Unsuitable for Indian conditions.

In O. P. No. 234 of 1970, one Jayakumar prays for permission to prove in common form the will of one Amaravathi Animal and for the grant of probate in his favour.

2. Amaravathi Ammal, who was 83 years old at the time of the execution of the Will dated 14th April, 1969, is said to have died on the 6th July, 1970. Under the Will, she is alleged to have bequeathed her properties worth over Rs. 65,000 in favour of the petitioner, Jayakumar, who belongs to a different community from that of the testatrix. It is also alleged that under the Will the petitioner has been appointed as he sole executor of the testatrix.

3. After publication in the papers one Sundarammal and one Ramaratnam have entered caveat. In her affidavit in support of her caveat, Sundarammal says that the deceased testatrix was her paternal aunt and that upon the death of the testatrix, issueless, she and the sister of the deceased have inherited her estate as her heirs at law. She also contests the truth and validity of the Will and contends that the testatrix had no testamentary capacity at the time the will is alleged to have been executed and that the testament has been brought about by foul play.

4. Ramaratnam, in his affidavit, in support of his caveat, impugns the will and contends that he is the foster son of the deceased Amaravathi Ammal and that on or about 7th April, 1943, Rathnavelu Mudaliar, the husband of Amaravathi Ammal, entered into a contract with an Orphanage at Tanjore, in pursuance of which Ramara,tnam, an orphan in the Orphanage, was allowed to be taken away by Rathnavelu Mudaliar and brought up by him and Amaravathi Ammal as their own son. In O. S. No. 1410 of 1968, on the file of the City Civil Court, Madras, Ramaratnam instituted a suit against Rathnavelu Mudaliar, Amaravathi Ammal and the Orphanage, in which he alleged that by virtue of the contract between the Orphanage and Rathnavelu Mudaliar, a trust had been created in respect of the properties of Rathnavelu Mudaliar, in favour of Ramaratnam, and that the settlement deed executed by Rathnavelu Mudaliar in favour of Amaravathi Ammal on 27th July, 1965, in breach of the said Trust was void and not binding upon Ramaratnam. The contention of Ramaratnam is that he has thus a caveatable interest in the suit properties.

5. The Petitioner in O.P. No. 254 of 1970 has filed Application No. 2750 of 1970 for discharging the caveat filed by Ramaratnam on the ground that Ramaratnam has no locus standi to enter a caveat. The petitioner has also filed Application No. 2751 of 1970 praying for the discharge of the caveat filed by Sundarammal on the same ground.

6. The point that arises for determination is whether either of the caveators has a caveatable interest in the property and is competent to challenge the petitioner in O.P.No. 234 of 1970 to prove the will of Amaravathi Ammal in solemn form.

7. In English practice, a testament may be proved in two ways, either in common form or in solemn form. When it is sought to be proved in common form, the executor merely presents the will before the Judge, and without citing the parties interested, produces the proof affidavits of one or more of the attestors to the will, and the Judge, after satisfying himself on foot of the affidavits, that the testament exhibited in true, proceeds to annex his probate and seal to the will. In my view, the grant of probate in common form leads to pernicious results. I have come across several cases on the Original Side of this Court, where decades after the grant of the probate, interested persons have applied for and succeeded in obtaining revocation of the probate granted on the ground that the will is not genuine or had not been executed in a sound disposing state of mind. But by the time the revocation is sought, most of the contemporaneous evidence relating to the will would have disappeared and the grantee of the probate would have wrought irremediable mischief by acting upon the grant, which, whether granted in comm