R. Krishnamoorthy vs J. Chandrasekaran

Thangamani, J.—One Smt. Padmini Chandrasekaran died on 7.6.1980 at Madras leaving behind a registered will dated 20.9.1975. The

plaintiff herein Thiru R. Krishnamurthy and one H.B.N. (Setty) were appointed as executors under the Will. The latter had relinquished his post as

such executor by virtue of his being in the Indian Administrative Service. Thereupon the plaintiff filed O.P. 117 of 1981 on the file of this Court

under Ss. 222 and 276 of the Indian Succession Act for the grant of probate. By an order dated 28.4.1981 probate was issued to him.

Subsequently the husband of deceased Padmini Chandrasekaran came forward with Application No. 1998 of 1982 to revoke the probate granted

by this court. According to him the probate was obtained even without disclosing his existence and without any attempt to issue any notice to him.

That application was stoutly opposed by the present plaintiff on the ground that the genuineness of the will was not challenged by the husband in

the earlier proceedings. A single Judge of this Court has allowed the application and directed revocation of the grant of probate under S.263 of the

Indian Succession Act by his order dated 16.9.1982. And the O.P. was converted as T.O.S. 28 of 1982. Against this order the plaintiff herein

preferred O.S.A. 96 of 1983. A Division Bench of this Court allowed the appeal on 24.3.1984. The husband of the testatrix took up the matter in

appeal before the Supreme Court in Civil Appeal No. 4462 of 1984. As the parties have agreed to settle the matter between themselves the

Supreme Court by its order dated 11.9.1985 set aside the judgment passed by this Court in O.P. No. 117 of 1981 dated 16.9.1982 and in

O.S.A. No. 96 of 1983 dated 12.3.1984 and held that on the caveat filed by the husband the matter would be treated as regular testamentary suit

in the original side of the High Court and this Court will proceed to dispose of this matter at its convenience but as early as possible. While this

T.O.S. No. 28 of 1982 was pending Application Nos. 17, 18, 19 and 20 of 1989 came to be filed by one minor J. Gnanaprakasam represented

by J. Chandrasekaran the husband of the testatrix. Application No. 17 of 1989 was for impleading the said J. Gnanaprakasam as a party in the

T.O.S. on the ground that he was adopted on 7.12.1988 as son by the above said J. Chandrasekaran under a registered deed of adoption, that

the deceased Padmini Chandrasekaran would become his adoptive mother by such adoption and that he would be her heir. This application was

dismissed as absolutely misconceived and consequently the prayer in the other three applications were also rejected.

Subsequently on 31.5.1991 the defendant who is the husband of the deceased testatrix died on 17.7.1991 the counsel for defendant filed a

memo in Court informing the death of his client. He had also served a notice on the counsel for the plaintiff stating that the deceased defendant has

left his two brothers as legal representatives and also an adopted son minor Prakash. Deceased had also left a Will dated 11.3.1991.

The plaintiff has filed an objection memo mentioning that the properties which are the subject matter of the suit were inherited by deceased

Padmini Chandrasekaran only as heir to her father. And so only her father''s heirs could have any caveatable interest to oppose the grant of

probate. Even the caveatable interest of the deceased husband Chandrasekaran itself was in dispute. On the death of Chandrasekaran on

31.5.1991 the caveat terminated and there cannot be persons succeeding Chandrasekaran. There is no need to bring on record any legal

representative of the deceased defendant as the caveat has lapsed with defendant''s death.

The point for determination is whether the legal representatives of the deceased defendant have to be brought on record in T.O.S. No. 78 of

1982?

The learned counsel for the deceased defendant represented that by filing the memo dated 17.7.1991 he has simply carried out the duty

enjoined on him under Order 22 Rule 10(A) of C.P.C. which reads that whenever a pleader appearing for a party to the suit comes to know of the

death of that party, he shall inform the Court about it, and the Court shall there upon give notice of such death to the other party, and for this

purpose the contract between the pleader and the deceased party shall be deemed to subsist. So the learned counsel for the defendant has done

only his duty in bringing to the notice of the Court about the demise of his client by his memo dated 17.7.1991. Besides it is the submission of the

learned counsel for the defendant that the estate of deceased Padmini Chandrasekaran is worth about 100 crores of rupees and so in the interest

of justice plaintiff has to prove the will in the presence of somebody and there is no reason for passing an ex parte order.

