M.L. MEHTA, J.

1. This is an appeal against the order dated 9th October, 2009 of the learned Single Judge whereby Test Case No.43/1987 and IAs No.5054/1999, 6581-6582/2005 and 3097/2009 pending therein were dismissed.

2. During the pendency of the Test Case No.43/1987, there has been various round of litigation between the parties on different issues relating to the estate of late Rani Padmawati Devi (hereinafter referred to as “the estate”). It would be useful to recite relevant facts as referred to by learned counsel for the parties during the course of arguments in the present appeal.

3. Late Rani Padmawati Devi died intestate on 12.04.1987 leaving behind her husband, Raja Birendra Bahadur Singh; two sons, namely, Shivendra Bahadur Singh (SBS) and Ravindra Bahadur Singh (RBS) and two daughters, namely, Usha Devi and Sharda Devi. SBS filed Test Case No.43/1987 seeking Letters of Administration (hereinafter referred to as “LOA”) under Section 278 of the Indian Succession Act (hereinafter referred to as “the Act”). The other heirs of late Rani Padmawati Devi were respondents in the said petition as Respondent No. 2 (Birender Bahadur Singh), Respondent No. 3 (Usha Devi), Respondent No. 4 (Sharda Devi) and Respondent No. 5 (RBS). On 18th March, 1988, the following issue was framed in the aforesaid petition by the learned Single Judge:

“(i) Is the petitioner entitled to and should he be granted the Letters of Administration exclusively or should the letters of administration be granted in two or more names in respect of the estate of the deceased Rani Padmawati Devi?”

4. Vide order dated 10th May, 1988, the learned Single Judge granted Letters of Administration appointing the petitioner/SBS as the administrator of the estate. The said order reads as follows:-

“Pr. 42/97 This is a petition under section 278 of the Indian Succession Act forgrant of Letters of Administration without will. Rani Smt. Padmawati Devi, hereinafter referred to as the deceased, died instestate at Bhopal on 12th April, 1987. She was the mother of the petitioner and of respondents 3 to 5. It is alleged that respondents 2 to 4 have executed a power of attorney in favour of the petitioner in respect of all movable and immovable properties left by the deceased.It is further alleged that respondents 2 and 3 have relinquished their rights and responsibilities in favour of the petitioner. The deceased had left behind properties, details of which have been set out in Schedules B1 and B2. The total value of the assets comes to approximately Rs.15,40,000/-. Schedule C gives particulars about the liabilities of the deceased. The total liabilities mentioned therein come to Rs.36,87,828/-, the liabilities being only due to the demands raised by the Income-tax and wealth-tax authorities. Notice of the application was issued. In the application it is prayed that as the petitioner is the owner of 3/5th property and also holds a power of attorney of respondent No.4, letters of administration should be granted in his favour. It is further contended that respondent No.5 has weak eye sight and is not physically or otherwise capable of administering the estate. Reply has been filed by all the respondents. Respondents 2 to 4 do not oppose the grant of letters of administration in favour of the petitioner. The opposition to the grant of letters of administration is only from respondent No.5. Parties were required to file affidavits by way of evidence. It is only the petitioner who has filed the affidavit. No affidavit by way of evidence has been filed by respondent No.5 nor is any counsel present on his behalf. The petitioner in this case, as would be evident from what has been stated by respondents 2 to 4, appears to be the owner of 3/5th of the estate left behind by the deceased. Furthermore, out of the 5 legal heirs, 4 of them have agreed, including the petitioner, that the estate should be administered by the petitioner. It is important to note that one of the legal