When a respondent disputes a Will in probate proceedings, it necessitates treating the proceedings as an original suit rather than summary proceedings.

COMMON JUDGMENT

(Dated this the 21^st day of November, 2025)

The OP (C) No.2715/2025 filed by the petitioner/plaintiff for directing the Sub Court, Irinjalakuda for speedy disposal of SOP No.5/2024 and Suit, O.S.No.101/2023, whereas the petition, OP (C) No.2950/2025 filed by the petitioner/defendant challenging the order in IA No.10/2024 in O.S.No.101/2023 passed by the same Court, whereby the application filed by the petitioner/defendant seeking joint trial was dismissed.

2. Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent in both cases. The rank of parties before the trial court is reiterated.

3. The case of the petitioner/plaintiff in the suit is that the very plaintiff filed suit for partition and separate

2025:KER:91805 possession of certain properties. The defendant filed a written statement and he has also claimed the right over the property through the Will. Therefore, the Will is a disputed document required to be proved by the parties in O.S.No.101/23 in the Sub Court, Irinjalakuda. Whereas the very plaintiff filed another petition, SOP No.5/2024 under Section 372 of Indian Succession Act , for issuing the probate and succession certificates before the same court. The very defendant filed counter in SOP and the SOP is pending. The defendant filed an application for joint trial before the court below, contending that Will is a suit document in both cases. Therefore, it has to be proved in accordance with law. Hence, both the suit as well as the SOP has to be jointly tried. But, the trial court dismissed the same on the ground that, the SOP No.5/2024 is only a summary proceedings, and a joint trial is not warranted.

2025:KER:91805

4. Therefore, in my considered opinion, the observation and finding given by the court below is not correct. When a petitioner filed petition under Section 372 of the Succession Act for issuing the probate and succession certificate, and if there is no respondents, then the proceedings become the summary proceedings. But when the respondent appeared and filed objection claiming the right over the property, disputing the Will, then the court required to convert the proceedings into original suit and tried as a suit. The judgment delivered by the court for the purpose of issuing certificate amounts to judgment in Rem which is applicable against the whole world. Though, the proceedings is a summary proceedings, when the defendant appeared and filed counter, it must be tried as a suit. Such being the case, it cannot be said that it is a summary proceedings and it has to be tried as a suit.

2025:KER:91805

5. That part, the very plaintiff filed the suit for partition claiming under the same Will. Therefore, the petitioner is required to prove the Will in accordance with the Evidence Act or the Bharatiya Sakhya Adhiniyam (BSA), 2023. Such being the case, the trial court is required to convert the SOP into Original Suit. Then, try along with OS No.101/2023 and to deliver judgment jointly.

6. Hence, the order under challenge in OP (C)

No.2950/2025 passed by the trial court in I.A. No.10/24 in OS 101/2023 is required to be set aside and the application of the defendant has to be allowed.

7. Considering the petition, OP (C) No.2715/2025 for speedy disposal of the O.S.No.101/2023 and SOP No.5/2024, in which a report has been received from the trial court, requesting 8 months time to dispose of the same.

2025:KER:91805

8. Accordingly, OP (C) No.2715/2025 is disposed of and the OP (C) No.2950/2025 is allowed.

The order under challenge in IA No.10/24 in OS

101/23 is hereby set aside. The application is allowed. The trial court is directed to conduct the joint trial, before that, the SOP shall have to be converted into OS and be tried together in accordance of law. The tr