Bookmark
PDF
Share
CaseIQ

S. Sukumar v. Spl. Commissioner Of Commercial Taxes, Madras .

Madras High Court

Feb 12, 1990

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Structured Summary of the Provided Opinion

Factual and Procedural Background

The petitioner, who is the brother of the late S. Kamalavathy (formerly Assistant Commissioner of Commercial Taxes working at Ezhilagam, Chepauk, Madras), filed a writ petition seeking a writ of mandamus directing the respondent to pay amounts representing the deceased's service benefits (including pension, gratuity, provident fund, arrears of pay and other amounts) to the petitioner as executor/representative of the deceased's estate.

Relevant factual particulars set out in the affidavit:

Late S. Kamalavathy died in a bus accident on 2-12-1987, leaving behind a minor daughter.
The deceased executed a Will on 2-9-1986 bequeathing all properties to her daughter Miss Vidhya, appointing the daughter as executrix and, should the daughter be a minor, appointing the petitioner as executor and guardian of the properties until the daughter attained majority.
The petitioner applied for and obtained probate of the Will in O.P. No. 277 of 1988 on the Original Side of this Court; the probate was granted on 12-8-1988.
After obtaining probate, the petitioner communicated the probate order to the respondent and requested payment of the sums due to the deceased's estate; the respondent did not respond and retained approximately Rs. 1 lakh.

Procedural history and respondent's position:

Notice of motion was ordered on 30-6-1989. The respondent filed a counter-affidavit admitting the probate but stating that one P.A. Ravindran (described as the husband of the deceased) instituted O.S. No. 4470 of 1988 and I.A. No. 7935 of 1988 in the VIII Assistant City Civil Court, Madras, seeking declaration of legal representative status and an injunction; the counter-affidavit asserted that an injunction was in force (expressed as "I understand that the order of injunction is in force").
The respondent withheld payment, stating it would not disburse pensionary benefits until the civil suit adjudicated legal heirship, to avoid making a wrongful payment.
The petitioner produced an order dated 22-3-1989 in I.A. No. 7935 of 1988 in O.S. No. 4470 of 1988 showing that the injunction application had been dismissed.

Legal Issues Presented

Whether the respondent is obliged to pay the amounts representing the deceased's service benefits to the petitioner, who obtained probate of the deceased's Will and claims to be the executor/legal representative under Sections 211 and 216 of the Indian Succession Act (as asserted in the petitioner's affidavit).
Whether a pending civil suit (O.S. No. 4470 of 1988) filed by the deceased's husband, and the existence or asserted existence of an injunction in that suit, prevents the respondent from disbursing the amounts due to the petitioner as probate-holder.
Whether a writ of mandamus is appropriate to compel the respondent to deal with and disburse or otherwise secure the funds due to the deceased's estate given the competing procedural events in the city civil court.

Arguments of the Parties

Petitioner's Arguments

The petitioner sought a writ of mandamus directing payment of the deceased's service benefits to him as the executor of the Will, relying on the probate obtained in O.P. No. 277 of 1988 (probate granted 12-8-1988).
The petitioner asserted that under Sections 211 and 216 of the Indian Succession Act he is the legal representative and entitled to act for the deceased and that all properties vest in him as executor.
The petitioner maintained that once probate had been obtained by him from the Original Side of the Court, the respondent could not refuse to pay on the ground of a pending suit; he produced the order in I.A. No. 7935 of 1988 dated 22-3-1989 showing that the injunction application had been dismissed.

