In Re: N.S. Paramananda Naicker

Maheswaran, J.—This appeal is directed against the judgment of our learned brother, Venkataswami, J., passed in Diary No. 12079 of

1983. The only question that arises in this appeal is whether Letters of Administration can be granted limiting it to a specified property in the Will

and Codicil. One C. Manicka Naicker executed on 31st March, 1937 a Will. He left behind his widow Kulandai Ammal and Kuppusami Naicker

and Paramananda Naicker, his foster sons. By the said will, he bequeathed various items of properties to the said persons to be enjoyed during

their lifetime without any power of alienation and thereafter to the heirs of the said two foster sons absolutely. But on 23rd December, 1938, he

executed a Codicil at Madras and appointed Kuppuswami Naicker, one of his foster sons as executor.

Paramananda Naicker, one of the foster sons, filed O.P. No. 233 of 1961 for Probate of the latter document alone, namely, the Codicil.

Kuppuswami Naicker, another foster so, entered caveat whereupon the said O.P. was converted into a testamentary original suit No. 5 of 1962.

The Caveator had no objection to the appellant asking for probate in respect of the original of the will with the Codicil annexed and to his being

appointed as Executor. This Court permitted the appellant to amend the plaint and to pay the necessary additional court fees. But, as the appellant-

plaintiff did not amend the plaint, the suit was ultimately dismissed on the ground that the grant of probate of the Codicil alone is not maintainable.

The appellant has now filed a petition under Ss. 225 and 276 of the Indian Succession Act, 1925 for the grant of Letters of Administration with

the Will and Codicil attached, limiting it to the property mentioned in the Codicil, which is house No. 42 Ramakrishna Mutt Road, Mylapore,

Madras. The office raised an objection that the appellant cannot maintain this application in view of the fact that the relief was negatived by an

earlier order of this Court in T.O.S. 5 of 1962. The matter was posted before the learned single Judge, who agreed with the office note but (sic)

directed the appellant to amend the application appropriately if he chooses to prosecute the matter further.

Learned counsel for the appellant, Mr. Balasubramaniam, contended that under S. 255 of the Indian Succession Act, Letters of Administration

can be granted to a particular property subject to certain exceptions. Our attention was invited to the ruling in Gowder v. Nanjappa AIR 1973

Mad. 197. That was a case where most of the estate of the deceased was administered without obtaining a probate. Under such circumstances, a

Division Bench of this Court held that Letters of Administration can be granted for the property in respect of which administration is not completed.

It is well-settled that an application for Probate or Letters of Administration must ordinarily be with reference to the Will and the whole of the

Estate, but where the case requires an exception to be made, then the Letters of Administration or Probate may be granted subject to such an

exception.

In this case, it should be noted that the original Will was executed at Chingleput. No executor was appointed under the Will. The Codicil was

executed at Madras appointing an executor, who is now no more. The appellant is one of the beneficiaries, who has to enjoy the property during

his lifetime without any power of alienation. It is now pointed out by the learned counsel for the appellant that most of the properties except the one

covered by Codicil had been dealt with by alienation and otherwise by both the appellant and the other beneficiaries and what remains is the

property covered by the Codicil in respect of which the Letters of Administration are now sought for.

The learned counsel for the appellant submits that on the basis of S. 57(b) of the Act, the petition has to be numbered. But, we are not adverting

to this subject of the case since we decide on the facts of the present case that exception has been made out for the purpose of invoking S. 255 of

the Indian Succession Act. As most of the estate of the deceased had been alienated and since the other foster son by name Kuppuswami Naicker

is dead, and as the property has to be administered, we are of the view that the appeal should be allowed. Accordingly, the appeal is allowed, the

order of the learned single Judge is set aside and we direct the office to take the petition on file if otherwise found in order. No costs.