Tr. Application Nos.2227 and 2228 of 2011 and A.Nos.1972 and 1973 of 2011 in O.P.No.720 of 2007 V. PERIYA KARUPPIAH, J. A.No.1972 of 2011: This application has been filed by the applicants/third parties seeking to revoke the order of probate dated 22.08.2008 granted in O.P.No.720 of 2007 on the file of this Court. 2. A.No.1973 of 2011: This application has been filed by the applicants/third party seeking an order of grant of interim stay of the operation of the order dated 22.08.2008 granting probate in O.P.No.720 of 2007 pending disposal of the above application for revocation of probate. 3. Tr.A.No.2227 of 2011: This application has been filed to transfer the suit in O.S.No.13644 of 2010 pending on the file of III Fast Track Court Judge, Chennai for being tried along with O.P.No.720 of 2007 and O.P.SR.No.2904 of 2008 pending before this Court. 4. Tr.A.No.2228 of 2011: This application has been filed for transferring the suit in O.S.No.13645 of 2010 pending on the file of the III Fast Track Judge, City Civil Court, Chennai for being tried along with O.P.No.720 of 2007 and O.P.SR.No.2904 of 2008 pending before this Court. 5. Heard Mr.A.Venkatesan, learned counsel appearing on behalf of Mr.M.Kamalanathan, learned counsel for the applicants and Mr.K.Rajasekaran, learned counsel for the respondents in all the applications. 6. Learned counsel for the applicants would submit in his arguments that the applicants are the children of one Parthasarathy and Baby Ammal and the said Baby Ammal and one Panchalammal were sisters and the said Panchalammal's children are the respondents and one Pankajakshi. He would further submit in his arguments that the father of the applicants Parthasarathy had provided funds for the purchase of the properties in the name of the said Pankajakshi and accordingly, she purchased by lending her name and she did not pay any money towards the purchase of the said property and the said property was actually belonging to Parthasarathy, the father of the applicants and the said Pankajakshi died and therefore, the applicants have filed a suit in C.S.No.941 of 2006 on the file of this Court for the relief of declaration that the applicants are the absolute owners of the suit schedule property and for permanent injunction restraining the respondents from interfering with the applicants' peaceful possession. He would also submit that the respondents had also filed a suit in C.S.No.923 of 2007 before this Court against the defendants (applicants herein) for declaration of their title regarding the same property and for mandatory injunction directing the defendants(applicants herein) to hand over vacant possession of the suit premises. Both the suits were transferred on pecuniary jurisdiction to the file of the City Civil Court and were numbered as O.S.No.13644 and 13645 of 2010 respectively and are pending before the said Court. He would also submit that the said Pankajakshi had some relationship with the father of the applicants and on that pretext only the said property was obtained in the name of Pankajakshi from Tamil Nadu Housing Board was purchased and in order to evidence the same, the said Pankajakshi had participated in the family arrangement held in between the applicants and their family members and she also executed a Will in favour of the applicants regarding the said property. He would further submit that the respondents 3 and 6 have filed a probate O.P. before this Court against the respondents 1, 2, 4 and 5 in O.P.No.720 of 2007 praying for grant of probate on the foot of a Will said to have been executed by the said Pankajakshi and obtained an order of probate in the absence of the applicants. He would further submit that the pendency of the suits before the City Civil Court would go to show that the applicants are claiming right over the said property and still the respondents 1 and 3 did not implead the applicants as necessary parties, who are having caveatable interest in the said property. He would also submit that the applicants were already bequeathed with the property by the said Pankajakshi on 25.01.2005 and the applicants being the beneficiaries of a Will by the same testator in an earlier occasion, are necessary parties to the subsequent probate proceedings taken by the respondents 1 and 3 and in the absence of such impleadment of the beneficiaries of the earlier Will it will be amounting to fraud committed upon the Court. He would also submit in his arguments that the probate order obtained in O.P.No.720 of 2007 is liable to be revoked as affected by fraud and non-impleadment of the parties who are having caveatable interest. He would also submit that the applicants have also filed the probate proceedings and it is pending in O.P.SR.No.2904 of 2008 and the said O.P. has to be clubbed together with O.P.No.720 of 2007 after revoking the probate order and then only the real disposition of the testatrix would be found. He would also submit that the suits which are pending in between the parties before the City Civil Court are necessarily to be transferred to the file of this Court since both the O.Ps seeking probate of a single testatrix would be converted into two T.O.S. and therefore, they can also be transferred from the file of the III Fast Track Judge, City Civil Court, Chennai to the file of this Court. 