Respondent's Arguments

The respondent admitted the probate but contended that P.A. Ravindran (alleged husband) had filed O.S. No. 4470 of 1988 and an application for injunction in I.A. No. 7935 of 1988; the respondent's counter-affidavit asserted that an injunction was in force (stated as an understanding by the deponent).
The respondent argued that a legal complication exists as to legal heirship which must be determined by the civil court and, until resolution, pensionary benefits should not be disbursed to avoid wrongful payment.
The respondent submitted it could not take the risk of paying the amounts to the petitioner while the suit remained pending and the question of legal heirship was undecided by the civil court.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court considered the affidavits and the oral submissions by counsel for both parties and made the following analytic findings and steps (as recorded in the opinion):

The court noted as undisputed that the petitioner had obtained probate of the Will of late Kamalavathy in O.P. No. 277 of 1988 on 12-8-1988.
The court applied the principle (stated in the opinion) that unless the probate is set aside, the holder of the probate is the person entitled to the estate and "nobody can have any claim over the estate of the deceased" except the probate-holder. The opinion frames this as a settled position (as applied to the facts), and the respondent's objection based on a pending suit was characterized as unjustifiable in light of the probate.
The court examined the respondent's assertion that an injunction was in force and accepted the petitioner's produced copy of the order in I.A. No. 7935 of 1988 (dated 22-3-1989) which showed the injunction application had been dismissed; on that basis the court concluded no injunction was in force affecting the respondent.
The court criticized the respondent for filing a counter-affidavit that contained the statement "I understand that the order of injunction is in force" when, in fact, the injunction application had been dismissed. The court also observed that the counter-affidavit bore no date of swearing and described these as indefensible lapses by a responsible officer (I.A.S. cadre).
Given the probate in favour of the petitioner and the absence of any injunction in force, the court held the respondent's refusal to disburse funds to be unjustified. However, the court also sought to protect the interests of the deceased's minor daughter.
Balancing those considerations, the court directed a protective measure rather than immediate release to the petitioner: it ordered the respondent to invest all amounts due to the deceased in a fixed deposit at Canara Bank, Kotturpuram, Madras, for 36 months at an interest rate of 10% per annum, to be done within four weeks. The petitioner was permitted to draw the quarterly interest to be used for the maintenance of the minor daughter.
The court thus allowed the writ petition "to this limited extent" and declined to award costs to either party. The court concluded with an admonition concerning the improper and undated counter-affidavit sworn by a government officer and expressed concern about such indifferent practices by officers filing affidavits in court.

Holding and Implications

HOLDING: The writ petition was allowed to a limited extent. The court ordered the respondent to invest all amounts due to late S. Kamalavathy in a fixed deposit at Canara Bank, Kotturpuram, Madras, within four weeks for a period of 36 months at an interest rate of 10% per annum. The petitioner was authorized to draw the interest quarterly and use it for the maintenance of the minor daughter. No costs were awarded.

Implications and immediate consequences:

Direct effect on the parties: The respondent must secure the funds by placing them in the directed fixed deposit and is prevented from simply withholding or otherwise improperly retaining the sums; the petitioner (as probate-holder) is given controlled access to the interest for the maintenance of the minor beneficiary.
Legal consequence as expressed by the court: The probate granted to the petitioner is treated as effectively determinative of entitlement to the estate unless set aside; the respondent's reliance on the pending civil suit and an asserted injunction was rejected in the circumstances of this case.
Broader precedent or legal rule: The opinion did not set out or apply a new precedent beyond applying established principles regarding the effect of probate; the court's order resolves the immediate dispute between the parties but the opinion does not purport to establish a novel legal doctrine.

Administrative observation: The court recorded concern about the respondent's counter-affidavit being undated and containing a non-committal statement about an injunction — matters which the court criticized and urged should be avoided by officers who sign court affidavits.

Show all summary ...

1. This writ petition coming on for orders as to admission on this day, upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of Mr. P. Kothandaraman, Advocate for the petitioner and of Mr. P. Arivudainambi, Government Advocate on behalf of the respondent pursuant to the issue of notice of motion the court made the following Order:—

The petitioner seeks a writ of mandamus directing the respondent to discharge its obligation of paying the amounts representing the service benefits of the petitioner's sister late S. Kamarvathy like pension, gratuity, provident fund, arrears of pay and other amounts to the petitioner.

