Topic: Asber Reuben Samson And Others vs Eillah Solomon And Others
Asber Reuben Samson And Others vs Eillah Solomon And Others
Equivalent citations: AIR 1991 Bom 148, 1990 (3) BomCR 396 - Bench: A Cazi - Date of Judgment: 24 April, 1990
1. This petition is for - (a) setting aside ex parte order of Suresh, J., dated 30th November, 1989 and revoking the letters of Administration granted to respondents Nos. 1 and 2 pursuant to that order, (aa) revoking and cancelling the Letters of Administration with Will annexed and/or the decree ana order for issue of grant in favour of respondents Nos. 1 and 2, (b) permanent injunctions restraining respondents Nos. 1, 2 and 3 from acting on the strength of the said grant/ order/decree, and (c) mandatory order directing respondents Nos. 1 and 2 10 render true and complete accounts of the estate of the deceased Rachel Hyams.
2. The facts giving rise to the present petition are as follows:--
A. The matter concerns the estate of one Rachel Hyams who died on 15th October, 1978. Petitioner Nos.) 2, 3 and 4 (Asber, Elsie, Diana and Sophie) are brothers and sisters of the deceased Petitioner No. 5 (Samson) is the nephew of the deceased, being the son of Rebecca a sister of the deceased. Respondent No. 1 (Zillah) s a niece of the deceased, being the daughter of Daisy, a sister of the deceased. Respondent Nos. 2, 5 and 6 (Emmameul, Daisy and Jonathan) are bro thers and sisters of the deceaset, respondent No. 5 being the same sister of which Zillah is the daughter. Respondent No. 4(Gene) is a niece of the deceased being the daughter of Issac who was a brother of the deceased. It will be noticed that all the parties to this petition, except respondent No. 3, are either brothers or sisters or the children of the brothers and sisters of the deceased. It may be mentioned at this stage that Zillah, who is daughter of respondent No. 5, comes into the picture not as an heir of the deceased Rjachel Hyams b,ut as who was a legatee under the propounded Will dated 30th August, 1968 of Rachel Hyams and because she had applied for letters of Administration with Will annexed, by taking out Petition No. 648 of 1980 on 31st July 1980.
B. On 31st July, 1980 Zillah, as stated above, filed Petition No. 648 of 1980 for Letters of Administration with Will annexed of the deceased. Citations were issued. The sufficiency or the legality of those citations is in dispute. Caveats were filed by Emmameul (respondent No. 2) and Issac, who has died and whose daughter is Gene (respondent No. 4). On 22nd December, 1981 the caveats were withdrawn and there was an order passed by Rele, J. The minutes of the order read as follows:--
"Order in terms of the Consent terms signed by Plaintiff and Defendant No. 1 and their counsel and handed in marked "X"."
C. On 7th September, 1989 the present petition was filed. At the time of filing of the present petition relief in terms of present prayer (a) had not been sought. At that time the present prayer (aa) stood as prayer (a). At that time Letters of Administration had not been issued. On 30th November, 1989 Suresh, J. passed order which reads -- "Service of citations who have appeared earlier in this matter is dispensed with. Office to proceed further." On 5th December 1989 the Letters of Administration were issued. Thereafter the present petition was amended by adding the present prayer (a) and re-numbering the then prayer (a) as present prayer (aa). It may be stated that, before the present petition was amended as stated above, the petitioners had taken out separate Notice of Motion wherein the relief as asked for in the present prayer (a) had been sought. There was an objection to the format for asking that relief by way of Notice of Motion and there was also an objection that the present petition itself was premature inasmuch as it had been filed before the grant of Letters of Administration, both these objections stood waived as the petitioners carried out the amendments as stated above.
D. The grounds for seeking revocation of the Letters of Administration are enumerated in paragraph 18 of the petition and, shortly stated, they are as follows:--
(a) Respondents Nos. 1 and 2 deliberately failed and neglected to serve citations on petitioners Nos. 1 and 2.