7. Learned counsel would also cite a judgment of the Honourable Bombay High Court reported in AIR 1930 Bombay 29 (Venidas Nemchand v. Bai Champabai) for the principle that the beneficiaries under an earlier Will are entitled to participate in the probate proceedings of the subsequent Will. He would also bring it to the notice of this court to a judgment of this Court reported in 2001 (2) CTC 713 (R.Ramachandran v. G.Hariharan) for the same proposition. He would also cite a judgment of the Calcutta High Court reported in AIR 1978 Calcutta 140(Sima Rani Mohanti v. Puspa Rani Pal) in support of his arguments. He would also refer to the judgment of the Honourable Apex Court reported in 2008(4) SCC 300 (Krishna Kumar Birla v. Rajendra Singh Lodha and others) for explaining the caveatable interest as one of the interest in the deceased testator's estate which would affect the grant of probate. He would also refer to a judgment of the Honourable Apex Court reported in 2008 (10) SCC 489 (G.Gopal v. C.Baskar and others) for the principle that whenever any person is having a caveatable interest, he is entitled to be cited as respondent in the O.P. and in the absence, revocation of probate is grantable. He would also submit in his arguments that in the O.P. filed by the applicants on the foot of the Will executed by the testatrix prior to the alleged Will in which the probate has been granted, the right of the applicants are yet to be decided and in such circumstances a caveatable interest accrued to the applicants at the time of filing of O.P.No.720 of 2007. He would also submit that the applicants have also filed the caveat seeking for issuance of notice to them before passing any order but it was not considered in the O.P.720 of 2007 and no notice has been given to the respondents in O.P. and therefore, the probate granted in O.P.No.720 of 2007 is necessarily to be set aside and the probate granted should be revoked. 8. He would further submit in his arguments that as soon as the revocation is ordered, O.P.No.720 of 2007 has to be converted into T.O.S. on issuing citations to the applicants and the O.P. filed by the applicants in O.P.SR.No.2904 of 2008 has also to be clubbed together for disposal. He would further submit in his arguments that the rival claims made by the applicants and the respondents in O.S.Nos.13644 and 13645 of 2010 pending on the file of the III Fast Track Judge, City Civil Court, Chennai, have also to be transferred to the file of this Court for being decided along with two O.Ps. Therefore, all the applications may be allowed and all the four cases may be ordered to be clubbed together for joint trial. 9. Learned counsel for the respondents would submit in his arguments that even according to the submission of the applicants their right are yet to be established before the Court of law and on that contingency only, there could not be any caveatable interest for the applicants for issuing notice to them. He would further submit in his arguments that the applicants did not file the O.P. and got it numbered and there was no recognition of their right by issuing any probate or letters of administration and on that contingency only, the subsequent probate proceedings seeking the grant of probate, requires the impleadment of the beneficiaries of the earlier Will. He would further submit that the right of the applicants under the earlier Will has not been recognised so far and therefore, no caveatable interest would accrue to the applicants. The caveat said to have been filed by the applicants is not towards the O.P. filed in O.P.No.720 of 2007. He would further submit that the filing of caveat is being governed by the provisions of Order 25 Rules 51 and 52 of the Original Side Rules and after filing the O.P., the caveat should be presented and affidavit should be filed in support of the caveat within 8 days thereafter, but all these rules have not been followed and the general caveat filed cannot be treated as a caveat for the O.P. He would also submit in his arguments that the applicants have filed a suit against the interest of the testatrix Pankajakshi which will not in any way permit the applicants to support the alleged Will executed by Pankajakshi in favour of the applicants. He would also submit that the dispute regarding the title of the testatrix cannot be agitated in the testamentary proceedings and it is open to the Civil Courts only. He would also submit that in any testamentary jurisdiction, the contentious issues regarding the title to the property cannot be gone into and the only contentious issue which has to be considered in testamentary proceedings is regarding the execution, truth and genuineness of the Will. He would further submit that the applicants need not be impleaded as necessary parties in the O.P. since they had no caveatable interest by any acknowledgement of their right over the said property. He would further submit in his argument that the revocation of the probate should be based upon the provisions of Section 263 of the Indian Succession Act and any of the provisions of the said Section are not attracted in this case. He would also submit that the delay caused in filing the O.P. by the applicants, which is yet to be numbered, will speak volume regarding the genuineness of the claim of the applicants. He would further submit in his arguments that the allegation of even the testatrix had participated in the family arrangement, has to be proved only before the civil court and not in the testamentary suit or proceedings. 