IMPORTANT POINTS
(1) Revocation of Probate of Will – Grant of probate is a judgment in rem – If a party has caveatable interest in estate of deceased, it is entitled to be served before final order is passed.
(2) Transferee from heirs at-law, acquiring interest in testator's estate, by reason of mortgage or sale, can, when Will is set up in opposition of his interest, apply for revocation of probate of Will.

JUDGMENT :

VIPUL M. PANCHOLI, J.

1. Leave granted.

2. The present appeal is preferred by the appellants, challenging the final impugned judgment and order dated 26.04.2022 passed by the High Court of Madras in C.R.P. (PD) No. 1823 of 2021, whereby the order of the learned Principal District Court, Coimbatore (hereinafter referred as “the District Court”), revoking grant of probate of Will dated 09.01.1976, was set aside, and restored the grant of probate on the ground that the testamentary jurisdiction of the Court is limited to pronouncing upon the genuineness of the execution of a Will and does not extend to determining the title of the property dealt with thereunder.

FACTUAL MATRIX

3. The brief facts of the case pleaded by the parties are as under:

3.1. The appellants claim ownership and possession of certain immovable properties (hereinafter referred as “the suit properties”) situated in Mayilampatti Village, Palladam Taluk, Coimbatore District. The suit properties originally belonged to Eswaramurthy Gounder, who alongside his sons, Somasundaram and Ramasamy, sold the properties to C.R. Palanisamy Gounder and R. Manickavasagam via sale deed dated 21.02.1976, bearing Document No. 154 of 1976. Subsequently, appellant no. 1 and the grandfather of appellant no. 2, purchased the properties from the legal heirs of both C.R. Palanisamy Gounder and Manickavasagam, via sale deeds dated 31.12.1997, bearing Document No. 1483 of 1998 & Document No. 1485 of 1998, and claim to have enjoyed peaceful possession since.

3.2. Eswaramurthy Gounder, passed away on 05.05.1983. He was succeeded by five children, namely, E. Somasundaram, E. Ramasamy, Sarojini (present respondent no. 1), Vasanthamani (present respondent no. 2), and Savithri (present respondent no. 3). On 21.04.2009, approximately 26 years after the death of Eswaramurthy Gounder, his daughter (present respondent no. 1) instituted Probate Original Petition No. 72 of 2009 before the District Court against her two sisters (present respondent no. 2 and present respondent no. 3), claiming that her father executed an unregistered Will in her favour on 09.01.1976.

3.3. Furthermore, on 29.04.2009, present respondent no. 1 instituted O.S. No. 110 of 2009 before the learned District Munsif of Palladam, seeking a declaration of title of the suit properties by virtue of the Will dated 09.01.1976, alongside a relief of injunction. In response, in March 2011, the appellants instituted O.S. No. 247 of 2011 and O.S. No. 248 of 2011 before the learned Principal Subordinate Judge, Tirupur, seeking permanent injunction restraining the present respondents from interfering with the peaceful possession and enjoyment of the suit properties. On 17.06.2011, the High Court of Madras, vide order in C.R.P. Nos. 1726 and 1727 of 2011, directed that O.S. No. 110 of 2009 be transferred and tried jointly with the aforesaid suits before the Principal Subordinate Judge, Tirupur. Subsequently, the Principal Subordinate Judge, Tirupur vide orders dated 17.11.2011 and 30.09.2011, allowed the appellant's I.A. No. 425 of 2011 in O.S. No. 247 of 2011 and I.A. No. 427 of 2011 in O.S. No. 248 of 2011 respectively, thereby granting temporary injunction in favour of the appellants.

3.4. In the meantime, the District Court, vide order dated 26.11.2009, granted probate of the Will dated 09.01.1976 in P.O.P. No. 72 of 2009 in favour of present respondent no. 1. When