THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY C.M.A.No.3625 of 2003 JUDGMENT: Respondent No.1 filed O.P.No.1594 of 1995 in the Court of the II Additional Chief Judge, City Civil Court, Hyderabad under Section 276 of the Indian Succession Act (for short ‘the Act’) to grant probate in respect of a Will, dated 10.12.1990, executed by Mahant Ramchandra Das Khaki, her father. Her mother, respondent No.5, was impleaded as respondent No.4 in the O.P. The subject matter of the Will was three F.D.Rs. Initially, the O.P. was allowed on 30.09.1999 and probate was granted in favour of respondent Nos.1 and 5 to the extent of 75% and 25% respectively of the value of the F.D.Rs. The appellant herein, who was not a party to the O.P., filed C.M.A.No.121 of 2000 before this Court against the order, dated 30.09.1999, passed in the O.P. She pleaded that her father, late Raj Mohan Das, was the adopted son of late Mahant Ramchandra Das and that she is entitled to succeed to the property. The appeal was allowed by this Court on 18.04.2002 and the matter was remanded to the trial Court by adding the appellant herein as respondent No.5 in the O.P. After remand, the appellant herein contested the O.P. Through its order, dated 24.07.2003, the trial Court decreed the O.P. The same is challenged in this appeal. The learned counsel for the appellant submits that the very O.P. filed by respondent No.1 was untenable, since it is filed for the relief of grant of probate. Placing reliance upon certain decided cases, the learned counsel submits that the civil Courts in the State of Andhra Pradesh are not conferred with the power to grant probate. He further submits that though the subject matter of the Will was just 3 F.D.Rs., the decree has expanded the scope thereof and treated respondent No.1 as legatee of the deceased in all other respects. Learned counsel for the contesting respondents, on the other hand, submits that even if it is to be assumed that the civil Courts in the State of Andhra Pradesh do not have jurisdiction to grant probate, the O.P. can be treated as the one filed under Section 370 of the Act and the relief can be limited to the one of succession to the F.D.Rs. He further submits that the claim of the appellant that her father was the adopted son of Mahant Ramchandra Das, was not proved to the satisfaction of the Court. The O.P. was filed by respondent No.1 under Section 276 of the Act specifically for the relief of grant of probate. The contention of the learned counsel for the appellant that the Courts in the State of Andhra Pradesh do not have jurisdiction to grant probate is supported by the judgment of a Division Bench of this Court in A.S.Murthy Vs. D.V.S.S.Murthy[1], which, in turn, was followed by the judgments in Gangavath Lalu Vs. Gangavati Tulsi[2] and Inkollu Sasikala and Shyamala Vs. Inkollu Venkata Murthy[3]. Therefore, the O.P. filed by respondent No.1 was defective. That, however, is not a factor to hold that the proceedings initiated by respondent No.1 are untenable. In Inkollu’s case, this Court held that if a civil Court in the State of Andhra Pradesh has granted probate, the proceedings can be treated as those instituted under Section 370 of the Act and the relief can be confined to the items of movable property. Therefore, invocation of Section 276 of the Act cannot be said to be fatal to the proceedings and instead, the O.P. can be treated as the one filed under Section 370 of the Act. Incidentally, in this case, the Will does not cover any items of immovable property. The appellant strongly urged that she is the daughter of adopted son of the testator. That claim would have bearing upon not only the F.D.Rs. covered by the Will, but also the succession to the rights vis-à-vis the items of immovable property and any offices held by the deceased. On behalf of respondent No.1, P.Ws.1 to 3 were examined and marked Exs.A1 to A36. On behalf of the appellant, R.Ws.1 to 3 were examined and marked Exs.B1 to B25. To prove Ex.A1, at the earlier stage, one of the attestors was examined as P.W.3 and it was held proved. By the time, the matter was remanded, the said witness died and he was not available to be cross examined by the appellant herein. The son of that witness was examined to identify the signature of the attestor. The deposition of that witness was also marked as Ex.A12. No serious suspicious circumstances were suggested. Therefore, the trial Court arrived at a conclusion that the Will was proved and accordingly, passed a decree. The decree passed by the trial Court is, no doubt, defective inasmuch as it is said that respondent No.1 is the legatee of the deceased. As observed earlier, the O.P. shall have to be treated as the one under Section 370 of the Act and it shall be limited only to the succession to the F.D.Rs. Since respondent No.1 relied upon Ex.A1 for her claim to the F.D.Rs., the question as to whether she alone is the legal descendant or the appellant has also any right in her capacity as the daughter of the adopted son of the deceased, needs to be left open, to be considered in the proceedings that may ensue between the parties at a later stage. Once the Will is proved, the right of respondent No.1 to claim the benefit under the same cannot be denied. This Court does not find any basis to interfere with the findings recorded by the trial Court as to the validity of Ex.A1. For the foregoing reasons, the appeal is partly allowed modifying the decree passed by the trial Court to the following effect: (a) The O.P. shall be treated as the one filed under Section 370 of the Act based upon the Will, Ex.A1; (b) There shall be a decree in favour of respondent No.1 as regards the three F.D.Rs. mentioned in Ex.A1; (c) Respondent No.1 shall not be treated as an absolute legatee of late Mahant Ramchandra Das, unless her rights vis-à-vis the claim of the appellant are decided in a properly constituted proceedings; and (d) As and when the appellant makes any claim vis-à-vis the estate of late Mahant Ramchandra Das, such proceedings shall be decided on their own merits uninfluenced by any of the observations made by this Court in this judgment or the trial Court in its order in the O.P. There shall be no order as to costs. _____________________ L.NARASIMHA REDDY,J Dt:19.08.2010 Note: L.R. copy to be marked. kdl [1] 1979(2) ALT 347 [2] 2001(2) ALD 379 [3] 2004 (6) ALT 18