Shri Jagjit Singh and others Vs. Mrs. Pamela Manmohan Singh
EmailAppeal: Civil Appeal No. 8031 of 2001
[From the Judgement and Order dated 22.01.2001 of the High Court of Delhi at New Delhi in Civil Revision No. 791 of 1994]
[From the Judgement and Order dated 22.01.2001 of the High Court of Delhi at New Delhi in Civil Revision No. 791 of 1994]
Petitioner: Shri Jagjit Singh and others
Respondent: Mrs. Pamela Manmohan Singh
Apeal: Civil Appeal No. 8031 of 2001
[From the Judgement and Order dated 22.01.2001 of the High Court of Delhi at New Delhi in Civil Revision No. 791 of 1994]
[From the Judgement and Order dated 22.01.2001 of the High Court of Delhi at New Delhi in Civil Revision No. 791 of 1994]
Judges: G.S. Singhvi & C.K. Prasad, JJ.
Date of Judgment: Mar 10, 2010
Appearances:
Appearances
Mr. R.P. Gupta, Mr. Ranjan Mukherji, Mr. Abdul Kalam, Mr. S. Bhowmick, Mr. Chowdhary Ranjit Singh, Advocates, for the Appellant(s).
Mr. R.P. Gupta, Mr. Ranjan Mukherji, Mr. Abdul Kalam, Mr. S. Bhowmick, Mr. Chowdhary Ranjit Singh, Advocates, for the Appellant(s).
Mr. C.A. Sundaram, Senior Advocate, Mr. Anip Sachthey, Mr. Mohit Paul, Ms. Shagun Matia, Mr. Sherin Daniel, Mr. Kamal Mehta, Mr. Mahender Rana, Ms. Rohini Musa, Mr. Abhishek Gupta, Mr. Zafar Inayat (for Mrs. Manik Karanjawala, A.O.R.), Advocates, with him for the Respondent(s).
Head Note:
SUCCESSION
Indian Succession Act, 1925
Sections 283, 281 – ‘Caveatable interest’ – What is – Phrase ‘all persons claiming to have any interest in the estate of deceased’ – Interpretation – Ratio in Nobeen Chunder Sil and others v. Bhobosoonduri Dabee [ILR 1881 (6) Cal. 460] and G. Jayakumar v. R. Ramaratanam [AIR 1972 Mad. 212] as well as K.K. Birla’s [JT 2008 (4) SC 82] and G.Gopal’s cases. Held that as conflicting views have been expressed by co-ordinate Benches of Supreme Court, the matter is referred to larger Bench.
Indian Succession Act, 1925
Sections 283, 281 – ‘Caveatable interest’ – What is – Phrase ‘all persons claiming to have any interest in the estate of deceased’ – Interpretation – Ratio in Nobeen Chunder Sil and others v. Bhobosoonduri Dabee [ILR 1881 (6) Cal. 460] and G. Jayakumar v. R. Ramaratanam [AIR 1972 Mad. 212] as well as K.K. Birla’s [JT 2008 (4) SC 82] and G.Gopal’s cases. Held that as conflicting views have been expressed by co-ordinate Benches of Supreme Court, the matter is referred to larger Bench.
Held:
The term ‘caveatable interest’ has not been defined in the Act, but the same has been used and interpreted in some of the judicial decisions. In Nobeen Chunder Sil and others v. Bhobosoonduri Dabee [1881 (ILR 6) Cal 460], a two-Judge Bench of Calcutta High Court considered whether the persons who had obtained money-decree and got attached share of one of the heirs of the deceased and mortgagees of the immovable property left by the testator were entitled to oppose the grant of probate on the basis of Will executed by the owner in favour of his wife purporting to grant his entire property for her life and after her death to his sons. (Para 9.1.)
In G. Jayakumar v. R. Ramaratanam [AIR 1972 Madras 212], the learned Single Judge referred to some earlier judgments including the judgment in Nobeen Chunder Sil and others v. Bhobosoonduri Dabee (supra). (Para 10)
In Krishna Kumar Birla v. Rajendra Singh Lodha and others [JT 2008 (4) SC 82], a two-Judge Bench of this Court categorized caveatable interest, referred to the dictionary meanings of the words `caveat’ and `interest’ and large number of precedents including Elizabeth Antony v. Michel Charles John Chown Lengera [JT 1990 (2) SC 183], Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon [JT 2007 (13) SC 50], Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal [JT 2007 (12) SC 273] and held that the probate court exercises a limited jurisdiction and is not concerned with the question of title. If the probate is granted, an application for revocation can be filed. (Para 11)
It is thus evident that apparently conflicting views have been expressed by coordinate Benches of this Court on the interpretation of the expression ‘caveatable interest’. In Krishna Kumar Birla’s case, the Bench did not approve the judgments of Calcutta High Court in Bhobosoonduri Dabee’s case and Madras High Court in G. Jayakumar’s case wherein it was held that any person having some interest in the estate of the deceased can come forward and oppose the grant of probate. As against this, in G. Gopal’s case, the dictum that a person who is having a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate has been reiterated. This being the position, we feel that the issue deserves to be considered and decided by a larger Bench. (Para 13)
Cases Reffered:
1. G. Gopal v. C. Baskar and others [2008 (10) SCC 489] (Para 12)
2. Krishna Kumar Birla v. Rajendra Singh Lodha and others [JT 2008 (4) SC 82] (Para 11)
3. Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal [JT 2007 (12) SC 273] (Para 11)
4. Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon [JT 2007 (13) SC 50]
5. Elizabeth Antony v. Michel Charles John Chown Lengera [JT 1990 (2) SC 183] (Para 11)
6. G. Jayakumar v. R. Ramaratanam [AIR 1972 Madras 212] (Para 10)
7. Komalngiammal v. Sowbhagiammal [ILR (54) Mad 24] (Para 10.2.)
8. Hanmantha Rao v. Latchamma [ILR 49 Mad 960] (Para 10.2.)
9. Nobeen Chunder Sil and others v. Bhobosoonduri Dabee [1881 (ILR 6) Cal 460] (Para 9.1.)
10. Baijnath Shahai v. Desputty Singh [ILR (2) Cal 208] (Para 9.1.)
11. Komollochun Dutt v. Nilruttun Mundle [ILR (4) Cal 360] (Para 9.1.)
JUDGEMENT:
G.S. Singhvi, J.
