G. M. MASCARENHAS v. R. VENKATACHALAM — 1990 DIGILAW 133 (KAR)

SHIVASHANKAR BHAT, J. ( 1 ) THE petitioner has questioned the competence of the caveat or and objects to the caveat. Petitioner applied on 31-7-1989, under the indian Succession Act, ('the Act' ) for the grant of a probate in respect of the Will left by Miss. Medappa; one of the items of the estate of the deceased is a school called 'home School', in bangalore. The petition was advertised in Times of India (Bangalore edition) dated 2-9-1989. The caveator filed his Caveat on 18-8-1989 wherein only a cryptic statement was made to the effect that nothing be done in the matter of the estate of the deceased without notice to the Caveator. The Caveator also filed LA. No. I seeking a direction to the State Bank of India not to permit the petitioner or anyone claiming under him to operate the S. B. Account which was a joint S. B. Account opened by the deceased along with the caveator (obviously, in connection with the administration of the Home School ). LA. No. II is filed by the Caveator seeking permission to amend the Statement of Objections. However, the learned counsel for the petitioner objected to the locus standi of the caveator, contending that, the Caveator has not disclosed his interest in the estate of the deceased, and that, in case, he was claiming a paramount title over any of the property, his remedy is elsewhere. The learned counsel for the Caveator, contended that, the Caveator was a joint proprietor of the Home School and there were litigations between the deceased and the Caveator; in these circumstances, he was vitally interested in opposing the grant of probate. Therefore, the question to be considered at this stage, pertains to the maintainability of the caveat and the locus standi of the Caveator to lodge the caveat. Section 283 (1) (c) contemplates issuance of 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. Section 284 (1) states that caveats against the grant of probate or administration may be lodged. The caveat is to be "as nearly as circumstances admit" to be in the form set forth in Schedule V to the act. Nothing turns out of this form of caveat, because it is only a form in general terms, though mr. Section 284 (1) states that caveats against the grant of probate or administration may be lodged. The caveat is to be "as nearly as circumstances admit" to be in the form set forth in Schedule V to the act. Nothing turns out of this form of caveat, because it is only a form in general terms, though mr. Vijayashankar tried to sustain support from it to his contention; the generality of the form cannot widen the scope of the main provision, if, otherwise, said main provision does not permit a wider scope to it. The question pertains to the nature of the requirements entitling a person to lodge caveat against grant of probate or letters of administration. The scope of a caveat requires disclosure of materials to show that probate should not be granted to the Will. " The only question germane for the Court to consider at the time of making a grant of the probate of a Will are questions relating to the testamentary capacity of the testator whose Will has to be probated and the due execution of that Will by the testator. The probate of a Will is in the nature of a certificate of the Court stating first that the last Will of the testator has been proved before the Court and secondly, that the administration of the property and credit of the deceased and in any way concerning his Will is granted to a particular individual, usually the executor in the Will, coupled with a record of an undertaking by such grantee of the probate to administer the estate and to make a full and true inventory of the property and credit of the deceased and exhibit the same in Court within six months from the date of the grant or within such further time as the Court may from time to time appoint and also to render to the Court a true account of such property and credit within one year from such date or within such further time, as the Court may from time to time appoint. The probate neither settles construction of the provisions contained in the Will nor decides question of title to the properties covered by the Will and it is completely outside the province of a Court to determine any question of title to the properties covered by the Will or to construe the provisions of the document sought to be probated except for the limited purpose of determining its dispositive effect. A caveat is simply a warning given by a person having or asserting an interest in the estate of the deceased against the Court issuing any probate without notice to the caveator. . . " (Vide- in the Goods of Nanda Lal Sett, deceased - AIR 1955 Cal. 88 ). Grant of probate in no way decides any question of title of the deceased to the properties bequeathed in the Will. Grant of