(Prayer: Original Side Appeal is filed under Order XXXVI Rule 1 of O.S.Rules read with Clause 15 of Letters Patent to set aside the order dated 11.09.2020 made in A.No.6452 of 2015 in O.P. No.852 of 2013 on the file of this Court.)

P. Velmurugan, J.

1. This appeal has been preferred as against the order dated 11.09.2020 made in A.No.6452 of 2015 in O.P. No.852 of 2013 on the file of this Court.

2. The facts of the case in brief:

The subject matter revolves around the grant of Letters of Administration of the last Will and testament of late M.Marimuthu alias Mariappan dated 13.09.2006. The appellant is the son and the second respondent is the wife of the Testator. The first respondent herein is the granddaughter of the Testator’s brother Chinakannu through his son. It is alleged that the Testator has not provided anything for the respondents but executed the Will in favour of the first respondent. On the death of the Testator, the first respondent had filed an Original Petition in O.P.No.852 of 2013 for Letters of Administration and the appellant and the second respondent have been shown as respondents in that petition. On receipt of notice, the appellant herein was represented by a counsel but did not contest the matter and the second respondent had not entered appearance. This Court vide order dated 27.02.2015 granted Letters of Administration in respect of the Will of late M.Marimuthu alias Mariappan, dated 13.09.2006 in favour of the first respondent herein. Aggrieved over the grant of Letters of Administration, the appellant and the second respondent have filed an application in A.No.6452 of 2015 in O.P.No.852 of 2013 to revoke the Letters of Administration.

3. In the affidavit filed by the appellant / first applicant in A.No.6452 of 2015, it is stated as under:

The property in question was allotted to the mother of the second respondent under the Ex-service men quota and on the insistence of the Testator, the allotment was transferred in his favour in the year 1985. It is alleged that during allotment, it was made clear that the property would ultimately be given to the second respondent as she is the wife of the Testator. As there were disputes between the Testator and his wife, the Testator left the said property and thereafter, his wife, the second respondent, has made a representation to the Tamil Nadu Slum Clearance Board for change of allotment in her favour. The Testator had filed a suit in O.S.No.9506 of 1987 before the XIV City Civil Court, Chennai. As the Testator died, the suit was dismissed for non-prosecution. It is stated by the appellant that the second respondent / second applicant was missing since 20.09.2006 and she has not been traced to date. He further stated that property did not belong to the deceased Testator, whereas, under the guise of the Will dated 13.09.2006, the first respondent is attempting to grab the property.

4. The allegations made in the counter affidavit in A.No.6452 of 2015 filed by the first respondent in brief:

The first respondent is the granddaughter of the Testator’s brother Chinakannu through his son. The Testator has been suffering from Cancer and the second respondent failed to take care of the deceased Testator. There were some disputes between the Testator and appellant and the second respondent and due to which the Testator had filed a divorce case against the second respondent. The Testator had been taken care of by the parents of the first respondent and the first respondent. Out of his love and affection for the first respondent, the Testator had voluntarily executed the Will in her favour. After the death of the Testator, the first respondent had filed a petition for grant of Letters of Administration by adding the wife and son of the Testators as parties. However, they failed to contest the case. Hence, this Court has granted Letters of Administration in favour of the first respondent. The Testator had paid the entire sale consideration to the Tamil Nadu Slum Clearance Board and since he had bequeathed the property in favour of the first respondent, she is entitled to get the sale deed in her favour.

5. Considering the above averments, the learned Single Judge, had dismissed the application as the applicants have not made out any ground for revoking the Letters of Administration already granted. Aggrieved over the order of dismissal, the first applicant had preferred the present appeal.

6. The learned counsel for the appellant / first applicant would submit that as the second respondent has been missing since the year 2006, the learned Single Judge ought not to have heard the application on merits without transforming the second applicant as second respondent and the nonconsideration of said fact vitiates the entire order as the order cannot be passed against a dead person. He would futher submit that order of Letters of Administration is an exparte order against the first respondent therein, however, without considering the said fact the learned Single Judge has taken the application as if it has been filed under Section 263 of Indian Succession Act for revocation for just cause and came to conclusion that the applicant has not made out any grounds attracting explanation (a) to (e) of Section 263 of Indian Succession Act, 1925.

                   6.1 The learned counsel for the appellant would further submit that the testator had filed an application on 08.02.2011 for execution of sale deed in his favour before the Tamil Nadu Slum Clearance Board, Chennai and the Board by its proceedings dated 18.02.2014 rejected the claim of the Testator on the ground that he is not in possession and enjoyment of the property allotted to him. Hence, in view of the said order, the Testator has no authority or title to execute the Will in favour of the first respondent. Therefore, the first respondent cannot claim any right over the said property under the guise of the Will.