2. The averments in the affidavit filed in support of the writ petition are as follows:

The petitioner is the brother of late S. Kamalavathy, who was working in the office of the respondent, that he was promoted as Assistant Commissioner of Commercial Taxes and was working in Ezhilagam, Chepauk, Madras, that she was hit by a bus owned by Thiruvalluvar Transport Corporation (Madras to Nagercoil) on 2-12-1987 opposite to Ezhilegam Building, Chepauk, Madras and died on the spot leaving behind her one minor daughter and her unmarried sister as guardian to the minor daughter to receive the General Provident Fund, Death-cum-retirement gratuity and other benefits, and that the said deceased Kamalavathy executed a Will on 2-9-1986 wherein she bequeathed all her properties to her only daughter Miss Vidhya and appointed her daughter as the executrix of the will and in the event of her daughter being a minor at the time of her death, she appointed the petitioner herein who is the brother of the deceased, to be the executor of the Will. It is also stated in the Will that the petitioner herein should take care of all the properties of the deceased and deliver them to Miss. Vidhya after she attained majority. The petitioner applied for the grant of a probate of the will of late Kamalavathy in this Court in December, 1987 in O.P NO. 277 of 1988 and the probate of the will was granted by this Court on 12-8-1988. After the probate was obtained, the petitioner sent a letter to the respondent setting out all the facts and asking the respondent to pay the amounts belonging to the estate of late Kamalvathy to him as the executor of the Will. Since no reply was received, the petitioner personally met the then Commissioner of Commercial Taxes and represented to him that the amounts payable to his sister's estate has to be paid to him. In fact, a photostat copy of the probate order was also sent to the respondent. The petitioner was not favoured with any reply. It is alleged that a sum of Rs. 1 lakh is with the respondent and under S. 216 of the Indian Succession Act, the petitioner is entitled to act as the representative of the deceased and under S. 211 of the Indian Succession Act, he is the legal representative of the deceased Kamalavathy for all purposes and all the properties of the deceased person vests in him. As such, it is alleged that the respondent ought to have paid the monies to him at least on the date when he sent his letter with the copy of the order in probate proceedings issued by this Court, since the respondent is under an obligation to pay the amounts in view of the probate granted by the original side of this Court. Hence the writ petition is filed by the petitioner to issue a writ of mandamus directing the respondent to pay the amounts due to late Kamalvathy to the petitioner.

3. Notice of motion has been ordered by me on 30-6-1989. Mr. Arivudainambi, Government Advocate, appears on behalf of the respondent and 4 counter-affidavit has been filed by the respondent. The facts are not denied in the counter-affidavit. The main objection taken in the counter-affidavit is that one P.A Ravindran, who is said to be the husband of late Kmalavathy, has filed a civil suit on O.S No. 4470 of 1988 and also taken out an application therein in I.A No. 7935 of 1988 in the VIII Assistant City Civil Court, Madras to declare him and the minor daughter as the legal representatives of the deceased and the Court has also granted interim injunction in I.A No. 7935 of 1988. It is further stated in the counter-affidavit that “I understand that the order of injunction is in force.” It is further stated that a legal complication has arisen in setting the amounts due to the legal heirs of late S. Kamalavathy and hence a writ of mandamus will not lie. It is also stated that the question of legal heirship is yet to be decided by court and until such time, the pensionary benefits due to the minor daughter of the deceased cannot be claimed and disbursed to the petitioner as it would further aggravate legal complications and therefore the outcome of the suit has to be awaited. The fact regarding the probate of the will has been admitted in the counter-affidavit. It is submitted that when a suit filed by the husband of the deceased is pending, the letter, of the petitioner could not be acted upon and any decision could be taken only after the disposal of the suit. The plea of the petitioner is stated to be farfetched and unjust when the point of dispute over the legal heirship is yet to be decided by the Court in O.S No. 4470 of 1988 filed by the husband of the deceased. It is also submitted that all the payments due to the family of the deceased Kamalavathy are withheld only in the Government account so as to avoid wrong payment in the matter and the payment of terminal benefits due to the family of the deceased will be made only after the decision to be taken in O.S No. 4470 of 1988 and unless and until the real legal heirship is decided, the payment of pensionary benefits could not be made to the petitioner. Mr. P. Kothandaraman, learned counsel appearing for the petitioner mainly contends that when once the probate of the Will has beren obtained, by the petitioner on the Original Side of this Court in O.P No. 277 of 1988, it is not open to the respondent to take an objection as has been taken in the counter-affidavit. The learned counsel argues that no injunction has been granted pending the suit in O.S No. 4470 of 1988 on the file of the VIII Assistant City Civil Court, Madras and has produced before me a copy of the order passed in I.A No. 7935 of 1988 in O.S No. 4470 of 1988 dated 22-3-1989 by which the injunction petition has been dismissed.

