SARIPALLI SAMSUNDAR Vs. SARIPALLI MANIAMMA

JUDGEMENT

(1.) This appeal arises out of a petition filed under Section 211, 213 and 270 of the Indian succession ACT, 1925, 1925 praying for the grant of a probate of the will annexed in respect of the property described in the schedule to the petition. The petitioners in O. P. No. 57/78 are the appellants before this Court.

(2.) The Petitioners, who are the sons and a daughter of one Saripalli bhaskara Rao, filed O. S. No. 452/73 in the court of the District Munsif, visakhapatnam for declaration of their title to a house and recovery of possession thereof together with past and future profits, claiming to have become entitled to the property under a will said to have been executed by their paternal grand mother, Saripalli Sundaramma. This suit was resisted by the respondent, who filed written statement contending inter-alia, that late sundaramma had no title to the suit property and that she was only a benamidar for her husband, late Samuel in respect of this property, that she should, in any view, be deemed to have perfected her title to the property in dispute by prescription and that the will said to have been executed by late sundaramma is not true, valid and binding on her. She raised a further plea in her written statement and that the suit is not maintainable without obtaining a probate of the will. The petitioners thereafter moved the Court below in O. P. No. 57/78 for the relief stated supra In response to the citation issued by the learned Additional District Judge under Section 283 (1) (c) of the Indian succession ACT, 1925, which will, hereinafter referred to as Act, the respondent entered caveat against the grant of probate and thereafter filed objections pleading among other things, that the petition will have to be converted into a suit and proceeded with in accordance with law as provided in Section 295 of the Act. The learned Additional District Judge, visakhapatnam up-held this objection and directed that the petition ''be numbered as a suit to determine the validity of the will". Aggrieved by this order the petitioners have come up with this appeal.

(3.) The leaned Counsel for the appellants contend that the Court below erred in directing their petition to be registered as a suit notwithstanding that the respondent had no locus standi at all to enter caveat in view of section 283 (I) (c) of the Act. It is, on the other hand, argued for the respondent that when once there is a contention before the District Judge, he has no alternative except to direct that the proceedings shall take the form of a regular suit as provided in Section 295 of the Act.