In the High Court of Judicature at Madras Dated: 19.02.2010 Coram: The Honourable Mr.Justice R.SUBBIAH Civil Miscellaneous Appeal No.1709 of 2009 G.Rajendiran ..Appellant ..vs.. Mathivanan ..Respondent Civil Miscellaneous Appeal filed under Sections 384 and 299 of the Indian Succession Act, against the order dated 03.03.2009 made in Probate O.P.No.14 of 2006 on the file of Principal District Judge, Tiruvellore. For Appellant : Dr.G.Krishnamurthy For Respondent : No appearance JUDGMENT This appeal is preferred against the order of dismissal dated 03.03.2009 made in Probate O.P.No.14 of 2006 filed by the appellant herein. 2. The brief facts, which are necessary to decide the issue involved in the appeal, are as follows: (a) The appellant herein filed a petition in O.P.No.14 of 2006 under section 278 of the Indian Succession Act, for grant of probate of a Will dated 12.08.1997 executed by one Deivasigamani. It is the case of the appellant that the property, namely, the house and site bearing door No.263, Railway Station Road, Korattur, Chennai-78 is an ancestral property of Deivasigamani. The said Deivasigamani and his wife Neelavathi were residing in the said property and they have no issue. On 1.04.1968, the said Deivasigamani had executed a registered settlement deed dated 01.04.1968 in favour of his wife Neelavathi in respect of the said property. The appellant herein was helping Deivasigamani and his wife for their day-to-day affairs since the relatives of Deivasigamani and Neelavathi did not care for them. Hence, the appellant was taken in adoption by the said Deivasigamani. (b) It is the further case of the appellant that the said Deivasigamani and Neelavathi have jointly executed an unregistered Will dated 25.03.1989 in respect of the subject property, in which they have mentioned that after their demise, the appellant shall enjoy the property absolutely and exclusively. While the situation stood thus, Neelavathi died and on her demise, the property again came into the hands of the said Deivasigamani as he was the next surviving legal heir in the family. Deivasigamani had executed his last unregistered Will in respect of the schedule mentioned property in favour of the appellant on 12.08.1997 in the presence of the witnesses, namely, Gunasekaran, Poongavanam, Kannappan and Ramesh. After execution of the Will, the said Deivasigamani died on 24.08.1997. Thereafter, the appellant succeeded to the said property as the sole legatee of the deceased Deivasigamani. (c) During March, 2003, the respondent, who is a relative of late Deivasigamani and Neelavathi, approached the appellant to let out the premises for rent and the appellant has agreed for letting out the premises to him. Since there was default in paying the rent, the appellant has issued a legal notice to the respondent on 26.12.2003 for eviction. On receipt of the said notice, the respondent filed O.S.No.384 of 2003 before the District Munsif Court, Ambattur, against the appellant and two others for a permanent injunction. The appellant contested the same by filing a written statement that the respondent has no right or title over the said property. While so, the appellant herein filed a petition in the said O.P. under section 278 for issuance of a Probate of the Will dated 12.08.1997 executed by the deceased Deivasigamani in favour of the appellant. (d) In the said O.P., the respondent herein filed a counter, denying all the averments made in the petition stating that the late Neelavathi is the sister of his mother and his paternal grandfather Sundaramurthy Gramini and the father of late Deivasigamani are brothers. Since the respondent is the son of the brother of late Deivasigamani, the said Deivasigamani and Neelavathi have adopted the respondent as their adopted son. Further, the case of the appellant that he was taken in adoption by late Neelavathi and Deivasigamani was denied and the alleged Will is also a forged one. The respondent had also denied the signature found in the alleged Will stating that the signature found in the Will does not correlate with the signatures of the late Deivasigamani and Neelavathi. The appellant was the neighbour of Deivasigamani, who used to visit the house of Deivasigamani frequently. After the death of the said Deivasigamani and Neelavathi, by taking advantage their position, with the help of the local rowdy elements, the appellant prepared the alleged Will in order to grab the property. Thus, he has taken the defence that the appellant is not the adopted son of the deceased Deivasigamani and Neelavathi and the Will is a forged one. (e) Though the respondent had filed the written statement, he did not participate in the O.P. proceedings and hence, he was set ex parte. The appellant examined himself as P.W.1, besides examining one of the attestors to the Will, viz., Poongavanam, as P.W.2 and marked Exs.P-1 to P-12. But, in spite of the evidence adduced on the side of the appellant, the learned trial Judge has dismissed the O.P.on coming to the conclusion that the issue can be decided only after the completion of the suit pending between the parties. Aggrieved over the same, the present appeal is filed by the appellant. 3. Learned counsel for the appellant contended that the trial court failed to exercise its testamentary jurisdiction independently with the available records and evidence and when the respondent did not choose to contest the proceedings, it ought to have granted the probate or the trial court on considering the objections filed by the respondent, ought to have converted the O.P. as a regular suit. In support of his contention, the learned counsel relied upon a judgment reported in AIR 1967 GUJARAT 214 (ZABU KHIMA ..vs.. AMARDAS). 