Judgment : Defendant in O.S.No.486 of 1984 on the file of Principal Subordinate Judge, Madurai, aggrieved by the grant of Letter of Administration for the Will dated 26.12.1969 executed by late Palaniammal has preferred the above appeal. The plaintiff/ respondent herein initially filed O.P.No.152 of 1982 before the Sub Court, Madurai under Sec.276 of the Indian Succession Act for a letter of administration for the Will dated 26.12.1969 executed by late Palaniammal. Subsequently, the said application has been converted as a suit namely O.S.No.486 of 1984. The plaintiff is the son of one Thangammal, the daughter of one Kaliammal. The said Kaliammals father Subbiah Chettiar has 5 daughters, namely, Kaliammal (plaintiffs maternal grand-mother), Palaniammal, Chittu Pillai, Pappathi Ammal and Kumarathi Ammal. The defendant is the daughter of Chittu Pillai. Originally the suit property and other properties belonged to the said Palaniammal and her sister Kumarathi Ammal. They effected partition by a partition deed dated 23.8.1935. Palani Ammal got the property described in the annexure under the said deed of partition. From that time onwards Palani Ammal was enjoying the property. The plaintiff had been helping the said Palani Ammal and also looking after her comforts. 2. The said Palani Ammal, while she was in a sound disposing state of mind had executed a Will on 26.12.1969 in the presence of attestors and appointed the plaintiff and the defendant as the executors. The said Will was duly registered on 30.12.1969. Later the said Palaniammal died on 6.1.1970. The Will is the last Will and testament executed by the said Palaniammal. When Palaniammal fell ill as she had no one to help her, she requested the defendant to come and stay with her to attend to her needs. Accordingly, the defendant with her family members came to reside in the suit house from 1969. As per the terms of the Will, she had directed the discharge of debts payable by her to the tune of Rs.6,000 if she was not able to discharge the same prior to her death. Accordingly, the defendant with her family members came to reside in the suit house from 1969. As per the terms of the Will, she had directed the discharge of debts payable by her to the tune of Rs.6,000 if she was not able to discharge the same prior to her death. In the event of the debts not being discharged during her life time, she had directed that the property in the annexure to the plaint has to be sold and the principal and interest shall be discharged and out of the balance a sum of Rs.2,000 had to be paid to one Palaniammal, wife of Lakshmanan Chettiar and the balance has to be paid to Sri Uchi Mahaliamman Temple, which idol is installed in Door No.215,Dindigul Road,Madurai Town, which is the deity worshipped by Palaniammal and her father. After the death of the said Palaniammal, the plaintiff was pursuing and requested the respondent to vacate the building so that the plaintiff and the defendant can sell the suit property as per the direction in the Will and also carrying out the bequests recited in the said Will. The plaintiff sent a legal notice to the defendant on 14.10.1975 requesting her to surrender vacant possession of the suit properties and also to co-operate with the plaintiff in selling the suit properties and discharging the obligations detailed in the Will. The defendant finally sent a reply on 22.11.1975 disputing the Will. In respect of sundry debts and mortgage debts, one Chandrasekaran filed a Civil Suit and obtained a decree against the plaintiff and the defendant. Hence, the plaintiff was constrained to file the application for the grant of letter of administration in his favour. 3. The defendant filed a written statement wherein it is stated that she had been brought up by Palaniammal as her foster daughter and she arranged and celebrated the marriage of the defendant also. She had been living in the house mentioned in the plaint during Palaniammals life time and after her death also in her own right for over the statutory period. The alleged Will could not have been the Will of the said Palaniammal. The Will did not come into force and it was not acted upon. As the Will itself being denied by the plaintiff, the recitals therein are not binding upon her. The alleged Will could not have been the Will of the said Palaniammal. The Will did not come into force and it was not acted upon. As the Will itself being denied by the plaintiff, the recitals therein are not binding upon her. The defendant has prescribed title by adverse possession also since she is in possession and enjoyment of the house openly, continuously and without any interruption for over the statutory period, paying the property taxes payable to the Municipal Corporation. She has spent nearly a sum of Rs.50,000 and put up first floor in the house. She alone has paid amount payable in E.P.No.438 of 1981 in O.S.No.217 of 1975. The defendant has paid a total sum of Rs.9,250 in the execution petition for settling the entire claim of Chandrasekaran. The plaintiff is not entitled for any letter of administration and the suit is liable to be dismissed. 