Archana Dutta vs Narayan Chandra Sarkar and Others

Harish Tandon, J—The Challenge is made to an order dated July 10, 2014 passed by learned Additional District Judge, 4th Court, Barasat, in O.S. 11 of 2005 rejecting an application under Order 1 Rule 10 (2) of the Code of Civil Procedure filed by the petitioner.

The Miscellaneous Case No. 265 of 2002 was filed before the learned District Judge, Barasat for grant of the probate of a will dated August 25, 2000 executed by Gopal Chandra Sha since deceased. The said probate proceeding was converted into a contentious cause on the objection raised by one Bharati Sha (Jana) and was registered as O.S. 11 of 2005. The petitioner herein filed an application seeking her addition in the probate proceeding alleging that the testator had no title to a property sought to be bequeathed through the said will. The petitioner asserts that by virtue of a partition deed dated March 31, 1936 executed by and between three brothers namely Prafulla Kumar Sha, Gopal Chandra Sha (Testator) and Nityananda Sha. The entire property of Monirampur Mouza was allotted in favour of Prafulla Kumar Sha and the entire property of Sadar Bazar Mouza was allotted to Gopal Chandra Sha (Testator) and Nityananda Sha.

It is further averred that in terms of the said partition deed, the Prafulla Kumar Sha become an absolute owner of the property situated in Monirampur Mouza and by executing a Will dated 27.11.1960 bequeathed the said property in favour of his wife and the daughter (Objector in the probate proceeding). After the death of the said Prafulla Kumar Sha, an application for grant of the probate was filed before the learned District Judge, Barasat which gave rise to registration of Misc. Case No. 279 of 2001 and the probate was granted on July 10, 2002. Before the probate could be granted to the will of the Prafulla Kumar Sha, both his wife and the daughter transferred a plot of land measuring 4 Cottahs 2 Sq. feets of land comprised in Monirampur Mouza together with one tile shed room by executing and registering a deed of sale dated February 12, 1992 in favour of the petitioner and the possession was also given simultaneously thereto.

What is sought to be agitated in an application for addition is that the Testator did not have a right, title and interest in respect of the property bequeathed under the said Will and, therefore, claims title adverse to the Testator. The point arose in this revisional application is whether a person claiming adverse title to the Testator has a caveatable interest and have locus standi to intervene in a probate proceeding. The Trial Court rejected the said application saying that the petitioner is neither a legal heir of the Testator nor have any caveatable interest and, therefore, is not a necessary and proper party in a probate proceeding.

Mr. P.B. the learned Advocate for the petitioner submits that a person having interest in the estate of the Testator is a person regarded as "having caveatable interest" and is, therefore, necessary and proper party. In support of the aforesaid submissions, the reliance is placed upon a judgment of this Court in case of Nobeen Chunder Sil & Ors v. Bhobosoonduri Dabee reported in ILR 6 Cal 460 and Nabin Chandra Guha Vs. Nibaran Chandra Biswas and Others, AIR 1932 Cal 734 : 140 Ind. Cas. 54 . Mr. Sahu further submits that it is not necessary that the caveator should claim interest through the Testator but what is required to be considered that he claims an interest in the estate of the deceased as held in case of Jammi Hanumantha Rao Vs. Aratla Latchamma, AIR 1926 Mad 1193 : (1926) ILR (Mad) 960 : (1926) 24 LW 502 : (1926) 51 MLJ 563 . By placing reliance upon a judgment of the Bombay High Court rendered in case of Swatantranandji Vs. Lunidaram Jangaldas, AIR 1937 Bom 397 : (1937) 39 BOMLR 490 , Mr. Sahu submits that if the grant of probate displaces any right of a person which he is entitled to, would include such person having interest in the estate of the Testator. Mr. Sahu vehemently submits that the interest, however, slightest it is, entitles the person to intervene in a probate proceeding as held by the Division Bench of this Court in case of Golak Chandra Bera v. Smt. Matangini Bewa & Ors; reported in (1981) 2 CLJ 248 . He further submits that the another Division Bench of this Court in case of Saral Patwar Vs. Sushila Dassi, 87 CWN 445 interpreted the expressions "claiming to have any interest in the estate of the deceased" is of wide amplitude and includes the person having possibility of interest. By drawing the inspiration from the judgment of the Delhi High Court in case of Indian Associates Vs. Shivendra Bahadur Singh and Others, (2003) 4 AD 437 : AIR 2003 Delhi 292 : (2003) 104 DLT 820 , Mr. Sahu submits that the addition is permissible in a probate proceeding. Thus he concludes that a person who acquired title in respect of a property sought to be bequeathed through Will is a person having an interest in the estate of the deceased and, therefore, is entitled to be impleaded as party in a probate proceeding.