1. Whether the appellants, who claim to have purchased the property described as 6-B, Jangpura, Mathura Road, New Delhi from Major K.V. Kohli (one of the two heirs of Mrs. Rasheel Kohli) are entitled to contest the application filed by the respondent – Mrs. Pamela Manmohan Singh (the other heir of Mrs. Rasheel Kohli) for grant of letter of administration is the question which arises for consideration in this appeal filed against order dated 22.1.2001 passed by the learned Single Judge of Delhi High Court in Civil Revision No.791 of 1994 whereby he set aside the order passed by Additional District Judge allowing an application filed by the appellants under Section 151 of the Code of Civil Procedure (CPC) for permission to file objections in Probate Case No.272 of 1993.
2. The property in question was leased out by the Government of India to Mrs. Rasheel Kohli sometime in 1957 for a period of 90 years. Mrs. Rasheel Kohli availed loans from Oriental Bank of Commerce and Grindlays Bank and mortgaged the suit property. Oriental Bank of Commerce filed Suit No.75 of 1979 in the High Court of Delhi against M/s. Zirconium, K.V. Kohli and Mrs. Rasheel Kohli for the recovery of their dues. Grindlays Bank also filed Suit No.259 of 1978 against K.V. Kohli and others for recovery of Rs.9,58,195/-. In the second suit, a statement was made by the counsel for the defendants that his clients will not alienate property No.198, Golf Links, New Delhi and plot No.6, Block – B, Jangpura, New Delhi or encumber the same till the next date. After taking note of the counsel’s statement, the learned Single Judge directed the defendants in the suit not to alienate or encumber the property or realise or appropriate the rent.
3. In 1979, Mrs. Rasheel Kohli filed Suit No.180 of 1979 for eviction of Khairati Lal, who had been inducted as a tenant. During the pendency of the suit, Khairati Lal made a statement before the Court on 6.8.1984, the relevant portion of which is extracted below:
‘A decree for possession of the plot in dispute be passed against me in favour of the plaintiff together with a decree for Rs.25,000/- as mesne profits upto 31st August, 1979. I may be allowed time to vacate the plot in dispute upto 31st October, 1986. I give an undertaking to the Court that I shall deliver vacant possession of the plot in dispute to the plaintiff on 1st November, 1986. I further give an undertaking that I will not alienate, transfer, in any manner, or part with its possession in favour of any one, nor shall create any charge till the vacant possession of the same is delivered by me to the plaintiff. I also agree to pay mesne profits at the rate of Rs.1250/- per month from 1st September, 1979 onwards.’
4. However, instead of abiding by the undertaking given by him in the Court, Khairati Lal handed over possession of the suit property to the partners of M/s. Texla Service Center with whom Mrs. Rasheel Kohli is said to have entered into an agreement dated 30.8.1984 for sale of the suit property for a sum of Rs.11 lacs and received a sum of Rs.5 lacs in cash and Rs.6 lacs in the form of bank guarantee.
5. After taking possession from Khairati Lal, M/s Texla Service Center filed Suit No.182 of 1986 for specific performance of the agreement for sale. In that suit, the High Court directed the parties to maintain status quo.
6. Mrs. Rasheel Kohli died on 11.10.1987. After about one month, Shri K.V. Kohli (son of the deceased) executed three registered sale deeds dated 6.12.1988 in favour of the appellants, though, at that time, warrant of attachment issued pursuant to order dated 2.11.1988 passed by the Bombay High Court in Suit No.2951 of 1987 was in force.
7. On 30.11.1987, K.V. Kohli filed application for grant of probate by claiming that his mother had executed Will dated 7.3.1986 in his favour. The same was registered as Suit No.379 of 1987. The respondent also filed an application dated 6.3.1989 for grant of letter of administration by claiming that her mother had executed Will dated 7.3.1987 in her favour. The application of the respondent was registered as P.C. No.106 of 1989. Later on, the same was re-numbered as P.C. No.272 of 1993. The appellants filed an application under Section 151 CPC for permission to file objections to the grant of letter of administration in favour of the respondent. By an order dated 26.3.1994, learned Additional District Judge allowed the application. The relevant portions of that order are extracted below:
‘In the present case, deceased Smt. Raseel Kohli was the owner of the property. She died leaving a son K.V. Kohli and a daughter Pamela Manmohan Singh. Shri K.V. Kohli is alleged to have acquired right in the property by virtue of will of his mother dated 7.3.1986 and had sold one of the properties to the present applicants by means of a registered Sale-deeds dated 6.12.1988. Whereas the petitioner in the present case claims that her mother had executed another will dated 23.9.1987, which is a later will in her favour. The applicants who are the purchasers from the vendor legatee of the first will, would be affected if the later will is upheld, and as such they have locus standi to safeguard their interests.
It was then contended that the sale was made after the injunction order was granted. A perusal of the file shows that the present petition though purports to have been drafted on 30.9.1989 the respondent was restrained from transferring the property till further orders, then proceedings on 23.3.89. However, the present property has been transferred before 23.3.1989 and this circumstance will not affect the rights of the applicants.
As regards delay, no doubt it appears that some other litigation is pending between the parties, and the applicants had knowledge of the present proceedings as appears from the written statement dated November, 1990, filed by them in suit No.695 of 1990, pending in Delhi High Court, and it has been contended that the application is belated and mala fide. However, as held above, the applicants have locus standi to file caveat and to oppose the present proceedings and as such they will also be entitled to move later on for setting aside if the present petition for grant of probate is allowed as that will affect their rights if the decision is taken in their absence. That would unnecessarily involve the parties in fresh litigation. It is also seen that original objector Shri K.V. Kohli has since died and the proceedings against his LRs are ex-parte. However, an application for setting aside is pending. Otherwise, also the case is at initial stages and even issues have yet not been framed. The petitioner can be compensated by costs in delay.’
8. The respondent challenged the aforementioned order in Civil Revision No.791 of 1994, which was allowed by the learned Single Judge on the following grounds:
(i) Probate case filed by K.V. Kohli was dismissed on 13.5.1992 in default and, therefore, there was no question of any Will being propounded by him.
(ii) The appellants had committed fraud in obtaining possession from Khairati Lal contrary to the undertaking given by him on 6.8.1984 and they effectively prevented Mrs. Rasheel Kohli from taking possession of the property.
(iii) K.V. Kohli executed the sale deed when there was an order of injunction restraining him from alienating the property in question and the whole case of the applicants is based on the possession of the property through fraud committed by them.
(iv) When the applicants’ rights are under investigation, they cannot claim to have any caveatable interest in the estate of Mrs. Rasheel Kohli.
9. We have heard learned counsel for the parties. It is not in dispute that the parties are governed by the provisions of the Indian Succession Act, 1925 (for short, `the Act’). Section 283 of the Act reads as under:
‘283. Powers of District Judge.- (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 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.
