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 5th February, 1925, after notice to Ammani Ammal and to Govindammal.
2. The present application was filed on the 17th 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 27th 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 6th 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 27th of September, when he passed the following order: 'Leave to amend and reserve Citation. Adjourned until October 3rd.' On the 3rd 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.
4. The amendment ordered by Eddy, J., and made pursuant to his Order amends the Citation into a form similar to No. 99 at page 923 of the 16th Edition of Tristram and Coote's Probate Practice. This order was passed apparently on the ground that there is no form in the Original Side Rules expressly providing for a matter of this kind and that therefore Order 34, Rule 62 applies. This brings in the practice and procedure of the Probate Division of the High Court of Justice in England. That is why Form No. 99 already mentioned has been adopted. It is now contended before us that there is no need for bringing in the English practice and for relying on Rule 62. Rule 54 applies to a case where a person to whom the grant of probate or letters of administration has been made desires to have the same revoked. The case where a person other than the grantee of the probate or letters of administration desires that the grant may be revoked has got to be provided for, and as I will presently show, Rule 57 was intended to provide for such a case. Reading the opening words of the rule, 'If, subsequent to the grant of probate or letters of administration with the will annexed any person interested in the property of the testator, other than the grantee,' etc., one would think that Rule 57 was intended to apply only to cases where probate or letters of administration with the will annexed has been granted and a person other than the grantee desires revocation of the grant. But continuing to read the rule we find it contains a provision that the Registrar shall issue a Citation in Form No. 123 or 124. Form No. 123 refers to a case where probate was granted and where it is desired that the grant should be revoked. Form No. 124 refers to a case where letters of administration were granted but a will had been discovered afterwards or some other reason existed why the letters of administration should not be granted and it was desired that the grant should be revoked. It does not refer to a case where letters of administration without a will were granted. Thus it appears to directly conflict with the rule referring to it. Reading Rule 57 with Form No. 124 we have only two alternatives before us so far as letters of administration are concerned: (1) the rule and the form contradict each other which is meaningless, or (2) the rule was intended to apply to cases of all letters of administration either with the will annexed or without will and the form illustrates one of the cases where letters of administration were granted without any will. The latter mode of construction commends itself to us. The omission of the case: of grant of mere letters of administration without a will in Rule 57 seems to be a slip. Rule 54 provides for the grant of probate or letters of administration but where the: grantee desires revocation of the grant. Rule 57 was obviously intended to apply to cases of grant of probate or letters of administration but where a person other than the grantee desires revocation of the grant. That this was the general object of Rule 57 is shown by Form No.124 and we ought to construe the rule in the light thrown by the form. So read, we think that Rule 57 of Order 34 taken with Form No. 124 applies to this case and there is no need to bring in Order 34, Rule 62. We invite the attention of the Registrar to this fact so that proper steps might be taken to make the language of Rule 57 clear.
5. The learned advocate for the respondent does not object to the citation. His anxiety seems to be that if the Citation is issued under Rule 57 the burden of proof would be on him but if the Citation is issued under the English Form the burden of proof will be upon the appellant, and he wants to avoid the onus on himself. I do not think that the burden of proof necessarily changes with the form adopted. On this matter, I agree with the observations of my learned brother and the respondent's burden may be lightened by the conduct of the appellant in the former proceedings and other considerations, and may be even shifted and I do not propose to say anythnig further on this matter. At present we hold that the Citation ought to be issued under Order 34, Rule 57. The Order of Eddy, J., is set aside and a Citation in Form No. 124 with the necessary changes will now issue.
6. Having regard to the considerable doubt resting in the matter and the way in which the rules are drafted, we do not think this is a matter in which Narayanaswami Naidu ought to have costs of the application. Costs of the parties including court-fee will abide the result of the enquiry.
7. I do not think that there was any need to have had recourse to Rule 62, Order 34. Form No. 124, which is the form of Citation directed to be used by Rule 57, specifically applies tfi the calling in of a grant of letters of administration, which has been made upon the footing of an intestacy. Reading the rule with the Form, therefore it appears that the rule was intended to embrace proceedings to revoke grants of letters of administration, although in terms the rule mentions probate and letters of administration: with will annexed only. There is no reason why a different procedure should be followed in the case of revoking a grant of letters of administration to that which is prescribed by the rule for the revocation of a grant of probate. In the one case the object is to compel the party who has obtained the probate to propound the will, and in the result the suit becomes one for proving the will in solemn form of law. And in the other case, the object is to compel the party who has obtained the grant of administration to establish such a degree of relationship with the deceased as will entitle him to the grant, and in the result it becomes an interest suit. (See Tristram and Goote's Probate Practice, 16th Edition, page 427.)
8. As there was some discussion by the learned Counsel upon the question of onus of proof in the testamentary suit which follows upon the issue of a Citation under the rule, it may be pointed out that where a will has to be proved in solemn form 'the onus probandi lies upon the party propounding a will, who must satisfy the conscience of the Court that the instrument propounded is the last will of a free and capable testator' : Barry v. Butlin. (1838) 2 Moo. P.C. 480 But when, as here, the deceased died intestate and was a Hindu, the party whose grant of administration has been called in must satisfy the Court that a grant can be made to him under Section 218(1), Indian Succession Act, that he is, in the words of the section, 'a person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the estate or any part of such deceased's estate.'