The petitioner has applied for a grant of letters of administration with the will annexed to the estate of Gudisai Narayanaswami Chetty, deceased. The respondent has lodged a caveat against that grant. The object of the present summons is to have the respondent’s caveat struck off on the ground that the respondent has no interest in the estate of the deceased. The following table will serve to show the relationship of the parties.

It is common ground that the deceased and the respondent were members of a joint and undivided Hindu family; but according to the petitioner, there was a partition in status on the 7th June, 1945. The will which is dated the 14th June, 1945, is on the footing of that partition and is a disposition by the deceased of his share in the family properties. It is alleged that the deceased died on the 21st January, 1946.

In her petition for the grant, the petitioner included the respondent as one of the relatives of the deceased and accordingly citation was issued to him. In response he filed a caveat and later a written statement of his defence. The ground of the respondent’s caveat shortly stated is that the deceased was not in a sound and disposing state of mind in June, 1945, when he is said to have made the will. He was then about seventy years of age and it is alleged had suffered a paralytic stroke. In consequence of this stroke and of his great age it is said that he was thereafter affected both in body and mind. According to the affidavit in support of the caveat and the written statement of defence, the respondent on this ground disputed the validity both of the will and of the alleged partition.

The petitioner has filed a suit (C.S. No. 129 of 1946) in this Court against the respondent and his sons for partition of the family property by metes and bounds. The petitioner’s daughter and grandson are also parties to this suit which is now pending.

The petitioner’s contention on the present summons is that the respondent has no interest in the estate of the deceased and accordingly was not entitled to file a caveat. On that ground she prays that the caveat may be struck off, the written statement removed from the file and that she may be permitted to prove the will in common form.

The answer of the respondent is twofold. First he contends that such a summons does not lie and secondly he claims to have an interest in the estate of the deceased as a reversioner.

The first point taken is purely procedural and is based on section 295 of the Succession Act which provides that contentious cases are to take, as nearly as may be, the form of a regular suit. Now in accordance with the usual practice, on the lodging of the caveat the petition and the caveat were registered and numbered as a suit and a written statement was filed by the respondent. Necessarily, however, those pleadings do not deal with the question of the right of the caveator to lodge the caveat, for a caveator is not required to state his interest in the estate of the deceased in his written statement. According to Order XXXIV, rule 50 of the Original Side Rules that must be stated in the affidavit filed in support of the caveat. In the present case there was no express statement in that affidavit of the interest relied on by the respondent; but that omission, it seems to me, may well be due to the fact that citation was issued to the caveator which no doubt led him to suppose that he was regarded as necessary party to the proceedings. Be that as it may, the respondent’s contention is that the decision of this question is one which can properly be dealt with only in the suit and not as is attempted here, on a Judge’s summons in separate proceedings. I cannot accept that contention. As I have said, the point would not ordinarily arise on the petition and written statement, the pleadings in the “suit”, and it is I think, on that account that in similar proceedings in the High Court of Justice in England such a matter is dealt with by summon