(2) The citation shall be fixed up in some conspicuous part of the court-house, and also 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.’
9.1. The term ‘caveatable interest’ has not been defined in the Act, but the same has been used and interpreted in some of the judicial decisions. In Nobeen Chunder Sil and others v. Bhobosoonduri Dabee [1881 (ILR 6) Cal 460], a two-Judge Bench of Calcutta High Court considered whether the persons who had obtained money-decree and got attached share of one of the heirs of the deceased and mortgagees of the immovable property left by the testator were entitled to oppose the grant of probate on the basis of Will executed by the owner in favour of his wife purporting to grant his entire property for her life and after her death to his sons. The respondent applied for grant of probate of the Will of Nobo Coomar Ganguli, who had died on 21.10.1877 leaving behind his widow and two sons. The appellant Nobeen Chunder Sil, who had obtained money-decree against one of the sons and Brojo Mohun Ghose and Obhoy Churn Sen in whose favour mortgage was executed by two sons filed caveat against the grant of probate. The District Judge refused to allow them to take part in the proceedings or oppose the grant. The appeal preferred against the order of the District Judge was allowed by the High Court of Calcutta. White, J., who was member of two-Judge Bench referred to the judgments of Baijnath Shahai v. Desputty Singh [ILR (2) Cal 208] and Komollochun Dutt v. Nilruttun Mundle [ILR (4) Cal 360] and observed:
‘It cannot be disputed that the appellants have a direct interest in disputing the will. They alleged that the will is a forgery, and has been concocted for the purpose of overriding their mortgage and attachment. The authorities show that, so long as the probate remains unrevoked, the attaching creditor could not bring the attached property to sale, nor could the mortgagees by any suit get the benefit of their mortgage. Their proceedings in each case would be defeated by the production of the probate, for they could not raise the issue that the will was forged. ‘A probate unrevoked,’ says Mr. Justice Williams in Vol. I Williams on Executors, 7th edition, p. 549, ‘is conclusive both in the Courts of law and equity, not only as to the appointment of executors, but as to the validity and contents of the will, so far as it extends to personal property.’ As a probate in India extends to immoveable property, the doctrine applies in this country to all the property left by the deceased. The only grounds on which the appellants could impeach the probate in a Civil Court would be those stated in the 44th section of the Indian Evidence Act, namely,-that the probate was granted by a Court not competent to grant it, or that it was obtained by fraud or collusion, which means fraud or collusion upon the Court, and perhaps also fraud upon the person disinherited by the will – Barnesly v. Powel; but they could not show that the will was never executed by the testator or was procured by a fraud practised upon him. It is obvious, therefore, that, unless the appellants have a locus standi in the Probate Court, they are without remedy, supposing their case against the will to be true.
Markby and Prinsep, JJ. in Komollochun Dutt v. Nilruttun Mundle have virtually decided the question before us, so far as the mortgagee-appellants are concerned. The plaintiff there had purchased from a widow an estate which she was supposed to have inherited from her husband. Afterwards the brother of the husband obtained and produced at the trial probate of a will of the husband, by which he bequeathed the whole property to his brother. The plaintiff sued to recover the property from the possession of the brother, alleging that the will was a forgery. This Court reversed a remand order of the District Judge, which directed the first Court to try the question of the genuineness of the will, and directed that the trial should be postponed in order that the plaintiff might apply to the Probate Court of the District Judge to revoke the grant of probate.
Markby, J. apparently based his decision upon the language of Section 242 of the Indian Succession Act. But that section, whilst stating that the probate shall be conclusive as to the representative title, is silent as to its effect with respect to the validity and contents of the will. Its conclusive effect in the latter respects is really the legal consequence of the exclusive jurisdiction of the Court of Probate, as stated by Mr. Justice Williams in Vol. I, Williams on Executors, p. 549. In the mofussil the District Judges are the sole Courts of Probate, and it would be obviously inconsistent with the exclusive jurisdiction conferred upon them, that probates until revoked should not be conclusive as to the due execution of the will to which the grants relate.
The mortgagee-appellants in the present case stand substantially in the same position as the plaintiff in Komollochun Dutt v. Nilruttun Mundle; they are purchasers pro tanto and assigns of the immoveable estate of the deceased, although only for the limited purpose of securing money which they have advanced to the testator’s heirs. If, according to the authority just cited, they might apply to revoke the probate that has issued, it follows that they may also enter a caveat and oppose the grant.
The case of an attaching creditor of the next-of-kin was not before the Court in Komollochun Dutt v. Nilruttun Mundle, but Markby, J., intimated an opinion that an attaching creditor was also entitled to apply to revoke probate. This point has been, recently decided in favour of the attaching creditor in Umanath Mookhopadhya v. Nilmoney Singh.
I am of opinion, therefore, that the appellants claim respectively such interests in the estate of the deceased as entitle them, upon proof of their interests, to file a caveat and oppose the grant of probate of the will of Nobo Coomar Ganguli, deceased.’
9.2. Field, J., who was the other member of the Bench referred to the law prevailing in England, the provisions of the Indian Succession Act, 1865 and observed:
‘………I am, therefore, of opinion that, whether the persons interested came in the first instance to oppose the grant of probate, or subsequently to have a grant revoked or annulled, they must come to the Court of the District Judge; and as this Court has thus an exclusive jurisdiction, it must be careful not to deny all remedy to persons interested by refusing to allow them to be made parties to its proceedings. As to the text of what constitutes a sufficient interest to entitle any particular person to be made a party, according to the view which I have already stated, I think it comes to this, that any person has a sufficient interest who can show that he is entitled to maintain a suit in respect of the property over which the probate would have affect under the provisions of Section 242 of the Indian Succession Act.’
(emphasis supplied)
10. In G. Jayakumar v. R. Ramaratanam [AIR 1972 Madras 212], the learned Single Judge referred to some earlier judgments including the judgment in Nobeen Chunder Sil and others v. Bhobosoonduri Dabee (supra) and observed:
‘I shall therefore examine the language of the relevant sections of the Indian Succession Act in order to ascertain the competency of both or either of the caveators in these proceedings.
Section 283(1) of the Indian Succession Act provides as follows:
‘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’
It follows from clause (c) of Section 283(1) that ‘all persons claiming to have any interest in the estate of the deceased’ may be issued citations. ‘Any interest in the estate of the deceased’ does not mean such interest in the estate as is claimed through the deceased or as heir of the deceased. The intention of the legislature as gatherable from the expression is that any interest in the estate in respect of which the deceased is alleged to have executed a testament would entitle the holder of that interest to attend and oppose the probate proceedings.
