VENIDAS NEMCHAND Vs. BAI CHAMPABAI

JUDGEMENT

(1.) [The material portion of the judgment is given below:] The point raised relates to a question of procedure under the testamentary and intestate jurisdiction of this Court as to what is the proper procedure to be followed where two Wills are set up by two persons in regard to the same estate, and I have taken time to consider my decision in order to settle the practice once for all.

(2.) The first question is, what is the procedure to be followed? For that I have to turn to Section 295 of the Indian Succession Act and Rule 602 of the Original Side Rules. Section 295 provides that wherever there is contention in Probate proceedings, the proceedings shall take, as nearly as may be the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for Probate or Letters of Administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant.

(3.) Rule 602 of the Original Side Rules states that upon the affidavit in support of the caveat being filed, the petitioner for Probate or Letters of Administration shall be called upon by notice to take out a summons, and the proceedings shall be numbered as a suit in which the petitioner shall be the plaintiff and the caveator shall be the defendant. The proceeding in such suit shall, as nearly as may be, be according to the provisions of the Civil P. C., In Chotalal V/s. Bai Kabubai 22 B. 261 it was held that a petition for Probate or Letters of Administration becomes contentious not upon the entry of a caveat, but upon the filing of the affidavit in support of the caveat, and it is in consequence of the filing of the affidavit that the matter becomes a suit. Under Rule 600, the affidavit of the person, who wants to oppose the grant, has to state the right and interest of the caveator and the ground of the objections to the application. It is clear, therefore, that under this rule it is open to a caveator to set up an earlier or a later Will revoking or superseding the Will in respect of which a grant is asked for, and put forward any grounds which would disentitle the plaintiff to a grant. Therefore, the contention that the affidavit of the caveator is really his written statement in the suit is correct, but only to this extent.