S. Bhaskaran and S. Ganga Devi vs R. Loganathan

R. Banumathi, J.—These appeals are directed against the dismissal of applications for revocation of the Letters of Administration granted in

O.P. No. 157/2001 and declining stay of all further proceedings in pursuance of Letters of Administration granted on 17.09.2001. Since both

appeals arose out of common order and questions involved are one and the same, both appeals were heard together.

2.Brief facts necessiated for disposal of these appeals are as follows:

The property in question is the self acquired property of one Purushothaman, who died on 1.4.1998, leaving his wife P. Ranganayaki as the only

legal heir. The appellants have purchased the property from the said Ranganayaki under two Sale Deeds dated 15.02.1999 and the appellants are

said to be in possession and enjoyment of the property. The respondent, who is the brother of Purushothaman has filed C.S. No. 227/1999 on

26.3.1999 against Ranganayaki as well as the appellants, seeking a Decree for cancellation of two Sale Deeds executed by Ranganayaki and the

suit is pending. Respondent has filed O.P. No. 157/2001 for the grant of Letters of Administration in respect of the Will dated 20.09.1997 said to

have been executed by Purushothaman. Ranganayaki was impleaded as respondent in O.P. No. 157/2001. Though O.P. No. 157/2001 was filed

in 1999, it was numbered only in 2001 and in the mean time, Ranganayaki died on 19.10.1999. In the O.P., name of Ranganayaki was struck off

and Letters of Administration was granted by order dated 17.09.2001. Stating that appellants are purchasers of the property from Ranganayaki

and that they have got caveatable interest in the property, appellants have filed applications to revoke the Letters of Administration granted in O.P.

No. 157/2001 and also sought stay of all further proceedings.

Respondent has contested those applications contending that his brother Purushothaman had duly executed Will dated 20.9.1997. Respondent

has filed C.S. No. 227/1999 for cancellation of the Sale Deeds executed by Ranganayaki in favour of the appellants who have been impleaded as

Defendants 1 and 2 in C.S. No. 227/1999. In O.P. No. 157/2001, Public Notice was issued in Newspapers and pendency of O.P. was brought

to the notice of the general public. According to the respondents, as per the recitals in the Will, Ranganayaki can have only life interest and that she

cannot mortgage or sell the property. Respondent mainly contended that he has proved the Will dated 20.09.1997 to the satisfaction of the Court

and only after following the procedure, Letters of Administration was granted and that he has not suppressed any material facts for obtaining

Letters of Administration.

Upon consideration of rival contentions, the learned Single Judge has held only if a person is entitled to inherit the property, he can be said to

have caveatable interest in the property. Pointing out that already civil suit is pending between the parties, wherein respondent has sought to set

aside the Sale Deeds in favour of the appellants, the learned Single Judge held that the appellants have no caveatable interest and on those findings,

dismissed the application for revocation of Letters of Administration.

Challenging the impugned Order, the learned Senior Counsel Mr. S. Parthasarathy has interalia made the following submissions:

A person having interest in the property left by the deceased even if it is by subsequent purchase, he has got a right of being heard in the

proceedings for grant of Letters of Administration;

The test is whether grant of Letters of Administration displaces any interest acquired by the purchaser and in this case, the grant of Letters of

Administration in favour of the respondents has the effect of displacing the right of the appellants.

Even slightest interest in the estate will entitle one to be a party in the probate proceedings.

Countering the arguments, the learned Counsel for the respondent has submitted that when civil suit C.S. No. 227/1999 has been filed seeking

for cancellation of the Sale Deeds, the appellants have no caveatable interest. Placing reliance upon 2005 (4) CTC 165 Ramani U. Krishnan v. Dr.

Ammini Praveen Joshua @ Veena, the learned Counsel has submitted that the ambit of enquiry in probate proceedings is limited and thirty party

right cannot be gone into in the probate proceedings. It was further contended that in the civil suit, the respondent has indicated the proposed steps

to be taken for probating the Will and the appellants had knowledge of the probate proceedings and even then, they have not chosen to file caveat

or raise objection. The learned Counsel has also submitted that after effecting paper publication, and only in compliance of procedure, Letters of

Administration was granted and the same cannot be revoked.