In my view, the words ‘of the deceased’ have been used only to identify and describe the estate in respect of which the caveator claims interest and is not intended to limit the caveator’s interest to or equate it with the interest which the deceased held in the estate. The provision of Section 283 is intended to give the widest possible publicity to the probate proceedings and to give an opportunity to any person having the slightest and even the bare possibility of an interest in the proceedings to challenge the genuineness of the will and place before the court all the relevant circumstances before a grant in rem is made in favour of the person claiming probate. If this is the proper interpretation to be placed upon Section 283(1)(c) of the Indian Succession Act, I have little doubt that both the caveators in this case are entitled to intervene in these proceedings and challenge the proponent of the will to give it in solemn form.
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It is true that in that suit Ramaratnam claims the property of Ratnavelu Mudaliar in derogation of the settlement deed executed in favour of Amaravathi Ammal. In other words, he claims title paramount to Amaravathi Ammal and contends that the testament executed by Amaravathi Ammal in respect of the properties settled upon her by her husband cannot affect him. If the more liberal interpretation which I have put upon Section 283(1)(c) is correct, inasmuch as Ramaratnam claims an interest in the estate in respect of which Amaravathi Ammal is alleged to have executed the testament, he would be a person entitled to a citation.
Learned counsel for the petitioner, however, relied upon a Division Bench ruling of Ramesam and Cornish, JJ., reported in Komalngiammal v. Sowbhagiammal [ILR (54) Mad 24] in support of the proposition that the interest which entitles a person to lodge a caveat in an application for the probate of a Will must be an interest in the estate of the deceased, that is to say, there must be no dispute as to the title of the deceased to the estate. It is true that this ruling would entail the dismissal of Ramaratnam’s caveat because he claims title paramount and is not possessed of any interest in the estate of the deceased entitling him to oppose the grant of probate. But with great respect, I must say I am unable to follow this ruling, because it is in direct conflict with an earlier Division Bench ruling of this court reported in Hanmantha Rao v. Latchamma [ILR 49 Mad 960 : AIR 1926 Mad 1193]. There, Devadoss and Waller, JJ. construed the meaning of Section 69 of the Probate and Administration Act which ran as follows:
‘In all cases it shall be lawful for the District Judge, if he thinks fit, to 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.’
It may be noticed that Section 69 of the Probate and Administration Act, is identical with Section 283(1)(c) of the Indian Succession Act. Their Lordships, while construing Section 69 of the Act, observed as follows:
‘The words of Section 69 are `claiming to have any interest in the estate of the deceased’. There is nothing in the wording of the section to show that the caveator should claim interest through the testator. All that is necessary to entitle a person to enter caveat is to claim interest in the estate of the deceased. The words ‘interest in the estate’ do not necessarily convey the idea that the interest should be claimed through the testator. If that was the intention of the Legislature, the clause could have been differently worded so as to make the meaning clear.’
In support of this view, their Lordships quoted the observations of Field J., in the matter of the petition of Bhobosoonduri Dabee, ILR (1881) 6 Cal 460 to the following effect:
‘As to the test of what constitutes a sufficient interest to entitle any particular person to be made a party, according to the view which I have already stated, I think it comes to this that any person has a sufficient interest who can show that he is entitled to maintain a suit in respect of the property over which the probate would have effect under the provisions of Section 242 of the Indian Succession Act.’
11. In Krishna Kumar Birla v. Rajendra Singh Lodha and others [JT 2008 (4) SC 82 : 2008 (4) SCC 300], a two-Judge Bench of this Court categorized caveatable interest, referred to the dictionary meanings of the words `caveat’ and `interest’ and large number of precedents including Elizabeth Antony v. Michel Charles John Chown Lengera [JT 1990 (2) SC 183 : 1990 (3) SCC 333], Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon [JT 2007 (13) SC 50 : 2007 (11) SCC 357], Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal [JT 2007 (12) SC 273 : 2008 (1) SCC 267] and held that the probate court exercises a limited jurisdiction and is not concerned with the question of title. If the probate is granted, an application for revocation can be filed. The Court then noticed the judgments of Calcutta and Madras High Courts to which reference has been made hereinabove and observed:
’77. To the same effect is a decision of the Calcutta High Court in Nabin Chandra Guha v. Nibaran Chandra Biswas. As would appear from the discussions made hereinafter, the said view, to our mind, is not entirely correct. A caveatable interest was claimed therein on the basis of acquisition of a subsequent interest from the daughter of the testator. The District Judge held that he did not have a caveatable interest. The Calcutta High Court, interpreting Section 283(1)(c) of the 1925 Act, held:
‘… And `possibility of an interest’ does not apply to possibility of a party filling a character which would give him an interest but to the possibility of his having an interest in the result of setting aside the will.’
As the caveator acquired an interest from the daughter, he was said to have a caveatable interest.’
11.1. The two-Judge Bench then referred to some judgments relating to caveatable interest of the reversioners and held:
’84. Section 283 of the 1925 Act confers a discretion upon the court to invite some persons to watch the proceedings. Who are they? They must have an interest in the estate of the deceased. Those who pray for joining the proceeding cannot do so despite saying that they had no interest in the estate of the deceased. They must be persons who have an interest in the estate left by the deceased. An interest may be a wide one but such an interest must not be one which would not (sic) have the effect of destroying the estate of the testator itself. Filing of a suit is contemplated inter alia in a case where a question relating to the succession of an estate arises.
85. We may, by way of example notice that a testator might have entered into an agreement of sale entitling the vendee to file a suit for specific performance of contract. On the basis thereof, however, a caveatable interest is not created, as such an agreement would be binding both on the executor, if the probate is granted, and on the heirs and legal representatives of the deceased, if the same is refused.
86. The propositions of law which in our considered view may be applied in a case of this nature are:
(i) To sustain a caveat, a caveatable interest must be shown.
(ii) The test required to be applied is: Does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right?
(iii) It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein.’
11.2. However, the propositions culled out in paragraph 86 were substantially diluted by making the following observations in paragraph 103:
‘What would be the caveatable interest would, thus, depend upon the fact situation obtaining in each case. No hard-and-fast rule, as such, can be laid down. We have merely made attempts to lay down certain broad legal principles.’
11.3. The Bench then discussed the judgments of Calcutta High Court and observed:
’92. In the context of the laws governing inheritance and succession, as they then stood, the widest possible meaning to the term ‘interest’ might have been given in a series of decisions which the learned counsel for the appellants rely upon ranging from Nobeen Chunder Sil to Radharaman Chowdhuri v. Gopal Chandra Chakravarty so as to hold that a caveat would be maintainable even at the instance of a person who had been able to establish ‘some sort of relationship’ and howsoever distant he may be from the deceased which per se cannot have any application after coming into force of the Hindu Succession Act. Ordinarily, therefore, a caveatable interest would mean an interest in the estate of the deceased to which the caveator would otherwise be entitled to, subject of course, to having a special interest therein.
