OSA/173/2021 of SAVITHRI ROBERTS Vs DAMAYANTHI GUNASEKARAN on 10 September 2026

ORDER

(Order of the Court was made by GK.Muthukumaar J.) This Original Side Appeal has been preferred against the order dated 8.12.2020 passed in O.P.No.772 of 2012 on the original side of this Court, whereby the said petition was allowed and issuance of Letters of Administration in favour of the petitioner was directed.

2. Heard Mr.A.Palaniappan for Mr.G.Ravichandran, learned counsel appearing for the appellants and Dr.C.Ravichandran, learned counsel for the first respondent. There is no representation for respondents 2 to 4.

3. The brief factual matrix pertaining to the execution of the will involved in this case is as follows:

(a) Late M.R.Srinivasan, S/o. Late Muppal Rama Sastri (in short, ‘the Testator’) who was a lawyer, had executed a will dated 17.1.2006. The same has been marked as Ex.P1 in the Original Petition. Subsequently, he had executed codicils, three of which are marked as Exs.P3, P4 (also marked as R10) and R3.

(b) The Testator died on 21.12.2010. His death certificate has been marked as Ex.P5. The legal heir certificate pertaining to the Testator has been marked as Ex.P6. The appellants and the first respondent are shown as the surviving legal heirs of the Testator, along with the three grandchildren of the Testator’s deceased son, who are respondents 2 to 4. All of them are the main beneficiaries under the Will.

(c) In the said Will, the Testator had bequeathed his immovable properties, comprising of land and a dwelling house and all his movable properties.

(d) The appellants 1 and 2 have been named as executors under the said Will. Both of them are also beneficiaries under the will.

4. We also note that a handwritten letter of the Testator dated 23.7.2010, addressed to his daughters prior to his demise, has been marked as Ex.R6. From a reading of the letter, it is evident that the Testator intended his daughters, the appellants and the first respondent herein, to amicably enjoy the property bequeathed to them in keeping with his will after his lifetime. The last paragraph of the letter is worth reproducing herein; “It is my wish that the lawyer of the parental family should not be sullied and nothing is done by all of you to make your parents turn in their graves.”

5. The above-reproduced last few lines of the said letter refer to himself as a lawyer and make an earnest request to his daughters, the main beneficiaries under the Will to enjoy the properties bequeathed to them amicably and live a peaceful life.

6. However, it is saddening to note that after the death of the Testator, differences arose between his daughters, viz., the appellants and the first respondent herein, as is evident from the communications exchanged between them, which are marked as Exs.P8, P11 and P12.

7. The differences between the parties led to the filing of O.P.No.772 of 2012 by the first respondent herein before the Original Side of this Court, praying for the issuance of Letters of Administration with the xerox copy of the Will and codicils annexed to the Will, with regard to the estate of the deceased Testator. In the said Original Petition, by orders dated 26.9.2013 and 4.2.2014, the appellants were directed to produce the original will and codicils.

8. Thereafter, appellants 1 and 2, who are the executors under the said will, filed O.P.D.No.18753 of 2014 praying for the grant of probate to the annexed original will dated 17.01.2006 together with three codicils dated 23.04.2007, 4.11.2008 and 6.11.2010 executed by the Testator. From the material on record, we find that this Original Petition was returned by the Registry of this Court, stating that the same was not maintainable. The maintainability issue was agitated before this Court. The Court passed an order dated 23.6.2015. The relevant portions of which are extracted hereunder; “5. Mrs.Palaniappan, learned counsel appearing for the petitioners contended that only the executors of the said will are entitled to file Original Petition seeking for probate and therefore the other Original Petition filed by such persons is maintainable.

6. It is not in dispute that the executrix/petitioners are already made as party respondents in the above said O.P.No.772 of 2012. If that be the position, I am of the view that another Original Petition seeking for probate of the same will cannot be maintained, especially when O.P.No.772 of 2012 is still pending for adjudication. Therefore, the present Original Petition filed by the petitioners herein cannot be maintained. It is open to the petitioners herein to make their objections if any in the above O.P.No.772 of 2012.

7. Accordingly, O.P.No.18753 of 2014 is disposed of as not maintainable.

8. The original will filed in O.P.D.No.18753 of 2014 shall be returned by the Registry to the petitioners therein and those petitioners are directed to present the said original will in O.P.No.772 of 2012 by filing appropriate application in O.P.No.772 of 2012.”

