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2021 DIGILAW 1033 (KER)

Vijay Kumar Trehan v. Jacinth Aboobacker

2021-11-12

ANIL K.NARENDRAN, K.BABU

body2021
JUDGMENT : ANIL K. NARENDRAN, J. 1. The appellant is the 3rd respondent in Probate O.P. (Caveat) No. 28 of 2017 on the file of the District Court, Kozhikode, filed by the 1st respondent herein, under Section 284 of the Indian Succession Act, 1925 and I.A. No. 309 of 2017 filed in that Probate O.P. (Caveat) under Sections 268 and 269 of the said Act, read with Order XXXIX Rule 1 and Section 94 of the Code of Civil Procedure, 1908. In I.A. No. 309 of 2017, the 1st respondent sought for an interim injunction against the respondents therein, restraining and preventing them from alienating, converting, transferring or dealing with any of the rights, title or interests of the parties over all or any one of the items of properties described in the petition schedule or creating any adverse third party interest, transferring any shares held in M/s. Malabar Produce and Rubber Company Ltd. 2. The 1st respondent herein is the eldest daughter of an Indian Christian couple, late M.O. Thomas and late Jolly Thomas. The 2nd respondent herein is the second eldest son, the 3rd respondent herein is the younger son and respondents 4 to 6 herein are the children of the 2nd respondent herein. The 7th respondent is the son of the 3rd respondent herein and the 8th respondent is the daughter of the 1st respondent herein. The appellant herein, who was arrayed as the 3rd respondent in I.A. No. 309 of 2017 and in Probate O.P. (Caveat) No. 28 of 2017, is the executor appointed in a registered Will bearing No. 111/2004 dated 31.08.2004 of the Sub Registrar Office, Kozhikode, stated to have been executed by Jolly Thomas. M.O. Thomas died intestate, on 23.09.1972, at Velloor Medical College, and his estate vested with his spouse and children. Later, Jolly Thomas died on 16.12.2016. 3. The 1st respondent herein filed O.P. (Caveat) No. 28 of 2017 before the District Court, Kozhikode, anticipating the institution of testamentary proceedings in respect of the Will executed by Late Jolly Thomas, bearing document No. 111/2004 dated 31.08.2004 of the Sub Registrar Office, Kozhikode. Later, Jolly Thomas died on 16.12.2016. 3. The 1st respondent herein filed O.P. (Caveat) No. 28 of 2017 before the District Court, Kozhikode, anticipating the institution of testamentary proceedings in respect of the Will executed by Late Jolly Thomas, bearing document No. 111/2004 dated 31.08.2004 of the Sub Registrar Office, Kozhikode. In the affidavit filed in support of I.A. No. 309 of 2017, an application filed under Sections 268 and 269 of the Act, read with Order XXXIX, Rule 1 of the Civil Procedure Code, it is alleged that after the death of Jolly Thomas, in a joint meeting of the siblings, a copy of Will executed by the mother was presented. The 1st respondent is not aware of the authenticity or veracity of the Will. The properties described in the Will are mostly that owned by M/s. Malabar Produce and Rubber Company Limited. The appellant herein, a stranger to the family, has been appointed as the executor of the Will and named as legatee. It was in such circumstances, the 1st respondent herein filed Probate O.P. (Caveat) No. 28 of 2017 and also the interlocutory application, i.e. I.A. No. 309 of 2017, under Section 269 of the Act, seeking an interim injunction. 4. The court below granted interim injunction in I.A. No. 309 of 2017 in Probate O.P. (Caveat) No. 28 of 2017. Before the court below, it was pointed out that the properties described in the Will executed by Late Jolly Thomas on 31.08.2004 are mostly owned by M/s. Malabar Produce and Rubbers Company Ltd. which is a company incorporated under the Companies Act, 1956. In the counter statement filed by the appellant herein, it was contended that a petition for interim injunction without the said company in the party array is not maintainable in law. 5. After considering the rival contentions, the court below found that the 1st respondent herein could not prove a prima-facie case and that, no irreparable injury will be caused to her if the interim injunction sought for is not granted. The court below has also noticed the filing of O.S. No. 40 of 2018 by the 4th respondent before the Sub Court, Kozhikode, on the strength of a Will stated to have been executed by Jolly Thomas on 17.07.2016. The court below has also noticed the filing of O.S. No. 40 of 2018 by the 4th respondent before the Sub Court, Kozhikode, on the strength of a Will stated to have been executed by Jolly Thomas on 17.07.2016. Therefore, by the order dated 23.05.2018, the court below vacated the interim injunction already granted in I.A. No. 309 of 2017 and that interlocutory application was dismissed. However, in the order dated 23.05.2018, the court below ordered the conversion of Probate O.P. (Caveat) No. 28 of 2017 as an original suit under Section 295 of the Act, in view of the rival contentions between the parties, treating the appellant, who is the executor of the Will, as the plaintiff and the 1st respondent herein, who is the Caveator, as the 1st defendant and other respondents as defendants 2 to 7. 