Hari Charan Garodia v. Nikunj Kumar Lohia — 1995 DIGILAW 200 (CAL)

JUDGMENT Bhagabati Prasad Banerjee, J.: The appeal has been treated as on day’s list and taken up for hearing by consent of the particle after dispending with all the formalities and discharging the undertaking given by the appellant. 2. This, is an appeal against the order passed by the learned Trial Judge on 4th May, 1995 allowing the application for summary revocation of the caveat filed by the appellant Hari Charan Garodia in respect of the last Will and Testament of Hari Prasad Lohia since deceased in respect of which an application for probate was filed by his brother's son Nikunja Lohia. 3. The caveat was not filed by any of the heirs and/or the legal representative of the deceased Hari Prasad Lohia but by the appellant claiming to have interest in, the property of the deceased. The appellant claims that his interest in the property of the deceased is on the ground, that the appellant had filed a suit for a claim against the property of the deceased and obtained an order of attachment before judgment in the said suit by an order passed by Justice Hazari, J, (as His Lordship then was) on 27th August, 1993 in a suit filed by the appellant against Smt. Durga Debi Goenka & Ors. Apart from the said order of attachment before judgment it is stated that there was an award in respect of the shares of some of the Companies in which the deceased had shares. The question which arose before the learned Trial Judge was whether the appellant in terms of the caveat has locus standi for lodging such caveat. The learned Trial Judge on consideration of the matter by an order dated 4th May, 1995 revoked the said caveat, filed by the appellant on the basis of an application filed by the propounder of the Will for summary revocation of the said caveat. 4. Provisions of s. 283 of the Indian Succession Act reads as follows: "283. The learned Trial Judge on consideration of the matter by an order dated 4th May, 1995 revoked the said caveat, filed by the appellant on the basis of an application filed by the propounder of the Will for summary revocation of the said caveat. 4. Provisions of s. 283 of the Indian Succession Act reads as follows: "283. Powers of District Judge: (1) In all cases the District Judge or District Delegate May, if he thinks proper – (a) examine the petitioner in person, upon oath; (b) require further evidence of the due execution of the will or the right of the petitioner to the letters of administration, as the case may be ; (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) The Citation shall be fixed up in some conspicuous part of the Court-house, and also in the office of the Collector of the District and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct. (3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same, in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation." 5. Accordingly, in view of provisions of s. 283 of the said Act if the appellant had interest in the property of the deceased the appellant had a right to lodge a caveat and was entitled to participate in the probate proceeding. 6. Mr. P.C. Sen, learned Counsel appearing on behalf of the appellant submitted that in the facts and circumstances of the case when an award has been given in favour of some of the shares of the company in which some shares were also held by the deceased and that the said shares admittedly are part of the estate of the deceased, the same should be considered as interest in the estate of the deceased. Secondly, it was pointed out that the suit was filed for certain charges in respect of which an attachment before judgment had been passed. On that account also it cannot be said that the appellant had no interest in the estate. 7. Mr. Sen further submits that the appellant had interest in the property particularly in view of the fact that the appellant was holding certain shares and if the succession is granted in favour of the propounder of the Company will completely change and the propounder of the will be in a position to control the Company in which the deceased had controlling shares. 8. In the case of Smt. Annapurna Kumar vs. Subodh Chandra, reported in AIR 1970 Cal 433 it was held by the Division Bench of this Court that any interest, however, slight, and even the bare possibility of an interest, is sufficient to entitle a party to oppose a will. Even in a case where the person is not entitled to get a compulsory citation, but the citation is discretionary, the absence of citation to such a person, also would invalidate the grant in certain circumstances. 9. Reliance was also placed on the case of Southern Bank vs. K. Ganeriwalia, reported in 62 CWN page 444. Here also the Division Bench of this Court laid down that if the person concerned had no interest in the estate was not entitled to citation. 10. Mr. Tebriwalla, learned Counsel appearing on behalf of the respondent submitted that the said attachment before judgement was void in view of the provisions of Order 38 Rule 5(4) of the Code of Civil Procedure and also submitted that attachment before judgment cannot have any relevance in this case as the attachment before judgment does not create any interest in the property and also referred to a Division Bench Judgment of this Court presided over by Sir Asutosh Mookherjee, J. in the case of Jogendra Nath Chattarjee vs. Monmotho Nath Ghose, reported in 16 CLJ (1912) p. 565 in which it was held by Sir Asutosh Mookherjee that a person, who has obtained an attachment of property before judgment under Order 38, Rule 5, of the Code of Civil Procedure, has no locus standi to apply under Rule 90, Order 21 of the Code and that an attachment before judgment does not by itself create any interest in the property attached. It was also held that attachment prior to decree is not an attachment for the enforcement of the decree, but it is a step taken merely for the purpose of preventing the debtor from delaying or obstructing such enforcement when the decree subsequently passed is sought to be executed. An attachment after decree, on the other hand, is on attachment made for the immediate purpose of carrying the decree into execution, and it presupposes an application on the part of the decree-holder to have his decree executed. In view of the law laid down in this case it was submitted that the said attachment before judgment did not create any interest on the strength of that it cannot be said that the appellant had any interest in the property of the deceased merely on the ground of attachment of some property before judgment at the instance of the appellant. 