9. From the above, it is evident that this Court had held that the petition in O.P.D.No.18753 of 2014 filed by the appellants 1 and 2 /executors seeking probate was not maintainable, since O.P.No.772 of 2012 seeking Letters of Administration already filed by the first respondent was pending adjudication. Therefore, O.P.D.No.18753 of 2014 was not disposed of on merits, but on a maintainability issue, in view of the pendency of O.P.No.772 of 2012 pertaining to grant of Letters of Administration. It is also evident from the above said order that the original will filed in O.P.D.No.18753 of 2014 was directed to be returned to the executors and they were directed to present the same by filing an appropriate application in O.P.No.772 of 2012.

10. Thereafter, this Court, by order dated 6.06.2016 made in O.P.No.772 of 2012 held that there is no dispute either on the execution of the will or as to the respective shares of any of the beneficiaries, but the dispute was as to whether Letters of Administration had to be granted in favour of the first respondent or probate in favour of the appellants 1 and 2/executors. This Court also directed that, for deciding this issue, evidence of parties had to be recorded and that the earlier order of the Learned Master dated 22.8.2012 cannot wipe- out the intention of the Testator. It is also held that, in view of the subsequent order passed by this Court, there was compliance by the executors. It therefore directed the Learned Master to take evidence, restricting the same to the issue of whether Letters of Administration or probate had to be granted, as sought for by the respective parties. The relevant portions of the said order are extracted hereunder; “6.With the above said factual background, the learned counsel for the petitioner makes his reliance on the earlier order passed by the Learned Master in A.No.1633 of 2012 and submits that Letters of Administration has to be granted in favour of the petitioner as against the respondents/executrices.

7. The learned counsel for the respondents submitted that the Court will have to sit in the armchair of the Charter and fulfil the desire of the Testator as exposed in the undisputed Will. The mere fact that subsequent orders have been passed in the application filed by the third respondent, giving liberty to raise the issue of probate in favour of the executrices and by condoning the delay in raising a caveatable interest, would be sufficient enough to refer the matter for trial before the learned Master.

8. Considering the submissions made, this Court is of the view that in as much as there is no dispute on the covenance of the Will as well as the executrix, as both parties are relying upon the same, the only question to be decided is as to whether Letters of Administration will have to be given in favour of the petitioner or probate in favour of the respondents/executrices. For that purpose, certainly, evidence has to be recorded by the Learned Master. Order passed by the learned Master on 22.8.2012 cannot wipe out the intention of the Testator. It has to be seen in the context of the subsequent orders passed by this Court and there was a compliance by the third respondent/executrix. Therefore, such technical approach sought to be espoused by the counsel for the petitioner cannot be accepted.

9. Accordingly, the Learned Master is directed to take evidence restricting the same to the issue of Letters of Administration or probate as sought to be espoused by the parties. Both the parties and their counsel shall render co- operation to the Learned Master in recording evidence. The Learned Master is directed to place the matter before this Court after recording evidence.”

11. From the above, it is clearly evident that as per the order dated 6.6.2016, the relevant portions of which have been extracted above, this Court had directed the proceedings in O.P.No.772 of 2012 to proceed further, for determining whether Letters of Administration or probate has to be issued, as sought for by the respective parties.

12. Thereafter, the first respondent had filed A.Nos.4144 and 4950 of 2016 in O.P.No.772 of 2012 seeking modification of the above said order dated 6.6.2016 passed by this Court and to discharge the caveat filed by the third appellant herein.

(a) The extracted relevant portions of the order of this Court dated 9.11.2016 passed in both these applications is as follows;

3. This application is nothing but to review the order passed. After all, this Court is bound to satisfy the intention of the Testator as recorded by the order passed earlier. Moreover, this Court has not disposed of the original petition which is still

pending. On the contrary, this Court has merely directed the Learned Master to look into the rival contentions of the parties concerned which is limited in nature. Therefore, looking from any angle, this Court is not inclined to grant any relief in this application (Appln.No.4144 of 2016). The Learned Master to conclude the evidence as ordered by this Court on 6.6.2016.

4. Incidentally, the application filed to discharge the caveat filed by the third respondent (Appln.No.4950 of 2016) is also rejected. Admittedly, along with caveat, objections have been raised while there is no dispute that the respondents do have a caveatable interest.

5. This Court desists from converting this petition into Testamentary Original Suit (TOS) for the reasons stated earlier. In any case, this matter shall be considered after the evidence is recorded. Hence, Application No.4950 of 2016 stands dismissed.