106. The decisions which were rendered prior to coming into force of the Hindu Succession Act, thus, may not be of much relevance. Now, if on the interpretation of law, as it then stood, a reversioner or a distant relative who could have succeeded to the interest of the testator was entitled to file a caveat, they would not be now, as the law of inheritance and succession is governed by a parliamentary Act.
109. It is in that backdrop the question which is required to be posed is: Did the Calcutta High Court or the other High Court opine that even a busybody or an interloper having no legitimate concern in the outcome of the probate proceedings would be entitled to lodge a caveat and oppose the probate? The answer thereto, in our opinion, must be rendered in the negative. If anybody and everybody including a busybody or an interloper is found to be entitled to enter a caveat and oppose grant of a probate, then Sections 283(1)(c) and 284 of the 1925 Act would have been differently worded. Such an interpretation would lead to an anomalous situation. It is, therefore, not possible for us to accede to the submission of the learned counsel that caveatable interest should be construed very widely.
110. A caveatable interest is not synonymous with the word ‘contention’. A ‘contention’ can be raised only by a person who has a caveatable interest. The dictionary meaning of ‘contention’, therefore, in the aforementioned context cannot have any application in a proceeding under the 1925 Act.’
12. A little later another two-Judge Bench expressed an apparently contrary view in G. Gopal v. C. Baskar and others [2008 (10) SCC 489]. This is evinced from paragraph 5 of the judgment, which is reproduced below:
‘The only question that was agitated before us by Mr. Thiagarajan, learned counsel appearing for the appellant challenging the judgment of the High Court revoking the probate granted in respect of the will executed by the testator, was that the respondents having no caveatable interest in the estate of the deceased, the application for revocation filed by them could not be allowed. We are unable to accept these submissions made by Mr Thiagarajan, learned counsel appearing on behalf of the appellant only for the simple reason that admittedly the respondents were grandchildren of the testator and they have claimed the estate of the deceased on the basis of a settlement deed executed by the testator himself which admittedly was revoked by the testator. That being the position, we must hold that the respondents had caveatable interest in the estate of the testator and, therefore, they are entitled to be served before the final order is passed. It is well settled that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the will of the testator.
(emphasis supplied)
13. It is thus evident that apparently conflicting views have been expressed by coordinate Benches of this Court on the interpretation of the expression ‘caveatable interest’. In Krishna Kumar Birla’s case, the Bench did not approve the judgments of Calcutta High Court in Bhobosoonduri Dabee’s case and Madras High Court in G. Jayakumar’s case wherein it was held that any person having some interest in the estate of the deceased can come forward and oppose the grant of probate. As against this, in G. Gopal’s case, the dictum that a person who is having a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate has been reiterated. This being the position, we feel that the issue deserves to be considered and decided by a larger Bench.
14. The Registry is directed to place the matter before Hon’ble the Chief Justice for appropriate order.
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1. Whether the appellants, who claim to have purchased the property described as 6-B, Jangpura, Mathura Road, New Delhi from Major K.V. Kohli (one of the two heirs of Mrs. Rasheel Kohli) are entitled to contest the application filed by the respondent – Mrs. Pamela Manmohan Singh (the other heir of Mrs. Rasheel Kohli) for grant of letter of administration is the question which arises for consideration in this appeal filed against order dated 22.1.2001 passed by the learned Single Judge of Delhi High Court in Civil Revision No.791 of 1994 whereby he set aside the order passed by Additional District Judge allowing an application filed by the appellants under Section 151 of the Code of Civil Procedure (CPC) for permission to file objections in Probate Case No.272 of 1993.
2. The property in question was leased out by the Government of India to Mrs. Rasheel Kohli sometime in 1957 for a period of 90 years. Mrs. Rasheel Kohli availed loans from Oriental Bank of Commerce and Grindlays Bank and mortgaged the suit property. Oriental Bank of Commerce filed Suit No.75 of 1979 in the High Court of Delhi against M/s. Zirconium, K.V. Kohli and Mrs. Rasheel Kohli for the recovery of their dues. Grindlays Bank also filed Suit No.259 of 1978 against K.V. Kohli and others for recovery of Rs.9,58,195/-. In the second suit, a statement was made by the counsel for the defendants that his clients will not alienate property No.198, Golf Links, New Delhi and plot No.6, Block – B, Jangpura, New Delhi or encumber the same till the next date. After taking note of the counsel’s statement, the learned Single Judge directed the defendants in the suit not to alienate or encumber the property or realise or appropriate the rent.
3. In 1979, Mrs. Rasheel Kohli filed Suit No.180 of 1979 for eviction of Khairati Lal, who had been inducted as a tenant. During the pendency of the suit, Khairati Lal made a statement before the Court on 6.8.1984, the relevant portion of which is extracted below:
‘A decree for possession of the plot in dispute be passed against me in favour of the plaintiff together with a decree for Rs.25,000/- as mesne profits upto 31st August, 1979. I may be allowed time to vacate the plot in dispute upto 31st October, 1986. I give an undertaking to the Court that I shall deliver vacant possession of the plot in dispute to the plaintiff on 1st November, 1986. I further give an undertaking that I will not alienate, transfer, in any manner, or part with its possession in favour of any one, nor shall create any charge till the vacant possession of the same is delivered by me to the plaintiff. I also agree to pay mesne profits at the rate of Rs.1250/- per month from 1st September, 1979 onwards.’
4. However, instead of abiding by the undertaking given by him in the Court, Khairati Lal handed over possession of the suit property to the partners of M/s. Texla Service Center with whom Mrs. Rasheel Kohli is said to have entered into an agreement dated 30.8.1984 for sale of the suit property for a sum of Rs.11 lacs and received a sum of Rs.5 lacs in cash and Rs.6 lacs in the form of bank guarantee.
5. After taking possession from Khairati Lal, M/s Texla Service Center filed Suit No.182 of 1986 for specific performance of the agreement for sale. In that suit, the High Court directed the parties to maintain status quo.
6. Mrs. Rasheel Kohli died on 11.10.1987. After about one month, Shri K.V. Kohli (son of the deceased) executed three registered sale deeds dated 6.12.1988 in favour of the appellants, though, at that time, warrant of attachment issued pursuant to order dated 2.11.1988 passed by the Bombay High Court in Suit No.2951 of 1987 was in force.
