Report No. 110

II. The Petition and Immediate Steps Thereon

38.17. Section 275.- Section 275 reads-

"275. The application for probate or letters of administration, if made and verified in the manner hereinafter provided, shall be conclusive for the purpose of authorising the grant of probate or administration; and no such grant shall be impeached by reason only that the testator or intestate had no fixed place of abode or no property within the district at the time of his death, unless by a proceeding to revoke the grant if obtained by a fraud upon the Court "

The section needs no change.

38.18. Section 276.-

Section 276 reads-

"276. (1) Application for probate or for letters of administration, with the will annexed, shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Courts in which the application is made, with the will or, in the cases mentioned in sections 237, 238 and 239 a copy, draft, or statement of the contents thereof, annexed, and s ta ting

(a) the time of the testator's death.

(b) that the writing annexed is his last will and testament,

(c) that it was duly executed,

(d) the mount of asset's which are likely to come to the petitioner's hands, and

(e) when the application is for probate, that the petitioner is the executor named in the will

(2) In addition to these particulars, the petition shall further state-

(a) when the application is to the District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property situate within the jurisdiction of the Judge; and

(b) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(3) Where the application is to the District Judge and any portion of the assets likely to come to the, petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judge within whose jurisdiction such assets are situate." .

The section needs no change.

39.19. Section 277.- Section 277 reads-

"277. In cases wherein the will, copy or draft, is written in any language other than English or than that in ordinary use in proceedings before the Court, there shall be a translation thereof annexed to the petition by a translator of the Court, if the language be one for which a translator is appointed; or, if the will, copy or draft, is in any other language, then by any person competent to translate the same, in which case such translation shall be verified by that person in the following manner, namely:-

"I (A.B.) do declare that I read and perfectly understand the language and character of the original and that the above is a true and accurate translation thereof."

The section needs no change.

38.20. Section 278-Petition for letters of administration.-

Section 278 reads-

"278. (1) Application for letters of administration shall be made by petition distinctly written as aforesaid and stating-

(a) the time and place of the deceased's death;

(b) the family or other relatives of the deceased, and their respective residences;

(c) the light in which the petitioner claims;

(d) the amount of assets which are likely to come to the petitioner's hands;

(e) when the application is to a District Judge, that the deceased at the time of his death had a fixed place of abode, or had some property, situate within the jurisdiction of the Judge; and,

(f) when the application is to a District Delegate, that the deceased at the time of his death had a fixed place of abode within the jurisdiction of such Delegate.

(2) Where the application is to the District Judge and any portion of the assets likely to come to the petitioner's hands is situate in another State, the petition shall further state the amount of such assets in each State and the District Judge within whose jurisdiction such assets are situate."

The section needs no change.

38.21. Section 279-Particulars to be entered in application under section 273, proviso.-

Section 279 reads-

"279. (1) Every person applying to any of the courts mentioned in the proviso to section 273 for probate of a will or letters of administration of an estate intended to have effect throughout India shall state in his petition, in addition to the matters respectively required by section 276 and section 278, that to the best of his belief no application has been made to any other court for a probate of the same estate, intended to have such effect as last aforesaid.

Or, where any such application has been made, the court to which it was made, the person or persons by whom it was made and proceedings (if any) had thereon.

(2) The Court to which any such application is made under the proviso to section 273 may, if it thinks fit, reject the same."

The section needs no change.

38.22. Section 280.-

Section 280 provides that the petition for probate or letters of administration shall in all cases be subscribed by the petitioner and his pleader, if any, and shall be verified by the petitioner in the manner laid down in the section.

The section needs no change.

38.23. Verification of petition for probate by one witness to will.- Section 281 reads-

"281. Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the will (when procurable) in the manner or to the effect following, namely:-

"I (C.D.), one of the witnesses to the last will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator acknowledged the writing annexed to the above petition to be his last will and testament in my presence)".

The section needs no change.

38.24. Section 282.- Section 282 reads-

"282. If any petition or declaration which is hereby required to be verified contains any averment which the person making the verification knows or believes to be false, such person shall be deemed to have committed an offence under section 193 of the Indian Penal Code (45 of 1860)."

The section needs no change.

38.25. Section 283.- Section 283 reads-

"283. (1) In all cases the District Judge or District Delegate may, if he thinks proper.-

(a) examine the petitioner in person, upon oath

(b) require further evidence of the execution of the will or the right of the petitioner to the letters of administration, as the case may be;

(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.

(2) The citation shall be fixed up in some conspicuous part of the court house, and also in the office of the Collector of the district and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.

(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation."

38.26. Meaning of "interest".-

The "interest" in the estate, mentioned in section 283(1)(c), is only that interest which, by citation, a person called upon may claim to have in the estate of the deceased. It is not the interest which the deceased did not own, but which the claimant, coming into the picture by citation, claims to be vested in himself The title of the testator to the property which is the subject-matter of disposition is entirely and necessarily outside the scope of probate proceedings; that question will have to be settled separately. By citation, a party cannot be allowed to convert a probate proceeding into a suit for resolving title. This is the gist of a Madras judgment.1

The section needs no change.

1. Narasimhan (in re:), AIR 1975 Mad 330, overruling Jaya Kumar v. Ramaratham, AIR 1972 Mad 212: (1972) 1 MLJ 4.

38.27. Section 28-Form of Caveat.- Section 284 reads-

"284 (1) Caveats against the giant of probate or administration may be lodged with the District Judge or a District Delegate.

(2) Immediately on any caveat being lodged with any District Delegate, he shall send copy thereof to the District Judge.

(3) Immediately on a caveat being entered with the District Judge, a copy thereof shall be given to the District Delegate, if any, within whose jurisdiction it is alleged the deceased had a fixed place of abode at the time of his death, and to any other Judge or District Delegate to whom it may appear to the District Judge expedient to transmit the same.

(4) The caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V".

The section needs no change.

38.28. Section 285.- Section 285 reads-

"285. No proceeding shall be taken on a petition for probate or letters of administration after a caveat against the grant thereof has been entered with the Judge or District Delegate to whom the application has been made or notice has been given of its entry with some other Delegate, until after such notice to the person by whom the same has been entered as the court may think reasonable".

The section needs no change.

38.29. Section 286.- Section 286 reads-

"286. A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought not to he granted in his Court.

Explanation.-"Contention" means the appearance of any one in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding."

The section needs no change.

38.30. Section 287.- Section 287 reads-

"287. In every case in which there is no contention, but it appears to the District Delegate doubtful whether the probate or letters of administration should or should not be granted, or when any question arises in relation to the grant, or application for the grant, of any probate or letters of administration, the District Delegate may, if he thinks proper, transmit a statement of the matter in question to the District Judge, who may direct the District Delegate to proceed in the matter of the application, according to such instructions as to the Judge may seem necessary, or may forbid any further proceeding by the District Delegate in relation to the matter of such application, leaving the party applying for the grant in question to make application to the Judge."

The section needs no change, having raised no problems.