Jain Swetamber Khattar Bhave vs Jugrajmal

Lodha, J.—This appeal u/s 18 Of the Rajasthan High Court Ordinance, 1949 is directed against the judgment dated October 24, 1980 of a learned single Judge of this court, by which, he dismissed the appeal u/s 29 of the Indian Succession Act (No. XXXLX of 1925) (herein after referred to as the Act'') whereby upholding the order dated September 1, 1980 oft the District Judge, Jodhpur, by which he held that the caveats filed by the appellants shall stand discharged and dismissed.

The facts leading to this appeal may, briefly be stated: The respondent Jugrajmal alias Rajmal filed a petition u/s 276 of the Act for grant of probate in his favour on the basis of a will dated July 7, 1980 executed by deceased Ridmal. By this will, the said Ridmal bequeathed all the properties mentioned in the petition to the respondent. The learned District Judge, Jodhpur issued citations u/s 283 of the Act calling upon all person claiming to have any interest in the estate of deceased Ridmal. By this will the said Ridmal bequeathed all the properties mentioned in the petition to the respondent. The learned District Judge, Jodhpur issued citations u/s 283 of the Act calling upon all persons claiming to have any interest in the estate of deceased Ridmal to come and see proceedings before the grant of probate. The appellant lodged caveats. It was alleged by that the deceased Ridmal was a Jain Yati and the properties which were bequeathed by him were of Jain community and therefore, he had no right to make a will in respect of them. In other words, it was contended that the said Ridmal being a Jain Yati had no right to make a testamental diposition of the properties in dispute belonging to the Jain community. By his order had no lucus standi to enter the caveat to challenge the will executed by the deceased Ridmal in favour of the respondent. Feeling aggrieved the appellants filed an appeal u/s 299 of the Act before this Court. The learned single Judge, by his order dated October 24, 1980 dismissed the appeal. Hence this special appeal by the appellants as aforesaid.

We have heard Mr. B.N. Kalla, learned Counsel for the appellants and have also read with requisite care the order of the learned District Judge dated September 1, 1980, which was confirmed by the learned single Judge.

The only question that calls for determination in this appeal is whether in view of the allegations made by the appellants when they entered caveats before the learned District Judge, they have locus standi to do so?

The material portion of Section 283 of the Act reads as under:

283, Powers of District Judge: AIR 1928 Mad 803 in, all cases the District, Judge or District Delegate say, if he thinks proper.

(a).....

(b).....

(c)issue citations calling upon M 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).....

(3).....

Section 284 of the Act deals with caveats against grant of probate or letter of administration.

Section 284 of the Act came up for examination before a learned single Judge of the Madras High Court in B. K. Sowbhagimal v. Kopalanga AIR 1928 Mad 803. The learned Judge held that in dealing with a question whether the necessary interest, the test is whether the grant displaces any right to which the caveator would otherwise be entitled and, if so, he has such an interest: if not, he has not. It was observed as under.

In every case, it must be shown that the caveator but for the will would be entitled to a right of which that will deprives him.

A Division Bench of the Patna High Court in Janki Saran Sahi Vs. Rambabadur Sahi and Another, observed as follows:

..... Here the objectors are claiming a paramount interest and challenging the title of the testerix. A Probate Court cannot enter into a question of title. Mr. Shivanandan Rai produced before us a copy of the judgment of the District Judge passed after remand by the High Court in the litigation reference to which is made by the District Judge and he wanted to show that it has now been established that Ramanandan had no right to execute the gift. Even then I think that it is not a ground for objection to the grant of letters of administration. He can have his title declared in a regular suit in the presence of the person to whom letters of administration have been granted and claim possession from him but as a probate Court the question of title cannot be gone into (underlining is ours)

In Bai Parvatibai Vs. Raghunath Lakshman, Kania, J. (as he then was) laid down as under:

In my opinion, a testamentory Court dealing with the question of issuing a grant of probate is concerned to see whether the will is duly executed as required by law by a testator of sound and disposing state of mind. In case of grant of letters of administration, the Court has to see that the person properly entitled to represent the estate of the deceased according to the Succession Act has come to Court, and is given the grant. It is no part of the duty of the testamentary Judge to consider the question of title of property.

Brij Nath Dev v. Chander Mohan Benerjee ILR (1897) All 458 and Bai Parvatibai Vs. Raghunath Lakshman, and other decisions were noticed in M. Madhavi v. Sree Rama Verma AIR 1969 Kerala 256. In that case, following the principles laid down in Bai Parvatibai Vs. Raghunath Lakshman, the Caveat which was sought to be sustained on the ground that the testator had no disposing power over the items in Annexure-A was dismissed.

The aforesaid decisions of the Bombay, Patna and Madras High Courts were considered by a learned single Judge of the Mysore High Court in D.S. Sriramish v. Smt D. Kanthamma AIR 1971 Mys 148. In that case, D. M. Chandrashekhar, J, as the then was, observed:

....it must be taken as well settled that a person who claims the property by a paramount title or claims adversely to the testator or disputes the testator''s right to deal with the property sought to be disposed of by the will, has no locus standi to enter a caveat.

In that case, Narayana Naicken Vs. Venkataswami Naicken and Others, on which strong reliance was placed by the learned Counsel for the appellants was noticed. In Narayana Naicken Vs. Venkataswami Naicken and Others, Section 69 of the Probate and Administration Act (1881) came up for examination before the Division Bench. In that context, the Division Bench observed as under:

If a person is likely to suffer by the grant of the probate of a forged will or an invalid will he has sufficient interest to enter a caveat.

We may state that the aforesaid observations were considered in M.K. Sombhaias-mal''s case AIR 1928 Mad 803 and the learned Judge was of the opinion that the learned Judges in Narayana Naicken Vs. Venkataswami Naicken and Others, could not have intended by their dicta to cast a doubt on a long settled practice sanctioned in a series of judgments of great authority. It is clear to our mind that a probate court dealing with issuing a grant of probate is only required to adjudicate whether the will is duly executed as required by law by a testator of sound and disposing state of mind and that it is not part of the duty of the testamentary court to consider the question of title of property. In other words, the Probate Court cannot decide the disputed title to the property mentioned in the Will. It necessarily follows that a person who enters caveat u/s 284 of the Act cannot dispute the title of the testator to deal with the property. We are also of opinion that dismissal of the caveat on the ground that the Probate Court cannot consider the question of title of property, is not likely to prejudice in any wav the caveator for, he has a right to file the suit to establish his title to the property.

For the reasons aforesaid, we have reached the conclusion that the caveats filed by the appellants cannot be sustained on the mere ground that the deceased Ridmal had no right to make a testamental disposition of the properties in dispute which belong to the Jain Community. In this view of the matter, the learned District Judge was right when he discharged and dismissed the caveats of the appellants. The learned single Judge rightly confirmed this order in appeal.

Before we close, we may notice Sima Rani v. Puspa Rani (8), which was cited by Mr. Kalla, learned Counsel for the appellants. In that case, it was held that a person having interest, however, slight and even the bare possibility an interest is sufficient to make an application for revocation. We may state that Section 263 of the Act, which deals with revocation or annulment for just cause the probate or letters of administration came up for consideration. On the effects of that case it was held that the appellant/applicant had locus standi to maintain an application for revocation of the Will. We regret, we have not been able to appreciate the bearing of this derision on the case which is before us. I We have no hesitation in saying that this decision is not of any assistance to the appellants.

No other point survives for our consideration.

The result is that this appeal has no force and it is, accordingly, dismissed summarily.