(b) Respondents Nos. 1 and 2, by deliberately not serving the citations on some of the petitioners and fraudulently obtaining the said consent decree, deprived such petitioners of their mandatory right under the law.
(c) Respondents Nos. I and 2 deliberately disclosed only two of the properties of the deceased viz. House No. 91 and House No. 68 and deliberately suppressed information regarding the one third share of the deceased in House No. 87 and regarding land beneath House No.
(d) Proceedings in obtaining Letters of Administration having become contentious because of caveats having been filed, the propounded Will ought to have been proved in its solemn form and this not having been done, the Consent Terms and decree passed thereon are illegal and without jurisdiction and, therefore, total nullity.
Grounds (e), (f), and (h) are not pressed.
Ground (i) is the same as Grounds (a) and (b).
(j) The order for issue of Letters of Administration was obtained by respondent Nos. 1 and 2 by concealing facts material to the case and by making untrue allegations of facts essential in point of law to justify the grant.
(k) Respondents Nos. 1 and 2 have wilfully and without reasonable cause omitted to give proper accounts and have exhibited an inventory which is untrue in material respects. There is one more ground urged for revocation and that is that respondents Nos. 1 and 2 obtained an order from Suresh, J. by misrepresentation and cocealment of facts of the case. There are the circumstances under which the present petition is preferred.
3. Respondent No. 6 (Jonathan) has supported the petitioners. The other respondents have opposed this petition and denied the grounds.
4. I will first deal with grounds (a), (b) and (i). According to Mr. Humranwala, learned Counsel appearing for the petitioners, these three grounds fall under Item (a) of Explanation to S. 263 of the Indian Succession Act which provides for revocation or annulment of letters of administration. Mr. Humranwala also drew my attention to Illustration (ii) to S. 263, which reads as under:--
"The grant was made without citing parties who ought to have been cited."
to also drew my attention to Rule 399 of the High Court, Original Side Rules which says that citations shall be served personally when possible and to Rule 400 which states that citations which cannot be personally served as required by Rule .399 shall be served by publishing the same in such local newspapers as the Prothonotary and Senior Master any direct. He further points out that it is undisputed that it is undisputed that the citations were not personally served on petitioners Nos. 1 and 2 and reliance is placed by the other side on publication in the newspaper "Free Press Journal". Mr. Humranwala also pointed out to the second respondent's (Emmaneul's) affidavit dated 16th Deeember 1980 wherein Asber's Hong-kong address and Elsie's Canada address were given. He also drew my attention to the decision in Smt, Bina Debi v. Tapati Sengupta, ," where it is observed that order jo issue probate, where the notice is published in local newspaper though one is abroad, would be illegal. He further drew my attention to Order V. Rule 20, Civil Procedure Code which pfo-vides that where notice or citations are to be given by publication in the newspaper, the newspaper should be one circulating in the locality in which the defendant or the person is last known to have actually and voluntarily resided. He urged that it is nobody's case that petitioners Nos. 1 and 2 had at that time actually and voluntarily resided in Bombay or have been last known to have resided in Bombay and that in fact evidence showed that they were in Hongkong and Canada respectively.
5. As against this, Mr. Mody, learned Counsel appearing for respondent No. 3, argued that even on the assumption that the citations had not been served on petitioners Nos. 1 and 2, in the facts of this case this would not give just cause for revocation of the grant of the Letters of Administration because of various circumstances viz. (i) the Will is not disputed; (ii) there is considerable delay; (iii) third party rights have been intervened and (iv) the conduct of the petitioners.
6. For urging that the Will is not disputed, Mr. Mody pointed out the following facts :--
(a) The Will is a registered Will.
(b) The deceased died ten years after registration of the Will.
