Raghubir Singh vs Dharam Singh

N.N. Mithal, J.—The Appellant had lodged a caveat in proceedings u/s 283 of the Indian Succession Act initiated by the respondent for grant of probate of the will said to have been executed by J.S. Laurent in his favour. The said caveat application having been dismissed by the Additional District Judge, Dehradun the present appeal has been filed which has come up for admission before us. The caveat has been rejected mainly on the ground that the caveator (Appellant) had claimed no interest in the estate of the deceased.

In the application for grant of probate the applicant had alleged that the testator Late J.C. Laurent had executed a Will on 10-5-1976 in which the applicant was appointed sole executor of the estate of the deceased. The said J.C. Laurent had died on 12-5-1979 where after these proceedings have been initiated sometime in 1984. The Appellant lodged a caveat in the said proceedings in early, 1987 alleging that he being state subject was entitled to file the caveat; that the will propounded by the applicant was fictitious and forged, that the application for grant of probate having been dismissed in default on an earlier occasion a second application was not maintainable.

On an objection being taken by the applicant the court took up the question of maintainability of caveat application as preliminary issue and, after affording due opportunity to the parties'' learned Counsel, dismissed the same holding that the caveator had disclosed no interest in the estate of the deceased and as such the caveat was not maintainable.

Sri Radha Kishan, learned Counsel appearing for the Appellant has, however, strenuously urged that the view of the court below in this regard was erroneous as the rights of the Appellant are likely to be seriously affected by the grant of probate to the respondent in view of a pending suit for declaration instituted by the deceased testator against the Appellant wherein the Appellant�s defence was that he had acquired title to the property and the claim of the testator was barred by time as the Appellant was in continuous possession over the disputed land since 1951-1952.

Having heard the learned Counsel at some length we are of the opinion that the submission made by the learned Counsel is devoid of any merit. Looking to the nature of litigation between the parties and also in view of the ground taken in the caveat it is apparent that the Appellant was not claiming any interest in the estate of the deceased as such.

''Estate'' is a word of wide import but in the sense in which it is used u/s 283 the ''estate'' is that which a man can sell or dispose of at his pleasure or he can pass on to another. Speaking generally ''estate'' may be said to be an interest which any one has in the land or any other object of property but in its primary sense it means the interest on title of the parties in the property.

In the instant case what the Appellant was intending to assert in the caveat was that the testator had no right in the property in dispute and that the caveator had a better title thereto. In this connection it will be better to quote the relevant portion of Section 283 of the Indian Succession Act, 1925 which reads as under:

Section 283

(i) In all cases the District Judge or District delegate may, if he thinks proper:

(a)...

(b)...

(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)...

(3)...

Section 284 of the Act makes a provision for lodging a caveat in probate proceedings before the District Judge. On such a caveat being lodged the court cannot proceed to decide the probate proceedings without hearing the caveator as laid down in Sections 285 to 288 of the Act. However, the court is entitled to examine whether the caveat has been lodged by a competent person which is primarily dependent on the question whether the caveator had any interest in the estate of the deceased. The submission made by Sri Radha Kishan was that since the Appellant was claiming a right in the property covered by the Will and will be seriously affected by the result of the proceedings he had sufficient interest in the estate so as to entitle him to enter the caveat. The position in law, however, is otherwise. There is a long list of cases in which it has been repeatedly held that the interest which entitle a person to lodge a caveat 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. Person who wishes to enter the proceedings as a caveator must show some interest in the estate derived from the deceased by inheritence or otherwise. In Abhiram Dass Minor v. Gopal Dass ILR 17 Cal 48 a Division Bench of that Court held that a person without claiming any property of the testator disputing testator''s title cannot be said to have any interest in the estate of the testator so as to oppose the grant of probate. Almost to the same effect is another Division Bench decision of that very court in Navin Chandra v. Nibrat Chandra 36 C WN 365. More recently in the case of In the Goods of Mahammad Bashir (deceased), a learned single Judge held that a person not being an heir and having no interest in the estate of the deceased have no right under the Act to be cited and non citation of such a person does not amount to sufficient cause which makes grant of probate liable to be revoked.

In the case of Mrs. Elzabeth Eqbert v. A.J. Fanthome ILR 1951 (All.) 661 this Court took the view that the caveator who lays claim to a particular property and at the same time says that the property does not form part of the deceased''s estate, is not claiming interest in that estate, he has, therefore no locus standi to contest the petition for grant of probate. Thus the consistent view of various High Courts has been that in order to entitle a person to lodge a caveat in probate proceedings the caveator must claim interest in the estate of the deceased and if he disputes the title of the testator then he has no locus standi to maintain the caveat.

In the present case we have already found that the Appellant is not claiming any interest under the testator or in the estate left by the deceased. On the contrary what he is claiming is a right adverse to that of the testator. Such a right can only be decided on the regular side in a civil suit.

As to the likely prejudice to the interest of the Appellant in case probate was granted suffice it to say that it will only entitle the grantee to be substituted in place of the deceased in the pending proceedings against the Appellant and the nature of the proceedings will not be effected to his prejudice in any manner.

Apart from this from the copy of the probate application, filed as Annexure to the affidavit in support of the said application, we find that three other relations of the deceased have been mentioned therein and they will be fully competent to oppose the grant of probate to the respondent in case genuineness of the same is in doubt.

In view of what we have said above, we find no merit in this appeal which is dismissed in limine at the admission stage.