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1981 DIGILAW 72 (PAT)

Shivakeshwar Tewari v. Giriraj Kishori Devi

1981-03-27

SATYESHWAR ROY

body1981
Judgment 1. The petition filed on behalf of the petitioner for allowing him to intervene in Probate Case No. 1 of 1980 has been refused by the District Judge, Palamau by his order dated 20.06.1980, which has been challenged in this revision application. 2. An application u/s. 276 of the Indian Succession Act (briefly the Act) was filed on behalf of the opposite party No. 1 for granting probate of the Will executed on 5th August, 1951 by Durga Vinayak Prasad. In that case the petitioner filed an application for allowing him to intervene. According to the petitioner, as stated in the present revision application, Durga Vinayak Prasad revoked the Will dated 5.08.1951, and he died intestate on 16.02.1967, leaving behind his widow as the only heir. The widow executed a Will on 2.07.1971 in respect of the properties which are the subject-matter of both the testamentary papers. By the Will dated 2.07.1971, she bequeathed the properties to the petitioner. The petitioner, therefore, claimed that he has an interest in the properties and he should be allowed to intervene in the aforesaid probate case. 3. After hearing the parries, the Court below held that as the petitioner has not obtained any probate or letter of administration in respect of the Will executed by the widow on 2.07.1971, the petitioner cannot be laid to have any interest in the estate of Durgavinayak Prasad. On this ground the application of the petitioner was rejected by the Court below. 4. It was contended on behalf of the petitioner that since no special citation u/s. 283 of the Act was made so far the petitioner is concerned, he was entitled to file an application under Or.1, R.10 of the Code of Civil Procedure (the Code) for allowing him to contest the application filed on behalf of the opposite party. It was further contended that although the Will dated 2.07.1971, through which the petitioner claims his interest in the property, has neither been probated nor any letter of administration has been granted. Yet he can show that the Will dated 5th August, 1951 executed by Durga Vinayak Prasad was revoked by him and that, even if the petitioner can show that he has a bare possibility of an interest in the properties, he has a right to contest the claim of the opposite party in Probate Case No. 1 of 1980. Yet he can show that the Will dated 5th August, 1951 executed by Durga Vinayak Prasad was revoked by him and that, even if the petitioner can show that he has a bare possibility of an interest in the properties, he has a right to contest the claim of the opposite party in Probate Case No. 1 of 1980. Learned counsel appearing on behalf of the opposite party has contended that O.1, R.10 of the Code has no application in a proceding u/s. 276 of the Act, and, that since the Will dated 2.07.1971 has neither been probated nor any letter of administration has been granted, the petitioner has no interest in the properties and the Court below, therefore, was right in rejecting the prayer of the petitioner. It was also urged on behalf of the opposite party that, as no application under O.1, R.10 of the Code lay, the civil revision application is not maintainable. 5. Sec.268 of the Act provides that the proceedings to the Court of the District Judge in relation to the grant of probate and letter of administration shall, save and except, thereafter provided, be regulated, so far as the circumstances of the case permit, by the Code. According to the language of this section, the Code will apply if the circumstances of the case permit and not otherwise. In the case of Gorakh Ahir V/s. Jamuna Ahir (AIR 1943 Pat 281), a Division Bench of this Court has held that if an application for probate is dismissed for default, no application under Order IX, Rule 9 of the Code was maintainable. The reason for so holding is that under the Act there is no bar for filing a fresh application. In the case of Mst. Tribeni Kuer V/s. Shankar Tiwari ( AIR 1971 Pat 391 ) a Division Bench of this Court has held that if a probate or letter of administration is revoked ex parte, an application under O.IX, R.13 of the Code is maintainable, for there is no provision under the Act for setting aside such an ex parte order. It, therefore follows that whether the provision of the Code shall apply will depend upon the circumstances of each case. 6. Sec.283 (i) (c) of the Act provides for issuing citations. The objection of citation is to give notice of the proceeding to persons interested. It, therefore follows that whether the provision of the Code shall apply will depend upon the circumstances of each case. 6. Sec.283 (i) (c) of the Act provides for issuing citations. The objection of citation is to give notice of the proceeding to persons interested. As a testamentary grant operates in rem, it is of utmost importance to give wide publication of the proceeding so that any person claiming to have an interest in the estate of the deceased may contest the testamentary papers. The power given to a Court under O.I, R.10 (2) of the Code has been engrafted in the Act itself. It is, therefore, not necessary for a person claiming to have an interest to label his application under O.I, R.10 (2) of the Code. But what is important is not the label used, but whether such persons have an interest in the estate. I may mention that the petitioner did not put any label in his application filed in the Court below. 