(c) The petitioners, other then petitioners Nos. 1 and 2, who were in India did not challenge the Will as such but only the interpolation therein and specifically admitted the Will and in fact the Letters of Administration that were granted were with the Will without this interpolation. Issac's caveat was only on the point that the one third share in House No. 8 had not been disclosed. M/s. Nanu Hormasjee and Co., Solicitors, wrote letter dated 6th December 1982 on behalf of petitioners Nos. 1 and 2 and others and in this letter specific mention was made of Petition No. 648 of 1980 and certain grievances are stated in this tetter but the Will is not challenged and no action was taken after this letter of 1982 until 7th August 198. On7th August 1986 latter is written by Mr. M.P. Narayanswami on behalf of Jonathan and others to the third respondent but even in this letter the Will is not challenged nor is there a grievance against the order for issue of Letters of Administration. This letter was only in respect of House No. 91. Letter/Application dated 16th October 1987 by Mr. Narayanswami on behalf of respondent No. 6 (Jonathan) was addressed to the Prothonotary making a grievance that respondent No. 1 had not taken further steps in the matter of collecting the grant and had been intermeddling without taking the grant. In the affidavit dated 20th January 1987 made by respondent No. 6 (Jonathan) in Chamber Summons No. 46 of 1987, which affidavit he made on behalf of himself and some of his brothers and sisters, which included petitioners Nos. 1 and 2, he made a grievance about one half share of House No. 91 and about about one third share in House No. 87, and made no contention challenging the Will. Petitioner No. 5 (Samson), as a matter of fact, gave his consent (presently annexed to the main petition) which is dated 11th May 1989 wherein be has specifically stated "I have no objection if the Letters of Administration with Will annexed be granted to the petitioners abovenamed. I hereby upon me."
7. After pointing out the above circumstances that the Will was not disputed, Mr. Mody relied upon the decision in Anil Bebari G hosh v. Latika Bala Dassi, AIR 1956 SC 566. The facts in Anil Ghosts case were as loflows:--
The propounded Will was dated 29th April 1912. The deceased whose Will was propounded was one Binod Lal Ghosh. On 5th March 1920 Binod Lal Ghosh died. His adopted son Charu was one of the legatees under the Will dated 29th July 1912. Charu was convicted for the offence of murder of Binod Lal Ghosh and sentenced to transportation for life. On 30th September 1921 the surviving executors applied for probate. If Charu was the murderer Girish Chandra Ghosh, a cousin of Binod Lal Ghosh, would be the nearest reversioner to the estate of Binod Lal Ghosh under certain circumstnaces and therefore would be entitled to be served with citations. On the same day (i.e. 30th September 1921) which fell during the long vacation, the Judge in charge passed the order - "Order as prayed". This was without citations being issued. One of the original petitioners having died on 24th July 1933, Debi Prosad Milter, the son of the executor who had died, applied for probate to himself and other surviving executors and on 16th September 1933 an order was passed --"Order as prayed." Subsequently in December, 1940 Girish Chandra Ghosh died and in July, 1948, Anil Nath Basu one of the executors, died. On 17th September 1940 Anil Behari Ghosh, son of Girish Chandra Ghosh applied for revocation of the probate dated 30th September 1921 and 16th September 1933 on the grounds:--
(a) that no notice was served on Girish Chandra Ghosh who was the nearest male relative alive at the time when the deceased died;
(b) The grants were obtained fraudulently;
(c) The grants were made by untrue allegation of a fact essential to justify the grant;
(d) The grants were made by false declaration regarding value of the property;
(e) The grants were useless and inoperative;
(f) There was no filing of accounts;
(g) The facts of the intention of the deceased to revoke the Will were concealed; and
(h) The deceased never lived within the Original Civil Jurisdiction of the Court. The Original Court passed an order revoking the grant. Against this order, there was an appeal filed before the Division bench, which allowed the appeal and dismissed the application for revocation. Against this order, there was an appeal filed in the Supreme Court by Anil Behari, son of Girish Chandra. On the question whether the grant was had because there was no citation issued to Girish Chandra Ghosh, it was held in the negative. It was observed that the Court had discretion and that "defective in substance" meant that the defect was of such a character as to substantially affect the regularity and correctness of the previous proceedings. The Supreme Court observed that assuming that Girish was the nearest Male relative to the estate of the testator-Binod, Girish took no steps in that direction for 19 years though he had been aware of the grant latest by 1933 and this indicated that the Will was valid, the Supreme Court also rejected the contention that the question whether the Will was or was not valid could only be decided after revoica-tion of the grant when the proceedings would be re-started.