10. He would also refer to a judgment of the Hon'ble Apex Court reported in 2008 (3) CTC 43 for the principle that the Court while granting a probate should not decide any dispute with regard to the title and a separate suit would only be maintainable therefor. He would also refer to the principle laid down by the Hon'ble Apex Court that any person claiming any interest adverse to the testator or his heirs cannot maintain any application before the Probate Court. Pointing out the principle laid down by the Hon'ble Apex Court, the learned counsel would insist upon the Court that the applicants, who have filed the suit for declaration that the property belonged to the father of the applicants and not belonging to the testatrix herself, cannot maintain the present application seeking revocation of the Probate or maintain a petition seeking the grant of probate in a separate proceedings. Therefore, he would request the Court to dismiss all the applications. 11. I have given anxious thoughts to the arguments advanced on either side. 12. Admittedly, the mother of the testatrix and the mother of the applicants are sisters. The testatrix and the respondents are brother and sisters and children of one Panchalammal. The applicants are the daughters of one Parthasarathy and Baby Ammal. As already stated, the said Baby Ammal and Panchalammal are sisters. The testatrix Pankajakshi died spinster. It is an admitted fact that the mother of Pankajakshi, Panchalammal and the mother of Baby Ammal predeceased the testatrix Pankajakshi. It is the case of the applicants that the property in Door No.E-1/114 Kannadasan Nagar, Chennai, was purchased by their father Parthasarathy in the name of Pankajakshi, benami and funds for the transaction were provided to the Tamil Nadu Housing Board by the said Parthasarathy only. In order to claim that the property belongs to the applicants by devolution from the father Parthasarathy, the applicants have filed a suit in C.S.No.921 of 2006 which was subsequently transferred to the file of III Fast Track Judge, City Civil Court, Chennai and renumbered as O.S.No.13644 of 2010. It is also an admitted fact that yet another suit was filed by the respondents before this Court in C.S.No.923 of 2007 and the same was transferred to the file of the City Civil Court and renumbered as O.S.No.13645 of 2010 and it is also pending. In the meanwhile, the respondents 1 and 3 have filed an O.P for the grant of Probate on the foot of the Will said to have been executed by Pankajakshi in favour of the respondents and the respondents 3, 4 and 6 were cited as respondents in the O.P and on giving their consent affidavit and on production of evidence, Probate was granted in favour of the respondents herein. 13. The applicants have now challenged the grant of Probate and seek for the revocation of the same, since they have got caveatable interest in the said property. For establishing a caveatable interest, they would state that there was a Will executed by the same testatrix even prior to the Will dated 4.10.2006 mentioned in O.P.No.720 of 2007 and the Will in their favour was a previous one and if the Will executed in their favour is upheld and the Will executed in favour of the respondents is found not true, the applicants would be the actual probate holders and therefore, the non-citing of the applicants in the O.P filed by the respondents is against the provisions of Indian Succession Act and therefore, it is revocable under Section 283 of the said Act. The applicants would like to insist thereby that they have got caveatable interest. The learned counsel for the applicants would rely upon a judgment of the Hon'ble Bombay High Court reported in AIR 1930 Bombay 29 cited supra. The relevant passage would be thus:- "Where two wills are set up by two person in regard to the same Estate the parties interested in opposing the grant of probate have to file their respective caveats in each case so that the petition becomes a suit in each case and the suits are numbered and both the suits are heard together or are consolidated. It is therefore, necessary that even the caveator must produce the will set up by him along with his petition and it must be filed and propounded before the suit can proceed." 14. As regards this case, we could see that the O.P filed by the applicants along with a Will said to have been executed by the testatrix Pankajakshi earlier to the Will relied upon by the respondents was not produced at an earlier point of time and it is yet to be numbered. However, the applicants have set up a rival claim against the interest of the testatrix in paragraph 9 of the plaint in O.S.No.13644 of 2010. 