On behalf of the plaintiff, the plaintiff examined himself as P.W.1
\nand marked Ex.A1 to A7.  Ex.A1 is the probate proceeding in which the will dated
\n15.01.1977 forms part.  Ex.A3 is the agreement between the parties.  Ex.A4 and
\nA7 are the notice issued by the plaintiff.  Ex.A5 is the receipt given by the
\ndefendants and Ex.A6 is the copy of the petition filed in O.P.No.122 of 1977
\nseeking permission to sell the suit property before the District Court, Trichy.
\nOn behalf of the defendants, two witness have been examined.  The defendants 4 &
\n7 examined themselves.  Only one document has been marked in Ex.B1 on behalf of
\nthe defendants.\n<\/p>\n
\t12. The Court below on a appreciation of the evidence both oral and
\ndocumentary on the side of the plaintiff and defendants as well as the arguments
\nmade by both the sides has decreed the suit for specific performance.
\nChallenging the same the present appeal has been filed by the defendants 3,4,5 &
\n6 in the suit.\n<\/p>\n
\t13. The learned senior counsel for the appellant submitted that the will
\ndated 15.01.1977 does not give the power of alienation to the Executors, since
\nthey are only Trustees of the properties covered under the will.  It is the
\nfurther case of the learned senior counsel that, what is given under the will is
\nonly the power of administrative and there is no power to sell the suit
\nproperties.  It is further submitted that the power of alienation under the will
\nis given only to the husband of the testator namely Vairavan Chettiar and not to
\nthe defendants 1 & 2.  The learned senior counsel submitted that the judgment
\nand decree of the Court below is contrary to Section 8 of the Hindu Minorities
\nand Guardianship Act, since the permission has not been obtained.  The learned
\nsenior counsel has also submitted that in view of the failure of the defendants
\n1 & 2 to get the permission from the Court as required under Section 307 of
\nHindu Succession Act, 1925, the suit is liable to be dismissed.\n<\/p>\n
\t14. According to the learned senior counsel, the readiness and willingness
\nhas not been proved by the plaintiff.  The learned senior counsel further
\ncontended that the transaction is void in so far as the 4th defendant is
\nconcerned, since the mother cannot represent the minor.  It is further submitted
\nthat even assuming the defendants 1 & 2 have got the power under Section 307 of
\nHindu Succession Act, 1925, the same cannot bind the rights of the minors and
\ntherefore the provisions contained in Section 8 of Hindu Minorities and
\nGuardianship Act, 1956 will have the preference over the Hindu Succession Act,
\n1925.\n<\/p>\n
\t15. Per contra, the learned senior counsel for the respondents submitted
\nthat in order to appreciate the intention of data, the will as a whole has to be
\nread.  It is further submitted that a reading of the will would clearly show
\nthat the power has been given to the Executors\/Trustees to do any act in so far
\nas the suit property is concerned and the said action cannot be questioned.  It
\nis further submitted that the defendants being a beneficiaries under a document
\ncannot question the terms of the said document.  In other words, the rights of
\nthe defendants are subject to the provisions of the will.  The learned counsel
\nsubmitted that it is not even necessary to make the defendants 3 to 10 as
\nparties and the defendants have derived the power under the will.  It is also
\nsubmitted that under Section 307 of Indian Succession Act, no application is
\nnecessary seeking the permission from the Court.\n<\/p>\n
\t16. The learned senior counsel also submitted that Section 8 of Hindu
\nMinorities and Guardianship Act would not apply to the present case, since the
\nrights have be accrued under the will subject to the condition stipulated
\ntherein.  Further it is also submitted that the defendants have received their
\nshare and it is not proper for them to contend otherwise.  In so far as the
\nreadiness and willingness is concerned, there is no clause for fixing the time
\nand the delay is because of the pending proceedings in O.P. No.122 of 1985.  The
\nfinancial capacity of the plaintiff to pay has not be disputed in the written
\nstatement and also in the evidence.  The plaintiff has deposited the entire
\namount in pursuant to the judgment and decree of the Court below.  Hence it is
\nprayed by the learned senior counsel that the judgment and decree of the Court
\nbelow has to be confirmed and the appeal will have to be dismissed.\n<\/p>\n
\t17. In the present case, the execution of the will dated 15.01.1977 is not
\nin dispute.  The said will has been executed by the late VE.A.VE.Meyyammai Achi
\nmaking her husband Vairavan Chettiar as the Executor\/Trustee of the will.  The
\ncontents of the will is extracted here under:\n<\/p>\n
\tI HEREBY APPOINT MY HUSBAND Sri VE.A.Vairavan Chettiar TO BE THE EXECUTOR
\nAND TRUSTEE UNDER THIS WILL.  He shall immediately after my death, take
\npossession of my Estate and obtain such probate letters of Administration or
\nSuccession Certificate in respect of any part of the Estate as may be necessary
\nor expedient as he deems necessary and shall pay all debts payable by me, taxes,
\nfuneral and testamentar expenses and Estate duty out of the said Estate and
\nshall thereafter carry out the directions obtained hereunder.
