AMMANI AMMAL Vs. MNARAYANASAMI NAIDU

JUDGEMENT

(1.) This appeal raises an important question of procedure. The facts out of which the matter arises may be stated. One Perumal Naidu died in Madras in 1924 leaving his sister Ammani Ammal. A brother of his named Ramaswami Naidu predeceased him. One M. Nara-yanaswami Naidu, who is a brother of Govindammal, widow of Ramaswami Naidu, applied for letters of administration to the estate of Perumal Naidu. That application was O. P. No. 106 of 1924. Letters of administration were granted to him on the 5 February, 1925, after notice to Ammani Ammal and to Govindammal.

(2.) The present application was filed on the 17 of August, 1929, praying that the letters of administration granted to Narayanaswami Naidu should be recalled. The grounds disclosed in the affidavit accompanying this application are that: Narayanaswami Naidu in his application of 1924 claimed to be the adopted son of Ammani Ammal but as a matter of fact he was not the adopted son, that Ammani Ammal was made to appear to consent to the former order by being induced to put her mark to certain papers the contents of which she was not able to understand clearly and that, in short, her consent was procured fraudulently. This application was filed under Section 263 of the Indian Succession Act and Order 34, Rule 54 of the Original Side Rules by means of a Judge's Summons and a Citation. Narayanaswami Naidu appeared on the Judge's Summons and filed an application with an affidavit on the 27 of August, 1929, and opposed the application on the merits and also contended that the application by way of Judge's Summons and Citation under Rule 54 does not lie. The matter came on before our bro-. ther Krishnan Pandalai, J., on the 6 of September, and he passed an order to this effect: "Issue Citation under Order 34, Rule 62. Number as a T.O.S." And on the defendant's application, he passed the following order: "The applicant has now- taken out a Citation under Order 34, Rule 62, and does not press this Judge's Summons. Costs to be provided for in costs in the T.O.S. in Citation." The matter again came on before our brother Eddy, J., on the 27 of September, when he passed the following order: "Leave to amend and reserve Citation. Adjourned until October 3rd." On the 3 of October further orders were passed as follows: "Citation having been amended by consent, no order except that the applicant do have the costs of this application " It is against this last order that the present appeal is filed.

(3.) The learned advocate for the respondent takes a preliminary objection that this appeal does not lie. As the order of the learned Judge finally disposes of the application of Narayanaswami Naidu and awards costs, we think that this is a final order and an appeal lies. We overrule the preliminary objection.