In the light of the contentions of parties, two questions arise for our consideration:

(i)Whether appellants have caveatable interest and are entitled to contest the Will;

- and -

(ii) Whether the appellants are entitled to seek revocation of Letters of Administration in O.P. No. 157/2001.

Admittedly, the appellants have purchased the property from Ranganayaki, wife of Purushothaman by two Sale Deeds dated 15.02.1999.

Alleging that Purushothaman had executed the Will dated 27.09.1997, respondent has filed O.P. No. 157/2001 on 16.03.1999. But the same was

numbered only on 27.02.2001. Respondent has also filed C.S. No. 227/1999 on 26.3.1999 against Ranganayaki and the appellants seeking

cancellation of two Sale Deeds executed by Ranganayaki in favour of the appellants. Ranganayaki died on 19.10.1999. Though Testamentary

O.P. was filed in March 1999, only after death of Ranganayaki, respondent seems to have taken steps to number the O.P., after a lapse of 23

months. Name of Ranganayaki was struck off in O.P. and O.P. was numbered on 27.02.2001 and the same was ordered on 17.09.2001.

Appellants claim through Ranganayaki, who is only the Class I Heir of Purushothaman. Appellants are purchasers from Ranganayaki, claiming

through legal heir of Purushothaman, for caveatable interest in the property. Persons contending the Will must show an interest in the estate of a

deceased person either by inheritance or otherwise. The test for determining whether a person has sufficient interest to sustain a caveat is whether a

Will/grant displaces any right to which the caveator is otherwise entitled, if so, he has a interest. If not, he has no caveatable interest. In a catena of

decisions, it is fairly well settled that any interest, however slight, is sufficient to entitle a party to oppose grant.

Placing reliance upon 2005 (4) CTC 165 Ramani U. Krishnan v. Dr. Ammini Praveen Joshua @ Veena, learned Counsel for the respondent

has submitted that a person who is not claiming any right under testator nor a beneficiary to the Will nor who is likely to inherit estate of the

deceased cannot file application u/s 263. In the said case, the applicant who sought revocation of the Will claimed a right based on an Agreement

of sale. Referring to Rambaran Prosad Vs. Ram Mohit Hazra and Others, , and observing that the Agreement or contract for sale of immovable

property would not of itself create any conclusion or charge of such property, the Court has held that the Agreement holder has no caveatable

interest since her remedy is only in respect of Agreement of sale which has no connection with the probate of the Will. The said decision is not

applicable to the facts of the case on hand.

Placing reliance upon Mrs. Elizabeth Antony Vs. Michel Charles John Chown Lengera, , the learned Counsel for the respondent has submitted

that in a probate proceeding, Court does not decide the disputes regarding title. The said decision is of no help to the respondent. In the said

decision, the Supreme Court observed that by granting probate, Court is not deciding the disputes to the title and even with regard to the probate

granted, it can be revoked as provided u/s 263 of the Act in any one of the cases mentioned therein. In paragraph 5, the Supreme Court has

referred to the decisions, which are to the effect that any interest however slight and even a bare possibility of an interest, is sufficient to enter a

caveat in a probate proceedings.

All persons who are entitled to contest a Will may apply for revocation of the grant. Persons seeking to revoke grant of probate or of Letters

of Administration must prove that they have an interest in the estate of the deceased sufficient to entitle them. An interest acquired subsequent to

the death of the Testator by a purchaser or a mortgagee of a part of the estate of the deceased is sufficient to seek revocation of the grant.

Dinabandhu Roy Brajaraj Saha, Firm Vs. Sarala Sundari Dassya, .

The question as to who is entitled to file an application u/s 263 of the Indian Succession Act has been the subject matter of several decisions of

various High Courts. In 1892 ILR Cal. 37 Muddun Mohun Sircar v. Kali Churn Dey, the applicant was a purchaser from two sons of the

deceased. It was held that purchase from such heir is a person claiming to have an interest in the estate of the deceased within the meaning of

Section 69 of the Probate and Administration Act, and is entitled to apply for revocation of the probate of the Will so set up.