The first and foremost basis of the entire argument is based on the judgment rendered in case of Nobeen Chunder Sil (supra) wherein Field J; interpreting Section 242 of 1925 Act observed that if a person can maintain a suit in respect of a property over which the probate would take effect is a person having sufficient interest to enter a caveat and oppose the grant of probate. That was a case relating to a mortgage of a property of a testator and it was held that the mortgagee has an interest in the estate and is entitled to oppose the grant. A similar view is expressed in case of Nabin Chandra Guha (supra) wherein it is held :

"It is difficult to say that the appellant does not fulfil this requirement. The purchase that he has made stands the chance of being affected if the terms of the will were effective at the date of the suit; for then in certain events and circumstances what he purchased might be held to be only the right, title and interest of the judgment-debtor and not the holding itself.

A purchaser from an heir after the death of the testator has a locus standi; and to have it is not necessary for the objector to show that he had an interest in the estate at the time of the testator''s death: Komol Lochan Dutt v. Nilratan Mundle (9), Maddun Mohan Sircar v. Kali Charan Dey (10). So also it has been held that an assignee from an heir of the testator after the latter''s death has locus standi to apply for revocation of a probate already granted: Sheikh Azim v. Chandra Nath (11) Mokshadayini v. Karnadhar (12)."

However, in case of Jamni Hanmantha Rao (supra), the Division Bench of the Madras High Court was confronted with the question as to what would be the nature of the interest which the person should possess to enter a caveat. While answering the said question, it is held that if any person is entitled to any portion of the estate left by the deceased or has a right to claim maintenance from the estate of the deceased has an interest in the estate and it is not necessary that he should claim through the testator in order to oppose the probate. In case of Swatantranandji (supra), an identical issue was raised and it is categorically held that a caveat can be entered by any person having an interest either by an inheritance or otherwise and in explicit terms held that the claim adverse to the title of the Testator does not create a caveatable interest in these words:

"A title adverse to that of the testator or to his estate or any portion thereof is not sufficient to sustain the interest."

In case of Golak (supra), the main issue involved therein was whether the Will was shrouded by a suspicious circumstances and, therefore, the Court should decline to grant probate of the said Will. The challenge was made to a probate being granted to the Will of Trailokya by one Gitanjali who claims to have acquired the interest on the strength of a deed of gift executed by one Golapi, the widow and the legatee under the Will. The husband of the Gitanjali was a son of Baikuntha who was the real brother of Trailokya (Testator). The locus standi of the Gitanjali was challenged and in the backdrop of the aforesaid facts, it is held that if the person can show any interest, however, slightest and even a bare possibility of the interest entitled him/her to enter into a caveat in a probate proceeding and since the Gitanjali, though claiming on the basis of the deed of gift executed by a widow of the Testator was otherwise having a slightest probability of inheritance and therefore, her locus was maintained.

In the present case, the petitioner does not have any possibility of inheritance as she is totally stranger to the family and the claim is based on the denial of title of the Testator.

The judgment rendered in case of Saral Patwar (supra) is of no help to the petitioner as the point involved therein was whether the heirs of a person having caveatable interest and was unsuccessful in the context of an application for grant of probate, can maintain an application for revocation of the probate or letters of administration. It is held that if the predecessor, who consented for grant of the probate or was unsuccessful in challenging the probate, cannot maintain an application for revocation thereof.

The main thrust of an argument of Mr. Sahu is based on ILR 6 Cal 460 and G. Jayakumar (supra). This Court noticed the judgment of the Supreme Court rendered in case of Krishna Kumar Birla Vs. Rajendra Singh Lodha and Others, (2008) 3 CLT 39 : (2008) 2 CLT 550 : (2008) 3 CTC 43 : (2008) 4 JT 82 : (2008) 4 SCALE 202 : (2008) 4 SCC 300 : (2008) AIRSCW 2557 . The aforesaid two judgments were considered by the Supreme Court including the judgment rendered in case of Nabin Chandra Guha (supra) and in Paragraph 77 thereof held that those are not the correct proposition of law in its entirety. It would be apt to quote Paragraph 77 which runs thus:

"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: (AIR p. 735)

"... 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."

In Paragraph 75 of the said judgment, the Apex Court held that the interest claimed by a person must be in the estate of the Testator and not adverse to it in these words:

"75. A suit which would be maintainable must have something to do with the estate of the testator. Inheritance by will itself may be a subject-matter of contention. Whether the interest claimed by the caveator is an established one or a bare claim must satisfy the test that there exists an interest in the estate of the testator and the same is not adverse thereto."

(Emphasis Supplied)

While answering the issue as involved in this case, the Apex Court held:

"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."

After the judgment of the Supreme Court rendered in the above noted case and the law enunciated therein, the person claiming an adverse title to the testator is a stranger to the probate proceeding and such right cannot be adjudicated therein. The petitioner is denying the title of the testator and therefore, claiming a title adverse to him. The petitioner, therefore, cannot be treated as a person having any interest in the estate of the deceased and if cannot enter a caveat, she cannot be added as a party in the probate proceeding. She is totally stranger to a probate proceeding and, therefore, cannot be treated as necessary and proper party. It goes without saying that the Probate Court is not competent to decide the title and even the probate is granted to the will, a person claiming title can maintain a separate suit.

All the arguments advanced by Mr. Sahu fails.

The revisional application is dismissed.

However, there shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.