4. With the above pleadings, the parties went for trial. The plaintiff got himself examined as P.W.1 and produced and marked Exs.A-1 to A-7 in support of his claim. On the other hand, on the side of the defendant, one Kanjan Chettiar and Tmt.Lakshmi Ammal were examined as D.Ws.1 and 2 respectively and Exs.B-1 to B-33 marked in support of her defence. The learned Principal Subordinate Judge, after framing necessary issues and after considering the oral and documentary evidence and after accepting the case of the plaintiff, decreed the suit with costs. Aggrieved by the same, the unsuccessful defendant has preferred the present appeal. 5. Mr.M.Veluswami, learned counsel for the appellant has raised the following contentions: (i) After the death of the plaintiff- second executor of the Will, the properties described in the Will dated 26.12.1969 devolve on the first defendant- first executor. This aspect has not been considered by the Court below; (ii) As per Sec.224 of the Indian Succession Act, 1925, all the executors have to join together and apply for Letters of Administration; (iii) The present petition filed by the plaintiff for Letters of Administration after a period of 12 years is barred by limitation as per Sec.137 of the Limitation Act. 6. 6. Mr.P.Gopalan, learned counsel appearing for the respondent has raised the following contentions: (i) Inview of the stand taken in the written statement of the defendant, disputing title of the testator Palaniammal, he cannot be permitted to question the finding of the trial Court; (ii) Inasmuch as the plaintiff has been termed as “trustee” by the testator herself, the legal heirs of the plaintiff are entitled to continue the properties; and (iii) Since the defendant suffered disqualification by disputing the title of the testator and caused loss to the estate, Letters of Administration cannot be granted in her favour. 7. I have carefully considered the rival submissions. 8. It is seenfrom the records that the properties in dispute were allotted in favour of Palaniammal by means of a registered Partition Deed dated 28.8.1935. It is the case of the plaintiff that he had been helping the said Palaniammal and also looking after her comforts. The said Palaniammal, while she was in the sound and disposing state of mind, had executed a Will dated 26.12.1969. Ex.A-1 in the presence of attestors and appointed the plaintiff and the defendant as the executors. The said Will was duly registered on 30.12.1969. It is not disputed that the said Palaniammal died on 6.1.1970. It is also not in dispute that the Will in questions is the last Will and testament executed by the said Palaniammal. I have already referred to that the testator had appointed the defendant as the first executor and plaintiff as the second executor. Though the said Palaniammal died on 6.1.1970, only after 12 years that is in 1982, the plaintiff has filed O.P.No.152 of 1982 for issuance of Letters of Administration under Sec.276 of the Indian Succession Act. It is the specific contention of the defendant/ appellant herein that inasmuch as the testator had appointed her as the first executor in order to perform the directions made in the Will, the petition filed by the plaintiff for Letters of Administration excluding her cannot be sustained. It is also contended that pending appeal before this Court, the first respondent/ plaintiff. A.Somasundram died and after his death, the properties covered under the Will devolve on the defendant. It is also contended that pending appeal before this Court, the first respondent/ plaintiff. A.Somasundram died and after his death, the properties covered under the Will devolve on the defendant. No doubt, immediately after the death of the said A.Somasundram, the appellant herein filed a petition in C.M.P.No.16496 of 1990 seeking an order that the suit in O.S.No.486 of 1984 on the file of Sub Court, Madurai has abated consequent on the death of the sole plaintiff in the suit and the sole respondent in the appeal. By Order dated 5.3.1991, M.Srinivasan, J., (as he then was) dismissed the said petition with an observation that it would be open to the appellant to raise the same contention at the time of hearing of the appeal, after the legal representatives enter appearance. In C.M.P. No.16495 of 1890, this Court, after allowing the said petition, brought the respondents 2 to 6 therein as legal representatives of the deceased 1st respondent-A. Somasundaram. In the light of the said