VARKEY Vs. GEORGE

JUDGEMENT

(1.) The first defendant in O.S.1 of 1991 on the file of the District Court, Kottayam is the petitioner in this Civil Revision Petition. Respondents herein made an application for letters of administration under S.278 of the Indian Succession Act. The application was for the issue of letters of administration in respect of a Will said to have been executed by one Varkey on 20-6-1987. The application was in terms of the Indian Succession Rules (Kerala), 1968. R.8 thereof provides that the application for letters of administration with the will annexed shall be made by petition in Form No.4 asset out in the said Rule. Form No.4 provides for certain details to be furnished in the application. The application for letters of administration was contested in terms of the Rules by the revision petitioner. The proceeding therefore became contentious within the meaning of the Rules. In terms of R.26 of the Rules, the application was converted into a suit.

(2.) The revision petitioner disputed the genuineness and the due execution of the will dt. 20-6-1987. According to the respondents there was an earlier will of the year 1975 executed by the same testator and the same will had been revoked by the 1987 will. Apprehending that one of the attestors had changed sides and therefore they may not be able to prove the due execution of the latter will, the respondents herein thought of introducing an additional claim for the issue of letters of administration of the will dt.8-10-1975 in case it was found by the court that the due execution of the 1987 will was not proved. This application for amendment made under O.6 R.17 of the Code of Civil Procedure was opposed by the revision petitioner contending inter alia that no such amendment is permissible, that O.6 R.17 of the Code of Civil Procedure has no application and that if the respondents herein want to claim letters of administration in respect of the 1975 will, they had to make a separate application in terms of the Rules and that the court exercising the probate jurisdiction has no authority to allow an amendment of this nature. No authorities were cited before the Court below on the question as to whether an amendment could be allowed or could not be allowed in proceedings under the Indian (Kerala) Succession Act as regulated by the Indian Succession Rules, 1968. The Trial Court allowed the amendment sought, on the following reasoning:

(3.) It is submitted by counsel for the revision petitioner that though the procedure prescribed by the Code of Civil Procedure can be applied as far as may be in the trial of a contentious proceeding and though in terms of R.26 of the Rules it is converted into a suit, it is not really a suit in the sense understood by the Code of Civil Procedure and therefore the provisions of the Code of Civil Procedure and O.6Rule 17 in the case on hand cannot be automatically applied to such a suit. He also points out that the application for letters of administration is hedged in by formalities prescribed by S.278 of the Act and R.7 and 8 of the Rules and that unless those formalities are complied with, no prayer for grant of letters of administration can be entertained. He submits that if the respondents herein want to claim letters of administration in respect of the earlier will of 1975, the remedy open to them would be to make a separate application for letters of administration and that too only if their claim for issuance of letters of administration of the 1987 will is rejected. He also submits that the respondents cannot propound two wills at the same time as the last will of the deceased testator and claim the issuance of letters of administration for one or for the other. It is further submitted that a mere amendment without complying with the formalities prescribed by S.278 and R.8 and Form No.4 of the Rules in respect of the 1975 will would not enable the respondents to seek nor the court to permit the seeking of the issuance of letters of administration in respect of that will. He also submits that even in the amendment application the requisite formalities arc not sought to be complied with and therefore the amendment in the form in which it is sought cannot be allowed in any event. He therefore submits that the order of the court below is one without jurisdiction and is therefore liable to be set aside in revision.