\n\tHe shall also have power to dispose of any of my property immovable or
\nmovable, if he deems fit and any such action by him shall not be liable to be
\nquestioned by any person claiming under this Will.  Nor shall the Executor and
\nTrustee be under any obligation to render any accounts to anybody.
\n\tIf my husband unfortunately passes away before completely carrying out the
\ndirections contained in my Will the Trustee and Executors appointed by him under
\nhis WILL, in respect of his properties shall “IPSO FACTO” become the Trustees
\nand Executors of my WILL who shall carry out my directions.\n<\/p>\n
\t18. Hence a perusal of the said will would show that the deceased
\nVE.A.VE.Meyyammai Achi appointed her husband Ve.A.Vairavan Chettiar as Executor
\nand Trustee under the will.  The power is given to the said person to probate
\nand administer the will.  The power is also given to the said person to carry
\nout the directions contained in the will.  He has also been given the power to
\ndispose of any property whether immovable or movable if he deems fit and any
\nsuch action by him shall not be questioned by anyone claiming under the Will.
\nHe shall also be not liable to render any accounts to anybody.\n<\/p>\n
\t19. Similarly, the above said will also speaks about the situation in
\nwhich the Executor dies before carrying out the directions mentioned in the
\nwill.  In such a case the Trustees and Executors appointed by him under his will
\nshall “IPSO FACTO” become the Trustees and Executors of her will and they shall
\ncarry out the directions mentioned in her will.\n<\/p>\n
\t20. Therefore, a reading of the said will would clearly show that absolute
\npower has been given to the original Executor to dispose of the property under
\nthe will and while exercising the said power, no beneficiary can question the
\nsame and he is not liable to give any account for his action.  The later portion
\nof the will also visualizes the situation when the Executor dies and in such an
\nevent, all his powers will have to be exercised by the Executors and Trustees
\nnamed in his will.\n<\/p>\n
\t21. The word IPSO FACTO has been defined in the BLACK’S DICTIONARY as “the
\nvery nature of situation”.  Similarly in the AIYAR’S LAW LEXICON, it has been
\ndefined as “automatically”.  Applying the said meaning it is very clear that the
\nwill clearly stipulates that the defendants 1 & 2 being the Executors shall
\nexercise the powers of the original Executor.\n<\/p>\n
\t22. It is a well settled principle of law that a will should construed as
\na whole and the actual meaning will have to be imported.  Section 74 of the
\nIndian Succession Act reads as follows:\n<\/p>\n
Wording of Will: “It is not necessary that any technical words or terms of art
\nbe used in a Will, but only that the wording be such that the intentions of the
\ntestator can be known therefrom”.\n<\/p>\n
Section 82
\nMeaning of Clause to be collected from entire Will:\n<\/p>\n
\t“The meaning of any clause in a Will is to be collected from the entire
\ninstrument, and all its parts are to be construed with reference to each other”\n<\/p>\n
\t23. On a reading of the above said provisions, it is clearly seen that a
\nwill has to be read as a whole and the surrounding circumstances are to be given
\neffect to.  The only conclusion that can be arrived in the present case is that
\nthe defendants 1 & 2 have been given absolute power to deal with the properties
\nmentioned in the will in the same way as that of the original Executor.  It has
\nbeen held in Paragraph 33 of the judgment reported in  2009 (3) LW 5 as follows:
\n How a Will has to be interpreted is no longer res integra. Intention of the
\ntestator must be ascertained from the words used and the surrounding
\ncircumstances. The Court will put itself in the armchair of the testator.
\nIn Navneet Lal v. Gokul<\/a> [(1976) 1 SCC 630]it has been held:\n<\/p>\n
8. From the earlier decisions of this Court the following principles, inter
\nalia, are well established:\n<\/p>\n
(1) In construing a document whether in English or in vernacular the fundamental
\nrule is to ascertain the intention from the words used; the surrounding
\ncircumstances are to be considered; but that is only for the purpose of finding
\nout the intended meaning of the words which have actually been employed. (Ram
\nGopal v. Nand Lal)<\/a>
\n(2) In construing the language of the will the court is entitled to put itself
\ninto the testator’s armchair (Venkata Narasimha v. Parthasarathy) and is bound
\nto bear in mind also other matters than merely the words used. It must consider
\nthe surrounding circumstances, the position of the testator, his family
\nrelationship, the probability that he would use words in a particular sense…
\nBut all this is solely as an aid to arriving at a right construction of the
\nwill, and to ascertain the meaning of its language when used by that particular
\ntestator in that document. (Venkata Narasimha case and Gnanambal Ammal v. T.
\nRaju Ayyar)<\/a>
\n(3) The true intention of the testator has to be gathered not by attaching
\nimportance to isolated expressions but by reading the will as a whole with all
\nits provisions and ignoring none of them as redundant or contradictory. (Raj
\nBajrang Bahadur Singh v. Thakurain Bakhtraj Kuer)<\/a>
\n(4) The court must accept, if possible, such construction as would give to every
\nexpression some effect rather than that which would render any of the
\nexpressions inoperative. The court will look at the circumstances under which
\nthe testator makes his will, such as the state of his property, of his family
\nand the like. Where apparently conflicting dispositions can be reconciled by
\ngiving full effect to every word used in a document, such a construction should
\nbe accepted instead of a construction which would have the effect of cutting
\ndown the clear meaning of the words used by the testator. Further, where one of
\nthe two reasonable constructions would lead to intestacy, that should be
\ndiscarded in favour of a construction which does not create any such hiatus.
\n(Pearey Lal v. Rameshwar Das)<\/a>
\n(5) It is one of the cardinal principles of construction of wills that to the
\nextent that it is legally possible effect should be given to every disposition
\ncontained in the will unless the law prevents effect being given to it. Of
\ncourse, if there are two repugnant provisions conferring successive interests,
\nif the first interest created is valid the subsequent interest cannot take
\neffect but a Court of construction will proceed to the farthest extent to avoid
\nrepugnancy, so that effect could be given as far as possible to every
\ntestamentary intention contained in the will. (Ramachandra Shenoy v. Hilda Brite
\nMrs)’.<\/a>\n<\/p>\n
{See also Arunkumar and Anr. v. Shriniwas and Ors.<\/a>[(2003) 6 SCC 98 = 2003-4-
\nLW.713]}
\nThis aspect of the matter has recently been considered in Bajrang Factory Ltd.