observation referred to above, the appellant is permitted to urge the very same contention. Accordingly, I have to consider whether after the death of the plaintiff, the properties devolve on the defendant/ appellant or whether the legal heirs of the deceased A.Somasundaram have right to enjoy the properties in question continuously. While considering the said aspect, it is relevant to refer the stand taken by the appellant in her written statement. Mr.P.Gopalan, learned counsel for the respondent by drawing my attention to the averment in the written statement, wherein the appellant/ defendant raised a plea, disputing the title of the testator and claiming exclusive right by adverse possession, would contend that she cannot be permitted to canvass the finding of the trial Court. In paragraph 4 of the written statement, it is stated that, “4. The defendant denies the truth genuine and validity of the note referred to in the plaint as having been executed by Palaniammal. She was also thoroughly incompetent to execute any Will since she was seriously ill and was not in a position to comprehend the matters. In paragraph 4 of the written statement, it is stated that, “4. The defendant denies the truth genuine and validity of the note referred to in the plaint as having been executed by Palaniammal. She was also thoroughly incompetent to execute any Will since she was seriously ill and was not in a position to comprehend the matters. The alleged Will could not have been the Will of the said Palaniammal….” In para 6 it is stated that, “….As the Will itself being denied by the defendant, the recitals strength are not being upon the defendant….” In para 7 it is stated, “…….This defendant has prescribed title by adverse possession also since she is in possession and enjoyment of the house openly, continuously and without any interruption for over the statutory period; praying the property taxes payable to the Municipal Corporation”. It is also relevant to note the recitals in the Will. Since the learned Subordinate Judge has extracted the relevant portion of the Will in paragraph 7 of his judgment, I am not once again repeating the same here. However, it is clear that she had executed the said Will at the age of 70 in a sound and disposing state of mind, and that both the plaintiff and the defendant had been asked to enjoy the properties and fulfil the obligations made in the Will. She also directed the executors to discharge certain loan amounts mentioned therein. It is further seen that in case they are not in a position to discharge their debts during her life time, after her death, it would be open to them to sell the scheduled properties and discharge the debts. It is further recited that from and out of the balance amount, a sum of Rs.2,000 has to be paid to Palaniammal, wife of Lakshmanan Chettiar, who is dumb and after the death of the said Palaniammal, an amount of Rs.1,000 has to be spent for her family deity Sri Uchi Mahaliamman. It is further clear that with regard to the amounts payable to the said dumb Palaniammal and Sri Uchi Mahaliamman temple, she had appointed the second executor, namely, the plaintiff as “Trustee”. It is further clear that with regard to the amounts payable to the said dumb Palaniammal and Sri Uchi Mahaliamman temple, she had appointed the second executor, namely, the plaintiff as “Trustee”. In the light of the recital referred to above, as rightly contended by the learned counsel for the respondents, in view of the stand taken by the defendant/ appellant disputing the title of the testator, she cannot be permitted to canvas the finding of the trial Court. In IN RE. N.Narasimhan IN RE. N.Narasimhan IN RE. N.Narasimhan A.I.R. 1975 Mad. 330, a Division Bench of this Court has held that in a petition of probate, a caveator cannot claim title in himself in conflict with that of a testator or testatrix. The Bench further held that the test for purposes of Sec.283(1)(c) is that person disputing the right of a testator to deal with the property as his own, cannot be properly regarded as having an interest in the estate of the deceased. In Thomas P.Jacob v. M.G. Varghese Thomas P.Jacob v. M.G. Varghese Thomas P.Jacob v. M.G. Varghese A.I.R. 1987 Ker. 193 while considering Sec.283(1)(c) of the Indian Succession Act, a Division Bench of Kerala High Court has held that a claim based on title or possession must be determined in a proper suit, that matters of possession or title are not in issue in the proceedings of the probate Court and that the caveator who claim no interest in the property otherwise than by reason of his alleged title by prescription has no right to be heard by the probate Court. In view of the stand taken by the defendant in the written statement, disputing the title of the testator and claiming