6. The order dated 23.05.2018 of the court below to the extent of ordering conversion of Probate O.P. (Caveat) No. 28 of 2017 filed by the 1st respondent herein as an original suit, invoking the provisions under Section 295 of the Act, by treating the appellant as the plaintiffs, is under challenge in this appeal filed under Section 299 of the Act. 7. On 09.07.2018, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents by speed post. This Court granted an interim stay of the operation and enforcement of the impugned order dated 23.05.2018, for a period of one month, insofar as it relates to the direction to convert Probate O.P. (Caveat) as an original suit, by treating the appellant herein as the plaintiff. The said interim order was extended until further orders on 05.12.2018. 8. Heard the learned counsel on both sides. The learned counsel for the appellant contended that the direction contained in the impugned order dated 23.05.2018 of the court below to convert Probate O.P. (Caveat) as an original suit under Section 295 of the Act, by treating the appellant herein as the plaintiff, is absolutely without any jurisdiction. A caveat filed under Section 284 of the Act has only a limited role in proceedings for probate or letters of administration, which cannot be converted as an original suit, invoking the provisions under Section 295 of the Act. A caveat filed under Section 284 of the Act has only a limited role in proceedings for probate or letters of administration, which cannot be converted as an original suit, invoking the provisions under Section 295 of the Act. Per contra, the learned counsel for respondents 1 and 3 contended that the procedure adopted by the court below in converting the caveat filed by the 1st respondent as an original suit, invoking the provisions under Section 295 of the Act, in view of the rival contentions between the parties, is perfectly legal and the said order warrants no interference in this appeal filed under Section 299 of the Act. 9. The Indian Succession Act, 1925 was enacted to consolidate the law applicable to intestate and testamentary succession. Chapter IV of the Act deals with practice in granting and revoking probates and letters of administration. Section 264 of the Act deals with jurisdiction of District Judge in granting and revoking probates, etc. As per sub-section (1) of Section 264, the District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his district. As per sub-section (2) of Section 264, except in cases to which Section 57 applies, no court in any local area beyond the limits of the towns of Calcutta, Madras and Bombay shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by notification in the Official Gazette, authorised it so to do. 10. Section 265 of the Act deals with power to appoint delegate of District Judge to deal with non-contentious cases. As per sub-section (1) of Section 265, the High Court may appoint such judicial officers within any district as it thinks fit to act for the District Judge as delegates to grant probate and letters of administration in non-contentious cases, within such local limits as it may prescribe. As per the proviso to sub-section (1) of Section 265, in the case of High Courts not established by Royal Charter, such appointments shall not be without the previous sanction of the State Government. As per sub-section (2) of Section 265, persons so appointed shall be called “District Delegates.” Section 266 of the Act deals with District Judge’s powers as to grant of probate and letters of administration. As per sub-section (2) of Section 265, persons so appointed shall be called “District Delegates.” Section 266 of the Act deals with District Judge’s powers as to grant of probate and letters of administration. As per Section 266, the District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his court. 11. Section 267 of the Act provides that District Judge may order person to produce testamentary papers. As per sub-section (1) of Section 267, the District Judge may order any person to produce and bring into court any paper or writing, being or purporting to be testamentary, which may be shown to be in the possession or under the control of such person. As per sub-section (2) of Section 267, if it is not shown that any such paper or writing is in the possession or under the control of such person, but there is reason to believe that he has the knowledge of any such paper or writing the court may direct such person to attend for the purpose of being examined respecting the same. As per sub-section (3) of Section 267, such person shall be bound to answer truly such questions as may be put to him by the court, and, if so ordered, to produce and bring in such paper or writing, and shall be subject to the like punishment under the Indian Penal Code, in case of default in not attending or in not answering such questions or not bringing in such paper or writing, as he would have been subject to in case he had been a party to a suit and had made such default. As per sub-section (4) of Section 267, the costs of the proceeding shall be at the discretion of the Judge. 