\nv. University of Calucutta<\/a> [(2007) 7 SCC 183 = 2008 – 1-L.W.201]wherein it was
\nheld:\n<\/p>\n
39. With a view to ascertain the intention of the maker of the will, not only
\nthe terms thereof are required to be taken into consideration but also all
\ncircumstances attending thereto. The will as a whole must, thus, be considered
\nfor the said purpose and not merely the particular part thereof. As the will if
\nread in its entirety, can be given effect to, it is imperative that nothing
\nshould be read therein to invalidate the same.\n<\/p>\n
40. In construing a will, no doubt, all possible contingencies are required to
\nbe taken into consideration, but it is also a well-settled principle of law that
\nonly because a part of a document is invalid, the entire document need not be
\ninvalidated, if the former forms a severable part. The legatee admittedly did
\nnot have any issue, nor did he adopt or appoint any person. In a situation of
\nthis nature, effect can be given to Clause 12 of the will, if it is read as
\noccurring immediately after Clause 5 of the original will. As the said clause
\nstands on its own footing, its effect must be considered vis-`a-vis Clause 6,
\nbut the court may not start with construction of Clauses 6 and 7, which may lead
\nto a conclusion that Clause 5 is also invalid. The contingencies contemplated by
\nClause 6 may not have any effect on Clause 7, if it does not take place at all.
\nThe property which should have been purchased with the sale proceeds could have
\nbeen the subject-matter of the bequest and in terms thereof the University of
\nCalcutta became the beneficiary on the death of the original legatee. We do not
\nfind any reason as to why the same cannot be given effect to. We have indicated
\nhereinbefore that it is possible to construe Clause 7 of the will and in fact a
\nplain reading thereof would, thus, lead to the conclusion that it merely
\nprovides for an option given to the legatee to take recourse thereto. We have
\nalso indicated hereinbefore that the term “devise” in the context of Clause 7
\ndoes not carry any meaning and, therefore, the same for all intent and purport
\nshould be substituted by the word “desire”. As a matter of fact, the appellant
\nin the copy of the will supplied to us had also used the word “desire” in place
\nof the word “devise”, which would also go to show that even the appellant
\nunderstood Clause 7 in that fashion. Clause 7, if so read, will have no
\napplication to the properties which were to be substituted in place of the
\nimmovable properties belonging to the testator. The benefit of the sale
\nproceeds, thus, in absence of any action on the part of the legatee in terms of
\nClause 7 shall also vest in the University. Moreover, the questions as to
\nwhether the deed of sale purported to have been executed by the legatee in
\nfavour of Chamong Tea Co. Ltd. or other instruments executed by him in favour of
\nthe appellants herein are pending for consideration before the High Court which
\nmay have to be determined on its own merit. In the event the said transactions
\nare held to be void, the question of giving any other or further effect to
\nClause 6 of the will may not arise.\n<\/p>\n
In Anil Kak v. Kumari Sharda Raje and Ors.<\/a> [2008 (6) SCALE 597 = 2008-3-L.W.723]
\nit is stated:\n<\/p>\n
The testator’s intention is collected from a consideration of the whole Will and
\nnot from a part of it. If two parts of the same Will are wholly irreconcilable,
\nthe court of law would not be in a position to come to a finding that the Will
\ndated 4.11.1992 could be given effect to irrespective of the appendices. In
\nconstruing a Will, no doubt all possible contingencies are required to be taken
\ninto consideration. Even if a part is invalid, the entire document need not be
\ninvalidated, only if it forms a severable part. [See Bajrang Factory Ltd. and
\nAnr. v. University of Calcutta and Ors.<\/a> [(2007) 7 SCC 183 = 2008-1- LW.201]}
\nIn Halsbury’s Laws of England, Fourth edition, Volume 50, page 332-33, it is
\nstated:\n<\/p>\n
462. Leading principle of construction: The leading principle of construction
\nwhich is applicable to all wills without qualification and overrides every other
\nrule of construction is that the testator’s intention is collected from a
\nconsideration of the whole will taken in connection with any evidence properly
\nadmissible, and the meaning of the will and of every part of it is determined
\naccording to that intention’.\n<\/p>\n
In Shyamal Kanti Guha (D) Through LRs. and Ors. v. Meena Bose<\/a> 2008 (9) SCALE 363
\n= 2009-1-L.W.201, it is stated:\n<\/p>\n
Keeping in mind the aforementioned backdrop, the Will should be construed. It
\nshould be done by a Court indisputably placing itself on the arm- chair of the
\ntestator. The endeavour of the Court should be to give effect to his intention.
\nThe intention of the testator can be culled out not only upon reading the Will
\nin its entirety, but also the background facts and circumstances of the case.