probate, similarly, in no way effects the claim for an independent title to such a property by anyoneelse. The bequeath under the Will, no doubt, would displace the normal succession prescribed by law, in case the deceased dies without leaving a Will. Therefore, it has been recognised all along that anyone who stands to gain by the absence or the invalidation of the Will, is entitled to oppose the grant of probate; in this regard, even a remote heir or a distant possible successor to the estate is recognised as a person interested in the estate of the deceased and hence competent to oppose the grant of probate. The effect of the grant of probate has been stated by the Supreme Court in Mrs. Hem Nolini judah (since deceased) and after her legal representative mrs. Marlean Wilkinson v. Mrs. The effect of the grant of probate has been stated by the Supreme Court in Mrs. Hem Nolini judah (since deceased) and after her legal representative mrs. Marlean Wilkinson v. Mrs. Isolyne sarojbashini Bose and Others, AIR 1962 SC 1471 at 1474 :"now it is not in dispute that the grant of probate or letters of administration does not establish that the person making the Will was the owner of the property which he may have given away by the will, and any person interested in the property included in the will can always file a suit to establish his right to the property to the exclusion of the testator inspite of the grant of probate or letters of administration to the legatee or the executor, the reason being the proceedings for probate or letters of administration are not concerned with titles to property but are only concerned with the due execution of the Will. "again at page 1475 :"it is true that so far as the Will of Mrs. Milter in favour of the appellant is concerned, she has obtained letters of administration of that and she can maintain her right as a legatee under that Will; but that Will in her favour only gives her those properties which really and truly belonging to Mrs. Mitter, that will however does not create title in the appellant in properties which did not really and truly belong to Mrs. Mitter but which Mrs. Mitter might have thought it fit to include in the Will. "there is no doubt that any person claiming to have an interest 'in the estate' of the deceased may lodge the caveat, because, normally, such a person is entitled to be issued with the citation, under Section 283 (1) (c ). But a claim to an interest in the estate of the deceased, contemplates a claim which is not adverse to the interest of the deceased; that can only be an interest claimed because of the deceased or because of the eclipse caused by the deceased during his or her life time. The principle has been stated very neatly (if I may say so with respect) in D. S. Sriramaiah setty v. D. Kanthamma, 1970 (2) Mys. L. J. 516 at 519,". . . The principle has been stated very neatly (if I may say so with respect) in D. S. Sriramaiah setty v. D. Kanthamma, 1970 (2) Mys. L. J. 516 at 519,". . . it must be taken as well-settled that a person who claims the property by a paramount title or claims adversely to the testator or disputes the testator's right to deal with the property sought to be disposed of by the Will, has no locus standi to enter a caveat. "in the same Judgment, this Court accepted the principles stated by Venkatasubba Rao, J. , in M. K. Suwbhagiammal v. Komalangi, AIR 1928 mad. 803. It was observed by this Court, at p. 518:"his Lordship added that a person disputing the right of a testator to deal with the property as his own, cannot be properly regarded as having interest in the estate of the deceased. His Lordship enunciated the following test to determine whether the caveator has necessary interest: Does the grant displace any right to which the caveator would otherwise be entitled ? If so, he has such an interest if not, he has not. "the Judgment of Venkatasubba Rao, J. , air 1928 Madras 803, was in fact accepted earlier by a Bench of this Court ( in the decision reported Rangamma v. G. R. Srirama Reddy and another - 1965 (2) Mys. L. J. 105 ). Chandrashekhar, J. (as he then was) in sriramaiah Setty's case, also referred to another decision of Madras High Court in Hanumantha rao v. Latchamma, AIR 1926 Mad. 793,' and proceeded to prefer the decision of Venkatasubba rao, J. and the observations made by the latter, regarding the earlier Bench decision in hanumantha Rao's case. I am making this observation because of Mr. Vijayashankar's insistence that the observations made in Hanumantha Rao's case ought to be followed in preference to those of Venkatasubba rao, J. In Suwbhagiammal's case, a simple lest was given by saying:"has the caveator the necessary inlcresl ? the test is, does the grant displace any right to which the caveator would otherwise be entitled ? If so, he has such an interest; if not, he has not. "in Nabin Chandra Guha