8. In our case also the Will was a ' registered Will. In our case the deceased died 10 years after the date of registering the Will. In our case also the petitioners who were long back aware of the probate proceedings never challenged the Will itself. Petitiner No. 5, as pointed out above, has in fact specifically consented for grant of Letters of Administration as was sought ,by respondent No. 1. Further, as I will presently point out, the petitioners really were not concerned with the Will or the bequests made in the Will nor with the administration of the estate covered by the Will. They were only concerned with pointing out that certain properties of the deceased were not covered by the Will or that certain bequests lapsed and therefore the properties covered by those bequests went as per intestacy, and it is in respect of this part of the estate, which according to the petitioners would devolve as on intestacy, that they were interested in getting administered. 1 will, therefore, first deal with this real intention of the petitioners.
9. The first circumstance which indicates that the petitioners were never concerned with administration of the estate covered by the Will is the contents, of the letter dated 6th December 1982 written by Nanu Hormasjee and Co. to zillah. That letter is written for respondent No. 6 (Jonathan) and "seven others". Now this "seven others" includes Asber and Elsie, (petitioners Nos. 1 and 2) as can be seen from the letter dated 25th January 1983 written by Nanu Hormasjee and Co. where the names of those "seven others" are disclosed and this list includes petitioners Nos. I, 2, 3 and 4. Both these letters are annexed as Exhibits to the plaint filed by respondent No. 6 (Jonathan) of Suit No. 3419 of 1988. Petition No. 648 of 1980 is specifically mentioned in that letter and in substance what was urged in that letter is that the bequest of House No. 91 was made to Lily and Zillah and Lily having pre-deceased the testator, her one half share would go to the heirs of the deceased. There is no challenge to the Will.
10. The second circumstance is the caveat filed by Issac who was father of petitioner No. 4. He also did not challenge the Will but pointed out that one third share in House No, 87 had not been disclosed. Now regarding that one third share in House No. 87, it may be pointed out that when the original Will was made that property had not been acquired by the deceased and that subsequently it was added in the Will but this addition was not duly attested and, therefore, it was properly excluded from the petition for Letters of Administration. In fact, there are amendments made in the petition pointing this out and there is no question of any suppression of facts. Then again, Mr. M.P. Narayanaswamy on behalf of Jonathan and some brothers and sisters of the deceased, wrote a letter dated 16th October 1987 making a grievance that the petitioners of Petition No. 648 of 1980 were not collecting the grant and yet intermeddling with the estate. Clearly the challenge was not to the Will, or t the order for issue of grant but the grievance was about intermeddling before collecting the grant. Petitioners Nos. 1 to 4 and respondent No. 6 (Jonathan) took out Chamber summons No. 46 of 1987 for being added as party respondents to Notice of Motion No. 2993 of 1986 in testamentary Petition No. 648 of 1980. Jonathan filed an affidavit-in-support of the Chamber Summons dated 20th January 1987. There again, be made no grievance about the order to issue grant. He did not even challenge the Will, the grievance he made therein was that respondents Nos. I and 2 had not complied with the requisitions raised by the Testamentary Office of this Court nor had they taken steps to collect the grant. Again, the grievance was about respondents Nos. 1 and 2 intermeddling with the estate before taking a grant. Substantially the grievance made there was regarding House No. 91 and the grievance arose from the contention that one half share in House No. 91 remained undisposed of by the Will as Lily who was the legatee of that house along with Zillah had pre-deceased the testator. It is submitted in that affidavit that since there was no reference to property bearing House No. 87 in the Will, the deceased would be deemed to have died intestate in respect of the said one third share and, therefore, that one third share would go to the heirs of the deceased. This being the only contention raised in the affidavit dated 20th January 1987 it is clear that even if these persons had filed any caveat and had raised these contentions in Petition No. 648 of 1980, these contentions would not come in the way of Letters of Administration being granted to respondents Nos. 1 and 2.