\nFollowing the said principles, we have no hesitation to hold that the title to
\nthe said property vested in the appellant.\n<\/p>\n
\t24. Therefore, on a consideration of the said legal position this Court is
\nof the opinion that the contention of the learned senior counsel for the
\npetitioners cannot be accepted.  In the judgment reported in  2009 2 MLJ 104
\n(Shyamal Kanth Guha (D) Through Lrs. and others Vs. Meena Bose), the Hon’ble
\nSupreme Court has held that while interpreting a will the intention of the
\ntestator has to be taken into account and in order to ascertain the said
\nintention the will has to be read in entirety and the background and facts and
\ncircumstances have also to be take note of.\n<\/p>\n
\t25. In so far as the contention of the learned senior counsel for the
\nappellants that in view of Section 8 of the Hindu Minorities and Guardianship
\nAct, 1956, the same also does not merit acceptance.  In the present case, the
\nlegatees get the benefit under the will.  There is no difference between a minor
\nand a major in so far as the legatees are concerned.  There is no dispute that
\nthe power has been given to the Executors to take a decision in the interest of
\nbeneficiaries.  Therefore, when a person gets his right under a document which
\nin this case “a will” he cannot question the terms of the said document.  In
\nother words, the defendants cannot “approbate” or “reprobate”.  Section 8 of the
\nHindu Minorities and Guardianship Act would not be applicable in a case of this
\nnature. The learned senior counsel for the appellants relied upon Section 7 of
\nthe Hindu Minorities and Guardianship Act to contend that the said Act will have
\npreference over the other enactments.  However in the present case, the issue
\ninvolved is not with respect to the application of Indian Succession Act, 1925
\nover and above the Hindu Minorities and Guardianship Act, 1956, but the question
\nof implementation of the directions given under will.  Therefore, the only
\nquestion to be decided is about the intention of the testator.\n<\/p>\n
\t26. The learned senior counsel for the appellants has relied upon the
\njudgment reported in AIR 1987 Punjab 215 (Darbara Singh Vs. Karminder singh and
\nothers), AIR 1982 Orissa 194 (Laxman Hota Vs. Rama Chandra Hota and others), AIR
\n1968 MadhyaPradesh 150 (Ramchandra Vs. Manikchand and another), AIR 1974 SC 1892
\n(Kugu Collieries Ltd. Vs. Jharkhand Mines Ltd. and others), AIR 1932 Bombay 604
\n(Mahommed Hussein Vs. Bai Aishabai and others),  in support of his contention to
\nshow that the agreement is unenforceable, since the permission as required under
\nthe Hindu Minorities and Guardianship Act has not been obtained in so far as the
\nminors are concerned.  The learned senior counsel for the appellants has also
\nrelied upon the judgment reported in AIR 1971 Kerala 239 (Ayissa and anothers
\nVs. Prabhakaran), 1991 Madhyapradesh 340 (Johri and others Vs. Mahila Draupati
\nalias Dropadi and others), 1980 1 MLJ 486 (Sundaramoorthy and another Vs.
\nShanmugha Nadar and others),  in support of her case to contend that the
\nagreement entered into by an incompetent person not being the natural guardian
\ncannot be enforced.  Therefore, the learned counsel submitted that the suit will
\nhave to be dismissed.\n<\/p>\n
\t27. There is no difficulty in appreciating the principle of law that a
\nminor’s individual property cannot be sold without obtaining the permission as
\nrequired under the Hindu Minorities and Guardianship act.  Similarly an
\nincompetent person cannot enter into agreement either for sale or purchase on
\nbehalf of the minor.  However in the present case on hand, the above said
\nrulings have no application in view of the fact that the defendants 1 & 2 being
\nthe Executors have got the powers to deal with the property which they
\nadminister under the will.  Therefore this Court is of the opinion that the said
\njudgment’s relied upon by the learned senior counsel for the appellants are not
\napplicable to the present case for the simple reason that the rights of the
\ndefendants accrue and emerge under the will and therefore they cannot question
\nthe same.\n<\/p>\n
\t28. The next contention of the learned senior counsel for the appellants
\nis that the very fact that the defendants 1 & 2 have not obtained the permission
\nunder Hindu Minorities and Guardianship Act from the Court as well as under
\nIndian Succession Act, 1925 would itself show that the plaintiff is aware of the
\nlegal hurdles and hence the suit is liable to be dismissed.  The said contention
\nis also in the opinion of the Court cannot be accepted.  A reading of Sections
\n307(1) and 307(2)(1) of Indian Succession Act, 1925 would clearly show that no
\napplication is warranted when the Executor sells the property covered by a will
\nwhen such a power is given to the Executor.  Therefore, the contention of the
\nlearned senior counsel for the appellants does not merit acceptance.\n<\/p>\n
\t29. In so far as the readiness and willingness is concerned, the learned
\ncounsel for the appellants submitted that the plaintiff has not proved the same.
