VANAJATICHI AMMAL Vs. SHANMUGHAN CHETTIAR

JUDGEMENT

(1.) THESE applications have been filed by the legal representatives of the original petitioner V. Masilamani Chettiar. V. Masilamani Chettiar filed the petition O.P. No. 369/89 under Sections 222, 255 and 276 of the Indian Succession Act for grant of Probate. His brother V. Shanmugham Chettiar lodged a caveat and the Original Petition was converted and registered as a Testamentary Original Suit in T.O.S. No. 14/89. Pending the suit Masilamani Chettiar died on 20-8-1994. The applicants filed these applications for excusing the delay of 396 days in filing the application to set aside the order of abatement dated 19-11-1994, to set aside the abatement of suit T.O.S. No. 14/89, to excuse the delay of 325 days in filing the application to bring the legal representatives of the deceased Masilamani Chettiar on record and to bring on record the applicants as plaintiffs 2 to 6 in the T.O.S.

(2.) IN support of the applications, the applicants have stated that after the death of the original petitioner, the first applicant herein fell sick, that their Counsel Mr. K. Kumaraswamy also expired and that they were all in complete darkness and were not aware of the proceedings till they received summons in Application No. 6346/94 in C.S. No. 532/88 filed by the respondents herein. They further stated that after coming to know about the suit proceedings they filed vakalat in C.S. No. 532/88 on 5-12-1994, that their Counsel informed the applicants to file the necessary application to bring the legal representatives of Masilamani Chettiar on record in T.O.S. No. 14/89, that they filed an application to bring the legal representatives of Masilamani Chettiar on record in the above matter on 31.10.1995 in Diary No. 30391 after a delay of 346 days, that the second applicant herein was the only person looking after the business left by his father and the other family members, that he could not contact his Advocate and instruct him to file the petition in time and that the delay caused was not wilful, deliberate or wanton.

(3.) THE learned Senior Counsel Mr. K. Chandramouli appearing for the applicants submitted, relying on two Bench decisions of this Court in P. Rama Naidu and others v. Rangayya Naidu and others (AIR 1933 Madras 114=(1932) 36 L.W. 922) and Govind M. Asrani v. Jairam Asrani and another (1963-II M.L.J. 433=76 L.W. 492 that if, in a pending application for the issue of Probate, the sole executor died before proving the Will, it would be competent for a legatee or any other person interested to intervene and continue the proceedings to prove the Will and obtain Letters of Administration in his own right.