v. Nibaran Chandra biswas and Others, AIR 1932 Calcutta 734, the bench accepted the proposition that,". . . . the test is, does the grant displace any right to which the caveator would otherwise be entitled ? If so, he has such an interest; if not, he has not. "in Nabin Chandra Guha v. Nibaran Chandra biswas and Others, AIR 1932 Calcutta 734, the bench accepted the proposition that,". . . . ANY interest, however, slight, and even the possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. That apparently is the rule of english practice. And possibility of an interest does not apply to possibility of a party filling a character which would give him an interest but to the possibility of his having an interest in the result of setting aside the will. "thereafter, the Bench observed,-"taking the words of Section 283 in their natural meaning it is in our opinion sufficient to interpret them as implying a real interest which is or is likely to be prejudicially or adversely affected by the Will. "mr. Vijayashankar contended for a broader approach to facilitate anyone with a slightest interest in the property to participate in the probate proceedings should be adopted so that Court may have the assistance of a person who challenges the grant of probate and thus prevent the grant of probate which may ultimately be found to be, in respect of an invalid Will; grant of probate to an invalid Will would result in many complications on several occasions; the really interested persons in the estate of the deceased may not come across the probate for years to come. The learned counsel cited Narayan Sah v. Smt. Devaki, AIR 1978 Patna 220. However, at p. 223, the Court observed:" Thus it appears clear that a bare possibility of an interest which rests on the existing facts and not on mere conjecture gives a person right to enter caveat. "the existing facts should give rise to a possibility of an interest in the caveator, however, slight it may be. The decision of Maharajan, J. , in G. Jayakumar v. R. Ramaratnam, AIR 1972 madras 212, was emphatically relied by Mr. Vijayashankar. The Court dissented in this case from the decision of Venkatasubba Rao, J. , (rendered in Suwbhagiammal's case ). Maharajan, j. , held that the decision in Suwbhagiammal's case was opposed to the earlier Bench decision in hanumantha Rao's case AIR 1926 Mad. 1193 : ilr 49 Mad. 960. Vijayashankar. The Court dissented in this case from the decision of Venkatasubba Rao, J. , (rendered in Suwbhagiammal's case ). Maharajan, j. , held that the decision in Suwbhagiammal's case was opposed to the earlier Bench decision in hanumantha Rao's case AIR 1926 Mad. 1193 : ilr 49 Mad. 960. At para-7, his Lordship held that grant of probate in common form without citing the parties interested leads to pernicious results and should be avoided and then held,-"i have come across several cases on the original side of this Court where decades after the grant of the probate interested persons have applied for and succeeded in obtaining revocation of the Probate granted on the ground that the Will is ungenuine or had not been executed in a sound disposing state of mind. But by the time the revocation is sought, most of the contemporaneous evidence relating to the Will would have disappeared and the grantee of the probate would have wrought irremediable mischief by acting upon the grant, which whether granted in common form or solemn form, operates in rem. On the contrary, when the Will is to be proved in solemn form, the widest publicity is given to the proceedings, and all parties, who have an interest in the subject-matter of the proceedings, appear in court and furnish valuable contemporaneous evidence which enables the court to render justice. It is my view that the English practice of proof of wills in common form is not only unsuitable for Indian conditions but also contrary to the requirements of the Indian Succession Act. "with utmost respect to his Lordship, I cannot agree with this reasoning. There is no question of issuing probate in India in common form as understood in England. In India, we are governed by the statutory provisions, and as far as possible, publicity is given to an application filed for probate of a Will. Section 283 (1) (c) and 283 (2) contemplate a procedure which is more akin to the English Solemn form. In fact, some of the observations of the Privy Council in Mt. Ramanandi Kuer v Mt. Kalawati Kuer - 32 C. W. N 402, AIR 1928 PC 2, point out this distinction between the English practice and the Indian law. Publicity of the application for probate is the normal practice in India. In fact, some of the observations of the Privy Council in Mt. Ramanandi Kuer v Mt. Kalawati Kuer - 32 C. W. N 402, AIR 1928 PC 2, point out this distinction between the English practice and the Indian law. Publicity of the application for probate is the normal practice in