Observing that a purchaser of properties from heirs of a deceased person has a locus standi to apply for revocation of Letters of

Administration of a Will said to have been executed by the deceased, in 1901 ILR Cal. 587 Lalit Mohan Bhuttacharjee v. Navadip Chandra

Kaparia, the Court has held thus:

[T]he only question submitted for our decision is, whether the applicant had any locus standi to apply for revocation of these Letters of

Administration. I think he had. He stood virtually in the shoes of the two sons, who claimed to be the heirs, and who had dealt with the property,

as the sole owners of it. The applicant was the purchaser from the heirs, and, if the heirs could have applied for revocation of the Letters of

Administration, I do not see why the purchaser could not do so, he being in the same position as they were. He was not in a position of an ordinary

creditor, but he was the purchaser from the heirs. I think, therefore, that, if the heirs were entitled to sue for revocation of the Letters of

Administration, the purchaser from them had a locus standi to make a similar application. This view seems to me to be consistent with certain

decisions if this Court, namely, the case of Komol Lochun Dutt v. Nil Ruttun Mundle 1878 I.L.R.4 Calc. 360, and also the very recent case of

Muddun Mohun Sircar v. Kali Churn Dey 1892 ILR 20 Calc. 37.

Considering the scope of ""locus standi"" of the person seeking revocation and the test for determination of locus standi, referring to various

decisions, in 1995 (2) LW 852 S. Panchanathan v. Elappan (died) and 5 Ors., Justice Srinivasan [as His Lordship then was], has held thus:

The question as to who is entitled to file an application u/s 263 of the Indian Succession Act, has been the subject matter of several decisions

of various High Courts. In Sadananda Pyne Vs. Harinam Sha and Another, , a Division Bench of the Calcutta High Court held that a person

holding an interest in the property in the event of intestacy is one, who Will have locus standi to file an application u/s 263 of the Indian Succession

Act. In Promode Kumar Roy Vs. Sephalika Dutta, , a Division Bench of that Court held that person who has acquired an interest in the testator''s

estate, though after his death, by reason of the mortgage transfer by the testator''s son and who is undoubtedly also a creditor of the testator''s said

son, whom the alleged Will purports to disinherit has plainly locus standi to apply for revocation of the grant, particularly when his allegation is that

the grant was obtained in fraud of the creditors. In the Goods of Ganapati Sarkar AIR 1959 Cal. 227, a single Judge of that Court held that a

slightest interest in the estate Will entitled one to be a party to probate proceedings. In another Bench decision the Calcutta High Court in

Annapurna Kumar Vs. Subodh Chandra Kumar, , has held that any interest, however, slight, and even a bare possibility of an interest, is sufficient

to entitle a party to oppose a testamentary paper. In Rao & Sons v. Chandamon del AIR 1971 Ori 95, a single Judge of that Court went to the

extent of holding that creditors of the heirs at law of the testator were entitled to ask for revocation of probate and enter caveat during probate

proceedings in response to a general citation. In Sima Rani Mohanti Vs. Puspa Rani Pal, , a Division Bench of that Court reiterated the proposition

laid down in Annapurna Kumar Vs. Subodh Chandra Kumar, .

Recently, a Division Bench of this Court, to which one of us was a party held in Gita alias Gita Ravi Vs. Mary Jenet James alias M.J. James

and Others, held that explanation (a) to (e) in Section 263 of the Indian Succession Act is not exhaustive and the Court is not fettered by the

explanation while deciding whether there is just cause for revocation of a grant. It is held that the explanation would only mean that in cases, where

one of the circumstances set out in Clauses (a) to (e) is present, a legal fiction comes into existence to the effect that in such cases, there is just

cause for revocation. If there are circumstances, which do not fall within the ambit of Clauses (a) to (e), but which warrant or necessitate the

revocation of the grant, the Court is entitled to revoke the grant or annul the same even though there is no legal fiction.

