Saripalli Samsundar and Others vs Saripalli Maniamma

Honourable Mr. Justice Venkateswara Rao

This appeal arises out of a petition filed u/s 211, 213 and 270 of the Indian Succession Act, 1925 praying for the grant of a probate of the will annexed in respect of the property described in the schedule to the petition. The petitioners in O.P. No. 57/78 are the appellants before this Court. The Petitioners, who are the sons and a daughter of one Saripalli Bhaskara Rao, filed O.S. No. 452/73 in the court of the District Munsif, Visakhapatnam for declaration of their title to a house and recovery of possession thereof together with past and future profits, claiming to have become entitled to the property under a will said to have been executed by their paternal grand mother, Saripalli Sundaramma. This suit was resisted by the respondent, who filed written statement contending inter-alia, that late Sundaramma bad no title to the suit property and that she was only a benamidar for her husband, late Samuel in respect of this property, that she should, in any view, be deemed to have perfected her title to the property in dispute by prescription and that the will said to have been executed by late Sundaramma is not true, valid and binding on her. She raised a further plea in her written statement and that the suit is not maintainable without obtaining a probate of the will. The petitioners thereafter moved the Court below in O.P. No. 57/78 for the relief stated supra In response to the citation issued by the learned Additional District Judge u/s 283 (1) (c) of the Indian Succession Act, which will, hereinafter referred to as Act, the respondent entered caveat against the grant of probate and thereafter filed objections pleading among other things, that the petition will have to be converted into a suit and proceeded with in accordance with law as provided in Section 295 of the Act. The learned Additional District Judge, Visakhapatnam up held this objection and directed that the petition "be numbered as a suit to determine the validity of the will". Aggrieved by this order the petitioners have come up with this appeal.

The leaned Counsel for the appellants contend that the Court below erred in directing their petition to be registered as a suit notwithstanding that the respondent had no locus standi at all to enter caveat in view of Section 283 (1) (c) of the Act. It is, on the other hand, argued for the respondent that when once there is a contention before the District Judge, he has no alternative except to direct that the proceedings shall take the form of a regular suit as provided in Section 295 of the Act.

Section 295 of the Act lays down that "in any case before the District Judge in which there is a contention, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the CPC 1908 in which the petitioner for probate or letters of administration, as the case may be shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant".

The term ''contention'' is explained in Section 286 of the Act to mean the appearance of any one in person or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding. But in order to oppose the proceedings the person or persons concerned must be competent to do so u/s 283 of the Act Clause (c) of sub-Section (1) of this Section provides for issuance of citation by the District Judge or District Delegate, if he thinks proper, calling upon all the 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. So, in order to be entitled to enter caveat and to take part in the proceedings before the grant of probate, the person concerned should be one that claims some interest in the estate of the deceased. But the case under consideration is not one in which the respondent claims any such interest in the estate of the deceased, as, according to her, the alleged testatrix Sundaramma was only a name leader and benamidar for her husband late Samuel and had no manner of title or right to the property in dispute. In other words, she claims adversely to the testatrix. In substance she claims title paramount to the property in dispute implying, that will or no will, she is the person entitled to the property and that late Sundaramma had absolutely no right to deal with it. This is, therefore, a clear case in which the respondent does not claim to have any interest in the estate of the deceased to be entitled to enter caveat and oppose the grant of probate.

That what has been stated above is the correct position of law can also be seen from the decisions cited for the appellants. It was held in Komalangiammal vs. Sowbhagiammal AIR 1931 Mad. 37 that the interest which entitles 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. Hence where the caveator alleged that certain jewels disposed of by the testator by his will belonged really to the caveator, that fact was held to be not an interest which would entitle the caveator to oppose the grant of the probate. It is also pointed out that the caveator''s claim to the jewels amounted to setting up of a title adverse to that of the testator to the property and that it is impossible in such circumstances to say that she has an interest in the estate deceased.

The same view was reiterated in Inre. vs. N. Narasimhan AIR 1975 Mad. 330. The test for purposes of Section 283 (1)(c) of the Act, as has been pointed out in that decision, is that a person disputing the right of a testator to deal with the property as his own, cannot be property regarded as having an interest in the estate of the deceased.

To the same effect is the decision in Kashi Nath Singh Vs. Dulhin Gulzari Kuer, in which it was clearly held that a person who claims outside and independently of a will or claims adversely to the testator and disputes his right to deal with the property, can, in no sense be deemed to claim an interest in the estate of the deceased, within the meaning of Section 283.

Reference may also be made in this context to Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others, in which it was pointed out, among other things, that the question whether a particular bequest is good or bad is not within the purview of the Probate Court as it is only concerned with the question as to whether the will put forward is duly executed and attested and whether at the time of such execution the testator was in a sound, disposing state of mind.

While conceding that the Probate Court has no jurisdiction to go in to the question of title, the learned counsel for the respondent argues that his claim cannot be regarded as one without any locus standi in the matter since his client is interested in questioning the genuineness and validity of the will besides claiming title to the disputed property as the Civil Suit filed by the petitioners for declaration of the title to the house and incidental reliefs is bound to fail if the will should be found to be untrue or invalid. But I have already indicated, while dealing with the scope of Section 283 (1) (c) of the Act, that the citation contemplated by it provides for calling only upon persons claiming to have any interest in the estate of the deceased and not mere interest in disputing the genuineness and validity of the will.

It was next urged for the respondent on the strength of the observations contained in paragraph 3 of the Judgement in In re Narasimham that the proper course for the appellants was to have moved the court below to discharged the respondent even when she entered the caveat but I am of the opinion that when the every right of the respondent to enter caveat for the reason that she does not claim any interest in the properly of the deceased is (sic) to disentitle her from questioning the relief sought by the appellants it would be only an idle formality to insist on a separate application being mace by the appellant to discharge the caveat.

I must therefore agree with the appellants, that the orders of the Court below directing the petition to be converted into a regular suit cannot be sustained. In the result, the order of the Court below is set aside and the learned District Judge is directed to dispose of the original petition according to law and without the need to register it as a regular suit. The appeal is accordingly allowed, but without costs in the circumstances.