J BAKTHAVATCHALAM Vs. P KRISHNAMOORTHY

JUDGEMENT

(1.) THIS appeal has been,posted after notice of motion and since we have heard learned counsel for parties at length, we find it possible to dispose of the appeal itself at this stage.

(2.) ONE Padmini Chandrasekharan who died on 7.6.1980 at Madras had executed a will on 20.9.1975. That will was sought to be probated in O.P.No.117 of 1981 on the file of this court under Secs.222 and 276 of the Indian Succession Act. It appears that on 28.4.1981 probate was issued to the plaintiff/ respondent. But on a petition by Padmini's husband in Application No.1998 of 1982 it was revoked. In terms of an order finally passed by the Supreme Court by consent of the parties, the judgment of the Court in O.P.No.117 of 1981, dated 16.9.1982 and O.S.Appeal No.96 of 1983, dated 12.3.1984 were set aside and it was ordered that on the caveat filed by him, the matter would be treated as a regular testamentary suit in the Original Side of the High Court. This order was passed by the Supreme Court on 11.9.1985 in Civil Appeal No.4462 of 1984. After the order and during the proceedings in the testamentary suit as ordered by the Supreme Court, Padmini's husband Chandrasekharan died on 31.5.1991. The appellants herein claiming to be heirs and legal representatives of Chandrasekharan applied for being added as defendant/caveators in place of Chandrasekharan. By the impugned order, a learned single Judge of this Court has said that the proposed parties cannot come on record as legal representatives of the deceased defendant in this action on account of the absence of any caveatable interest for them in the estate of the deceased. Padmini Chandrasekharan.

(3.) THERE is no gainsaying that rules in the Code of Civil Procedure are not strictly applied to a probate proceedings under the Succession Act, for it is well-known and the learned single Judge has also noticed accordingly that Sec.295 of the Indian Succession Act lays down that when the proceedings become contentious, it shall take as nearly as may be the form of a regular suit according to the provisions of the Code of Civil Procedure. In a proceeding as nearly as a suit to be decided in accordance with the provisions in the Code of Civil Procedure, it will be unjust to say that those who stand in the place of the deceased caveator shall have no interest to object to the plaintiffs claim for grant of probate.