7. On 30.11.1987, K.V. Kohli filed application for grant of probate by claiming that his mother had executed Will dated 7.3.1986 in his favour. The same was registered as Suit No.379 of 1987. The respondent also filed an application dated 6.3.1989 for grant of letter of administration by claiming that her mother had executed Will dated 7.3.1987 in her favour. The application of the respondent was registered as P.C. No.106 of 1989. Later on, the same was re-numbered as P.C. No.272 of 1993. The appellants filed an application under Section 151 CPC for permission to file objections to the grant of letter of administration in favour of the respondent. By an order dated 26.3.1994, learned Additional District Judge allowed the application. The relevant portions of that order are extracted below:
‘In the present case, deceased Smt. Raseel Kohli was the owner of the property. She died leaving a son K.V. Kohli and a daughter Pamela Manmohan Singh. Shri K.V. Kohli is alleged to have acquired right in the property by virtue of will of his mother dated 7.3.1986 and had sold one of the properties to the present applicants by means of a registered Sale-deeds dated 6.12.1988. Whereas the petitioner in the present case claims that her mother had executed another will dated 23.9.1987, which is a later will in her favour. The applicants who are the purchasers from the vendor legatee of the first will, would be affected if the later will is upheld, and as such they have locus standi to safeguard their interests.
It was then contended that the sale was made after the injunction order was granted. A perusal of the file shows that the present petition though purports to have been drafted on 30.9.1989 the respondent was restrained from transferring the property till further orders, then proceedings on 23.3.89. However, the present property has been transferred before 23.3.1989 and this circumstance will not affect the rights of the applicants.
As regards delay, no doubt it appears that some other litigation is pending between the parties, and the applicants had knowledge of the present proceedings as appears from the written statement dated November, 1990, filed by them in suit No.695 of 1990, pending in Delhi High Court, and it has been contended that the application is belated and mala fide. However, as held above, the applicants have locus standi to file caveat and to oppose the present proceedings and as such they will also be entitled to move later on for setting aside if the present petition for grant of probate is allowed as that will affect their rights if the decision is taken in their absence. That would unnecessarily involve the parties in fresh litigation. It is also seen that original objector Shri K.V. Kohli has since died and the proceedings against his LRs are ex-parte. However, an application for setting aside is pending. Otherwise, also the case is at initial stages and even issues have yet not been framed. The petitioner can be compensated by costs in delay.’
8. The respondent challenged the aforementioned order in Civil Revision No.791 of 1994, which was allowed by the learned Single Judge on the following grounds:
(i) Probate case filed by K.V. Kohli was dismissed on 13.5.1992 in default and, therefore, there was no question of any Will being propounded by him.
(ii) The appellants had committed fraud in obtaining possession from Khairati Lal contrary to the undertaking given by him on 6.8.1984 and they effectively prevented Mrs. Rasheel Kohli from taking possession of the property.
(iii) K.V. Kohli executed the sale deed when there was an order of injunction restraining him from alienating the property in question and the whole case of the applicants is based on the possession of the property through fraud committed by them.
(iv) When the applicants’ rights are under investigation, they cannot claim to have any caveatable interest in the estate of Mrs. Rasheel Kohli.
9. We have heard learned counsel for the parties. It is not in dispute that the parties are governed by the provisions of the Indian Succession Act, 1925 (for short, `the Act’). Section 283 of the Act reads as under:
‘283. Powers of District Judge.- (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 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.
(2) The citation shall be fixed up in some conspicuous part of the court-house, and also 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.’
9.1. The term ‘caveatable interest’ has not been defined in the Act, but the same has been used and interpreted in some of the judicial decisions. In Nobeen Chunder Sil and others v. Bhobosoonduri Dabee [1881 (ILR 6) Cal 460], a two-Judge Bench of Calcutta High Court considered whether the persons who had obtained money-decree and got attached share of one of the heirs of the deceased and mortgagees of the immovable property left by the testator were entitled to oppose the grant of probate on the basis of Will executed by the owner in favour of his wife purporting to grant his entire property for her life and after her death to his sons. The respondent applied for grant of probate of the Will of Nobo Coomar Ganguli, who had died on 21.10.1877 leaving behind his widow and two sons. The appellant Nobeen Chunder Sil, who had obtained money-decree against one of the sons and Brojo Mohun Ghose and Obhoy Churn Sen in whose favour mortgage was executed by two sons filed caveat against the grant of probate. The District Judge refused to allow them to take part in the proceedings or oppose the grant. The appeal preferred against the order of the District Judge was allowed by the High Court of Calcutta. White, J., who was member of two-Judge Bench referred to the judgments of Baijnath Shahai v. Desputty Singh [ILR (2) Cal 208] and Komollochun Dutt v. Nilruttun Mundle [ILR (4) Cal 360] and observed:
‘It cannot be disputed that the appellants have a direct interest in disputing the will. They alleged that the will is a forgery, and has been concocted for the purpose of overriding their mortgage and attachment. The authorities show that, so long as the probate remains unrevoked, the attaching creditor could not bring the attached property to sale, nor could the mortgagees by any suit get the benefit of their mortgage. Their proceedings in each case would be defeated by the production of the probate, for they could not raise the issue that the will was forged. ‘A probate unrevoked,’ says Mr. Justice Williams in Vol. I Williams on Executors, 7th edition, p. 549, ‘is conclusive both in the Courts of law and equity, not only as to the appointment of executors, but as to the validity and contents of the will, so far as it extends to personal property.’ As a probate in India extends to immoveable property, the doctrine applies in this country to all the property left by the deceased. The only grounds on which the appellants could impeach the probate in a Civil Court would be those stated in the 44th section of the Indian Evidence Act, namely,-that the probate was granted by a Court not competent to grant it, or that it was obtained by fraud or collusion, which means fraud or collusion upon the Court, and perhaps also fraud upon the person disinherited by the will – Barnesly v. Powel; but they could not show that the will was never executed by the testator or was procured by a fraud practised upon him. It is obvious, therefore, that, unless the appellants have a locus standi in the Probate Court, they are without remedy, supposing their case against the will to be true.
Markby and Prinsep, JJ. in Komollochun Dutt v. Nilruttun Mundle have virtually decided the question before us, so far as the mortgagee-appellants are concerned. The plaintiff there had purchased from a widow an estate which she was supposed to have inherited from her husband. Afterwards the brother of the husband obtained and produced at the trial probate of a will of the husband, by which he bequeathed the whole property to his brother. The plaintiff sued to recover the property from the possession of the brother, alleging that the will was a forgery. This Court reversed a remand order of the District Judge, which directed the first Court to try the question of the genuineness of the will, and directed that the trial should be postponed in order that the plaintiff might apply to the Probate Court of the District Judge to revoke the grant of probate.