12. Section 268 of the Act deals with proceedings of District Judge’s Court in relation to probate and administration. As per Section 268, the proceedings of the court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. 13. As per Section 268, the proceedings of the court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908. 13. Section 269 of the provides when and how District Judge to interfere for protection of property. As per sub-section (1) of Section 269, until probate is granted of the Will of a deceased person, or an administrator of his estate is constituted the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property. As per sub-section (2) of Section 269, this Section shall not apply when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who died intestate. 14. Section 270 of the Act provides when probate or letters of administration may be granted by District Judge. As per Section 270, probate of the Will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge. Section 273 of the Act provides for conclusiveness of probate and letters of administration. Section 273 of the Act provides for conclusiveness of probate and letters of administration. As per Section 273, probate or letters of administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout the State in which the same is or are granted; and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted. 15. Section 276 of the Act deals with petition for probate. As per sub-section (1) of Section 276, 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 court 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 stating (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 amount of assets which are likely to come to the petitioner's hand and (e) when the application is for probate, that the petitioner is the executor named in the Will. As per sub-section (2) of Section 276, 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. As per sub-section (3) of Section 276, 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 Judges within whose jurisdiction such assets are situate. Section 278 of the Act deals with petition for letters of administration. 16. Section 278 of the Act deals with petition for letters of administration. 16. Section 279 of the Act deals with addition to statement in petition, etc. for probate or letters of administration in certain cases. As per sub-section (1) of Section 279, 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 Will or for letters of administration 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 the proceedings (if any) had thereon. As per sub-section (2) of Section 279, the court to which any such application is made under the proviso to Section 273 may, if it thinks fit, reject the same. Section 280 of the Act provides that petition for probate, etc. to be signed and verified. As per Section 280, 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 following manner, namely: “I (A.B.) the petitioner in the above petition, declare that what is stated therein is true to the best of my information and belief.” 17. Section 281 of the Act provides for verification of petition for probate, by one witness to Will. Section 281 of the Act provides for verification of petition for probate, by one witness to Will. As per Section 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).” Section 282 of the Act deals with punishment for false averment in petition or declaration. As per Section 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, 1860. 18. Section 283 of the Act deals with powers of District Judge. As per sub-section (1) of Section 283, 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 due 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. As per sub-section (2) of Section 283, the citation shall be fixed up in some conspicuous part of the courthouse, 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. As per sub-section (2) of Section 283, the citation shall be fixed up in some conspicuous part of the courthouse, 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. As per sub-section (3) of Section 283, 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. 19. Section 284 of the Act deals with caveats against grant of probate or administration. As per sub-section (1) of Section 284, caveats against the grant of probate or administration may be lodged with the District Judge or a District Delegate. As per sub-section (2) of Section 284, immediately on any caveat being lodged with any District Delegate, he shall send copy thereof to the District Judge. As per sub-section (3) of Section 284, 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. As per sub-section (4) of Section 284, which deals with form of caveat, the caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V. Schedule V of the Act reads thus: “SCHEDULE V [See Section 284(4)] Let nothing be done in the matter of estate of A.B. Late of.......deceased, who died on the.......day of.....at.....without notice to C.D. of..........” 20. Section 285 of the Act provides that after entry of caveat, no proceeding taken on petition until after notice to caveator. Section 285 of the Act provides that after entry of caveat, no proceeding taken on petition until after notice to caveator. As per Section 285, n o 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. 