right over the suit properties by way of adverse possession which goes against the intention and desire of the testator, the learned Subordinate Judge is perfectly right in drawing adverse inference against the defendant; hence she cannot be permitted to look after the affairs and properties of the testator. On the other hand, the testator herself after referring to various events to be performed, appointed the charitable trustee, particularly for taking care of Sri Uchi Mahaliamman temple in performing poojas and other festivals. On the other hand, the testator herself after referring to various events to be performed, appointed the charitable trustee, particularly for taking care of Sri Uchi Mahaliamman temple in performing poojas and other festivals. In the light of the said recital and as observed by the Division Bench in Pappa v. Shanmugathammal (1990)2 L.W. 158 I have no hesitation in holding that the right given to A.Somasundram is not a personal right, but only a heritable right. Accordingly, after his death, his legal heirs are also entitled to continue and look after the properties as per the recital in Ex.A-1. It is to be noted that there are two ways of devolution of the office of trustee. It is possible for a donor to prescribe any mode of devolution of trusteeship, untrammelled by any other restrictions as regards the nature of the estate. But when he or she does not do so, the devolution is governed by ordinary rules of Hindu Law, statutory or otherwise. The right of succession to trusteeship cannot hang in the air. It Will be governed wither by the arrangement made by the founder or by the general law. In our case, as I have already stated, the plaintiff A.Somasundaram had been termed as a charitable trustee by the testator herself to perform certain obligations in terms of her Will. 9. Theother contention raised is that as per Sec.224 of the Indian Succession Act, all the executors have to join together. With regard to the said contention, learned counsel for the appellant has very much relied on decision IN RE. Tadimalla Subbarao A.I.R. 1970 Mys. 46. A learned single Judge after referring to Secs.224 and 311 of the Succession Act has held as follows: “5…..When a testator appoints several executors, the normal inferences should be that he expects all of them to act together the opinion of the testator implicit in the appointment being that he expects that his Will Will be fully and properly executed when all the executors appointed by him act together….” It is relevant to note Sec.224 of the Indian Succession Act which reads as under: 224. Grant of probate to several executors simultaneously or at different times: When several executors are appointed, probate may be granted to them all simultaneously or at different times. Grant of probate to several executors simultaneously or at different times: When several executors are appointed, probate may be granted to them all simultaneously or at different times. Illustration: A is an executor of Bs Will by express appointment and C an executor of it by implication. Probate may be granted to A and C at the same time or to a first and then to C, or to C first and then to A.” A reading of the above provision shows that if there is more than one executor, probate can be granted to all the executors at the same time or different times. In other words, there is no bar that in the absence of consensus there cannot be an application for probate by one of the executors. I have already referred to the conduct of the defendant- first executor in disputing the Will and denying the title of testator as well s claiming right over the suit properties by way of adverse possession. In such a circumstance, the said contention made by the learned counsel for the appellant is also liable to be rejected. 10. Regarding the limitation, learned counsel appearing for the appellant by relying on Art.137 of the Limitation Act, 1963, would contend that inasmuch as the period of limitation prescribed is 3 years from the date when the right accrues and the plaintiff has filed the petition for issue of Letters of Administration only on 15.9.1982, nearly after 12 years of the execution of the Will, his claim has to be rejected, for which he very much relied on a decision of Srinivasan, J., (as he then was) in Sakunthala v. Minor Vijayalakshmi and others 1989 T.L.N.J. 333. By relying on Art.137, the learned Judge dismissed the petition for grant of Letters of Administration as barred by limitation since the said petition had been filed after the period of 3 years. In this regard, it is useful to refer the subsequent Division Bench decision of this Court in the matter of (1990)1 L.W. 337 . The Division Bench had an occasion to consider the decision of Srinivasan, J., referred to above 1989 T.L.N.J. 333. In