A.K. Ganguly, C.J.

This appeal has been filed by one S.P. Kaveri Achi, who was the defendant in T.O.S.No.51 of 2002, against the judgment and order passed by the learned single Judge on 22.04.2008 in Application No.1691 of 2008 in T.O.S.No.51 of 2002.

2. The relevant facts of the case are that a petition under Sections 222 and 276 of the Indian Succession Act read with Order XXV Rule 4 of the Original Side Rules of the Madras High Court was filed by Mr. C.T. Ramasamy in the matter of last Will of Mr.CT.RM.CT. Chidambaram Chettiyar, since deceased. In the said petition it was claimed that C.T. Ramasamy is the son of the testator and the present appellant is the daughter of the testator. The testator died on 26.05.1999 leaving behind a registered Will dated 31.08.1998. It is claimed in the petition that C.T.Ramasamy was the executor of the said Will and there were only two legal heirs namely, the present appellant, who is the only daughter of the testator, and C.T. Ramasamy, the son. In the petition, a prayer was made to allow the petitioner viz., C.T. Ramasamy to prove the Will in Common form so that Probate can be granted to the petitioner. However, in this case the grant of probate became contentious as the appellant was opposing the grant.

3. In this connection, some of the dates, which are relevant, may be noted. On 06.07.1999 Caveat Petition No.100 of 1999 was filed by the appellant. On 010. 1999 a petition was filed for probate by C.T.Ramasamy and the same was numbered as O.P.No.97 of 2001. On 26.04.2001 first notice dated 11.04.2001 was issued for the service on the appellant and the same was returned with the endorsement “has gone out”. Then a second notice dated 10.07.2001 was sent, but it was also returned with the endorsement “has gone out”. Thereafter, on 23.07.2001 the appellant entered appearance through counsel, but however, no affidavit was filed on behalf of the appellant.

.4. Thereafter, the appellant on 21.02.2002 filed an application to excuse the delay in filing affidavit in support of the Caveat Application No.1021 of 2002. On 012. 2002 the original petition for grant of probate was converted into title suit and numbered as T.O.S.No.51 of 2002. Then on 012. 2006 summons dated 211. 2006 was received by the appellant. On 212. 2006 the written statement should have been filed by the appellant but it was not filed. On 05.01.2007 the date of hearing was fixed. On 10.01.2008 when the matter came up before the learned Judge of the first Court, His Lordship adjourned the matter for filing written statement on 29.01.2008 by way of last chance. On 30.01.2008 the matter again came up before the learned Judge, but written statement was not filed and the appellant was also absent. The matter was set ex parte and for recording ex parte evidence the matter was posted on 06.02.2008. On 06.02.2008 the matter came up before the learned Judge, witnesses were present, but the matter was adjourned to 15.02.2008 on payment of cost. On 15.02.2008 the matter was again taken up by the learned Judge. The petitioner and attesting witnesses were present, however, learned counsel for the appellant submitted that the appellant had undergone heart surgery and was in ICU, and prayed for adjournment. The matter was adjourned to 29.02.2008 on payment of cost.

5. On 29.02.2008 the matter again came up before the learned Judge. The petitioner and attesting witnesses were present, evidence was recorded by the Court, and probate was granted, but the appellant was absent. Then an application was filed by the appellant for revoking the order dated 29.02.2008 passed in T.O.S.No.51 of 2002 to that the respondent therein viz., C.T. Ramasamy filed a counter. The matter was heard on contest and the application filed by the appellant was dismissed by the learned Judge by a reasoned order dated 22.04.2008. Assailing the said reasoned order, this appeal has been filed.

6. Learned senior counsel for the appellant relied on a number of