15. It is a settled law as it has been reported in 2008 (3) CTC 43 cited supra that the Probate Court would not decide any dispute with regard to the title. On a careful understanding of the aforesaid dictum of the Hon'ble Apex Court, we could see that the parties, who want to implead themselves in the Probate Proceedings, must have interest in the estate of the testatrix. As regards the dispute over the said property, it has to be stated in the suit filed by the applicants in O.S.No.13644 of 2010 and in the suit filed by the respondents in O.S.No.13645 of 2010 pending before the III Fast Track Judge, City Civil Court, Chennai. In the said suit filed by the applicants in O.S.No.13644 of 2010, the applicants have also claimed right over the said property by virtue of the Will executed by the testatrix on 4.10.2006, even though they set up title on their father Parthasarathy. Whether they have got any interest in the estate of the deceased or not could be ascertained only after adjudicating the O.P filed by the applicants seeking a Probate which is yet to be numbered. In case the Probate is granted in favour of the applicants in the said proceedings, then only it can be presumed that the applicants are having caveatable interest in the estate of the deceased. Till such time, the applicants cannot seek for impleadment as the persons having caveatable interest in the O.P.No.720 of 2007. If we presumed that merely because an O.P has been filed by the applicants claiming a Probate on the foot of an earlier Will, will confer any status on the applicants, who are having caveatable interest, the proceedings already held by this Court would be unnecessarily set aside or revoked for want of establishment of right or caveatable interest over the estate of the testatrix. In such circumstances, the only point raised by the applicants to the effect that they have got caveatable interest because of the earlier Will executed by the testatrix, cannot be considered at this stage and it has to be decided only after the disposal of the O.P filed in O.P.SR.No.2904 of 2008 and till such time, the applications filed by the applicants to revoke the Probate granted by this Court in O.P.No.720 of 2007 cannot be revoked or set aside. The judgments of the Hon'ble Bombay High Court reported in AIR 1930 Bombay 29 cited supra and the judgment of this Court reported in 2001 (2) CTC 713 cited supra in respect of the acknowledged right of the persons, who sought to interfere with the grant of Probate. But, in this case it is not so, since the right of the applicants is yet to be established to form a caveatable interest. Admittedly, the applicants are not the legal heirs of the deceased Pankajakshi, but for the Will executed in favour of the respondents. On the other hand, the respondents are already legal heirs of the deceased Pankajakshi, but for the Will executed by the Pankajakshi. Therefore, the respondents are the next kin who have to be necessarily impleaded in any Will executed by the said Pankajakshi. Per contra, the status of the applicants is not so and they are claiming to be the necessary parties to be cited in the O.P as they are having caveatable interest by virtue of a Will, which is admittedly yet to be established. In the said circumstances, the judgment of the Hon'ble Bombay High Court as well as Hon'ble Calcutta High Court are not applicable to the present facts of the case. Therefore, the application seeking revocation of the Probate is not sustainable and it is liable to be dismissed. If for any reason, the Probate is granted in favour of the applicants in the O.P said to have been filed in O.P.SR.No. 2904 of 2008 after it has been numbered and enquired into after giving citations to the respondents and the right of the applicants are established through the Will, then only the present application is maintainable. 16. In view of the non-sustainability of the application to revoke the Probate already granted by this Court, there is no necessity of transferring the suits in O.S.Nos.13644 and 13645 of 2010 pending on the file of the III Fast Track Judge, City Civil Court, Chennai for being tried with the O.P.No.720 of 2007. It may be relevant to have a joint trial only for deciding the dispute in O.P.SR.No 2904 of 2008, but it could be done only if the O.P is numbered and taken on file and the applications filed for the purpose of transferring the said cases to be tried along with the said O.P. In the said circumstances, the transfer of those suits is not germane at this stage and therefore, those applications filed by the applicants for transfer of those suits from the file of III Fast Track Judge, City Civil Court, Chennai to the file of this Court are not sustainable. Therefore, those applications are also liable to be dismissed. 17. For the foregoing discussions, I am of the view that the applications in A.No.1972 of 2011 for revocation of Probate already granted by this Court is liable to be dismissed. In view of the dismissal of A.No.1972 of 2011, the stay application in A.No.1973 of 2011 is also dismissed. The applications filed in Tr.A.Nos.2227 and 2228 of 2011 seeking transfer of the suits in O.S.Nos.13644 and 13645 of 2010 to the file of this Court are also dismissed. No order as to costs. Vsi/Mra 30.08.2011 Index : yes / no Internet : yes / no V.PERIYA KARUPPIAH, J. Vsi/Mra Tr. A. Nos.2227 and 2228 of 2011 and A.Nos.1972 and 1973 of 2011 in O.P.No.720 of 2007 30.08.2011