Probate proceedings, if uncontested, are summary in nature, but once there is contention, they may take the form of a suit and all the incidents of a suit will attach to such proceedings. The Succession Act is a self-contained code, and the entire CPC would not be applicable and is intended to be applicable only where the Succession Act is silent.

SUNEET KUMAR, J.

1. The appeal under section 299 of Indian Succession Act, 1925 (hereinafter referred to as 'Succession Act'), is directed against the order dated 17 November 2016 passed by the Additional District Judge, Room No. 14, Kanpur Nagar, Kanpur, U.P. in Probate Proceeding Case No. 170/70 of 2011 (Smt. Harsh Jauhari v. Smt. Rajani Agarwal and another).

2. The respondent-plaintiff filed a petition for grant of probate on the strength of unregistered Will dated 8 July 2011, executed by Shantanu Agarwal. The appellant was impleaded during the proceeding, who set up a counter claim on the strength of an unregistered Will dated 15 June 2001. During the course of proceeding, respondent submitted his examination-in-chief, the appellant filed an application to cross examine the respondent which has been dismissed by the impugned order.

3. Learned court would note in the impugned order that the proceeding under the Succession Act being summary in nature, wherein, the contesting defendant can lead evidence in support of his case and on the strength of the evidence of rival parties the matter would be decided, however, presently there is no case for allowing cross examination of the plaintiff, consequently, the application was rejected by the impugned order.

4. Learned counsel for the appellant would submit that since the appellant was impleaded as a party, upon entering appearance he has setup a rival claim, therefore, in view of section 295 of the Succession Act, the matter has become contentious, therefore, would urge that the proceeding is to be decided as a regular suit according to the provisions of Code of Civil Procedure (hereinafter referred to as 'CPC').

5. It is contended on behalf of the appellant that proceedings for probate or letters of administration should be considered as suits and order passed therein are to be regarded as decrees.

6. Sri Arun Kumar, learned counsel appearing for the respondent-plaintiff would submit that upon contention the proceedings for grant of probate will take the form of suit, however, the expression "as nearly as may be" indicates that the proceedings in question was not to be considered as a regular suit. Further, would contend that right of the appellant to oppose the grant of probate in favour of the respondent-plaintiff exists only if he has a caveatable interest in the property of the testator. Appellant is not the natural heir, but the neighbour of the testator, who has set up the contention to grab the property. Admittedly, the original copy of the Will has not been brought on record, therefore, would urge that the appellant has yet to establish his caveatable interest in the property. The rights of the beneficiary under Will are always subject matter to challenge in regular suit.

7. Rival submissions fall for consideration.

8. The sole question that arises is as to whether the proceedings under section 295 of the Succession Act, in contentious cases is a suit to be tried under the Code of Civil Procedure.

9. A perusal of section 295 of the Succession Act, itself indicates that such a proceeding is not a suit. It is for the reason that it was found necessary under section 295 of the Succession Act to lay down that such proceeding should, as nearly as possible, take form of a regular suit. The use of the words "as nearly as may be" itself indicates that the proceedings in question was not considered to be exactly the same as a suit. Again, the fact that the section itself also directs that such a proceeding shall take the form of a regular suit further undertakes that in substance it is not a suit. It is only because there is an obvious difference in the basic nature of the two proceedings that it was found necessary to direct that one was to take the form of the other. Moreover, the direction regarding change of the form is given only in cases, where there is contention, even this change of form does not take place, and the proceedings fully retain their initial complexion.

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