4. Mr. Arivudainambi learned Government Advocate strenuously contends that unless the suit is decided by the civil court, the respondent cannot take the risk of paying the amounts due to the deceased Kamalavathy to the petitioner. The learned counsel submits that rightly or wrongly a dispute has been raised by the husband of the deceased Kamalavathy and it is pending adjudication in a civil court and hence, the respondent cannot pay the amounts due till the final adjudication of the civil suit.

5. After considering the arguments of Mr. P. Kothandaraman, learned counsel for the petitioner and of Mr. Arivudainami, learned Government Advocate appealing for the respondent and after perusing the counter-affidavit filed by the respondent. I am of the view that the stand taken by the respondent is wholly unjustifiable. It is not disputed that the petitioner has obtained a probate of the Will executed by late Kamalavathy in O.P No. 277 of 1988 on the file of the Original Side of this Court as early as 12-8-1988. It is well settled that unless that probate is set aside, nobody can have any claim over the estate of the deceased Kamalavathy except the petitioner. It is unfortunate that the deceased has left a minor daughter under the care of the petitioner. It is equally unfortunate that the respondent should take such an attitude not to disburse the amounts due to the late Kamalavathy in spite of the probate of the Will of the deceased by the petitioner, under the guise of a pending suit filed by the husband of the deceased Kamalavathy. Though it is stated in the counter-affidavit that the respondent understands that the order of injunction is in force, the learned counsel for the petitioner produced a copy of the order in I.A No. 7935 of 1988 in O.S No. 4470 of 1988 dated 22-3-1989 which shows that the said application for injunction has been dismissed. As such, no injunction is in force as against the respondent. In fact, I find that the husband of the deceased Kamalavathy who filed the suit and in the application for injunction the Respondent has been set ex parte in the said application for injunction. Since nobody represented the respondent before their City Civil Court on that day, the application for injunction was disposed of. Having been a party to the application for injunction, it is highly unfortunate that a counter-affidavit is being sworn before this court by a responsible officer of I.A.S Cadre stating that “I understand that the order of injunction is in force.” It is also unfortunate to note that this Court is not able to know the date on which the counter-affidavit has been sworn by the respondent. -No date is given in the counter-affidavit. It is blank. As such, I am not inclined to accept the contentions raised by the learned counsel for the respondent that there are certain hurdles in the way of the petitioner getting the benefits of the order of probate granted by this Court. At any rate, since the daughter of the deceased Kamalavathy is a minor, as rightly pointed out by the learned counsel for the petitioner himself, I have to protect the interest of the minor also. Hence, I direct the respondent to invest all the amounts due to the deceased Kamalavathy in Canara Bank Kotturpuram Madras, 85 within for weeks from this date in a fixed deposit for a period of 36 months which will carry interest at 10% per annum and the petitioner is directed to draw the interest quarterly and utilise the same for the purpose of the maintainance of the minor girl i.e, the minor daughter of late Kamalavathy. The writ petition is allowed to this limited extent. No costs.

6. Before parting with the case, I am constrained to observe that the counter-affidavit of the respondent has been signed by an officer of I.A.S cadre and unfortunately that officer has not taken care whether the counter-affidavit has been dated or not. The statement in the counter-affidavit is also non-committal. The date of swearing of the counter-affidavit is left blank.

7. In recent times, I am coming across that the officers do not care to sign the counter-affidavits filed before this Court properly and even they do not care to fill up the date on which they sign. This indifferent attitude on the part of the officers must be discouraged, by persons who have a control of them.

8. Petition allowed.