Markby, J. apparently based his decision upon the language of Section 242 of the Indian Succession Act. But that section, whilst stating that the probate shall be conclusive as to the representative title, is silent as to its effect with respect to the validity and contents of the will. Its conclusive effect in the latter respects is really the legal consequence of the exclusive jurisdiction of the Court of Probate, as stated by Mr. Justice Williams in Vol. I, Williams on Executors, p. 549. In the mofussil the District Judges are the sole Courts of Probate, and it would be obviously inconsistent with the exclusive jurisdiction conferred upon them, that probates until revoked should not be conclusive as to the due execution of the will to which the grants relate.
The mortgagee-appellants in the present case stand substantially in the same position as the plaintiff in Komollochun Dutt v. Nilruttun Mundle; they are purchasers pro tanto and assigns of the immoveable estate of the deceased, although only for the limited purpose of securing money which they have advanced to the testator’s heirs. If, according to the authority just cited, they might apply to revoke the probate that has issued, it follows that they may also enter a caveat and oppose the grant.
The case of an attaching creditor of the next-of-kin was not before the Court in Komollochun Dutt v. Nilruttun Mundle, but Markby, J., intimated an opinion that an attaching creditor was also entitled to apply to revoke probate. This point has been, recently decided in favour of the attaching creditor in Umanath Mookhopadhya v. Nilmoney Singh.
I am of opinion, therefore, that the appellants claim respectively such interests in the estate of the deceased as entitle them, upon proof of their interests, to file a caveat and oppose the grant of probate of the will of Nobo Coomar Ganguli, deceased.’
9.2. Field, J., who was the other member of the Bench referred to the law prevailing in England, the provisions of the Indian Succession Act, 1865 and observed:
‘………I am, therefore, of opinion that, whether the persons interested came in the first instance to oppose the grant of probate, or subsequently to have a grant revoked or annulled, they must come to the Court of the District Judge; and as this Court has thus an exclusive jurisdiction, it must be careful not to deny all remedy to persons interested by refusing to allow them to be made parties to its proceedings. As to the text of what constitutes a sufficient interest to entitle any particular person to be made a party, according to the view which I have already stated, I think it comes to this, that any person has a sufficient interest who can show that he is entitled to maintain a suit in respect of the property over which the probate would have affect under the provisions of Section 242 of the Indian Succession Act.’
(emphasis supplied)
10. In G. Jayakumar v. R. Ramaratanam [AIR 1972 Madras 212], the learned Single Judge referred to some earlier judgments including the judgment in Nobeen Chunder Sil and others v. Bhobosoonduri Dabee (supra) and observed:
‘I shall therefore examine the language of the relevant sections of the Indian Succession Act in order to ascertain the competency of both or either of the caveators in these proceedings.
Section 283(1) of the Indian Succession Act provides as follows:
‘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’
It follows from clause (c) of Section 283(1) that ‘all persons claiming to have any interest in the estate of the deceased’ may be issued citations. ‘Any interest in the estate of the deceased’ does not mean such interest in the estate as is claimed through the deceased or as heir of the deceased. The intention of the legislature as gatherable from the expression is that any interest in the estate in respect of which the deceased is alleged to have executed a testament would entitle the holder of that interest to attend and oppose the probate proceedings.
In my view, the words ‘of the deceased’ have been used only to identify and describe the estate in respect of which the caveator claims interest and is not intended to limit the caveator’s interest to or equate it with the interest which the deceased held in the estate. The provision of Section 283 is intended to give the widest possible publicity to the probate proceedings and to give an opportunity to any person having the slightest and even the bare possibility of an interest in the proceedings to challenge the genuineness of the will and place before the court all the relevant circumstances before a grant in rem is made in favour of the person claiming probate. If this is the proper interpretation to be placed upon Section 283(1)(c) of the Indian Succession Act, I have little doubt that both the caveators in this case are entitled to intervene in these proceedings and challenge the proponent of the will to give it in solemn form.
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xxxx xxxx xxxx
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It is true that in that suit Ramaratnam claims the property of Ratnavelu Mudaliar in derogation of the settlement deed executed in favour of Amaravathi Ammal. In other words, he claims title paramount to Amaravathi Ammal and contends that the testament executed by Amaravathi Ammal in respect of the properties settled upon her by her husband cannot affect him. If the more liberal interpretation which I have put upon Section 283(1)(c) is correct, inasmuch as Ramaratnam claims an interest in the estate in respect of which Amaravathi Ammal is alleged to have executed the testament, he would be a person entitled to a citation.
Learned counsel for the petitioner, however, relied upon a Division Bench ruling of Ramesam and Cornish, JJ., reported in Komalngiammal v. Sowbhagiammal [ILR (54) Mad 24] in support of the proposition that the interest which entitles a person to lodge a caveat in an application for the probate of a Will must be an interest in the estate of the deceased, that is to say, there must be no dispute as to the title of the deceased to the estate. It is true that this ruling would entail the dismissal of Ramaratnam’s caveat because he claims title paramount and is not possessed of any interest in the estate of the deceased entitling him to oppose the grant of probate. But with great respect, I must say I am unable to follow this ruling, because it is in direct conflict with an earlier Division Bench ruling of this court reported in Hanmantha Rao v. Latchamma [ILR 49 Mad 960 : AIR 1926 Mad 1193]. There, Devadoss and Waller, JJ. construed the meaning of Section 69 of the Probate and Administration Act which ran as follows:
‘In all cases it shall be lawful for the District Judge, if he thinks fit, to 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.’
It may be noticed that Section 69 of the Probate and Administration Act, is identical with Section 283(1)(c) of the Indian Succession Act. Their Lordships, while construing Section 69 of the Act, observed as follows:
‘The words of Section 69 are `claiming to have any interest in the estate of the deceased’. There is nothing in the wording of the section to show that the caveator should claim interest through the testator. All that is necessary to entitle a person to enter caveat is to claim interest in the estate of the deceased. The words ‘interest in the estate’ do not necessarily convey the idea that the interest should be claimed through the testator. If that was the intention of the Legislature, the clause could have been differently worded so as to make the meaning clear.’
In support of this view, their Lordships quoted the observations of Field J., in the matter of the petition of Bhobosoonduri Dabee, ILR (1881) 6 Cal 460 to the following effect:
‘As to the test of what constitutes a sufficient interest to entitle any particular person to be made a party, according to the view which I have already stated, I think it comes to this that any person has a sufficient interest who can show that he is entitled to maintain a suit in respect of the property over which the probate would have effect under the provisions of Section 242 of the Indian Succession Act.’
