VIJAYAKUMARI Vs. P.G. ELLAPPA CHETTIAR

JUDGEMENT

(1.) Application by the petitioner in O.P. No. 155 of 1964 and plaintiff in T.O.S. No. 14 of 1964, to strike off the written statement filed by the respondent Ellappa Chettiar. The applicant filed O.P. 155 of 1964 for grant of Letters of Administration with the Will of Pushal Sami Chettiar annexed limited to the properties bequeathed to Tulukanammal. I ordered notice to Veerammal, Ellappa Chettiar, Vembuli Ammal and Ellammal among the persons mentioned in paragraph 13 of the petition as next of kin according to Hindu Law. Ellappa Chettiar entered caveat on 10th July 1964, and it was taken on file on 24th July 1964. On 24th September 1964 I passed orders discharging the caveat under O. 25, R. 54, O.S. Rules, as Ellappa Chettiar failed to file an affidavit in support of the caveat within eight days as required by the rules. The learned Advocate for Ellappa Chettiar brings to my notice that he had filed the necessary affidavit on 1st August 1964, that it was ordered to be returned on 10th August 1964, and that he did not take it back and re -present it. He merely filed an affidavit on 27th October 1964. On the strength of this affidavit, the First Assistant Registrar has on 7th November 1964, ordered the original petition to be registered as a suit and it was registered as T.O.S. 14 of 1964. It should be noted that in the meanwhile on 22nd October 1964. I granted Letters of Administration with the Will of Pushal Sami Chettiar annexed limited to the property bequeathed to Thulukanammal as prayed for by the petitioner on her furnishing security for the value of the same. The procedure adopted by the First Assistant Registrar is not correct. The learned First Assistant Registrar relied on O. 25., R. 62, of the Original Side Rules for ordering the original petition to be registered as a suit. The rule provides that if subsequent to the grant of probate or Letters of Administration, any person interested in the property of the deceased, other than the grantee, desires that the Will may be proved in solemn form or that the said grant may be revoked, he shall file an affidavit setting out the grounds therefore and apply for the issue of a citation to the grantee and that the petition for probate or Letters of Administration shall be registered and numbered as a suit. The rule contemplates the person interested not only filing an affidavit but also making an application. Such an application has not been filed by Ellappa Chettiar. Further, this rule could be invoked only by a person who comes to know of the grant of probate or Letters of Administration made without his knowledge. This is clear from a reading of the earlier rules as to the procedure to be adopted in case of persons who contest the proceedings. Thus where a person who after being served with notice or otherwise taking notice, enters a caveat, he should file an affidavit within eight days. This is what Ellappa Chettiar has attempted to do in this case. He cannot take advantage of his own default in not re -presenting the affidavit and allowing further proceedings to take place and come forward with an affidavit and ask for the petition to be registered as a suit under O. 25, R. 62, of the O.S. Rules. The scheme of the rules does not permit him to take such a course. If the view taken by the learned First Assistant Registrar is accepted every person who fails to file an affidavit within eight days after entering caveat on service of notice could subsequently come forward with an application under O. 25, R. 62, of the O.S. Rules. The remedy of the applicant is to apply to this Court to excuse the delay in re -presenting the affidavit after setting aside the orders dated 24th September 1964, and 22nd October 1964. The learned Advocate for the respondent wants time to file the necessary application.

(2.) When this application came up for hearing on the last occasion, (22nd October 1964), I told the learned Advocate for the applicant that before he could proceed with the application he should apply to set aside the order of the First Assistant Registrar directing the O.P. 155 of 1964, to be registered as T.O.S. 14 of 1964 on the file of this Court. It appears that such an application has been filed. This application is directed to be posted along with the said application.