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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. Pongiappan, J.
A. Murugan & Another – Applicants
Versus
K. Kokilamma – Respondent
Application No. 6442 of 2019 in Original Petition No. 637 of 2016
Decided On : 12-03-2021
Original Side Rules – Order XIV Rule 8 – Indian Succession Act – Section 263 – General Clauses Act – Section 27 – Relief to revoke the Letters of Administration – Applicants herein are the respondents in O.P. – This application has been filed under Order XIV Rule 8 of Original Side Rules read with Section 263 of Indian Succession Act, seeking the relief to revoke the Letters of Administration granted through order made in O.P. to the respondent – Counsel appearing for the applicants/respondents would contend that the property pertains to the Letters of Administration granted through order, is the absolute property of one Sivaperumal. During his lifetime, the said Sivaperumal executed two unregistered Wills – Way back in the year of 2016, after suppressing the details of subsequent Will, the respondent/petitioner herein filed the above referred petition for granting Letters of Administration and obtained the favourable order – Further, before granting the Letters of Administration, the attestors of the Will, have not been examined before this Court.
Findings of Court : When at the time of administration with Will, the original has been produced before the Court and the same shows preservation of original Wills. – But here, it is a case, the same has not been done. – Another aspect, which is necessary to see in this matter is that, before granting Letters of Administration, no notice is served upon the applicants/respondents. – In this regard, the learned counsel for the respondent/petitioner would submit that the notice has issued to the last mentioned address. – Since the same was returned with an endorsement as "left" after getting permission from this Court, paper publication has been effected and thereafter only, Letters of Administration was granted, but the same was denied by the applicants. – It is necessary for the respondent/petitioner to prove the fact that at the time of sending notice, the applicants/respondents were residing in the petition mentioned address. – Section 27 of the General Clauses Act deals with the presumption of service of a letter sent by post. – The dispatcher of a notice has, therefore, a right to insist upon and claim the benefit of such a presumption. – But as the presumption is rebuttable one, he has two options before him. – One is to concede to the stand of the sendee that as a matter of fact he did not receive the notice, and the other is to contest the sendee’s stand and take the risk for proving that he in fact received the notice. – It is open to the despatcher to adopt either of the options. – If he opts the former, he can afford to take appropriate steps for the effective service of notice upon the addressee. – It is a case, the respondent/petitioner did not take appropriate steps for the service and it cannot be conceded that the notice sent to the applicants/respondents with the correct address. – Therefore, the above circumstances create a just cause for revoking grant of the Letters of Administration granted by an order to the respondent. – Letters of Administration granted is hereby revoked
Result: Application Allowed
JUDGMENT :
(Prayer: Application filed under Order XIV Rule 8 of Original Side Rules read with Section 263 of Indian Succession Act, to revoke the Letters of Administration granted through order dated 07.02.2018 made in O.P.No.637 of 2016 to the respondent.)
1. The applicants herein are the respondents in O.P.No.637 of 2016. This application has been filed under Order XIV Rule 8 of Original Side Rules read with Section 263 of Indian Succession Act, seeking the relief to revoke the Letters of Administration granted through order dated 07.02.2018 made in O.P.No.637 of 2016 to the respondent.
2. Heard Mr.A.Palaniappan, learned counsel appearing for the applicants/respondents and Mr.N.Baskaran, learned counsel appearing for the respondent/petitioner.
3. The learned counsel appearing for the applicants/respondents would contend that the property pertains to the Letters of Administration granted through order dated 07.02.2018, is the absolute property of one Sivaperumal. During his lifetime, the said Sivaperumal executed two unregistered Wills dated 15.09.1994 and 25.07.1996 respectively. Way back in the year of 2016, after suppressing the details of subsequent Will, the respondent/petitioner herein filed the above referred petition for granting Letters of Administration and obtained the favourable order. Further, before granting the Letters of Administration, the attestors of the Will, have not been examined before this Court.
4. Moreover, for the Will dated 25.07.1996, the petition for grant of Letters of Administration has been filed in the year 2015, after the lapse of 13 years. So, it is totally unbelievable that the Will now alleged to be executed by the said Sivaperumal, is a true one. Further, when at the time of granting Letters of Administration, the original Will has not been produced.
5. In this regard, in paragraph 9 of the Original Petition, the respondent/petitioner herself admitted that the Original Will has not been traced out. Further case of the applicants/respondents is that, without serving notice to them, by adopting the mode of substituted service, Letters of Administration was granted in favour of the respondent/petitioner. Therefore, the said circumstances shows that the Letters of Administration had obtained by using the fabricated Will and without serving notice to the applicants/respondents. Accordingly, the Letters of Administration granted in favour of the respondent/petitioner, is liable to be set aside.
6. In respect to the submissions made by the learned counsel appearing for the applicants, the learned counsel for the respondent would contend that in page 4 of the petition, the respondent has clearly narrated the story about the tracing of attestors and only due to the reason the attestors are not found, the respondent is not in a position to examine the said persons, as witnesses. Therefore, it cannot be said that the respondent has purposely not examined the attesting witnesses. Further, the notice was sent to the applicants for last known address and therefore, the same would not constitute the fact that the notice was sent to the false address. According to him, this application has been filed with false allegations.
7. More than that, it is the specific contention that the Will in respect to the Letters of Administration, is a registered one. In otherwise, for the delay in filing the application, explanation is offered in the petition itself and therefore, the petition filed by the applicants/respondents, is liable to be dismissed.
8. I have considered the rival submissions made on either side and perused the records carefully.
9. In respect to the first submission made by the learned counsel for the applicants, the document produced by the respondent/petitioner at the time of filing the petition shows that the Will dated 25.07.1996, is a registered Will. Therefore, it cannot be said that the Letters of Administration was granted by believing the unregistered Will.
10. At this juncture, it would relevant t
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