Mere filing of a caveat and affidavit of objections does not automatically convert the Original Petition into a Testamentary Original Suit. Parties must avail the opportunities available to contest the proceedings.

JUDGMENT

P.B.BALAJI, J.

Prayer:- Original Side Appeal filed under Order 36 Rule 9 of the Original side Rules read with Clause 15 of the Letters Patent, against the judgment and decree dated 14.06.2011 made in O.P.No.577 of 2008.

The above Original Side Appeal has been preferred against the order and decree in O.P.No.577 of 2008 dated 14.06.2011. The 4th respondent in the Original Petition is the appellant herein.

2. The 1st respondent filed the said Original Petition for grant of probate of the last Will and testament dated 20.11.1992 executed by his father, Srinivasa Rao, who had died on 15.02.2006, leaving behind his sons Prabhakar Rao, Ratnakar, respondents 2 and 3 and legal heirs of a pre-deceased son, S.Diwakar, being respondents 4 to 6, being the Class I legal heirs of Late S.Srinivasa Rao.

3. On receipt of notice from the Court in the original proceedings, the appellant appears to have filed a caveat intending to oppose the grant of probate sought for by the 1st respondent. The said caveat was lodged on 03.02.2009. An affidavit of objections supporting the caveat also appears to have been filed and returned on 04.02.2009. However, the Registry has returned the affidavit of objections also on 02.03.2009 and admittedly both the caveat and affidavit of objections never came to be represented. In this backdrop, the parties proceeded with the matter before the Court.

4. The learned Single Judge directed evidence to be recorded before the learned Master and upon such evidence being taken, the matter was referred back to the learned Single Judge, who heard the arguments of the counsel for the appellant as well as the counsel for the 1st respondent and granted probate holding that the Will had been proved in the manner required under law.

5. Aggrieved by the said order of the learned Single Judge the 4th respondent has preferred the above Original Side Appeal on the following grounds:

(a) The learned Single Judge ought to have converted the Probate proceedings into a Testamentary Original Suit since caveat and the required affidavit objections had been filed.

(b) Being a daughter, the appellant had caveatable interest and the Court ought to have given an opportunity to the appellant for disproving in contending the genuineness of the Will.

(c) The Registry ought not have returned the caveat and that the same was in variance to Rule 55 of Or.XXV of the Original Side Rules.

(d) The counsel for the appellant was misled by the counsel for the 1st respondent when the evidence of the attesting witness was recorded before the learned Master saying that he was going to take time but however on the contrary on the same day, the 1st respondent and the attesting witness were examined.

6. Heard Mr. S.Senthil Nathan, learned counsel for the appellant and Mr.B.Chandrasekaran for the 1st respondent who is the contesting party in the Original Side Appeal.

7. This Court has also called for the original records from the original side and perused the same.

8. Order XXV of the Original Side Rules deals with testamentary and intestate matters. The procedure contemplated for hearing and disposal of Original Petitions for grant of probate, letters of administration or succession certificate, are summary in nature. However, a special procedure is carved out by including a separate heading viz., “Contentious Proceedings”. Under the said head “Contentious Proceedings”, R.51 to 68 are framed. Whenever any person intends to oppose the grant of probate or letters of administration, then such person will have to invoke Rs.51 of Or.XXV and file a caveat, either in person or through his advocate in Form No.69, which is available in the Original Side Rules. R.52 of Or.XXV provides for a caveat being entered even after an application for grant of probate or letters of administration has been made to the Court. In such cases an affidavit in support of the caveat ought to be filed within eight days of the caveat being filed and such affidavit shall state the right and interes