The main legal point established is that a person with caveatable interest, as defined in the Indian Succession Act, should be given the opportunity to participate in probate proceedings.

M. Chockalingam, J.

This appeal challenges an order of the learned Single Judge of this Court in Application No.2923 of 2008 in O.P.No.599 of 2003 whereby the application seeking to discharge the caveator/appellant filed by the respondent herein was allowed.

2. The appeal came to be filed on the following facts and circumstances. The petitioner who is the respondent herein filed O.P. seeking for grant of probate in respect of the last will of the testatrix dated 2. 2001. The petitioner is the executor appointed under the Will. The O.P. was filed on 24. 2007. Subsequent to the representation, it was taken on file on 27. 2007. Then, O.P. was taken up on 13. 2008 and the matter was posted for recording evidence. P.W.1 was examined along with the attesting witness P.W.2 and 11 exhibits were marked on the side of the petitioner. On 4. 2003, P.W.3, the second attesting witness was examined and Ex.P12 was also marked. At that stage, Caveat No.48 of 2008 was filed by Sakuntala Sambandam and D. Sambandam and the same was taken up for consideration. Another Caveat in Caveat No.84 of 2007 was filed by one kalaraj and another Caveat No.85 of 2007 was filed by Ananthakumar. All the caveats were taken up for consideration. After rejection of those caveat petitions, the matter reached the final stage. At that time, the Caveat No.57/2008 was filed by Suresh Babu, the appellant herein, claiming to be the brother of the testatrixs husband. He filed an affidavit in support of the application alleging that he was proper and necessary party to be impleaded. He has also contended that since there was no Class-I heirs for the testatrix and as he is the textatrix husbands brother, he is class II heir and opportunity has to be given to him in the proceedings in the O.P. The petitioner in the O.P. filed an application No.2923 of 2008 to discharge the caveator/appellant. Both the parties were heard and the materials were looked into by the learned single Judge and the learned Single Judge took a view that the appellant has no caveatable interest and allowed Application No.2923 of 2008 which is the subject matter of challenge before this Court.

3. The only contention putforth by the learned counsel for the appellant before the learned single Judge is that admittedly, the appellant has got caveatable interest in the property. It is an admitted position that he is the brother of the testatrixs husband. It is also an admitted position that there was no class-I heirs. When the property was to be devolved upon the testatrix in the absence of the testament, it would devolve upon her husband also and actually, he is Class-II heir. Under such circumstances, he has got right in the property and he has also right to oppose the proceedings in the O.P., since, he is having caveatable interest. Therefore, the order of the learned single Judge has got to be set aside.

4. Per contra, it is contended by the learned counsel for the respondent that the appellant is not having caveatable interest and he is not a necessary party; that number of applications have already been filed stating that they have got caveatable interest but all the applications were rejected; that the learned Single Judge has pointed out though the proceedings were initiated by persons including the appellant, they have done so, in order to grab the property of the testatrix; that in the absence of any materials to show that they have caveatable interest, the applications are dismissed and the same has been rightly done by the learned single Judge and hence, the order of the learned Single Judge has got to be affirmed.

5. The Court paid its anxious consideration on the submissions made on either side.

6. The only question that would arise for consideration before the Court is that whether the appellant has got caveatable interest in the property and whether he should be given an opportunity to oppose the proceedings before the learned Single Judge in the O.P.

7. The respondent made the O.P