JUDGMENT
Nainar Sundaraxm, J.
1. This Civil Miscellaneous Appeal is directed against the judgment and decree of the District Court. Ramanathapuram at Madurai on O.P. No. 1 of 1984. The first respondent in the Original Petition is the appellant herein. Petitioners 1 to 7 in the Original Petition arc respondents 1 to 7 herein and the second respondent in the original petition is the eighth respondent herein. We are referring to the parties as per their nomenclature in the Original Petition. The petitioners sought the following reliefs in the Original Petition :
“It is therefore prayed that this Honourable Court may be pleased to grant an order of Letters of Administration or Ancillary Probate which ever i necessary in respect of the estate of the deceased Velu Ambalaro in favour of the petitioners 1 to 3 as well as in favour of the second respondent and to grant such other reliefs as this Honourable Court may deem fit and proper in the circumstances of the case and thus render justice.”
2. The material allegations in the petition in O. P. No, 1 of 1984 run
a follows : Vela Ambalam owned immovable and movable properties both in India and Malaya. Vctu Ambalam, when in a sound disposing state of mind, executed a Will dated 19-12-1965 at Muar Malaya, bequcaitine all his properties to petitioner 4 to 7 appointing petitioner* 1 to 3 and the sccond respondent as executors Velu Ambalam died on 27-3-1973 in India After his demise, the original Will was produced before the High Court of Malaya at Muar for obtaining an order of probate and an order of probate was granted by the High Court of Malaya. The first respondent filed the uit O.S. No 32 of 1976 on the file of the Subordinate Judge. Sivaganga for a declaration of title to the properties, set out in the plaint schedules and for recovery of possession. Petitioners 3 to 7, who are defendant in the suit contested it and yet and suit was decreed on 14-7-1977 Against the judgment and decree in O.S. No 32 of 1976, AS. No. 581 of 1977 was prcferred by petitioners 3 to 7 to this Court and that appeal was dismisied on 18.6-1982. As against that decision, L.P.A. 20 of 1983 has been Preferred by petitioners 3 to 7 and the same is pending. The decisions in 0 S No 17 of 1976 and A.S. No. 581 of 1977 have held that obtaining of Ancillary Probate from a competent Court in India is a must for effectuating the Will
3. The first respondent presented a statement of objections in O. P No; 1 of 1984 and the substance of the objections can be summed up as follows: The asking for Ancillary Probate after the decilions of the civil litigation is not in order, and the petitioners are precluded from doing so. The procedure for obtaining probate in the foreign Court was not observed. The first respondent was not added as a party to the proceeding before the foreign Court and the grant of probate obtained behind her back is void and is of no effect. The alleged Will dated 19-12-1965 must have been brought about by fabrication or under suspicious circumstances.
4. The Court below has granted only Ancillary Probate in respect of the Will of late Velu Ambalam, under Section 228 of the Indian Succession Act. In is true that the parties placed evidence even with reference to the truth and validity of the Will of late Velu Ambalam, and there has been a discussion over those aspects also in the judgment of the Court below and it upheld the validity of the Will.
5. The Will dated 19 12-1965 was the subject matter of probate, before the High Court of Malaya at Muar in Petition No. 84 of 1974, The original Will has been marked as Ex. PI. The copy of the order of High Court of Malaya dated 5-11-1974 in the said proceedings has been marked in the case as Ex. P3. Ex. P3 bears out that there was a gram of probate by the High Court of Malaya in respect of the Will of late Velu Ambalam dated 19-12-1965. On the basis of Ex. P3. the petitioners have come to the District Court, Ramanathapuram at Madurai by preferring O.P. No. 1 of 1984 asking for the grant of Letters of Administration or Ancillary Probate whichever is neceisary. Section 228 of the Indian Succession Act reads as follows :
“Administration, with copy annexed, of authenticated copy of Will proved abroad-when a Will has been proved and deposited in a court of competent jurisdiction situated beyond the limits of the State, whether within or beyond the limits of India, and a properly authenticated copy of the Will is produced. Letters of Administration may be granted with a copy of such copy annexed.”
Mr. G. Masilamani, learned Counsel for the first respondent, would submit that this Court should not take Ex. P3 as a judgment, decree of order of a competent court in probate jurisdiction so as to -say that the petitioner armed with the same could file an authenticated copy of the Wilt and ask for the Letters of Administration to be granted under Section 228 of the Indian Succession Act. Learned Counsel for the first respondent questions the very jurisdiction of the High Court of Malaya to grant probate as per Ex. P3. Learned Counsel for the first reipondent would also submit that no legal credence could be annexed to the grant of probate by the High Court of Malaya, as a judgment in rem under Section 4 lot the Indian Evidence Act and it has got to be ignored as not having been granted by a court of competent jurisdiction and further as vitiated by fraud and collusion as per Section 44 of the Indian Evidence Act and violation of the principles of natural justice as per Clause (d) of Section 13 of the Code of Civil Procedure. As against this, Mr. Vcdantham Srinivasan, learned Counsel for the petitioners, wants to sustain the grant of probate as per Ex. P3 as a Judgment in rem, which could perfectly form the basis for the grant of Ancillary Probate. Learned Counsel for the petitioners alto repels the contentions of fraud, collusion and violation of the principles of natural justice.
