Proper explanation for delay in filing Letters of Administration and adherence to the requirements of proof and attestation for a Will are crucial in determining the validity of the Will.

R. MALA,J.

1. This Original Side Appeal has been preferred against the fair and decreetal order passed in O.P.No.775 of 2008 on 02.08.2010.

2. The learned counsel for the appellants would submit that the appellants herein had filed O.P.No.775 of 2008 stating that the testator Sadhu Kenghaiah Swamy had executed the last Will and Testament dated 08.12.1993 and he died on 03.04.1994. Universal Legatee is one Nayagam, who died on 20.10.2007. The legal heirs of the said Nayagam are the petitioners herein, who filed the petition in O.P.No.775 of 2008 for issuance of Letters of Administration. There was no caveator. So P.W.1 and P.W.2 were examined and Exhibits P1 to P8 were marked. The legal heir certificate of the deceased Nayagam was not filed. When the matter was posted for further evidence and for production of original legal heir certificate, the counsel therein reported no instruction. Therefore, the learned single Judge on considering the oral evidence of P.W.1 and P.W.2 and the documentary evidence, dismissed the petition. Hence, the appellants herein had filed an application in A.No.5340 of 2010 for restoring O.P.No.775 of 2008. The learned single Judge dismissed the application in A.No.5340 of 2010 on the ground that the probate O.P.No.775 of 2008 has been dismissed on merits and it was not dismissed for default. Hence, he has come forward with this appeal against the fair and decreetal order passed in O.P.No.775 of 2008.

3. The learned counsel appearing for the appellants would submit that the appellants have given a reason in para-16 of the petition for delay in filing Letters of Administration, since the universal Legatee was not being well, they are not in a position to file the same. He further submitted that now the appellants got the legal heir certificate. Hence, he prayed for setting aside the order in O.P.No.775 of 2008. To substantiate his argument, he relied upon the decision reported in 2005-1-LW-455 (Janaki Devi v. R.Vasanthi and 6 others) and submitted that the delay in filing the petition for production of Letters of Administration is not a factor to cause doubt as if the Will was fabricated.

4. Heard the learned counsel for the appellants.

5. The learned counsel for the appellants would submit that the delay in filing Letters of Administration has been properly explained. In Para-16 of the petition in O.P.No.775 of 2008, it is stated as follows:

"16. That the Petitioners submit that the petition for grant of Letters of Administration in respect of the Will herein has been filed after long time, since the universal Legatee P.Nayagam was ailing for years and there was much delay in obtaining legal heir certificate in favour of Petitioners. Hence, there is delay in filing the Petition for the grant of Letters of Administration with the Certified Copy of the Will annexed."

6. At this juncture, it is appropriate to consider Order XXV Rule 9 of the Original Side and Appellate Side Rules, which is extracted hereunder:

"In any case where probate or letters of administration is for first time applied for after the lapse of three years from the death of the deceased, the reason for the delay shall be explained in the petition."

7. The petition in O.P.No.775 of 2008 was filed for issuance of Letters of Administration on the basis of the Will alleged to be executed by Sadhu Kenghaiah Swamy. But, admittedly, during the life time of universal Legatee Nayagam, who died on 20.10.2007 had not taken any steps from 03.04.1994 to 20.10.2007. After his death, probate petition has been filed on 09.09.2008. So the reason for delay in filing the probate given by the appellants/petitioners is not convincing. Hence, we are of the opinion that the delay has not been properly explained. So the decision relied upon by the learned counsel for the appellants reported in 2005-1-LW-455 (Janaki Devi v. R.Vasanthi and 6 others) is not applicable to the facts of the present case. The delay can be condoned if the Will has been proved in