21. Section 289 of the Act provides that g rant of probate to be under seal of court. As per Section 289, when it appears to the District Judge or District Delegate that probate of a Will should be granted, he shall grant the same under the seal of his court in the form set forth in Schedule VI. 22. Section 294 of the Act deals with filing of original Wills of which probate or letters of administration with Will annexed granted. As per sub-section (1) of Section 294, every District Judge or District Delegate shall file and preserve all original Wills, of which probate or letters of administration with the Will annexed may be granted by him, among the records of his court, until some Public Registry for Wills is established. As per sub-section (2) of Section 294, the State Government shall make regulations for the preservation and inspection of the Wills so filed. 23. Section 295 of the Act deals with procedure in contentious cases. As per Section 295, in any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. 24. The provisions of the Indian Succession Act referred to hereinbefore make it explicitly clear that an application for probate filed before the District Judge should meet the requirements of Sections 276, 279, 280 and 281 of the said Act. 24. The provisions of the Indian Succession Act referred to hereinbefore make it explicitly clear that an application for probate filed before the District Judge should meet the requirements of Sections 276, 279, 280 and 281 of the said Act. As provided under Section 276, the application for probate with the Will annexed (except in the cases mentioned in Sections 237, 238 and 239) shall be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the court in which the application is made. In addition to the particulars mentioned in sub-section (1) of Section 276, the petition shall state the particulars mentioned in sub-sections (2) and (3) of Section 276. As provided under Section 279, every person applying to any of the courts mentioned in the proviso to Section 273 for probate of a Will intended to have effect throughout India, shall state in his petition, in addition to the matters required by Section 276, that to the best of his belief no application has been made to any other court for a probate of the same Will. In case any such application has been made, he shall state in his petition, the court to which it was made, the person or persons by whom it was made and the proceedings (if any) had thereon. As provided under Section 280, the petition for probate shall in all cases be subscribed by the petitioner and his pleader, if any, and shall be verified by the petitioner in the manner prescribed thereunder. As provided under Section 281, the petition for probate shall also be verified by at least one of the witnesses to the Will (when procurable) in the manner or to the effect prescribed thereunder. Section 282 deals with punishment for false averment in such petition or declaration, which the person making the verification knows or believes to be false. 25. Section 284 of the Act deals with lodging of caveats against grant of probate or administration. As per sub-section (1) of Section 284, caveats against the grant of probate or administration may be lodged with the District Judge or a District Delegate. 25. Section 284 of the Act deals with lodging of caveats against grant of probate or administration. As per sub-section (1) of Section 284, caveats against the grant of probate or administration may be lodged with the District Judge or a District Delegate. As per sub-section (4) of Section 284, the caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V. Section 285 of the Act deals with the scope of a caveat filed under Section 284, which provides that n o 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. 26. In view of the provisions under Section 284, once a caveat is entered to the grant of probate, it becomes incumbent upon a District Judge or a District Delegate to hear such caveator. A caveat filed under Section 284 is only a notice against the grant of probate, without notice to the caveator. After the caveat is filed, the procedure laid down in Section 285 is to be followed by the District Judge or the District Delegate. No proceedings on a petition for probate, for the grant of probate shall be taken until after notice to the caveator. 27. Section 295 of the Act prescribes the procedure in contentious cases. As provided under Section 295, in any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. 28. 