PUNNOOSE Vs. K V CHACKO

JUDGEMENT

(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 colegatees 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 S.283, Cl. (c) of the Succession Act which states that: