1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) WEDNESDAY, THE 12th DAY OF OCTOBER 2011 THE HON'BLE MR. JUSTICE VINOD K.SHARMA A.NO. 4513 OF 2011 IN O.P.NO.275 OF 2011 In the matter of Indian Succession Act XXXIX of 1925 and In the matter of last will and testament of late Sr.Soori Chetty Govindarajulu Chetty (deceased) K.Sreeranjani, 8, Bharathi Nagar, Thirumullaiyoil, Chennai 600 026. ...Petitioner -vs- 1. Surendra, 10, Kasi Chetty Street, Chennai 600 079. 2. P.Sukanya, 96/12, Bull Temple Road, Bangalore 560 019. 3. Sumitra, 18, T.P.Scheme Road, Mandaveli, Chennai 600 025. 4. Srivalli @ Suneetha, 67/66, Old Post Office Road, Kurnool, Andhra Pradesh. 5. C.Mohanakrishnan, BF-1, Door No.3-B, Flat 30, Sixth Main Road, AGS Colony, Velacherry, Chennai 600 042. https://hcservices.ecourts.gov.in/hcservices/ 2 7.Viverdhan, 8. C.Vinoth, respondents 6 and 7 at BF-1, Door No.3-B, Flat 30, Sixth Main Road, AGS Colony, Velacherry, Chennai 600 042. ...Respondent's A.NO.4513 OF 2011: K.Sreeranjani, 8, Bharathi Nagar, Thirumullaiyoil, Chennai 600 026. ...Applicant/Petitioner -vs- Surendra, 10, Kasi Chetty Street, Chennai 600 079. ...Caveator/1st Respondent This Application praying that this Hon'ble Court be pleased to discharge the caveat filed by the Caveator in O.P.No.275 of 2011. This Application coming on this day before this court for hearing the court made the following order: The applicant has invoked the jurisdiction of this Court to discharge the Caveat filed by the Caveator in O.P.No.275 of 2011. 2. The applicant / petitioner filed Original Petition No.275 of 2011 for grant of probate of the last Will and testament of her father Soori Chetty Govindarajulu Chetty. Late Soori Chetty Govindarajulu Chetty is said to have executed a registered sale deed dated 16.07.1997, which was registered vide Doc.No.96 of 1997 Book No.3, https://hcservices.ecourts.gov.in/hcservices/ 3 Volume 88 Page 5 to 7 in the office of the Sub-Registrar, Thyagaraya Nagar. 3. All the legal heirs except the Caveator / 1st respondent, consented to the grant of probate in favour of the applicant. The 1st respondent filed caveat petition to oppose the original petition. 4. The requirement of the Rules is that the supporting affidavit is to be filed within eight days of service of notice under Order 25 Rule 52 of the O.S. Rules. 5. The Order 25 Rule 54 of the O.S. Rules stipulates that if a Caveator fails to file the supporting affidavit within stipulated period, the Caveator is liable to be discharged, by the order of the Court. 6. The Caveator / 1st respondent in the Caveat petition, questioned the validity of the Will, and at the same time, questioned the title of the testator to bequeath the property under the testamentary deposition. 7. The discharge of the Caveator is claimed by the applicant on the following grounds: i)that the supporting affidavit was not filed within the stipulated period of eight days, the Caveat, therefore, deserves to be discharged under Order 25 Rule 52 of the O.S.Rules; ii) that the Caveator / 1st respondent, having questioned the title of the testator and his authority https://hcservices.ecourts.gov.in/hcservices/ 4 to bequeath the property, is not entitled to maintain Caveat in the testamentary Court or proceedings; 8. Learned counsel for the applicant, in support of the application, contended that requirement of filing affidavit within eight days is mandatory, as the word used under Rule 52 of Order 25 of O.S.Rules is 'shall'. 9. The contention of the learned counsel for the applicant cannot be accepted, as the Rules also provide for extension of time for filing of the Caveat, and once the Court is empowered to extend the time for filing of the Caveat / affidavit and it is left to the discretion of the Court to discharge the Caveat. The Rule 52 cannot be held to be mandator, but only directory. 10. The first contention of the learned counsel for the applicant, therefore, deserves to be rejected. 11. The application, however, deserves to be succeeded on the second point. The Caveator / 1st respondent, having questioned the title and authority of the testator to bequeath the property, he cannot maintain the Caveat in the testamentary Court or proceedings, as his remedy lies on the Original Side. 12. This view finds support from the judgment of the Hon'ble Supreme Court in case of Krishna Kumar Birla vs Rajendra Singh Lodha and Others (2008-3-L.W.1005), wherein, https://hcservices.ecourts.gov.in/hcservices/ 5 the Hon'ble Supreme Court has been pleased to lay down that the jurisdiction of the probate Court is limited being confined only to consider the genuineness of the Will. The question of title cannot be gone into in probate proceedings. 13.The Hon'ble Supreme Court was further pleased to hold that any person claiming interest adverse to the testator or his estate cannot maintain the application before the Probate Court, and his remedy lies elsewhere. 14.Therefore, once the Caveator / 1st respondent has challenged the title of the testator, it is not permissible for him to maintain the application in the Probate Court. 15.Consequently, this application is allowed and the Caveat filed by the Caveator / 1st respondent is ordered to be discharged. No costs. Sd/-V.K.S.J 12.10.2012 //Certified to be a true copy// Dated this the day of 2012. R.s/02.02.2012 COURT OFFICER From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format. https://hcservices.ecourts.gov.in/hcservices/