11. In Krishna Kumar Birla v. Rajendra Singh Lodha and others [JT 2008 (4) SC 82 : 2008 (4) SCC 300], a two-Judge Bench of this Court categorized caveatable interest, referred to the dictionary meanings of the words `caveat’ and `interest’ and large number of precedents including Elizabeth Antony v. Michel Charles John Chown Lengera [JT 1990 (2) SC 183 : 1990 (3) SCC 333], Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon [JT 2007 (13) SC 50 : 2007 (11) SCC 357], Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal [JT 2007 (12) SC 273 : 2008 (1) SCC 267] and held that the probate court exercises a limited jurisdiction and is not concerned with the question of title. If the probate is granted, an application for revocation can be filed. The Court then noticed the judgments of Calcutta and Madras High Courts to which reference has been made hereinabove and observed:
’77. To the same effect is a decision of the Calcutta High Court in Nabin Chandra Guha v. Nibaran Chandra Biswas. As would appear from the discussions made hereinafter, the said view, to our mind, is not entirely correct. A caveatable interest was claimed therein on the basis of acquisition of a subsequent interest from the daughter of the testator. The District Judge held that he did not have a caveatable interest. The Calcutta High Court, interpreting Section 283(1)(c) of the 1925 Act, held:
‘… And `possibility of an interest’ does not apply to possibility of a party filling a character which would give him an interest but to the possibility of his having an interest in the result of setting aside the will.’
As the caveator acquired an interest from the daughter, he was said to have a caveatable interest.’
11.1. The two-Judge Bench then referred to some judgments relating to caveatable interest of the reversioners and held:
’84. Section 283 of the 1925 Act confers a discretion upon the court to invite some persons to watch the proceedings. Who are they? They must have an interest in the estate of the deceased. Those who pray for joining the proceeding cannot do so despite saying that they had no interest in the estate of the deceased. They must be persons who have an interest in the estate left by the deceased. An interest may be a wide one but such an interest must not be one which would not (sic) have the effect of destroying the estate of the testator itself. Filing of a suit is contemplated inter alia in a case where a question relating to the succession of an estate arises.
85. We may, by way of example notice that a testator might have entered into an agreement of sale entitling the vendee to file a suit for specific performance of contract. On the basis thereof, however, a caveatable interest is not created, as such an agreement would be binding both on the executor, if the probate is granted, and on the heirs and legal representatives of the deceased, if the same is refused.
86. The propositions of law which in our considered view may be applied in a case of this nature are:
(i) To sustain a caveat, a caveatable interest must be shown.
(ii) The test required to be applied is: Does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right?
(iii) It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein.’
11.2. However, the propositions culled out in paragraph 86 were substantially diluted by making the following observations in paragraph 103:
‘What would be the caveatable interest would, thus, depend upon the fact situation obtaining in each case. No hard-and-fast rule, as such, can be laid down. We have merely made attempts to lay down certain broad legal principles.’
11.3. The Bench then discussed the judgments of Calcutta High Court and observed:
’92. In the context of the laws governing inheritance and succession, as they then stood, the widest possible meaning to the term ‘interest’ might have been given in a series of decisions which the learned counsel for the appellants rely upon ranging from Nobeen Chunder Sil to Radharaman Chowdhuri v. Gopal Chandra Chakravarty so as to hold that a caveat would be maintainable even at the instance of a person who had been able to establish ‘some sort of relationship’ and howsoever distant he may be from the deceased which per se cannot have any application after coming into force of the Hindu Succession Act. Ordinarily, therefore, a caveatable interest would mean an interest in the estate of the deceased to which the caveator would otherwise be entitled to, subject of course, to having a special interest therein.
106. The decisions which were rendered prior to coming into force of the Hindu Succession Act, thus, may not be of much relevance. Now, if on the interpretation of law, as it then stood, a reversioner or a distant relative who could have succeeded to the interest of the testator was entitled to file a caveat, they would not be now, as the law of inheritance and succession is governed by a parliamentary Act.
109. It is in that backdrop the question which is required to be posed is: Did the Calcutta High Court or the other High Court opine that even a busybody or an interloper having no legitimate concern in the outcome of the probate proceedings would be entitled to lodge a caveat and oppose the probate? The answer thereto, in our opinion, must be rendered in the negative. If anybody and everybody including a busybody or an interloper is found to be entitled to enter a caveat and oppose grant of a probate, then Sections 283(1)(c) and 284 of the 1925 Act would have been differently worded. Such an interpretation would lead to an anomalous situation. It is, therefore, not possible for us to accede to the submission of the learned counsel that caveatable interest should be construed very widely.
110. A caveatable interest is not synonymous with the word ‘contention’. A ‘contention’ can be raised only by a person who has a caveatable interest. The dictionary meaning of ‘contention’, therefore, in the aforementioned context cannot have any application in a proceeding under the 1925 Act.’
12. A little later another two-Judge Bench expressed an apparently contrary view in G. Gopal v. C. Baskar and others [2008 (10) SCC 489]. This is evinced from paragraph 5 of the judgment, which is reproduced below:
‘The only question that was agitated before us by Mr. Thiagarajan, learned counsel appearing for the appellant challenging the judgment of the High Court revoking the probate granted in respect of the will executed by the testator, was that the respondents having no caveatable interest in the estate of the deceased, the application for revocation filed by them could not be allowed. We are unable to accept these submissions made by Mr Thiagarajan, learned counsel appearing on behalf of the appellant only for the simple reason that admittedly the respondents were grandchildren of the testator and they have claimed the estate of the deceased on the basis of a settlement deed executed by the testator himself which admittedly was revoked by the testator. That being the position, we must hold that the respondents had caveatable interest in the estate of the testator and, therefore, they are entitled to be served before the final order is passed. It is well settled that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the will of the testator.
(emphasis supplied)
13. It is thus evident that apparently conflicting views have been expressed by coordinate Benches of this Court on the interpretation of the expression ‘caveatable interest’. In Krishna Kumar Birla’s case, the Bench did not approve the judgments of Calcutta High Court in Bhobosoonduri Dabee’s case and Madras High Court in G. Jayakumar’s case wherein it was held that any person having some interest in the estate of the deceased can come forward and oppose the grant of probate. As against this, in G. Gopal’s case, the dictum that a person who is having a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate has been reiterated. This being the position, we feel that the issue deserves to be considered and decided by a larger Bench.
14. The Registry is directed to place the matter before Hon’ble the Chief Justice for appropriate order.
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