28. The proceedings on a petition for probate or letters of administration becomes contentious, as provided under Section 294 of the Act, not on filing of caveat in the form set forth in Schedule V of the Act, but on the filing of an affidavit in support of caveat stating the right and interest of the caveator and ground of the objections to that petition. In which event, the petitioner in the petition for probate or letters of administration becomes the plaintiff and the caveator becomes the defendant. Therefore, in contentious proceedings, the petition for probate or letters of administration will be treated as the plaint and the affidavit filed in support of caveat will be treated as the written statement, and further proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure. In that view of the matter, in the absence of a petition for probate or letters of administration, the proceedings in a caveat filed under Section 284 of the Act cannot be converted as a contentious case, invoking the provisions under Section 295 of the Act. 29. The Indian Succession Rules (Kerala), 1968 framed by the High Court of Kerala deals with the proceedings under the Indian Succession Act in the High Court and in the subordinate courts. Rules 22 to 28 of the said Rule deal with contentious proceedings. As per Rule 22, which deals with caveat, any person intending to oppose the grant of probate or letters of administration shall either personally or by his advocate file a caveat as prescribed in Schedule V to the Act. Notice of the filing of the caveat shall be given to the petitioner or his advocate in Form No. 8. As per Rule 23, which deals with affidavit in support of caveat, where a caveat is entered after an application has been made for grant of probate or letters of administration with or without the Will annexed, the affidavit or affidavits in support shall be filed within fourteen days of the caveat being lodged. Such affidavit shall state the right and interest of the caveator, and ground of the objections to the application. 30. Such affidavit shall state the right and interest of the caveator, and ground of the objections to the application. 30. As per Rule 24, which deals with notice to caveator to file affidavit, where an application for grant of probate or letters of administration with or without the Will annexed is presented after caveat has been filed, the court shall forthwith issue notice to the caveator, calling upon him to file his affidavit or affidavits in support of his caveat within fourteen days from the service of such notice. As per Rule 25, which deals with consequences of not filing affidavit, where the caveator fails to file any affidavit in support of his caveat as required in Rule 23 or Rule 24, the caveat may be discharged by an order to be obtained on application to the court. 31. Rule 26 of the Rules deals with conversion of application into suit. As per Rule 26, upon the affidavit in support of the caveat being filed, notice whereof shall simultaneously be given by the caveator to the petitioner. The proceedings shall be ordered by the court to be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed as a plaint filed against the caveator, and the affidavit filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code of Civil Procedure. 32. The provisions under the Indian Succession Rules (Kerala), 1968 referred to hereinbefore make it explicitly clear that the District Judge cannot invoke the provisions under Section 295 of the Act, in the absence of a petition for probate filed under Section 276 of the Act or a petition for letters of administration filed under Section 278 of the Act. A caveator, who filed caveat under Section 284 of the Act read with Rule 22 of the Kerala Rules, against grant of probate or letters of administration, can file affidavit in support of caveat, under Rule 23 or under Rule 24, stating his right and interest and ground of the objections to that petition, only when there is a petition for grant of probate or letters of administration. In view of the provisions under Section 295 of the Act read with Rule 26 of the Kerala Rules, in the absence of a petition for probate or letters of administration, the proceedings in a caveat filed under Section 284 of the Act cannot be converted as a contentious case, invoking the provisions under Section 295 of the Act. 33. In the instant case, there is no petition for probate filed under Section 276 of the Act. In the absence of any such petition, the court below cannot invoke the provisions under Section 295 of the Act. The caveat filed by the 1st respondent under Section 284 of the Act read with Rule 22 of the Kerala Rules cannot be converted as a plaint, invoking the provisions under Section 295 of the Act. In that view of the matter, the impugned order of the court below dated 23.05.2018, to the extent of ordering conversion of Probate O.P. (Caveat) No. 28 of 2017 as an original suit under Section 295 of the Act, in view of the rival contentions between the parties, treating the appellant, who is the executor of the Will, as the plaintiff and the 1st respondent herein, who is the caveator, as the 1st defendant and other respondents as defendants 2 to 7, cannot be sustained in law. 34. In the result, this appeal is allowed by setting aside the impugned order of the court below dated 23.05.2018, to the extent indicated above. No order as to costs.