7. There is no dispute about the legal position that a person can contest an application for probate or letter of administration only if he can show that he has interest in the property. According to the petitioner, he has interest in the properties and according to the opposite party, the petitioner has none. The Court below has also held that the petitioner has got no interest in the properties. It was contended on behalf of the petitioner that even if there is bare possibility of an interest in the properties, it is sufficient to entitle a party to oppose the claim for probate or letter of administration. Reliance has been placed in the cases of Sheopati Kuer V/s. Ramakant Dikshit (AIR 1947 Pat 434) and Shanti Devi Agarwalla V/s. Kusum Kumari Sarkar (AIR 1972 Orissa 178). On the other hand, the opposite party has relied upon the decisions in the cases at Kashi Nath Singh V/s. Gulazri Kuer (AIR 1941 Pat 475) and Bibhuti Prasad Chaudhary V/s. Pan Kuer (AIR 1930 Pat 488). On the other hand, the opposite party has relied upon the decisions in the cases at Kashi Nath Singh V/s. Gulazri Kuer (AIR 1941 Pat 475) and Bibhuti Prasad Chaudhary V/s. Pan Kuer (AIR 1930 Pat 488). In the case of Shanti Devi (supra), R.N. Misra, J. (as he then was) relying upon the case in (1909) 10 Cal LJ 263 (Brindaban Chandra Saha V/s. Sureshwar Saha Paramanik), that an interest, however slight and even, it seems, the bare possibility of any interest is sufficient to entitle a party to oppose a testamentary paper or instrument, held that the petitioner in that case was a person entitled to enter caveat. In the case of Sheopati Kuer (supra), a Division Bench of this Court, after discussing a large number of cases including the case reported in (1909) 10 Cal LJ 263, has held as follows (at page 437) : "...... It is, however, well established now that any interest, however, slight even the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper . ..... . " On the basis of the law so laid down by a Division Bench of this Court, it was contended on behalf of the petitioner that if he can show that Durga Vinayak Prasad had revoked the Will dated 5.08.1951, then the application filed by the opposite party is bound to be rejected. In the decisions reported in AIR 1941 Pat 475 and AIR 1930 Pat 488, it has not been held anything contrary to what has been stated in AIR 1947 Pat 434 and AIR 1972 Orissa 178. 8. Now the question in this case is whether the petitioner has shown that he has even a bare possibility of interest, which will entitle him to oppose the application of the opposite party. The application filed by the petitioner in the Court below is in two paragraphs which reads as follows: "1. That the petitioner is interested in this case because the Will on the basis of which the probate has been sought for has been revoked and another Will executed by lawful owner of the property in favour of this petitioner. 2. The application filed by the petitioner in the Court below is in two paragraphs which reads as follows: "1. That the petitioner is interested in this case because the Will on the basis of which the probate has been sought for has been revoked and another Will executed by lawful owner of the property in favour of this petitioner. 2. That it is thus necessary and expedient that the petitioner be added as party in this case to enable him to place the true state of affairs otherwise his interest will be jeopardised by the party on the record." In the application no detail has been given as to when Durga Vinayak Prasad revoked his Will dated 5th Aug., 1951. No detail has also been given about the Will on the basis of which the petitioner can claim any interest in the property. Save and except stating that the lawful owner has executed the Will bequeathing the property to the petitioner, even the name of the person who executed that Will has also not been mentioned. On the basis of such bald statements made in the application filed on behalf of the petitioner in the Court below, it cannot be said that prima facie the petitioner has succeeded in showing that he has any interest in the property. It must, therefore, be held that the petitioner has failed to make out any case which will entitle him to contest the claim of the opposite party. 9. In the result, the application is dismissed, but in the circumstances of the case there shall be no order as to costs.