Whereas the learned counsel for the plaintiff argues that no legal representative of the deceased defendant need be brought on record in this

testamentary original suit and it is enough if he is permitted to prove the will in the solemn form by examining attesting witnesses. According to him

it is concluded by a ruling of this Court reported in Padmini Chandrasekaran v. Somasundaram Chettiar 78 L.W. 535 : 1965-2- M.L.J. 65 : 1965

(2) M.L.J.P. 65 that the properties have been inherited by Padmini Chandrasekaran as her father''s estate. In fact in O.S. 67 of 1980 of Sub Court

Pondicherry this position is clearly admitted by the deceased defendant herein. Under S.15(1) of the Hindu Succession Act the property or a

female Hindu dying intestate shall devolve on the heirs mentioned therein. As per S.15(2) (a) of the said Act notwithstanding anything contained in

sub-S. (1) any property inherited by a female Hindu from her father or mother shall devolve in the absence of any son or daughter or husband of

the deceased not upon the other heirs referred to in sub-s.(1) but upon the heirs of the father. So the persons mentioned in the memo who are the

brothers and adopted son of her deceased husband can never succeed to the estate of Padmini Chandrasekaran and they cannot have any

caveatable interest to oppose the grant of probate. The learned counsel for the plaintiff further argues that on the death of J. Chadrasekaran on

31.5.1991 the caveat got terminated or discharged since there are no persons who could succeed him with caveatable interest in the estate of

deceased Padmini Chandrasekaran. The caveat has lapsed with the death of the defendant. So it has to be struck off. There is no need to bring on

record any legal representative of the deceased defendant and the letter dated 17.7.1991 filed by the counsel for the defendant has to be rejected.

In Pirejshahbikhaji v. Pestanji Merwanji ILR 34 Bombay 459 it is held that the interest which entitles a person to put in a caveat must be an

interest in the estate of the deceased person, that is, there can be no dispute whatever as to the title of the deceased to the estate, but that the

person who wishes to come in as the caveator may show some interest in the estate derived from the deceased by inheritance or otherwise. In

Dular Kuer v. Kesar Kuer AIR 1964 Patna (sic) 518 it is laid down that an interest in the testator''s estate, however slight or the bare possibility of

an interest or even an interest dependent upon remote contingencies was sufficient to entitle a person to oppose a will and to entitle him to citation.

But the possibility of an interest should rest on existing facts and not mere conjectures. When at the time of testator''s death he had no possible

chances of succeeding to the testator''s estate, he has no locus standi to oppose the grant of probate. The decision in Sadananda Pyne v. Harinan

Sha AIR 1950 Calcutta (sic) 179 states that in order to have the locus standi to apply for revocation of probate, a person must have an interest in

the estate of the deceased, supposing he had died intestate. A person who has merely the possession of a trespasser has no interest in the estate of

the deceased. He has therefore no locus standi to file such an application on the rationale of these decisions cited by the learned counsel for the

plaintiff, it is evident that the proposed parties have no locus standi to come on record as legal representative of the deceased defendant in this

action.

However the learned counsel for the defendant urged that once O.P. 117 of 1981 on the file of this court has been converted as a regular

testamentary suit in the Original Side as per the order of the Supreme Court dated 11.9.1985 in Civil Appeal No. 4462 of 1984 the proceedings

partake the character of a suit and the provisions of C.P.C. alone are applicable. The question of having cave at able interest of the persons to be

brought on record does not arise. Irrespective of the fact whether they possess caveatable interest or not they are bound to be brought on record

as legal representatives of deceased Chandrasekaran under Order 22, Rule 4 C.P.C. In support of his claim he relied on the provisions of Ss. 300

and 295 of the Indian Succession Act. S.300 gives concurrent jurisdiction to the High Court along with the District Judge in the exercise of all

powers conferred upon the District Judge that Act. S.295 reads that in any case before the District Judge in which there is contention, the

