Malati Bala De vs Dhanapati Dutta

P.N. Mookerjee, J.—This appeal arises out of a probate proceeding. It is at the instance of a person whose attempt to intervene in the said proceeding by filing a caveat was rejected by the learned District Judge and thereafter, the will in question (Ex. 1) was probated on the sole testimony of the scribe who was also one of the attesting witness to the said will.

The testatrix was one Mokshadabala Dutta. The propounders were two persons Dhanapati Dutta and Raghupati Dutta who are the first two Respondents in this appeal. The present Appellant claimed a tenancy in respect of one of the properties left by the testatrix. She tried to intervene in the probate proceeding by applying for permission to file a caveat. The permission was refused by the learned District Judge by his order, dated May 21, 1962. Thereafter, the will (Ex. 1) was probated on May 25, 1962, there being no caveat on the record and the evidence of the sole witness, the scribe of the will (who was also one of the attesting witnesses, as said above) being considered sufficient by the learned District Judge for the grant of the said probate. Form this grant the present appeal was taken by the Appellant.

At an earlier stage, a preliminary point was raised as to the maintainability of this appeal on the ground that, in view of the order of the learned District Judge, refusing the Appellant permission to '' file a caveat on the ground that she had no locus standi in the matter, the present appeal at her instance was incompetent. This preliminary point was heard by this Court (Bhattacharya, J. and myself) and the Respondents'' objection to the maintainability of the instant appeal was overruled by a judgment, which is reported in Sm. Malati De and Another Vs. Dhanapati Dutta and Others, . In that judgment, we expressly reserved consideration of the point whether the Appellant had locus standi to file the caveat in the instant probate proceeding and whether the learned District Judge was right in refusing her prayer in that behalf. We proceeded on the footing that there was a distinction between the locus standi to file a caveat and a locus standi to file an appeal from the ultimate order, granting probate after refusal of the Appellant''s prayer to file a caveat on the ground of want of locus standi in that behalf and we held that the criterion for the one was not the same as the criterion for the other and in the instant case, the Appellant had locus standi to file an appeal.

The question now is whether the Appellant had locus standi to file the caveat and whether the learned District Judge was right in refusing her prayer in that behalf and further, whether on the evidence as it stands, the grant of probate can be supported.

On the first question, the statute purports to lay down no express test, but the decisions have uniformly proceeded upon the view that a caveator must have or, at least, claim an interest which was likely to be affected or prejudiced by the will. This has apparently coloured the interpretation of the word ''interest'' in Section 283(1)(c) of the Indian Succession Act, which lays down one of the circumstances which entitle a person to have a citation in a probate proceeding. It is not for us to say, for purposes of this proceeding, whether the tests in the matter of citation and in the matter of caveat should be the same but, be that as it may, as we have said above, the decisions are uniform that, for asserting locus standi to file a caveat, the claimant must have or, at least, claim an interest which was likely to be affected or prejudiced by the will.

In the instant case no such question arises. The claim here is of an interest of tenancy in the testatrix''s property. That is obviously a tenancy under her. If the claim is good, the testatrix''s will, whatever be its nature, cannot certainly displace it or affect it or prejudice the same. The test, therefore, which is necessary to be satisfied for the purpose of the Appellant''s locus standi to enter a caveat, is not satisfied in the instant case. This is apart from the other reason which has been given by the learned District Judge, which also, if the learned District Judge''s basic assumption be correct, would be a good ground for rejection of the Appellant''s prayer. The learned District Judge observed in this connection that the Appellant''s claim of tenancy was a controversial one controverted even by the testatrix herself. That appears to be the trend of his judgment. If this is correct, it may very well be said that the Appellant was claiming some interest adverse to the testatrix and such a claimant, on none of the recognised authorities, can be said to be a proper intervenor in a probate proceeding.

A point, however, may be raised whether the learned District Judge''s basic assumption in this respect was correct, namely, that the Appellant''s tenancy was controverted even by the testatrix herself. It is true that the testatrix brought an ejectment suit against the Appellant''s husband, but it is not clear from the record, at least there is no assertion in that behalf, even on the part of the Respondents, that ejectment suit was in respect of the property which or, in respect of which, the Appellant was claiming her tenancy. The assumption of the learned District Judge in that behalf does not seem to be correct or justified, at least on the materials on record and in that view, the ground given by the learned District Judge may not be supported.

As, however, we have already indicated above, even assuming that the Appellant was a tenant under the testatrix and her claim in that respect was a good claim, she would fail on the other test that this interest is not likely to be affected or prejudiced by the will. The point of locus standi, therefore, so far as caveat is concerned, must be held to have been rightly decided by the learned District Judge, although the ground for the same was not correctly given by him.

Even then, however, as we have said above, the Appellant being entitled to maintain this appeal, apart from or irrespective of the said question of locus standi in the matter of filing of the caveat, she would be entitled to show that, on the evidence as it stands, the probate in question should not have been granted. In the instant case, however, the Appellant''s attempt in that behalf also must fail.

The only evidence, as we have said above, is that of the scribe cum attesting witness, but the said evidence, so far as evidence is necessary for probate of the disputed will, is full and complete. It proves that the will was duly executed and attested by the testator. It proves also that the will was read over to the testatrix, who had also read the will herself. The scribe witness also specifically states that the testatrix had a sound disposing mind or capacity when she made the will. The will, according to the scribe, was executed in his presence and in the presence of the other attesting witnesses, before whom the testatrix signed and all of whom again saw the testatrix to sign the same.

In such circumstances no valid objection can be taken to the probate of the will and the grant of probate by the learned District Judge must be upheld.

In the above view, this appeal fails and it is dismissed.

In view, however, of the fact that the order of the learned District Judge, although it is being ultimately upheld by us, rejecting the Appellant''s claim of locus standi in the matter of caveat, was not based on fully good or sound reason, we direct the parties to bear their own costs in this Court.

It is only necessary to add that in the will (Ex. 1), as printed in the paper-book, the name of one of the attesting witnesses Bibhuti Bhusan Das has been omitted. That mistake (omission) should be rectified in the paper-books, which will remain as part of the records of this Court.

T.P. Mukherji, J.

I agree.