11. The present petitioners are not legatees under the propounded Will. No one who is a legatee under the Will is raising any contention or challenging grant of Letters of Administration with Will annexed to res-pondents Nos. I and 2. The Letters of Administration with Will annexed granted to respondents Nos. 1 and 2 does not affect rights, if any, of the petitioners in the estate of the deceased not covered by the Will. There will be no purpose in revoking the grant only for complying with the technicalities for issuing of citation and again issuing a fresh grant in the same manner. Hence, though ordinarily the omission to issue citations to persons who should have been apprised of the probate proceedings would be a ground by itself for revocation of the grant, in the facts of the present case no revocation is called for on this ground.
12. I will now discuss ground (c) mentioned above. This ground mentions also about suppression of land beneath House No. 91 but at the stage of arguments Mr. Humranwala submitted that he was not pressing this ground so far as it relates to the land beneath House No. 91. He presses this ground only in respect of suppression of one-third share of House No.
87. Now it is true that the deceased was owner of such share. It is also true that the petition for Letters of Administration does not seek for a grant regarding administration of this one-third share in House No. 87. However, this one-third share of House No. 87, as can be seen from the propounded Will which was duly proved and about proof of which I will deal later, was not any part of the estate disposed of by that Will. It appears that there was a subsequent addition made in the Will but this added part was not properly attested and, therefore, there was no proper Will in respect of this one-third share in House No. 87. Therefore, even if respondent No. 1 had shown it in the Schedule for the purpose of seeking Letters of Administration, then this one-third share in House No. 87 would have to be removed from the Letters of Administration. A similar point arose in the case of Anant Triinbak v. vasant Pratap, , where the property was rented
property which was held to be not disposable by Will and therefore it was held that the executors of the Will could not touch that property. Further, there is no fraud because there is disclosure made in the petition itself and this one-third share of House No. 87 has been expressly excluded and hence there is no substance in ground (c) also.
13. I will now discuss ground (d). Mr. Humranwala pointed out that since the caveat had been filed, the proceedings became a suit, and once the proceedings became a suit the proper form of leading evidence must be followed and that is to take oral evidence in Court. Mr. Humranwala urged that nothing of this sort was done in the present case and all that the Court did was to pass an order in terms of the Consent Terms. Mr. Humranwala then urged that this indicated that the Court had not applied its mind. He relied upon the decision in the case of Sisir Kumar Chandra v, Sm. Monorama Chandra, re- | ported in, where it is observed that evidence regarding the
proof of the Will must be led because an order refusing probate operates as a judgment in rem. He also pointed out that this decision given in, , relied upon two previous decisions of the Calcutta High Court viz. A.E.G. Carapiet v. A.Y. Derderian, , and Jagadish Chakravarty v. Upendra Chandra
C.hakravarty, (1943) 48 , Cal WN 294. In the present case there is an attesting witness's affidavit on the point of due execution and attestation of the propounded Will, but Mr. Humranwala submitted that an affidavit is not sufficient for the purpose of proving the Will. He drew my attention to S. 3 of the Evidence Act where, "evidence" is defined and then he drew my attention to Order XIX, Rule 1, Civil Procedure Code and to tne decision given in the case of Kanhayalal S. Dadlani v. Meghraj Ramkaranji, reported in, AIR 1954 Nagpur 260, where it was held that an affidavit would be evidence only where it is filed after the Court orders that the point may be proved by filing an affidavit. He also drew my attention to S. 268 of the Indian Succession Act where it is provided that the provisions of Civil Procedure Code would apply.