In the above said case, the respondent Ellappa Chettiar was a close relation standing in the same degree of relationship as the wife of the appellant

and also a probable legal heir of the deceased. Bench has pointed out that consideration of material fact and failure to specify in Form 58 close

relations of deceased who would normally be entitled to claim heirship in the absence of a testament would be sufficient to revoke grant of Letters

of Administration and explanation (a) to (e) in Section 263 is not exhaustive.

Referring to various decisions in Shanti Devi Agarwalla Vs. Kusum Kumari Sarkar and Another, , the learned Single Judge has held that even

bare possibility of a interest is sufficient to entitle a person to oppose testamentary instrument. In the said case, part of property was purchased

from one of the Legatees relying on second Will. That purchaser would be affected if probate is granted through first Will. The learned Single

Judge has held that vendor legatee is entitled to enter caveat in respect of first Will, the purchaser having stepped into the shoes of the vendor is

also entitled to enter caveat.

In view of well settled position, we are of the view that the appellants have caveatable interest. In the case before us, appellants having

purchased the property from Ranganayaki - Class I Heir of Parushothaman, step into the shoes of Ranganayaki and are entitled to enter caveat

and contest the Will. As per Order 25 Rule 31 of the High Court Original Side Rules, where administration is applied for one or some of the next-

of-kin only there being another or other next-of-kin equally entitled thereto the Registrar may require proof by affidavit that notice of such

application has been given to such other next-of-kin. Rule 51 makes it clear that any person intending to oppose the issue of a Grant of Probate or

Letters of Administration must either personally or by his advocate file a caveat in the Registrar''s Office in Form 69. Clause 7 of Form 55 which is

an application for probate of Will, shows that the person has to implead next of kin or other person interested as party/respondents. The appellants

having purchased the property from Ranganayaki are ''other persons'' interested as party/respondents. In our view, the respondent ought to have

impleaded the appellants who claim through Ranganayaki as party/respondents in the probate proceedings.

The learned Counsel for the respondent has submitted that the present appellants, who are the subsequent purchasers had claimed that the Will

had been executed. In the application filed by them had claimed that they had purchased the property from Mrs. P. Ranganayagi, in whose favour

there was a Will dated 24.10.1997 and the applicants had been informed by said Mrs. P. Ranganayagi that she had taken steps for probate of the

Will on 7.9.1999 and since such papers had been returned, the purchasers have got the original Will papers from the counsel of late Mrs. P.

Ranganayagi.

In the above background, learned Counsel for the Respondent has contended that since no Probate has been granted nor Letters of

Administration has been issued for the so called Will dated 24.10.1997, the entire basis of the claim made by the present appellants, who are

merely the purchasers, is non-existent and in this context it is further submitted that in view of the provisions contained in Sections 213 and 57 of

the Indian Succession Act and in view of series of decisions including the Full Bench decision of this Court reported in AIR 1927 Madras 1054

Ganshamdoss Narayandoss v. Gulab bi Bai and Clarence Pais and Others etc. Vs. Union of India, , the purchasers cannot have any right.

In Ganshamdoss Narayandoss Vs. Gulab Bi Bai, , the question referred to the Full Bench was : ""Can a Defendant resisting a claim made by

the plaintiff as heir-at-law rely in defence on a will executed in his favour at Madras in respect of property situate in Madras when the Will is not

probated and no Letters of Administration with the Will annexed have been granted?

Referring to various cases, the Full Bench has answered the question referred, holding as under:

...as the mere existence of the Will does not necessarily displace the plaintiff''s title and as it is necessary for the Defendant to go further and prove

that some one other than the plaintiff has title under the will which he cannot prove by virtue of the provisions of Section 187, he cannot use the

unprobated will as a defence.

