Punnoose Vs. K.V. Chacko and ors. - Court Judgment

Excerpt:
- - accordingly his caveat was rightly discharged'.4. the facts of the present case are clearly distinguishable from the facts in the above case.bhat, j.1. the case relates to the estate of annamma who died on 22-10-1986. appellant is a relation of her pre-deceased husband; so also the respondents. appellant filed a petition before the district court, kottayam for grant of probate of the will allegedly executed by annamma in regard to her estate. in the petition, the present respondents were shown as respondents and co-legatees with the appellant under the will. it appears they had also entered caveat before the court. the court issued notice to them. they appeared and filed written statement stating that they are in undisputed possession of property and the petitioner has no right to manage the properties and also denying the genuineness of the will and the testamentary capacity of the testator. when the case came up for consideration thereafter, it was submitted on behalf of the respondents that since the probate proceeding is a contentious one and it should be converted into a suit. this request was opposed by the petitioner-appellant, but allowed by the court below. hence the appeal.2. learned counsel for the appellant would contend that the substantial contention of the respondents is that they have been in undisputed possession of property and if it means that they have been in possession in derogation to the right of the testator, such a dispute is outside the jurisdiction of the probate court and is not a matter which the probate court has to decide. according to learned counsel for the appellant, a contention which makes the probate proceeding contentious must relate to the will. a contention by a person who claims independent of the testator cannot make the proceeding contentious and, therefore, the lower court was in error in directing the petition to be treated as suit. learned counsel places reliance on a decision of this court in thomas p. jacob v. varghese, (1987) 1 ker lt 319 : (air 1987 ker 193).3. in the above case, certain persons who claimed title hostile to the testator by adverse possession entered caveat challenging the will and testator's title. interpreting section 283, clause (c) of the succession act which states that :'in all cases the district judge or district delegate may, if he thinks proper issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.'this court held that :'a person who enters a caveat must necessarily show that he has an interest in the estate derived from the deceased by inheritance or otherwise. by entering the caveat he admits that the particular property forms part of the estate of the testator, but objects to the execution of the will or the proposed mode of dealing with any portion of the estate.....it is settled law that in proceedings for probate or letters of administration, the court does not enter on the question of title to the property which the testator by his will proposed to leave. the only function of the court is to determine whether the will had been genuinely made by the testator out of his free volition, whether it had been properly executed and attested in accordance with the law, and, whether the testator had the capacity to execute it.....the decision of the probate court being irrelevant to the title to the property, but only to the right to represent the estate of the deceased, a trespasser or a person entitled to possession by prescription has no interest in the final outcome of the proceedings in such a court..... matters of possession or title are not in issue in the proceedings of the probate court. the caveator who claims 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. accordingly his caveat was rightly discharged'.4. the facts of the present case are clearly distinguishable from the facts in the above case. in the present case also, the respondents entered caveat. even if they had not entered caveat, the court would have issued citation to them under the provisions of the act and relevant rules because the probate petitioner himself had indicated in the petition that they are persons interested in the estate since they are also legatees under the terms of the will sought to be probated. on receiving the citations they are entitled to appear in court and put forward their contentions having relevance to the probate proceedings. as a matter of fact, they have put forward such a relevant contention, namely, that the will is not true and genuine, it is a forgery and the testator had no testamentary capacity at the relevant time. in addition, they also asserted that they have been in pre-existing admitted possession of the property. we need not in the present proceedings decide whether this amounts to assertion of a right under the testator or in derogation to his right. having been impleaded as respondents in the probate proceedings, having received citations of the court, they are entitled to appear before court and urge contentions relevant to the proceedings. having given them an opportunity to do so by impleading them as respondents, it is not open to the petitioner to turn round and say that they should not be allowed to file objections or even if they filed objections, the contents of the objections in relation to the will must be ignored and the proceeding must be treated a non-contentious one. it cannot be said that they have no interest in the matter. it cannot be said that they are persons who have no right to raise a contention regarding the genuineness or otherwise of the will. going by the will produced by the probate-petitioner, they are legatees. it may be to their advantage to accept the genuineness of the will, but they have chosen to deny the genuineness of the will, of course, for their own reasons. a person who is cited as a legatee under the will must have the liberty to come and tell the court whether he accepts the will as genuine or not. such a right cannot be taken away merely because he does not specifically admit the title of the testator, but in a vague manner asserts that he has been in admitted possession of the property. the proposition in the decision in (1987) i ker lt 319 : (air 1987 ker 193) is with respect, unexceptionable but inapplicable to the facts of the present case,5. we agree with the court below that by virtue of the contents of the caveat or the objections challenging the genuineness of the will, the proceeding has to be treated as contentious. we find no ground to interfere and accordingly dismiss the appeal, but without costs.