PUSHPARAJ Vs. SOMALINGAM

JUDGEMENT

(1.) THESE Civil Revisions are directed against the common order passed by the Executing Court rejecting the applications filed under Order 21, Rule 99 of the Code of civil Procedure by the present petitioners.

(2.) THE brief facts giving rise to the present civil Revisions are as follows -. The disputed property originally belonged to one Santhana Marian, the paternal grandfather of the present petitioner. Said Santhana marian executed a Will bequeathing the disputed property in favour of his daughter-in-law maria Soosai Ammal, the mother of the present petitioner. The said Maria Soosai ammal had four sons and three daughters, including the petitioner. The Will had not been probated and no letters of administration had been obtained. On the death of the grandfather in the year 1962, the property devolved upon the father of the petitioner as the Will in question had not been probated. However, respondent No. 1 in the present Civil Revision petitions, had filed suit for specific performance of the contract against Maria Soosai Ammal, the second respondent in the present Civil Revision petitions, and obtained a decree. The petitioner claims that since the Will in favour of the present Respondent No. 2 had not been probated, the property did not vest with her, and therefore, the decree for specific performance is not binding on the present petitioner, who claims right on the death of his father on 14/7/2000. The Executing Court has rejected the applications filed under Order 21, Rule 99 on the ground that the requirement to obtain a probate has been done away after the amendment to Section 213 of the Indian Succession act.

(3.) THE main contention raised by the counsel for the petitioner in the present Revisions is to the effect that the decree against respondent No. 2 was a nullity as she had not derived any title on the basis of the Will which has not been probated.