14. Now, the decision in Federal India Assurance Co. Ltd. v. Anandrao, ILR (1944) Nag 436 has been expressly overruled by the decision in Kanhaiyalal S. Dadlani v. Megh-raj Ratnkaranji, AIR 1954 Nag 260, which is a sufficient answer to the contentions raised by Mr. Humranwala on the point of affidavit being insufficient to prove the Will. It was held in that case, overruling, ILR (1944) Nag 436, that R 2 of O.XIX, Civil Procedure Code applied to all the applications whether they were substantive applications or interlocutory applications. It was also held there, again overruling, ILR (1944) Nag 436, that it is not necessary for a previous order to be made by the Court for accepting the affidavit as evidence in proof of facts. It is observed there -- "After all, when the opposite party does not controvert the affidavit, or remains absent, it would be refining to technicality to order the applicant to file another affidavit and not to read the affidavit already filed. The order receiving the affidavit is tantamount to ordering it and complies with the law." I fully agree with the decision in AIR 1954 Nag 260.
15. Mr. Mody,has pointed out all the relevant provisions of law on the point under discussion. He first drew my attention to S. 280 of the Indian Succession Act which lays down that the petition must be signed and verified and the actual form of the verification is specified there. He then pointed out S. 281 of the Indian Succession Act which lays down for verification also by attesting witness to the Will. He pointed out that these two sections provide for a departure from the requirements of ordinary pleadings under the Civil Procedure Code. He also drew my attention to S. 283 of the Indian Succession Act which provides that the Court may, if it thinks proper, exempt the petitioner in person, again indicating the discretion of the Court and urged that this was mode of proof laid down by the Succession Act itself and that all these three provisions of the Indian Succession Act provide a distinct departure from the provisions of the Civil Procedure Code. He then drew my attention to R. 190 of the High Court Original Side Rules which specifically provides for evidence to be given by affidavit upon any petition and leaves it to the discretion of the Court to order the attendance of the person giving affidavit for the purpose of, cross-examination. He rightly urged that these provisions would prevail over the provisions of O. XIX, Civil Procedure Code if there was a conflict between the two-laws. He then drew my attention to In the Goods of Edwin Carlow M. 56 Calcutta Weekly Notes 650 where it was pointed out regarding S. 68 of the Evidence Act that one of the attesting witnesses must affirm an affidavit to improve the signature and execution of the Will by the deceased. He also drew my attention to In the Goods of Atul Krishna, 91 Calcutta Law Journal 224, where it was pointed out that it was the practice there that verification by simple declaration of the attesting witness was enough. He rightly urged that Ss. 275 to 283 of the Indian Succession' Act provided special rules for evidence in the matter of grant of probate or Letters of Administration and would have to be follows irrespective of whether there was a conflict Between this and the Evidence Act which is a general Act. Under the circumstances, I hold that there is no substance in ground (d).
16. Mr. Humranwala urged that even if affidavitof an attesting witness is sufficient to prove a Wall, in the present case the Court has not held the Will as proved on the basis of the affidavit, and in fact the Court has not applied its mind to this aspect and has passed an order on the basis of the consent terms without giving a finding that the Will was proved. Now even in Anil Behari Ghosh's case the full expression of the Court consisted of only three words: "Order as prayed" and this order was passed on the very day when the petition was filed and further this was during vacation and yet the order was confirmed by the Supreme Court. I would say that where there is sufficient material before the Court for arriving at a particular finding any order passed by the Court which would be sound on the basis of that finding cannot be upset merely because the Court has not expressly referred to that material as to its finding as being based on that material and no inference of non-application of mind by the Court passing that order can be drawn.