proceedings shall take, as nearly as may be the form of a regular suit according to the provisions of the Code of Civil Procedure, 1908 in which the

petitioner for probate shall be in the plaintiff, and the person who had appeared to oppose the grant shall be the defendant. But as it has been

rightly pointed out by the learned counsel for the plaintiff under S.295 the proceeding taking the form of a regular suit is not absolute but only ""as

nearly as may be"". Order 25 Rule 67 of the Original Side Rules dealing with contentious testamentary and intestate matters also states that in cases

not provided for by that order, the rules of procedure laid down in the Indian Succession Act or by the Civil Procedure Code, the practice and

procedure of the Probate Division or the High Court of Justice in England shall be followed so far as they are applicable and not inconsistent with

that order and the said Acts. It is therefore evident that the provisions of C.P.C. and the Indian Succession Act are not applicable in entirety but

only to the extent necessary.

In any event when a petition for issuance of probate is treated as a suit the procedure to be followed alone varies and not the substance of the

cause. It remains a testamentary action first and last. The relief to be granted in the said action does not undergo any change. Further the scope of

the probate proceedings is limited. The probate Court is not concerned about the capacity of the testator to execute the will. The grant of probate

does not declare the right of any party to the property contained therein nor does it decide a title. It only relates to the genuineness about the

execution of the will. The testamentary suit is a separate proceeding by itself. In view of Order 4, Rule 1 of C.P.C., unless a proceeding starts with

a plaint as such it is not a suit. Whereas a proceeding to obtain probate of a will cannot be said to be instituted on a plaint, under S.276 of the

Indian Succession Act application for probate shall be made by a petition with the will annexed. A proceeding not initially started by presentation

of a plaint is not a suit though it may assume the form of a suit for certain purposes of procedure. All that S.295 of the Indian Succession Act lays

down is that when the proceedings become contentious it shall take as nearly as may be, the form of a regular suit, according to the provisions of

the Code of Civil Procedure. It is for this limited purpose only that such a contentious case will be treated as a suit. A proceeding for grant of

probate is not strictly a suit though in some cases where the grant is opposed it is deemed as such. This is only for the purpose of classification of

the proceeding without changing its character. The order passed in such a proceeding may have the force of a decree but strictly it is not a decree

not having been passed in a suit. What follows from the order is the grant in the form of probate or letters of administration set out in Schedule 6 or

7 of the Indian Succession Act. And as it has been held in Sowbhagiammal v. Komalangi Ammal 27 L.W.C. 167 it is not the province of the

probate Court to go into questions of title with reference to the property which the will purports to dispose of and that the grant of probate does

not confer upon the executor any title to property which the testator had no right to dispose and that the grant only perfects the representative title

of the executor to the property which belonged to the testator and over which he had a disposing power. In In the In the matter of S.

Krishnaswami and etc. etc., a Division Bench of this Court has pointed out that in proceedings in an application filed for grant of probate no right is

asserted or claimed by the applicant. The applicant only seeks recognition of the Court to perform a duty. That duty is only moral and it is not

legal. There is no law which compels the applicant to file proceedings for probate. With a view to discharge the moral duty, the applicant seeks

recognition from the Court to perform the duty. It will be legitimate to conclude that the proceeding filed for probate is not an action in law. While

so it is evident that merely because the procedure prescribed by the CPC are made applicable as far as possible to contentious probate

proceedings, we cannot hold that the nature and substance of the proceedings have changed. Whatever be the procedure adopted the character of

the suit remains the same. When the possession of caveatable interest is necessary for a person to come on record in an application for the grant of

probate there is no reason why such a necessity vanishes the moment the petition is converted as a suit. In other words existence of a caveatable

interest is a condition precedent for coming on record in a probate proceeding whether it is a mere petition or a testamentary suit.

So the proposed parties cannot come on record as legal representatives of deceased defendant in this action on account of absence of any

caveatable interest for them in the estate of deceased Padmini Chandrasekaran. In the result, the objection of the plaintiff is upheld. The plaintiff is

directed to prove the will in solemn form by examining the attestors. Post the case on 7.1.1992.