\nAccording to the learned senior counsel the suit has been filed belately after
\nwaiting for a long time.  The learned senior counsel has also relied upon the
\njudgment reported in 1998 (1) CTC 181 (Vasantha and others Vs. M.Senguttuvan)
\nand 1997 (1) CTC 160 (Seeni Ammal Vs. Veerayee Ammal),  to contend that a duty
\nis cast upon the agreement holder to prove the readiness and willingness as
\ncontended by the learned senior counsel for the respondents in the present case
\nthe plaintiff is a Doctor.  The financial capacity of the plaintiff has not been
\nquestioned by the defendants.  It is further seen that the plaintiff is having a
\ndispensary running his hospital.  The said averments regarding readiness and
\nwillingness was also not disputed in the written statement as well as the
\nevidence.  It is further seen that the plaintiff has deposited the entire amount
\nin pursuant to the orders of the Court.  When the Court has asked the plaintiff
\nabout the time required under Order 20 Rule 12(a) of C.P.C., the plaintiff
\nsought for time and paid the amount within the said time.  Therefore, the said
\ncontention of the learned senior counsel for the appellants that the plaintiff
\nhas not proved the readiness and willingness to execute the sale deed, is also
\nrejected.  It is also to be noted that the plaintiff could not come to the Court
\nin view of the pending proceedings and only after the withdrawal of the petition
\nbefore the Court, the plaintiff has come before the Court.  Therefore, there is
\nevery justification for the delay in approaching the Court.\n<\/p>\n
\t30. This Court also will have to see the conduct of the parties. In the
\npresent case, it is not in dispute that the defendants have received the money.
\nThe guardians of the defendants have received the money on behalf of the minors.
\nThe reason stated that the rent that would fetch by letting the building would
\nbe less was also found acceptance by the Court below.  Moreover, the defendants
\nhave been living in different places and therefore the defendants 1 & 2  being
\nthe Executors have thought fit in the interest of the defendants to sell the
\nsuit property.  Hence in view of the findings given above and on a reading of
\nthe will, the contention of the learned  senior counsel appearing for the
\nrespondent is to be accepted that it is not even necessary to include the other
\ndefendants in the agreement in view of the power conferred upon the defendants 1
\n& 2 under the will.  Therefore, looking from the said angle also this Court is
\nof the opinion that the appeal deserves to be rejected.\n<\/p>\n
\t31. For the reasons stated above and on a consideration of the materials
\navailable on record, this Court is of the opinion that the appeal filed by the
\nappellants is liable to be rejected and accordingly the same is dismissed.  No
\ncosts.  Consequently, the connected C.M.P. and miscellaneous petition are
\nclosed.\n<\/p>\n
cs<\/p>\n
To<\/p>\n
The Principal Sub Court,
\n    Trichy.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court An.Vairavan vs Dr.Gnanasekaran on 3 August, 2009 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-87169","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAn.Vairavan vs Dr.Gnanasekaran on 3 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/an-vairavan-vs-dr-gnanasekaran-on-3-august-2009-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"An.Vairavan vs Dr.Gnanasekaran on 3 August, 2009 - 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