17. I will now discuss ground (j). It was urged that non-service of citations was concealed from the Court when obtaining order from the Court and therefore the order passed by Bela, J. was obtained fraudulently and secondly, the order from Suresh, J. was obtained without notice to the present peti tioners and this was again a fraud because all necessary facts were not properly disclosed to Suresh, J. I have already held that it is not in all cases that an order without citations is bad and I have discussed why in this particular case the order would not be bad. It was urged that there was a fraud inasmuch as though the addresses of petitioners Nos. 1 and 2 were known, yet citations by publication were restored to and that at least later on when the addressed came to be known, there should have been personal service of citations. Now, the chronology of events is that the office requisitions dated 16th October 1980 requir ed citations to be published in "Times of India" and subsequently on 28th November, 1980 respondent No. 1 obtained an order for getting citations published in "Free Press Journal" instead of "Times of India". Accord ingly, the citations were published in "Free Press Journal" on 5th December, 1980. It was thereafter that the affidavit was filed by respondent No. 2 (Emmameul) pointing out the addresses of petitioners Nos.'I' and 2 as at Hongkong and Canada respectively. It is not in all cases that citations by publication are improper. The publication in this case having already been done, this may have been con sidered as properly done at the time when respondent No. 1 was unaware of the addres ses of Asher and Elsie and this may have been considered as sufficient compliance with the provisions of R. 20 of O. V of the Civil Procedure Code. Moreover, respondent No. 2 (Emmameul) who knew the addresses of these persons himself then joined in the application for issue of Letters of Admin istration. Considering all these circumstances one cannot impute fraud against respondents Nos. 1 and 2.)
18. Now I come to ground (k). The Indian Succession Act and the Rules provide six months' period or such time as the Court may grant from the time of issue of grant for submission of accounts. The grant was issued on 5th December, 1989. That six months would expire on 5th June, 1990. We have not yet reached that date. It is alleged that an inventory which is untrue has been exhibited. No inventory at all has been exhibited. It is, therefore, incorrect to say that untrue inventory has been exhibited. There is, therefore, no substance in ground (k).
19. It was urged by Mr. Talathi, learned counsel appearing for respondent No. 6 that there has been mal-administration of estate by respondents Nos. 1 and 2 and that they have proceeded to act as administrators even before taking the Letters of Administration. . It is true that respondents Nos. 1 and 2 have acted as administrators de son tort, but for the purpose their liability is as provided in the Indian Succession Act. No person who is entitled to any right to the estate has made any grievance about the administration. As regards House No. 91, that goes to Zillah and therefore she is the only person who can make a grievance about administration regarding that. As regards the portion of House No. 91 which is not devised by the Will, if at all there is such a portion, then no Act of the Administrator can affect the rights of those to whom that property would go. Hence I am not holding that point against respondents Nos. 1 and 2 for the purpose of revoking the grant.
20. It was urged by Mr. Mody that the present petition for revocation of the grant is barred by limitation. Now, since the Letters of Administration were issued on 5th December, 1989 and the present petition was already filed for the purpose of revocation of that grant and there was an amendment made well within the period of limitation, there is no substance in the contention that the present petition is barred by limitation.
21. It is urged by Mr. Sayed that the prosecution of these proceedings on behalf of the petitioners is by some one claiming to have power of attorney from the petitioners but that person has not been given the power to prosecute these proceedings. I have gone through the document in question (the power of attorney) and 1 find mush substance in Mr. Sayed's submission. However, I need not go into that question as I am dismissing this petition for reasons stated above.
22. For the reasons discussed above, the petition is dismissed. In the circumstances of the matter, there shall be no order as to costs.
Mr. Taiathi applies for an injunction restraining respondents Nos. 1 and 2 and 3 from proceeding with the construction work. Application is rejected.
23. on dismissed.