NARAYANA PILLAI Vs. KRISHNA PILLAI

JUDGEMENT

(1.) The respondent filed a petition, under S.371 and 372 of the Indian Succession Act, praying for the issue of a succession certificate in respect of the assets of his deceased brother Parameswaran Pillai on the ground that he was the only legal representative of the deceased. The revision petitioner, who is the son of a sister of the deceased, filed a caveat and also filed I.A. No. 735 of 1984 in which he contended that the respondent is not the sole legal representative and also praying that major portion of the amount for which the succession certificate is sought for belongs to the tarwad. Consequently, he claimed that the proceedings have become contentious in nature and therefore the proceedings are to be converted into a suit. The respondent opposed that application. The lower court dismissed LA. No. 735 of 1984. This CRP. is directed against the said order.

(2.) R.4 of the Rules under the Indian Succession Act, 1925 made by the High Court of Kerala provides that non contentious proceedings shall include proceedings for obtaining probate and letters of administration where there is no contest as to the right there to. R.22 provides for filing a caveat and as per R.23, where a caveat is entered after an application has been made for grant of probate or letters of administration, the affidavit in support there of shall state the right and interest of the caveator, and the ground of objections to the application. Under R.26, when the caveat is thus filed the proceedings shall be ordered to be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff and the caveator shall be the defendant. The procedure in such suit shall be according to the provisions of the Code of Civil Procedure. However, these rules are not applicable to proceedings for succession certificate, and as such there is no provision to convert such proceedings as suits. Ss 370 to 373 of the Indian Succession Act do not provide for converting an application for succession certificate into a suit. Under S.373, the provision is to decide the application in a summary manner and the question to be decided is the right to the succession certificate. Sub-sections (3) and (4) of S.373 reads:

(3.) Under these circumstances, there is no provision for Converting the proceedings into a suit and as such the dismissal of the petition is proper and correct.