6. The Learned Master is directed to conclude the evidence as ordered by this Court in the earlier order dated 6.6.2016 within a period of four weeks from the date of receipt of a copy of this order. It is submitted that the evidence of the petitioner is already over. The matter shall be listed after recording evidence.”

(b) The extracted relevant portions of the order of this Court dated 10.11.2016 passed in both these applications is as follows; “1.This matter is listed today under the caption ‘for being mentioned’ at the instance of learned counsel for the applicant.

2. Upon hearing the learned counsel for the applicant, it is hereby clarified that it is open to the applicant also to give evidence before the Master with respect to the case of the respondent qua the right to probate the will. All the issues are left open to be decided after the evidence is taken. It is also clarified that the issue of caveatable interest will have to be understood on the entitlement of the parties as the parties are not questioning the will and therefore, the only issue to be decided is as to whether there will be a Letters of Administration or probate.”

13. From the above, it is seen that upon hearing all parties thereto, this Court dismissed both the applications and directed the Learned Master to conclude the evidence as already directed by this Court under the above said order dated 6.6.2016. Further, by orders dated 9.11.2016 and 10.11.2016, made in the above said two applications, this Court clarified that it was open for the first respondent herein to give evidence before the Master with respect to the case of the appellants qua the right to probate the will and also held that all issues were left open to be decided after evidence was taken. It also clarified that the issue of caveatable interest would have to be understood based on the entitlement of the parties under the Will, as the parties were not questioning the execution and genuineness of the will but were only raising the issue as to whether Letters of Administration or probate of the will had to be issued.

14. In this back drop, the parties had let in evidence, whereby P.W.1 and R.W.1 filed proof affidavits and were subjected to cross-examination. From the evidence of the parties, particularly, the first respondent, who was examined as P.W.1, it is clearly evident that there was no challenge to the execution or to the shares of the parties under the Will. Therefore, there was no dispute as to the execution, genuineness and validity of the will/Ex.P1 between the parties herein.

15. We also find that, after recording of evidence of both sides, O.P.No.772 of 2012 was decided by this Court by order dated 8.12.2020 and the same is under challenge before this Court in the present appeal. In deciding the said Original Petition, the Learned Single Judge of this Court had directed the issuance of Letters of Administration in favour of the first respondent. Being aggrieved by the same, the executors, who are appellants 1 and 2 herein and another daughter of the Testator, the third appellant, have preferred the present appeal, raising various legal infirmities in the said order.

16. Based on the pleadings, the oral and documentary evidence, the earlier orders passed and the arguments of the counsel for both parties in this appeal, we find that the points which arise for consideration in this appeal are; (a) Whether the order under appeal is contrary to Sections 229 and 230 of the Indian Succession Act, 1925 (in short, ‘the Succession Act’)?

(b) The effect of the dismissal of O.P.D.No.18753 of 2014 by order of this Court dated 23.6.2015? Point No.1:

17. It is submitted by the learned counsel for the appellants, that the order under appeal is contrary to Sections 229 and 230 of the Succession Act. Therefore, to ascertain as to whether the order under appeal is contrary to Sections 229 and 230 of the Succession Act, the ingredients of the Sections have to be looked into. Section 229 is extracted hereunder; “Section 229: Grant of Letters of Administration where executor has not renounced- When a person appointed as executor has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to accept or renounce his executorship.” From a reading of the said Section, it is amply clear that when a person has been appointed as an executor and the said person has not renounced his executorship, in such circumstances, Letters of Administration cannot be granted to any other person until a citation has been issued calling upon the executor to accept or renounce his executorship.

18. In this regard, the Supreme Court has in the case of, Samir Chandra Das Vs. Bibhas Chandra Das and others, reported in (2010) 6 SCC 432, held that renunciation of executorship of a will cannot be inferred on the basis of any presumption. It further held that there cannot be any deemed renunciation of executorship.

19. Now looking at Section 229, in the light of the decision of the Hon’ble Supreme Court Samir Chandra Das cited supra, it is clearly evident that renunciation by the executors to the will has to be by express acts and it cannot be implied or inferred.

20. Further, in view of the express mandate of Section 229 and the decision of the Hon’ble Supreme Court in Samir Chandra Das cited supra, it is clear that when the executors have not renounced the executorship by any express act, then Section 229 clearly stipulates that Letters of Administration shall not be granted to any other person. This however is subject to one exception. The exception being when the executors are called upon to accept or renounce the executorship by issuing a citation.