India. Persons really interested in the estate of the deceased can always come forward and challenge the application. The real question is, "who is the person interested in the estate?". The Indian Courts have recognised that even a slight interest in the estate is sufficient to confer locus standi either to file caveat or to participate in the proceedings consequent on the issuance of citations. But the 'slight interest' required for the locus standi, should be of such a nature, that the claimant to the said interest is likely to be prejudiced by the grant of probate. By the grant of probate, the interest claimed by him is likely to be lost or displaced. A person claiming any independent right to the property comprised in the estate of the deceased, will not be affected by the grant of probate, because, probate does not create a title, nor the proceedings for the grant of probate is not concerned with the title to the property. There is one more reason as to why I cannot agree with the decision in Jayakumar's case. I am bound by the decisions of this Court which have accepted the principles enunciated by venkatasubba Rao, J. , as in Suwbhagiammal's case and hence the dissenting decision of maharajan, J. cannot be accepted by me. There are several other citations referred by the learned counsel on both sides; but I do not think it necessary to refer to them in view of the conclusion I have arrived at based on sriramaiah Setty's case. In the instant case, the caveator asserts a joint proprietory right in the school, along with the deceased. To the extent of his alleged half interest, the Will would not affect at all, and the grant of probate in no manner would take away his alleged rights. In the affidavit filed in support of LA. No. I, at para- 3, the caveator asserts that on the death of A. B. Madapa, he became the sole and absolute owner of the Home School. In the affidavit filed in support of LA. No. I, at para- 3, the caveator asserts that on the death of A. B. Madapa, he became the sole and absolute owner of the Home School. This again, is an assertion of title and probate proceedings has nothing to do with the said question; in the earlier sentence he states that himself and this Madapa were the joint owners of the home School. If so, the caveator has to prima facie establish as to how he succeeds to the interest of Miss. Madapa (which is allegedly a half share in the Home School ). He, nowhere claims to be her heir, nor does he propound a rival Will. He does not plead any law or rule of succession under which, the alleged half share of Madapa would devolve on him. Regarding succession to the interest of a joint owner, Indian law is different from the english law; the surviving joint owner does not succeed to the interest of the deceased joint owner; the interest of the deceased devolves on the legal heirs or as per the Will, in India. In para-4 of his affidavit, filed in I. A. No. II, the caveator, repeats the legal principles, in the guise of stating facts; he states,"the decree in the aforesaid original suit declares that the late Miss. Madapa has one half share in the Home School. The objector has interest in that one half of the late Miss. A. B. Madapa. The grant of probate will result in displacing the right of the objector in the estate of the late Miss. Madapa which includes her one half share in the Home School and the sums collected by her from the students of the school and kept in the Bank Account, which is one of the bequests. This interest which the objector has in the estate of the late Miss. Madapa entitles him to lodge caveat and oppose the grant sought by the petitioner. "this is a clear admission of the distinctiveness of the half share which the deceased had in the Home School. A possibility of a litigation between the executor of the Will and the caveator in the matter of accounting or the administration of the school, does not create the 'slightest interest' required to confer locus standi to file the caveat against the grant of probate. A possibility of a litigation between the executor of the Will and the caveator in the matter of accounting or the administration of the school, does not create the 'slightest interest' required to confer locus standi to file the caveat against the grant of probate. It is not the case to the caveator that he is the heir of Miss. Madapa and it is not stated as to how, the probate would result in replacing the right of the caveator in the estate of the deceased. A mere assertion of a right, is not proof of its existence. I find no material at all in the records, justifying the inference drawn by the caveator at para-4 of the affidavit filed in support of I. A. No. II. Consequently, I am of the view that the caveator has no locus standi to lodge the caveat; the caveat is therefore held to be not maintainable. It is declared accordingly. --- *** --- .