A person cited as a legatee under a Will has the right to challenge its genuineness, and such a challenge makes the probate proceeding contentious.

Bhat,J.

1. The case relates to the estate of Annamma who died on 22-10-1986. Appellant is a relation of her pre-deceased husband; so also the respondents. Appellant filed a petition before the District Court, Kottayam for grant of probate of the Will allegedly executed by Annamma in regard to her estate. In the petition, the present respondents were shown as respondents and co-legatees with the appellant under the Will. It appears they had also entered caveat before the court. The court issued notice to them. They appeared and filed written statement stating that they are in undisputed possession of property and the petitioner has no right to manage the properties and also denying the genuiness of the Will and the testamentary capacity of the testator. When the case came up for consideration thereafter, it was submitted on behalf of the respondents that since the probate proceeding is a contentious one and it should be converted into a suit. This request was opposed by the petitioner-appellant, but allowed by the court below. Hence the appeal.

2. Learned counsel for the appellant would contend that the substantial contention of the respondents is that they have been in undisputed possession of property and if it means that they have been in possession in derogation to the right of the testator, such a dispute is outside the jurisdiction of the probate court and is not a matter which the probate court has to decide. According to learned counsel for the appellant, a contention which makes the probate proceeding contentious must relate to the Will. A contention by a person who claims independent of the testator cannot make the proceeding contentious and, therefore, the lower court was in error in directing the petition to be treated as suit. Learned counsel places reliance on a decision of this court in Thomas P. Jacob v. Varghese (1987 (1) KLT 319).

3. In the above case, certain persons who claimed title hostile to the testator by adverse possession entered caveat challenging the Will and testator's title. Interpreting S.283 clause (c) of the Indian Succession Act which states that:

"In all cases the District Judge or District Delegate may, if he thinks proper issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration"

this court held that:

"A person who enters a caveat must necessarily show that he has an interest in the estate derived from the deceased by inheritance or otherwise. By entering the caveat he admits that the particular property forms part of the estate of the testator, but objects to the execution of the Will or the proposed mode of dealing with any portion of the estate. It is settled law that in proceedings for probate or letters of administration, the court does not enter on the question of title to the property which the testator by his Will proposed to leave. The only function of the court is to determine whether the Will had been genuinely made by the testator out of his free volition, whether it had been properly executed and attested in accordance with the law, and, whether the testator had the capacity to execute it.

The decision of the probate court being irrelevant to the title to the property, but only to the right to represent the estate of the deceased, a trespasser or a person entitled to possession by prescription has no interest in the final outcome of the proceedings in such a court Matters of possession or title are not in issue in the proceedings of the probate court. The caveator who claims no interest in the property otherwise than by reason of his alleged title by prescription has no right to be heard by the probate court. Accordingly his caveat was rightly discharged".

4. The facts of the present case are clearly distinguishable from the facts in the above case. In the present case also, the respondents entered caveat. Even if they had not entered caveat,