Placing reliance upon Clarence Pais and Others etc. Vs. Union of India, , the learned Counsel for respondent has submitted that the scope of

Section 213(1) of the Act is that it prohibits recognition of rights as an executor or legatee under a Will without production of a probate and sets

down the rule of evidence. It was further submitted that though the appellants have stated that they are taking steps for probating the alleged will in

favour of Rankanayaki, so far, such will is not probated and in view of prohibition u/s 213(1) of the Act. The appellants cannot claim any right in

the property and the learned Single Judge has rightly dismissed the application. Considering the scope of Section 213(1) of the Act, in the

aforesaid decision viz., Clarence Pais and Others etc. Vs. Union of India, , the Supreme Court has held that Section 213(1) of the Act does not

prohibit a will being looked into for purposes other than those mentioned in the Section. It was further held as under:

The bar to the establishment of the right is only for its establishment in a Court of justice and not its being referred to in other proceedings before

administrative or other tribunals. The section is a bar to everyone claiming under a will, whether as a plaintiff or Defendant, if no probate or Letters

of Administration are granted.

We do not think that the aforesaid contention made by the respondent can be pressed into service to deny the prayer of the appellants

regarding revocation of Letters of Administration. Assuming that there was a Will dated 24.10.1997, in respect of which neither Probate is granted

nor Letters of Administration is issued, such Will cannot be admitted in evidence and may be such Will may have to be ignored. However, even

assuming that there was no such Will or no right can be claimed on the basis of the Will without obtaining Probate or Letters of Administration,

Ranganayaki is entitled to inherit the property of Purushothaman as she being Class I Heir entitled to succeed to the property in the absence of any

testamentary disposition. If, on the other hand, it is found that the Will has not been duly executed, the widow, namely the vendor of the present

appellants, has right to succeed to the property either as a widow or may be on the basis of the Will relied upon by the appellants. But for the Will

propounded by the respondent, Ranganayaki would have inherited the property and obviously the Will propounded by the respondent displaces

Ranganayaki and also the appellants, who are the purchasers from the said Ranganayaki from succeeding to the property of Purushothaman.

Next point for consideration is whether the appellants should fail as they have filed application seeking revocation of Letters of Administration

at a belated stage after the Letters of Administration was granted. The learned Counsel for the respondent has submitted that the paper publication

was effected and the appellants did have notice of probate proceedings and even then they have not taken steps to enter caveat to contest the Will.

If a person who is a necessary party to probate proceedings is not made a party/respondents, in our view, neither his knowledge nor his

acquiescence nor lapse of time Will be a bar. Illustration (ii) to the Explanation of ''just cause'' in Section 263 makes it clear that if the grant is made

without citing parties who ought to have been cited, it Will amount to a cause which is just to revoke or annul the Letters of Administration Pritam

Das v. Nand Ram 1966 Punj. 88. A purchase of a share of the estate of the deceased is a ''person interested'' and a probate issued without

citation to him is liable to be set aside SD Ponnusamy Mudaliar v. S.K. Somasundaram 1992 (1) MLW 77; R. Sivagnanam Vs. P.K. Sadananda

Mudaliar, .

It was further submitted that even in the suit C.S. No. 227/1999, the respondent has indicated the probable steps for probate of the Will and

that the appellant had narrated about the probate proceedings to be initiated. We have noticed earlier that though O.P. No. 157/2001 was filed on

16.03.1999, the respondent had not taken steps for getting it numbered. Only after a lapse of about 23 months, the O.P. was numbered,

particularly that too after death of Ranganayai. As mandated under Clause 7 of Form 55, respondent ought to have been impleaded the appellants

who are the persons interested, claiming through Ranganayaki.

We have already referred to the decision of the Division Bench in 1995 (2) LW 831 Gita @ Gita Ravi v. Mary Jenet James @ James, wherein

the Division Bench has observed that the explanation (a) to (e) are not exhaustive to seek revocation of Letters of Administration or grant of

Letters of Administration.

For the foregoing reasons, Letters of administration granted in O.P. No. 157/2001 is hereby revoked and both the appeals are allowed.

T.O.P. No. 157/2007 is ordered to be converted as suit. As contemplated under Order 25 Rule 62, Registry is directed to issue citation in Form

No. 72, directing the respondents to leave in the Registrar''s office [Original side], the original Letters of Administration within a period of four

weeks from the date of this order. Both parties are directed to appear before the learned Single Judge on 24.09.2007 and the learned Single

Judge shall proceed with the matter in accordance with law.