(Judgment of the Court was delivered by M.CHOCKALINGAM,J.,) Challenge is made to an order of the learned single Judge of this Court made in A.No.3200 of 2005 in O.P.No.199 of 2003, whereby the letters of administration originally granted in that original petition was revoked.
2. The appeal came to be filed in the following circumstances:
The appellant herein filed the original petition, seeking for the grant of a Letters of administration on the basis of a Will executed by one Viruthambal dated 04.12.1998. The appellant came forward alleging that Viruthambal died on 28.04.2002 and he is her sister's grand son and on her death, the said Will has come into force and since there is no other heir other than the appellant being the beneficiary under the Will after her death, the Letters of Administration was granted. Accordingly, proceedings were initiated. Pending the same, the respondent herein took out the instant application to revoke the Letters of Administration, stating that Viruthambal executed two other Wills dated 13.12.1978 and also 03.09.1990. It is further urged that he is related to the testatrix on husband's side and also is the brother of one Balasubramania Mudaliar, who died on 30.08.2004. Balasubramania Mudaliar was the husband of Yamunabai, who is none else than the daughter of Viruthambal and thus, Balasubramania Mudaliar was entitled to inherit her undivided share and thus, Balasubramania Mudaliar, on the death of Yamunabai, was entitled to 1/4th undivided share by operation of law, which would devolve upon him.
3. The learned single Judge, after hearing the submissions made and also looking into the relevant provisions of the Hindu Succession Act, in particular
Section 15(2), took a view that it is a case where an investigation has got to be made in respect of the claim made by the respondent on the basis of two Wills and also by operation of law and it is a fit case where the revocation has got to be ordered and accordingly, revoked the Letters of Administration and under such circumstances, the appeal has arisen before this Court.
4. Heard the learned counsel on either side. It is contended by the learned counsel for the appellant that the averments made in the affidavit filed in support of the application seeking revocation of the Letters of Administration by the respondent herein, would indicate that there were two Wills executed by Viruthambal, one on 13.12.1978 and another on 03.09.1990 and thus, these two testaments came into being anterior in point of time and the Letters of Administration was sought for in respect of the Will which came into existence later and it is not the case of the respondent that Viruthambal had not executed any Will subsequent to the Will dated 04.12.1998. Added further the learned counsel that the property originally belonged to one Murugesa Mudaliar and he died intestate and the property was devolved on two persons, namely, his wife Viruthambal and his daughter Yamunabai, whose husband was Balasubramaniam and the respondent/applicant claims that he is the half brother of Balasubramaniam and Yamunabai died on 19.01.2002 issueless and by operation of
section 15(2) of the Succession Act on the death of Yamunabai, the property would automatically come to Virudhambal, who died on 28.04.2002, who has executed the Will in question and that she was competent to execute the testament and in such circumstances even by operation of law, the respondent cannot now make any claim through his brother Balasubramaniam, the husband of Yamunabai and hence, the order of the learned single Judge is factually and legally erroneous and has got to be set aside.
5. The Court heard the learned counsel for the respondent and paid its anxious consideration on the submissions made.
6. It is not in controversy that the appellant herein sought originally the Letters of Administration on the strength of the Will executed by the testatrix dated 04.12.1998 and accordingly, it was also granted. While the matter stood thus, the respondent herein made the instant application for revocation of the same on two grounds namely, (i) the said Viruthambal executed two Wills, one is unregistered and the other is registered dated 13.12.1978 and 03.09.1990 respectively; and (ii) the respondent, being the half brother of Balasubramaniam, husband of Yamunabai, is entitled to the property by the operation of law.
7. On the facts of the case, however, it is seen that the respondent is the step brother of one Balasubramaniam, who is the husband of Yamunabai and on the death of the father of Yamunabai, namely, Murugesa Mudaliar, Yamunabai would get half share and on the death of Yamunabai, Balasubramaniam would get 1/4th share and by operation of law, on the death of Balasubramaniam, his half brother would not be entitled to the same and hence, the Letters of Administration originally granted has got to be confirmed.
8. Apart from the above legal position, now this Court is also of the considered opinion that the impugned order has got to be set aside for the following reasons;
firstly, the first contention put forth by the respondent before the learned single Judge was that Virudhambal had executed two Wills namely, 13.12.1978 and 03.09.1990, one unregistered and the other registered. It is pertinent to point out that the Letters of Administration was sought for by the appellant on the strength of the Will executed by Virudhambal on 04.12.1998, which is subsequent in point of time. It is not the case of the respondent that Virudhambal has not executed any testament subsequently, particularly the Will in question dated 04.12.1998. Under such circumstances, the first finding recorded by the learned single Judge that it is a fit case where both the Wills have got to be investigated does not arise for consideration at all; and secondly, the claim made by the respondent that he will be entitled to a share in the property since the respondent is the half brother of the husband of the deceased Yamunabai, who died issueless, would not arise for the reasons, viz., (i) by operation of
section 15(2) of the Succession Act, he could not make any claim; and (ii) even assuming to be so, the question as to the title of the property cannot be decided by this Court while exercising testamentary jurisdiction, particularly when the question before this Court is as to the issue of letters of administration on the basis of a Will and nothing more.
Under such circumstances, the above contentions cannot be countenanced both factually and legally and the order of the learned single Judge has got to be set aside.
Accordingly the impugned order is set aside and the appeal is allowed, leaving the parties to bear their respective costs. Consequently connected M.P.is closed.
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