P MANI Vs. P VISWANATHAN

JUDGEMENT

(1.) THE third defendant in C.S. 353 of 1987 has preferred this appeal against the dismissal of Appln. No. 5617 of 1989 filed by him to transpose him as the plaintiff in the suit and to permit him to continue the suit, subject to his obtaining Letters of Administration with the Will annexed to the last Will and Testament dated 17-9-1986 of his deceased mother Alamelu Ammal, the plaintiff in the suit.

(2.) IN C.S. 353 of 1987, Alamelu Ammal, the mother of the appellant as well as the respondents herein, had prayed for a declaration of her title to the A schedule property (forming part of B schedule) and for recovery of possession of the same with past and future mesne profits or in the alternative, for partition and separate possession of a fourth share in the B schedule property and for recovery of past mesne profits in a sum of Rs. 51870 and future mesne profits as well. According to the case of the plaintiff in the suit, the suit property belonged to her father-in-law Kanniappa Gramani and he had executed a settlement deed in 1937 giving a life interest in favour of his son Ponnusami Gramani, the husband of the plaintiff, and the plaintiff and thereafter the remainder in favour of the sons of Ponnusami Gramani absolutely IN 1973, the plain tiff and her husband Ponnusami Gramani released their life interest in favour of their four sons, viz, the appellant and respondents 1 and 2 herein and another Muthusami. Subsequently, on 17-3-1979, a partition was effected among the plaintiff and her sons and in that partition, one of the sons, viz, Muthuswami was allotted the front portion of the portion of the premises bearing door No. 14 Subbaraya Gramani St, Chetput, Madras and another property bearing door No. 115 V.V. Koil St was kept in common to be sold by her for the discharge of debts and the balance, if any, to be divided among the parties. Muthusami died on 9-1-1980 unmarried and the plaintiff claimed that she was his only heir and that though attempts were made to settle the disputes with reference to the properties of Muthuswami, they did not fructify and the plaintiff, therefore, instituted the suit against the appellant as well as the respondents herein praying for the reliefs set out earlier. During the pendency of the suit, Alamelu Ammal, the plaintiff in the suit, died on 26-10-1988 leaving behind her the appellant and the respondents herein as well as six daughters and two grand-daughters through a pre-deceased daughter. Alamelu Ammal, while in a sound disposing state of mind, is stated to have executed a Will on 17-9-1986 bequeathing the properties belonging to her as the heir of deceased Muthuswami in favour of the appellant. The appellant filed O. P, 503 of 1989 for grant of Letters of Administration to him inrespect of the Will dated 17-9-1986 of deceased Alamelu Ammal, the plaintiff in C.S. 353 of 1987. According to the appellant, he was entitled to succeed to the estate of deceased Alamelu Ammal and, therefore, he prayed that she should be transposed as the plaintiff in the suit, subject to his obtaining Letters of Administration with the Will annexed. That application was dismissed by the learned Judge sitting on the Original Side of this Court stating that the applicant cannot now be transposed as plaintiff and that after the disposal of OP, 503 of 1989 he may file a fresh application. It is the correctness of this order that is questioned in this appeal.