4. The respondent did not appear either in person or through a counsel even though proper service was effected on him. 5. Heard the learned counsel for the appellant and perused the materials on record. 6. On a careful scrutiny of the materials on record, I find that the petitioner has filed the O.P.for issuance of Letters of Administration of the Will under Section 278 of the Indian Succession Act. The contention of the appellant is that he is the adopted son of late Neelavathi and Deivasigamani. The petition filed by him was countered by the respondent, who is the close relative of late Deivasigamani and Neelavathi, stating that he is the close relative of the deceased Deivasigamani and that the appellant was never taken in adoption and the Will said to have been executed by late Deivasigamani is a forged one. On the other hand, the case of the appellant is that the late Neelavathi and Deivasigamani had taken him in adoption. 7. It is pertinent to be pointed out that though the respondent filed a counter, thereafter he did not appear and hence, he was set ex parte by the trial court. Now, the contention of the appellant is that when the respondent was set ex parte, the learned District Judge, by considering the evidence of P.Ws.1 and 2, and the documents, either ought to have granted the probate or ought to have converted the O.P. as a regular suit. It would be more appropriate to extract the relevant paragraph in the impugned order, which reads as follows: "6. On a perusal of records, both the Wills are unregistered documents. In Ex.P-9, there are some corrections made in all the pages. Further the Executor name is mentioned as Leelavathi in the contents of the document Ex.P6 and Ex.P9. But on perusal of petition and death report it is mentioned as Neelavathi. This discrepancy is not explained by the petitioner. It shows that the Wills Ex.P6 and P9 filed by the petitioner is not a genuine one. Further the respondent has stated that regarding the petition mentioned properties two suits are pending before the District Munsif Court, Ambattur and Poonamallee. After conducting full trial only, the truth will come out. But in this petition, the petitioner himself admitted that the respondent is the close relative of the deceased Neelavathy and Deivasigamani. It shows that there is rival claim about the petition mentioned properties. At this stage, this Court will not come into conclusion about the genuineness of the Will and also legal heir of the late Deivasigamani and Neelavathy..." 8. On a perusal of the order passed by the trial court, I find that in spite of the examination of one of the attesting witnesses on the side of the appellant, the trial court dismissed the probate on a finding that there are corrections in the Will and unless the suits pending between the appellant and the respondent are decided the genuineness of the Will cannot be decided. But, I am of the opinion that when the respondent has not chosen to contest the O.P.proceedings except filing a counter, the District Judge, on considering the evidence of the attesting witness, namely, P.W.2, ought to have come to a conclusion about the genuineness of the Will. But, in the instant case, the trial court, based on the averments found in the counter filed by the respondent that a suit was pending between him and the appellant, held that the genuineness of the Will can be looked into only after the suit is disposed of. In this regard, I am of the opinion that when the respondent has not come forward to establish his objections put forth in the counter by adducing the evidence oral and documentary, the District Judge ought not to have attached much significance on the contentions raised by him in the counter. It is the well settled principle of law that mere pleading is not a proof unless it is established by evidence. But, even in this appeal, in spite of the service of notice, the respondent has not chosen to contest the matter. Under such circumstances, I am of the opinion that it would be appropriate to set aside the order and remit the matter to the trial Court for fresh consideration based on the evidence of P.Ws.1 and 2 about of the genuineness and authenticity of the Will. Though a submission was made by the learned counsel for the appellant that the trial court on receipt of the counter ought to have converted the proceedings as a suit, I am of the opinion that section 295 of the Indian Succession Act reveals that in contentious cases, the proceedings shall take the form of a regular suit. A reading of the said section clearly shows that in any case of probate or letters of administration, in which there is contention, the proceedings shall take the form of a regular suit. Therefore, there is no need to convert the O.P.into suit, but O.P. proceedings can be conducted in the form of suit. In view of the above, the impugned order is hereby set aside and the matter is remitted to the trial court and the trial court is directed to pass an order afresh by considering the evidence of P.Ws.1 and 2 and the documents. If the trial court feels that notice should go to the respondent, it can also issue fresh notice to the respondent and in spite of the same, if the respondent did not appear, the trial court can pass orders on the available materials. Civil miscellaneous appeal is disposed of accordingly. No costs. gl To The Principal District Judge, Tiruvellore