6. We shall first take up the contention that the grant of probate by the High Court of Malaya as per Ex. P3 should cot be taken note of, because it was not a grant by a competent Court in the exercise of probate jurisdiction within the meaning of Section 4 of the Indian Evidence Act which makes a final judgment, order or decree of a competent Court, in the exercise of probate jurisdiction, a decision in rem. We have carefully perused the statement of objections put forth by the fint respondent before the court below It is not even suggested therein that the High Court of Malaya at Muar, when it granted the probate of the Will of Vein Ambalam as per Ex. P3. was not a competent Court in the exercise of probate jurisdiction within the meaning of Section 41 of the Indian Evidence Act. At no point of time earlier to the submissions made before us, the first respondent took up a land that the High Court of Malaya at Muar lacked the competency and jurisdiction to grant probate as per Ex. P3. It is too late in the day to advance a theory like the present one. We can only sense a feeling of deiperation in this move on the part of the first respondent. Even before us, it is not demonstrated as to how the High Court of Malaya at Muar lacked competency and Jurisdiction to grant probate as per Ex. P3. The judgment of a probate court, granting probate of a Will must be presumed to have been granted by that court having competency and jurisdiction to grant probate and in accordance with the procedure prescribed by law therefor. The said presumption will rule unless the contrary position is demonstrated to the conviction of the Court before which the challenge is put forth. We have no found in the present case, either the plea or proof with regard to lack of competency and jurisdiction on the part of the High Court of Malaya at Muar to grant probate as per Ex. P3.
7. We then take up the allegations that the decision as per Ex. B3 under which probate of the Will of late Velu Ambalam was granted by the High Court of Malaya at Muar was vitiated by fraud or collusion. Here again, the pleadings, namely, the objections put forth on behalf of the first respondent are totally devoid of particulars. Under the law, it is neccissary to plead fraud. Specifically and give particulars of the fraud. The burden of proof of fraud is on the person, who alleges fraud, which should be proved by cogent evidence. Courts have always laid down that in the matter of proof of fraud, suspicion cannot take the place of proof and fraud should be prove by direct cogent evidence. Conjectures and suspicious cannot take the place of proof. The same principles govern the allegations of collusion also. In the statement of objections, put forth by the first respondent. We are not able to find specific allegations of any specific fraud or collusion in obtaining the probate as per Ex. P3. In the said circumstances, we have to eschew this contention, put forth on behalf of the first respondent.
8. Next, we take up the contention that the decision at the hands of the High Court of Malaya at Muar was obtained in violation of the principles of natural justice. In the statement of objections of the first respondent it is complained that the probate was obtained without making the first respondent a party to the proceedings and without affording an opportunity to her to challenge such proceedings. It must be remembered that a Probate Court does not adjudicate rights between the parties and in that sence it would not have been necessary to make the first respondent a party to the probate proceedings In respect of judgments rendered by a Court of competent jurisdiction, it is always presumed, unless the contrary is established, that the proceedings have been prosecuted in accordance with the legal procedure prescribed therefor. The first respondent had been long back made wilier of the grant of probate by the High Court of Malaya at Muar as per Ex. P3 and yet no step teemed to have been taken by the first respondent, either to revoke or cancel the said grant, on any of the grounds now urged, namely, fraud, or collusion or violation of principles of natural justice, if not on other grounds. Certainly, the first respondent could have ventured to revoke the grant of probate as per Ex. P3 urging the present contentions and we have not heard any convincing explanation from the learned Counsel for the fist respondent for not resorting to that legitimate process.
9. Once we accept the grant of probate by the High Court of Malaya at Muar, as per Ex. P3 as valid and not suffering from any infirmity, certainly Ex. P3 could form the basis for the grant of Ancillary Probate under Section 228 of the Indian Succession Act. What the courts below did was not the grant of probate, or Letters of Administration for the first time, but it is only a re-dealing of the grant already made by the High Court of Malaya. A grant under Section 228 of the Indian Succession Act As merely an ancillary grant is order to give efficacy So the grant already made. These are tha well accepted iropjications of Section 228 of the Indian Succession Act. As we have already noted, she court below also analysed the evidence placed in the case and upheld the truth, validity and due execution of the Will dated 19-12-1965 by Veilu Ambalam. One of the attestors has been called to the box as P.W. 2 and he has spoken to the satisfaction of the requirements of Section 63 of the Indian Succession Act with regard to due execution of the Will. We must nay-though the cross-examination of this witness had been elaborate and there had been picking of holes here and there, in his evidence, yet his evidence as a whole on the moot questions stands impeccable and deserves acceptance as crediable at our hands. The other attesting witness A. Krshnan was stated to be away at Malaya and his non-examination need not be counted as a factor to be taken note of adverse to the proof of the due execution of the Will. For all these reasons, we uphold the decision of the court below when it granted the Ancillary Probate and we dismiss this Civil Miscellaneous Appeal. We make no order as to costs.