                   6.2 In support of his contentions, the learned counsel for the appellants has relied on the following judgments of the Hon’ble Supreme Court:

                   (i) V.Kalyanaswamy (Dead) represented by legal representatives and another Vs. L.Bakthavatsalam (Dead) represented by legal representatives and others reported in (2021) 16 SCC 543

                   (ii) Anil Behari Ghosh Vs. Latika Bala Dassi and others reported in (1955) 1 SCC 638

                   (iii) G.Shamugham Chetti and another Vs. Chinnammal reported in 91 L.W. – 36.

7. The learned counsel for the first respondent would submit that the Letters of Administration was granted on 27.02.2015. The application filed by the appellant to revoke the grant of Letters of Administration is filed belatedly. Further, the original allotment was only in favour of the Testator and the Testator has given the reasons for disinheriting the appellant and the second respondent and the Testator was under the due care and custody of the first respondent during the relevant point of time. Since the first respondent alone was taking care of the Testator, he had executed the Will appointing the first respondent as the Executor of the Will dated 13.09.2006. Though sufficient opportunity was given, the appellant had not even filed a counter / shown any caveatable interest and the second respondent, despite service of summons, did not defend the Original Petition. Therefore, the learned Single Judge on considering the fact that no objection was received from the respondents therein, rightly granted Letters of Administration in favour of the first respondent. While invoking Section 263 of the Indian Succession Act, 1925, the appellant has to show “just cause” to revoke the Letters of Administration already granted by this Court. In the reasons stated in the affidavit for the revocation of Letters of Administration, none of the ingredients falls under Section 263 of the Indian Succession Act, 1925. As the appellant has not shown any “just cause” to revoke the Letters of Administration granted by the Court in favour of the first respondent herein, the learned Single Judge has rightly dismissed the application filed by the appellant for revocation of Letters of Administration. There is no merits in the appeal and the same is liable to be dismissed.

8. Admittedly, the first respondent filed a petition seeking Letters of Administration in O.P.No.852 of 2013 on the file of this Court and the same was granted ex parte. Thereafter, the appellant filed the application in A.No.6452 of 2015 in O.P.No.852 of 2013 to revoke the Letters of Administration and the same was dismissed by the learned Single Judge. Aggrieved by the same, the present Original Side Appeal has been filed.

9. It is seen from the records and also from the submission made by the counsel that the subject property originally belongs to the Tamil Nadu Slum Clearance Board and it was allotted to one Yellammal W/o. Duraisamy who is the maternal grandmother of the appellant under Ex-service men quota. After her death, her son Pachaiappan agreed and relinquished his right and executed the sale deed in favour of the appellant’s mother, the second respondent herein, through the Tamil Nadu Slum Clearance Board. It is alleged that the appellant’s father, Marimuthu who is the Testator, is not a Ex-Service man. On 10.03.1983, the Tamil Nadu Slum Clearance Board allotted the land to the appellant’s deceased father. When the appellant’s father had deserted his wife, the second respondent herein, she made a representation to the Tamil Nadu Slum Clearance Board to transfer the property in her name. The Testator filed a suit in O.S.No.9506 of 1987 on the file of the XIV Assistant City Civil Court, Chennai for permanent injunction against the second respondent and the same was dismissed for default. The Tamil Nadu Slum Clearance Board issued Yellow Notice i.e. final notice to pay the balance of sale consideration. Therefore, the second respondent paid the entire dues and later sent a legal notice to the Tamil Nadu Slum Clearance Board to execute the sale deed by transferring the allotment order since she is in possession of the property from the date of the allotment. In the meanwhile, the Testator is said to have executed a Will in favour of the first respondent dated 13.09.2006. A complaint was lodged by the appellant on 20.09.2006 that the second respondent was missing and a case was registered in Cr.No.999 of 2006. The Testator sent a letter to the Tamil Nadu Slum Clearance Board to execute the sale deed in his favour but no sale deed was executed in his favour. Therefore, the Testator filed a Writ Petition in W.P.No.9784 of 2011 on the file of this Court to issue a Writ of Mandamus directing the Tamil Nadu Slum Clearance Board to execute the sale deed in his favour. The Tamil Nadu Slum Clearance Board after inspection, rejected the plea of the testator holding that he is not living or occupying in the property since 1986 and further found that only his wife, the second respondent herein, is living at the first floor and converted the ground floor into shops due to poverty and earning income to sustain her life and her son. Thereafter, the testator filed an another suit in O.S.No.8206 of 2011 on the file of the II Assistant Judge, City Civil Court, against the appellant and the second respondent to declare that he being the allottee of the property has got every right to maintain the said property and the appellant and the second respondent are not entitled to deal with the property in any manner and also for permanent injunction. In the meanwhile, the Testator died on 06.02.2012. The first respondent herein filed a petition seeking Letters of Administration in O.P.No.852 of 2013 before this Court.