this regard, it is useful to refer the subsequent Division Bench decision of this Court in the matter of (1990)1 L.W. 337 . The Division Bench had an occasion to consider the decision of Srinivasan, J., referred to above 1989 T.L.N.J. 333. Before the Division Bench, an unreported decision of Abdul Hadi, J., in O.P.No.133 of 1989 had been referred to, wherein the learned Judge considered the question of limitation on a Letter of Administration with or without the Will annexed and held that Art.137 is not applicable for Letters of Administration on the basis of a Will. After considering the earlier case laws, more particularly, with reference to applicability of period of limitation prescribed under Art.137 for probate proceedings, Their Lordships have held as follows: (paras. 16, 17 and 20) “16. Art.137 is found in Part II of the Third Division of the Limitation Act, 1963. The Arts.118 to 136 set out in Part I of the Third Division are all meant and intended for serving the cause of the applicant in settling and securing rights claimed by him and obligations sought to be enforced by him against the opposite party. Hence, it is legitimate to annex to the word ‘application’ occurring in Art.137 in Part I of the same Division; for after all Art.137 in Part II of the Third Division, the same implications as are annexed to ‘applications’ in Part I of the same Division; for after all Art. 137 speaks about ‘any other application for which no period of limitation is provided elsewhere in this Division.17. In a proceeding, or in other words, in an application filed for grant of probate or Letters of Administration, no right is asserted or claimed by the applicant. The applicant only seeks recognition of the Court to perform a duty. Probate or Letters of Administration issued by a competent Court is conclusive proof of the legal character throughout the world. An assessment of the relevant provisions of the Indian Succession Act, 1925 does not convey a meaning that by the proceedings filed for grant of probate or Letters of Administration, no rights of the applicant are settled or secured in the legal sense. The authority of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate of the Court to perform that duty. The authority of the testament has cast the duty with regard to the administration of his estate, and the applicant for probate of the Court to perform that duty. There is only a seeking of recognition from the Court to perform the duty. That duty is only moral and it is not legal. There is no law which compels the applicant to file the proceedings for probate or Letters of Administration. With a view to discharge the moral duty, the applicant seeks recognition from the Court to perform the duty. It Will be legitimate to conclude that the proceedings filed for grant of probate or Letters of Administration is not an action in law. Hence, it is very difficult to and it Will not be in order to construe the proceedings for grant of probate or Letters of Administration as applications coming with the meaning of an ‘application’ under Art.137 of the Limitation Act, 1963. 20. We have now, as per our proceeding discussion, settled the question and we hold that Art.137 of the Limitation Act would not apply to proceedings filed for grant of probate or Letters of Administration with or without the Will annexed. Before concluding, we must point out that though the proceedings filed for grant of probate or Letters of Administration may not come within the mischief of Art.137 of the Limitation Act, 1963, yet the delay aspect is relevant to test the genuineness of the Will propounded. Delay in taking steps gives rise to suspicion and the longer the delay the stronger the suspicion. This is an aspect for consideration of the Court while dealing with the request. We can only leave this aspect at that….” In the light of the above Division Bench pronouncement overruling the decision of M.Srinivasan, J., (as he then was) in 1989 T.N.L.J. 333, I hold that Art.137 of the Limitation Act would not apply to the proceedings filed for grant of probate for letter of administration with or without the Will annexed. Further, the plaintiff has established his case on merits also by assigning the reason for filing the petition for grant of Letters of Administration in 1982; accordingly the contention raised by the learned counsel for the appellant regarding limitation is also liable to be rejected. 11. In the light of what is stated above, I do not find any merit in the appeal. 11. In the light of what is stated above, I do not find any merit in the appeal. On the other hand, I am in agreement with the conclusion arrived by the Court below, which is based on acceptable evidence; accordingly the appeal is dismissed. However, there shall be no order as to costs.