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MADRAS HIGH COURT
R.Subbiah, J.
K.Karthik & Another - Appellants
Versus.
Jayanthi Iyengar & Others - Respondents
Application Nos.4446 & 4447 of 2014 and Civil Suit.No.842 of 2012
Decided on : 9.12.2014.
O.S.Rules – Order XXV Rules 62 & 66, Order XIV Rule 8, Order 25 Rule 9 – Indian Succession Act – Section 263 – Code of Civil Procedure, 1908 – Section 151 – Will – Application No.4446 of 2014 has been filed by the applicants/third parties under Order XIV Rule 8 of O.S.Rules r/w Section 263 of Indian Succession Act and Order XXV Rules 62 & 66 of O.S.Rules r/w Section 151 of CPC, praying to direct the respondents not to give effect to order dated 31.10.2013 of grant of letters of Administration of the alleged Will dated 16.06.2000 of late Thiru.P.D.Rajagopalan in favour of the 1st respondent. – Held, In this case, admittedly, on the basis of the Will, probably thinking that the Will need not be probated, a suit has been filed by the petitioner, before the District Munsif Court, Villupruam against one Kannan, who was the tenant of the property, for certain reliefs and in those proceedings, this Will was exhibited as Ex.A 1, thereby showing, the plaintiff had taken action, immediately, to preserve the property, over which right has been given, indicating that the plaintiff had no intention, to suppress the Will or conceal the same, from the eyes of others. – True, ultimately the suit has been dismissed on the ground, that the Will could not be acted upon, as it was not probated and that is why the present case is filed, though not immediately, but within the reasonable time, explaining the delay. – As held by the Division bench of this Court, in Ammu Balachandrans case, if the execution of the Will is proved, the delay in taking steps to probate the Will, will not loom large, since Order 25, Rule 9 of Madras High Court Original Side Rules has not prescribed any period of limitation and probably, it aims to give explanation alone. – If an application is filed for probate or letters of administration, after the lapse of three years from the death of the testator, the reason for the delay shall be explained in the petition. – But, in the instant case, absolutely no explanation was given by the 1st respondent for the delay in filing the Original Petition seeking to grant Letters of Administration. – Court is of the opinion, where an unregistered Will is sought to be proved after lapse of 12 years from the date of death of testator, the delay has to be properly explained in the petition. – But, in the instant case, since no explanation was given by the 1st respondent for the delay in filing the original petition, on the ground of delay also the Letters of Administration is liable to be revoked. – Applications Allowed
Application No.4446 of 2014 has been filed by the applicants/third parties under Order XIV Rule 8 of O.S.Rules r/w Section 263 of Indian Succession Act and Order XXV Rules 62 & 66 of O.S.Rules r/w Section 151 of CPC, praying to direct the respondents not to give effect to order dated 31.10.2013 of grant of letters of Administration of the alleged Will dated 16.06.2000 of late Thiru.P.D.Rajagopalan in favour of the 1st respondent.
2. Application No.4447 of 2014 has been filed by the applicants/third parties under Order XIV Rule 8 of O.S.Rules r/w Section 263 of Indian Succession Act and Order XXV Rule 62 of O.S.Rules praying for revocation of the grant of letters of Administration of the alleged Will dated 16.06.2000 of late Thiru.P.D.Rajagopalan in favour of the 1st respondent granted on 31.10.2013.
3. The 1st respondent herein has filed the Original Petition No.842 of 2012 seeking for grant of Letters of Administration in favour of her, in respect of the Will dated 16.06.2000 executed by one P.D.Rajagopalan. In the Original Petition, it is the case of the 1st respondent herein that the testator P.D.Rajagopalan was a bachelor and he had only one brother viz., P.D.Veeraghavan Iyengar, who died on 02.11.1977. The 1st respondent and other respondents are the children of the said P.D.Veeraghavan Iyengar and they are the Class II legal heirs of the testator P.D.Rajagopalan. The parents of the testator P.D.Rajagopalan predeceased him and he had no other brother or sister. His last Will and Testament was duly executed by him at Chennai on 16.06.2000 in the presence of two witnesses vi z., Mr. PNS. Sundar and Mrs. R.Uma, bequeathing his properties in favour of the 1st respondent, who is his brother's daughter. In the Original Petition, the other respondents have given consent affidavits.
4. By order dated 31.10.2013, this Court passed an order granting Letters of Administration in respect of the Will dated 16.06.2000 in favour of the 1st respondent herein/petitioner therein.
5. Now, the present applications have been filed by the applicants/third parties, through their power agent viz., their father Mr.K.Kalaivanan, seeking for a direction to the respondents not to give effect to the order dated 31.10.2013 passed by this Court granting Letters of Administration; and also for revocation of Letters of Administration granted by this Court.
6. The sum and substance of the averments in the affidavits filed in support of the above applicants, are as follows_
6-1. The applicants herein had filed an application in A.No.2411 of 2013 for impleading themselves as party respondents in the Original Petition in O.P.No.842 of 2012; but, the said application was dismissed by this Court by order dated 11.10.2013 and challenging the said dismissal order, the applicants filed O.S.A. before this Court on 25.11.2013; but, in the meantime, the 1st respondent has hurried up and proceeded with the recording of evidence and obtained an order from this Court on 31.10.2013 granting Letters of Administration in her favour. It is further case of the applicants that the immovable property which is stated to have been bequeathed in favour of the 1st respondent by the deceased P.D.Rajagopalan, by the alleged Will dated 16.06.2000, is his self acquired property. The deceased P.D.Rajagopalan had purchased the said property from one Smt.Krupa Sundari and others under sale deed dated 05.09.1958, registered as Doc.No.1574 of 1958 at the office of the Sub-Registrar, T.Nagar. The deceased P.D.Rajagopalan lived and died as a bachelor. He had five brothers viz., (1)P.D.Rangaswami, (2)P.D.Subramanian, (3)P.D.Ramaswami, (4)P.D.Veeraghavan and (5)P.D.Krishnaswami and all of them died on various dates before 1985. The 1st respondent herein, who is the petitioner in O.P.No.842 of 2012, is one of the children of late P.D.Veeraraghavan, who is one of the brothers of the late P.D.Rajagopalan. The said P.D.Rajagopalan was serving in the Revenue Department and retired as Deputy Tahsil
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