JUDGMENT :

D. BHARATHA CHAKRAVARTHY, J.

Prayer: Original Side Appeal filed under Order XXXVI and Rule 11 read with clause 15 of the Letters of Patent, to set aside the Fair and Final Order dated 26.06.2018, made in T.O.S. No. 1 of 2016 (O.P. No. 646 of 2014), passed by this Court.

1. This Intra Court appeal is filed by the unsuccessful defendant in the Testamentary Original Suit No. 1 of 2016 as against the Judgment and Decree of the Learned Judge of this Court decreeing the T.O.S. No. 1 of 2016, thereby granting Letters of Administration with the Will annexed in favour of the plaintiff in respect of the Last Will dated 13.12.2000 of the deceased one Ramasamy S/o Gopal.

2. The plaintiff/Mr. R. Parathasarathy is the brother of the defendant Ms. Mannammal. They are both children of late. G. Ramasamy S/o Gopal and his wife R. Kannammal. G. Ramasamy died on 16.02.2001. The said R.Kannammal died intestate on 19.06.2006. On 20.04.2007, the defendant herein viz. Mannammal joining her four sons also as plaintiffs filed a suit for partition in O.S. No. 4366 of 2007 on the file of the XIII - Assistant Judge, City Civil Court, Chennai, praying to partition the suit property viz. the house, ground and premises admeasuring 880 sq. ft. in Plot AP. No. 496, 25th Street, 5th Sector, K.K. Nagar, Chennai and for delivering the separate possession of ½ share to her. The plaintiff herein, who was the defendant in the said suit filed a written statement during January, 2008 stating that the father namely Mr. G. Ramasamy, executed a Will dated 13.12.2000, thereby granting life estate to his wife Kannammal and to the plaintiff/Parthasarathy and finally as per the Will the property is bequeathed to Mr. Ashok Kumar son of the plaintiff/ Parthasarathy. The aforesaid O.S. No. 4366 of 2007 was decreed by Judgment and decree dated 16.02.2010, by granting partition of one-half share and separate possession, in respect of the suit property to the defendant herein, who was the plaintiff in the said suit. The said suit was decreed on the ground that the said Will was not marked as a document in the suit after obtaining probate as per law. The plaintiff herein filed A.S. No. 352 of 2010 as against the said Judgment and decree, on the file of the learned II Additional Judge, City Civil Court, Chennai and by judgment and decree dated 30.07.2013, the above appeal was dismissed, confirming the finding of the Trial Court. A Second Appeal in S.A. No. 329 of 2015 was filed by the plaintiff herein on the file of this Court and the same was pending.

3. When the above partition proceedings were going on, the plaintiff herein had filed O.P. No. 646 of 2014 for grant of Letters of Administration with the Will annexed under Section 232 and 276 of the Indian Succession Act, 1925. The Original Petition was filed on 07.06.2013 in O.P. No. 15600/2013 and was taken on file as O.P. No. 646 of 2014 on 13.10.2014. In the said petition, in paragraph 9, the petitioner/plaintiff had averred that originally they had filed the petitioner in O.P. No. 3559 of 2010, however, the said papers were lost by their counsel and as such they filed the above petition. The defendant herein had entered a Caveat and therefore, the Original Petition was converted as Testamentary Original Suit in T.O.S. No. 1 of 2016 by order dated 24.11.2015 and the defendant herein filed a Written Statement on 24.02.2016 opposing the grant of Letters of Administration. The contentions of the defendant in the written statement is that if really there was a Will executed by the father, the plaintiff would have immediately changed all the records of the property in the name of his son; it is a clear case that Will produced is forged to grab the property by denying her legitimate right. It is the further submission of the defendant that the reason adduced by the plaintiff for belatedly filing the application for grant of Letters of Administration is false and a contradictory stand was taken in the partition proceedings initia