21. From the pleadings and evidence on record, we find that no citation has been issued as mandated under Section 229, viz., calling upon the executors herein to accept or to renounce their executorship.

22. We find from the record that the only citation which was issued pursuant to the order of the Learned Master dated 22.8.2012 in A.No.1633 of 2012 was a citation to bring into Court the original unregistered will, Ex.P1. As such, we find that no citation in compliance with the mandatory requirement of Section 229 had been issued at the instance of the first respondent, calling upon the executors to accept or renounce their executorship.

23. At this juncture, it is worth recalling the settled preposition of law to the effect that, when the statute specifically requires a particular act to be done in a particular manner, then such act has to be done in that particular manner and not in any other manner.

24. In the light of this settled preposition of law, we find that the citation calling for production of the original of the will is not a citation calling upon the executors to accept or renounce the executorship as mandated under Section 229. Therefore, we hold that no citation as required under Section 229 has been issued in this instant case and hence as per the mandate of Section 229, in the absence of a citation, no Letters of Administration can be issued to anyone, more so, to the first respondent herein. Therefore, the finding and order of the Learned Single Judge to the contrary, without considering the legal import of Section 229 is totally erroneous and is hence liable to be set aside.

25. Furthermore, section 230 of the Succession Act, which deals with the form and effect of renunciation of executorship, is extracted hereunder: “Section 230. Form and effect of renunciation of executorship- The renunciation may be made orally in the presence of the Judge, or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for probate of the Will appointing him executor.” From a reading of this Section 230, it is clear that this Section mandates that renunciation of a will has to be made orally in the presence of the Judge or it has to be in writing signed by the person renouncing.

26. In such circumstances, in this case, we find that no renunciation was made by either of the executors orally in the presence of the Judge, nor was any writing produced duly signed by the executors expressing their intention to renounce their executorship. Therefore, it is clear that no renunciation as provided for under the above provisions of Section 230 has been made by either of the executors, as mandated under this provision.

27. That apart, from the communications exchanged between the contesting parties, which are marked as Exs.R6, R8 and P11 and P12 and the legal notices exchanged between them under Exs.P13 and P14, we find that the delay by the executors in proceedings with the execution of the will and in seeking probate had arisen due to certain differences of opinion between the contesting parties and the pooling of available sums of money from the deposits of the Testator. In such circumstances, it cannot be said that the executors were not ready to probate the will or that there was any delay on their part in seeking probate.

28. Therefore, we hold that the order under appeal is contrary to the mandatory provisions of Sections 229 and 230 of the Succession Act, 1925 and hence erroneous and deserves to be set aside. Point No.1 is answered accordingly. Point No.2:

29. From the orders of this Court made in,

(a) O.P.D.No.18753 of 2014 dated 23.6.2015, (b) O.P.No.772 of 2012 dated 6.6.2016, and

(c) A.Nos.4144 and 4950 of 2016 in O.P.No.772 of 2012, dated 9.11.2016 and 10.11.2016.

It is clearly evident that O.P.D.No.18753 of 2014 seeking probate was dismissed by order dated 23.6.2015 on maintainability grounds and not on merits. This was in view of pendency of O.P.No.772 of 2012 for grant of Letters of Administration. Moreover, by orders dated 6.6.2016, 9.11.2016 and 10.11.2016, appellants 1 and 2, the executors under the will, were allowed to agitate their case pertaining to grant of probate in O.P.No.772 of 2012 itself. The orders of this Court dated 6.6.2016, 9.11.2016 and 10.11.2016 as mentioned above and as exacted in the earlier part of our order, clearly indicate that the parties were to give evidence pertaining to both issues i.e., probate or issuance of Letters of Administration and that the grant of probate or letters of administration was to be decided after the evidence was taken by the Learned Master. In such circumstances, the appellants 1 and 2/executors cannot be faulted with for not preferring an appeal against the order dated 6.6.2016 made in O.P.D.No.18753 of 2014 as held by the Learned Single Judge. Moreover, the application seeking probate was not even numbered and it was only disposed of as not maintainable in view of the pendency of O.P.No.772 of 2012 pertaining to the grant of Letters of Administration. In the very same order, the Registry was directed to return the original will to the appellants 1 and 2/ executors for being filed in O.P.No.772 of 2012 pertaining to grant of Letters of Administration.

30. Therefore, a perusal of all the said orders would only reveal that the issue to be decided in O.P.No.772 of 2012 was as to whether probate or Letters of Administration were to be granted as regards the will, Ex.P1 where the parties have let in evidence knowing fully well that their evidence was with regard to addressing both these issues only.

31. The Hon’ble Supreme Court had in the case of Shambhu Prasad Agarwal and Others vs. Bhola Ram Agarwal reported in (2000) 9 SCC 714) [Paragraphs 5 & 6] held that when considerable time has elapsed, since the execution of the will, interest of justice demands that the proceedings should come to an end as early as possible and that the appeal should not be dismissed merely on technical grounds, and hence permitted the appellants therein to be substituted in the proceedings and also permitted them to amend the petition from one of probate to that of Letters of Administration.

32. In this instant case also, the will was executed on 17.1.2006. The Testator died on 21.12.2010. The Testator intended a peaceful disposition of his properties as evident from his letter, Ex.R6 and already mentioned in Paragraph 4 of this order. We therefore find that interest of justice would be better served, if we allow this appeal and grant probate to the appellants 1 and 2/ executors of the will, considering the length of time that has passed since the will come into effect and in keeping with the intention of the Testator.

33. Therefore, in these circumstances, the appellants cannot be faulted with for not preferring an appeal against the order dated 23.6.2015 in O.P.D.No.18753 of 2014. When this is so, the findings in paragraph Nos.9, 12 and 14 of the order under appeal, finding fault with the appellants for not challenging the order dated 6.6.2016 passed in O.P.D.No.18753 of 2014, is totally erroneous and against the interest of justice and hence we deem it fit to set aside the said findings and the order under appeal on this ground also. Point No.2 is answered accordingly.

34. Further, upon a perusal of the pleadings, the oral and documentary evidence, particularly, the cross-examination of the first respondent/P.W.1, we find that the execution, validity and genuineness of the will/Ex.P1 are not in dispute. On the contrary, the same has been admitted by all the contesting parties. Moreover, when the document is required by law to be attested, it has to be proved by examining at least one of the attestors. Though under the proviso to Section 68 of the Indian Evidence Act, the attesting witness need not be called for proving any document, however, the Will is an exception. Even though there is no dispute regarding the Will, still the Will has got to be proved by examining one of the attesting witnesses. In this case, though there is no dispute or otherwise admitted, still the attestor has to be examined to comply with the provisions of Section 68 of the Evidence Act. In the present case, only the propounder was examined as PW1 and the Will was marked as Ex.P1. But the attestor was not examined. In this context, it is pertinent to refer to the judgment of the Hon’ble Supreme Court in the case of Ramesh Chand (D) through LRs v. Suresh Chand and another, 2025 INSC 1059, wherein the Hon’ble Supreme Court has observed as follows:- “27…..There is not an iota of discussion about the validity of the Will as contemplated under Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872 and yet, the validity of the Will has been upheld. This is contrary to law. Even the High Court, while evaluating the validity of the Will, has gone on a different tangent and has erroneously held that the requirement of examining the attesting witnesses springs into action only in cases of disputes between legal heirs. Such an observation is quite contrary to law, for Section 68 of the Evidence Act makes it mandatory to examine at least one of the attesting witnesses of the Will….”

35. That apart, in view of our finding in the earlier part of this order, that the executors of the said will have not renounced their executorship in the manner provided for under Sections 229 and 230 of the Succession Act, nor has any citation been issued calling upon the executors to accept or renounce their executorship as mandated under Section 229, we find that in this instant case Letters of Administration cannot be issued to the first respondent. For doing so, would amount to issuance of Letters of Administration, contrary to law, which cannot be done.

36. In view of the above, the order dated 8.12.2020 passed in O.P.No.772 of 2012 is set aside and this Original Side Appeal is allowed and the matter is remitted back to the learned Master for examination of the attestors and on such examination, thereafter shall pass orders on merits and in accordance with law for issuance of probate. If no attesting witness is available, then the procedure under Section 69 of the Evidence Act can be followed. In the facts and circumstances of this case, the parties are directed to bear their own costs. Consequently, the connected Miscellaneous Petition is closed. (P.V.,J.) (G.K.M.,J.) 10-09-2026 Index:Yes /No Neutral Citation:Yes/No VKR To The Sub Assistant Registrar(Original Side), Madras High Court, Chennai.

P.VELMURUGAN, J. AND GK.MUTHUKUMAAR, J. VKR A pre-delivery Judgment in OSA No. 173 of 2021 10-09-2026