10. It is alleged that after the demise of the testator, the Tamil Nadu Slum Clearance Board passed an order to the effect that no sale deed would be executed in favour of the allottee since he is not in possession of the said property. However, the Court passed the order of granting Letters of Administration on 27.02.2015. It is contention of the learned counsel for the appellant that Though a complaint regarding the missing of the second respondent had been registered on 20.09.2006 and the learned counsel for the appellant could not appear before the Court on account of her personal inconvenience, and consequently could not present the counter or caveatable interest, the Court proceeded to pass an ex parte order granting Letters of Administration. Subsequently, the appellant filed an application in A.No.6452 of 2015 to set aside the ex parte order of Letters of Administration. In the meanwhile, in the suit filed by the testator in O.S.No.8206 of 2011 on the file of the II Assistant Judge, City Civil Court, Chennai, the first respondent was impleaded as a party to the suit on the death of Testator citing the alleged Will dated 13.09.2006. Though the said suit was decreed in part, subsequently, the appellant filed an appeal in A.S.No.68 of 2019 and the same was allowed by the lower Appellate Court. Aggrieved the said judgment and decree, the first respondent filed a Second Appeal in S.A.No.555 of 2020 on the file of this Court and the same is pending. In the meanwhile, an order came to be passed in the application filed by the first respondent herein by dismissing the revocation of grant of Letters of Administration.

11. Now the only point that arise for consideration in this appeal is whether the appellant has shown “just cause” or caveatable interest to revoke the Letters of Administration granted by this Court.

12. Admittedly, the ex parte order granting Letters of Administration was passed by this Court on 27.02.2015 in O.P.No.852 of 2013, at a time when the second respondent was missing and a case had also been registered in Cr.No.999 of 2006. Further, the learned counsel for the appellant, due to her personal inconvenience, did not appear before the Court and, consequently, could neither present the counter nor show any caveatable interest. The fact remains that the Tamil Nadu Slum Clearance Board had not executed the sale deed in favour of the Testator and, consequently, title to the property had not passed to him. Further, the first respondent is only the daughter of the brother’s son of the Testator, whereas the appellant and the second respondent are the Class-I legal heirs of the Testator.

13. The main contention of the appellant is that the second respondent was residing in the house, whereas the Testator was not residing therein on the date of execution of the alleged Will, as he had deserted the second respondent and left the house. He had also filed a petition for divorce, which came to be dismissed. The second respondent alone had paid the dues payable to the Tamil Nadu Slum Clearance Board. Admittedly, on the date of execution of the alleged Will, the Testator was not in possession of the property, as is evident from the order passed by the Tamil Nadu Slum Clearance Board. The request made by the Testator was also rejected on the ground that he was not in possession of the property. He had thereafter filed a suit in O.S.No.8206 of 2011 and a writ petition in W.P.No.9784 of 2011 and subsequently died on 06.02.2012. Therefore, the appellant had a caveatable interest, and the aforesaid material facts had not been brought to the notice of the Court while granting Letters of Administration.

14. Admittedly, the first respondent who is the Administrator, is not the Class – I legal heir and she is the brother’s granddaughter. While invoking Section 263 of Indian Succession Act, the Court has to see whether the petitioner who filed the petition to revoke the Will has shown the “Just cause”.

15. A combined reading of the entire materials on record would show that, admittedly, as on the date of filing of the petition for grant of Letters of Administration as well as on the date of execution of the alleged Will, the Testator was not in possession of the subject property and his right thereto had also been denied by the Tamil Nadu Slum Clearance Board. The Testator had not established, during his lifetime, that he was in possession of the subject property. Therefore, the very right or interest of the Testator in the subject property and, consequently, his competence to execute the alleged Will are in question.

16. Admittedly, this Court had granted Letters of Administration by an ex parte order. The second respondent was also missing and a case had been registered in Cr.No.999 of 2006. Thus, when there is a cloud over the title and interest of the Testator himself, the grant of Letters of Administration cannot be allowed to stand. In the facts and circumstances of the case, we are of the view that the appellant has a caveatable interest and has shown “just cause” for revocation of the grant of Letters of Administration in favour of the first respondent. However, the first respondent would be at liberty to establish the genuineness and validity of the alleged Will in the Testamentary Original Suit. Accordingly, the Letters of Administration granted in favour of the first respondent are revoked.

17. In view of the same, this Original Side Appeal is allowed. No costs. The order dated 11.09.2020 passed in A.No.6452 of 2015 in O.P.No.852 of 2013, dismissing the application for revocation of the Letters of Administration, is set aside and the said application is allowed. Consequently, the order dated 27.02.2015 passed by the learned Single Judge in O.P.No.852 of 2013 is also set aside.

18. The Original Petition in O.P.No.852 of 2013 is ordered to be converted into a Testamentary Original Suit. The learned Single Judge is directed to proceed further with the Testamentary Original Suit after such conversion, by affording an opportunity to all the parties, including the appellant herein to file her written statement, and thereafter, dispose of the suit in accordance with law. It is made clear that the observations made in this appeal are confined only to the question of caveatable interest and “just cause” and shall not influence the learned Single Judge while adjudicating the Testamentary Original Suit. The learned Single Judge shall consider the matter independently and in accordance with law, uninfluenced by any of the observations made in this appeal.