11. The effect of attachment before judgment was also considered by the Division Bench of Punjab & Haryana High Court in the case of Bhagwan Das Pribhdas & Ors, vs. Santosh Singh, Saran Singh, reported in AIR 1968 Punjab & Haryana 461. This view is similar to that of the views taken by the Division Bench of this Court expressed by Sir Asutosh Mookherjee J. 12. A Division Bench of this Court in the matter of the petition of Desputty Singh (a minor), reported in AIR Vol. II (1876-77) p. 208 held that under the Succession Act, as made applicable by the Hindu Wills Act, the creditors were not parties having any interest in the estate of the deceased, and therefore were not entitled to oppose the grant of probate. Citation can only be issued 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, But the creditor is not entitled to be heard and present in such proceeding. This view was also approved by Privy Council. 13. A Single Judge of the Bombay High Court in the case of Swatantranandji vs. Lunidaram Jangaldas, reported in AIR 1937 Bom 397 held that a Caveat can be entered by any person having or asserting an interest in the estate of a deceased person, and he must show that he has that interest by inharitance or otherwise. 14. 13. A Single Judge of the Bombay High Court in the case of Swatantranandji vs. Lunidaram Jangaldas, reported in AIR 1937 Bom 397 held that a Caveat can be entered by any person having or asserting an interest in the estate of a deceased person, and he must show that he has that interest by inharitance or otherwise. 14. In view of the principles laid down by various case laws we are clearly of the view that unless a person has any interest in the estate he had no locus standi to lodge a caveat. In Southern Bank case (supra) a Division Bench of this Court held that a creditors of the heirs of the testatrix were not entitled to citation and cannot make its non-citation as ground of revocation of the probate. In that case it was also held that the said Bank had no interest in the estate of the deceased and was not entitled to be served with the citation to see the proceeding relating to the Will of the said deceased. The principles laid down by several Division Benches and the decisions of the other High Courts are clear on this point that a creditor who had a claim against the properties of the deceased has no interest in the estate of the deceased for the purpose of lodging caveat in a probate proceeding. 15. On proper construction of s. 283 of the Indian Succession Act, caveat can be lodged by persons claiming to have any interest in the estate of the deceased to come and see the proceeding before grant of probate or letter of administration. The Legislative intention is clear that a person, who has interest in the estate of the deceased, is only entitled to citation and to be present in the probate proceeding. Their presence was required and they are allowed to participate for the simple reason that if the Will is disproved or not probated on contest, the property would go to the person concerned who had interest in the property. So, it is the persons concerned, who have interest in the property, and in whose favour succession would be opened in case he will fails or probate proceeding fells through, they are the only persons who are entitled to lodge caveat and/or entitled to citation. So, it is the persons concerned, who have interest in the property, and in whose favour succession would be opened in case he will fails or probate proceeding fells through, they are the only persons who are entitled to lodge caveat and/or entitled to citation. We are respectfully agreeing with the views of the Division Bench of this Court and other Courts that a creditor has no interest in the property as the claim of the creditor is against the estate of the deceased and it is immaterial whether the probate is granted or not. The creditor will get his claim executed if a decree is passed against the estate in whose hands the property would vest under the Will or otherwise. It makes no difference and the interest of the creditor is not at all affected or interferred with by the probate proceeding. If the probate proceeding is granted, in that event, the persons in whose favour probate would be granted would be liable to pay the debts of the deceased inasmuch as the decree would be against the estate, whoever may be in possession of the estate. Accordingly, the attachment before judgment also did not create any interest in the probate and did not confer any right upon the appellant in the estate of the deceased. The change of the share-holding pattern of the Companies in which the deceased have the shares or the question who would be controlling those companies are immaterial in the probate proceeding inasmuch as in the probate proceeding the scope is very limited. The Court is only concerned with the validity of the Will and if the Court is satisfied that the Will is duly executed, the Court would grant probate. 16. Under section 283 of the said Act the power is conferred upon the District Judge to satisfy about the genuineness and correctness of the Will or the question whether the Will has been duly executed or not and in such proceeding persons who have no interest in the estate had no right to come and see the proceeding. 17. Accordingly, we are of the view that the Trial Judge has rightly allowed the application for revocation of the caveat filed by the propounder of the Will viz., the respondent in this appeal. Accordingly we do not find any reason to interfere with the order passed by the learned Trial Judge. 17. Accordingly, we are of the view that the Trial Judge has rightly allowed the application for revocation of the caveat filed by the propounder of the Will viz., the respondent in this appeal. Accordingly we do not find any reason to interfere with the order passed by the learned Trial Judge. The appeal along with the application is accordingly dismissed. 18. There will be no order as to costs. 19. All parties to act on a operative portion of this judgment and order on the usual undertaking. 20. Ram Prakash Gupta, J.: I agree. Appeal dismissed.