D. L. Rajasekaran (died) and Others v. Ayyavu — 1995 DIGILAW 316 (MAD)

Judgment : Petitioners in I.A. No.67 of 1992 in O.P. No.72 of 1991, on the file of the Subordinate Judge, Pattukottai, are the revision petitioners. Pending revision, the first petitioner died and petitioners 7 to 9 are impleaded as his legal representatives to-day as per order in C.M.P. No.2532 of 1995. 2. The petitioners 1 to 6 herein filed O.P. No.72 of 1991 for getting Letters of Administration of the will executed by late Rev. Paul Sandegran, Dean of Kremmer Sandegran Foundation on 27. 1992. The said petition was allowed, and the petitioners 1 to 6 herein were given the letters of administration. For the purpose of proving the will, the attestors were examined, and the court was satisfied about the genuineness of the testament. 3. For the sake of conveniyance, petitioners 1 to 6 herein, are referred to as petitioners. Even before the O.P. was filed,, there was litigation between the present respondent and the petitioners regarding certain immovable properties. In the civil suit, the right claimed by the petitioners was on the basis of the will. The respondent herein against whom the suit was filed,denied the title of the testator and claimed a right against him. There was a suit as O.S. No.114 of 1987, filed by the respondent herein regarding one item of property covered by the will. That suit was dismissed, against which respondent filed an appeal, and the same is pending. At that time, the petitioners herein got the will returned from the court and moved the Sub Court for getting a probate and filed O.P. No.72 of 1991. The probate was filed in court thereafter. Long after the filing of the Letters of Administration, respondent herein filed I.A. No.41 of 1992 for revoking the grant under Sec.263 of the Indian Succession Act. The main reason stated in that application was that even though litigations were pending between parties, no citation was issued to him, and he being a necessary party to the probate proceedings, any Order passed by that court is invalid. According to the respondent, the petitioners herein have obtained Letters of Administration behind his back and suppressing material facts. The main reason stated in that application was that even though litigations were pending between parties, no citation was issued to him, and he being a necessary party to the probate proceedings, any Order passed by that court is invalid. According to the respondent, the petitioners herein have obtained Letters of Administration behind his back and suppressing material facts. The petitioners herein filed detailed counter and the main contention that was raised by them was that the respondent herein being a stranger to the will, and is not claiming any right under the testator or under the will, has no locus standi to file an application for revocation. They also filed an application in I.A. No.678 of 1992, seeking an order to hear the maintainability of the petition on the ground of locus standi of the respondent to file the petition. By the impugned order, the court below held that the respondent is competent to file the application and there are certain observations stating that notice was necessary to the respondent before the grant of probate. It held that I.A. No.41 of 1992 filed by the respondent was maintainable and he has sufficient interest to maintain the same. It is the said order of the court below that is challenged in this revision. 4. From a reading of I.A. No.4l of 1992 filed by the respondent, it is clear that he wanted revocation of the will on the ground that no notice was issued to him. It is also clear from the statements therein that he is having adverse interest against the testator and is not claiming any interest under him. Under these circumstances, the question that has to be considered is, whether he can invoke the provisions of Sec.263 of the Indian Succession Act to have the Letters of Administration revoked. 5. In Mahant Ram Das v. Prem Das, A.I.R. 1932 Pat. 95, a Division Bench of that High Court was considering the scope of Sec.69 of Probate and Administration Act, coresponding to Sec.263 of the Indian Succession Act. Their Lordships held thus: “No application for the revocation of probate under Sec.69, Probate and Administration Act, unless the applicant can show that he has some interest in the estate of the deceased.” 6. In Mahant Ram Das v. Prem Das, A.I.R. 1932 Pat. Their Lordships held thus: “No application for the revocation of probate under Sec.69, Probate and Administration Act, unless the applicant can show that he has some interest in the estate of the deceased.” 6. In Mahant Ram Das v. Prem Das, A.I.R. 1932 Pat. 95, it was held thus: “A person disclaiming interest in the estate is not entitled to citation and he has no locus standi in the probate court. Where the persons applying for revocation of a probate make a definite allegation that the deceased who was a Mahant had no estate and that the properties which he purported to make over by the will were properties which he held, not in his personal but in his official capacity and which actually belonged to the Mutt the petitioners have no locus standi to make the application.” In this case also, the contention of the respondent is that the property which the testator has bequeathed did not belong personally to the testator, but belonged to the Foundation of which he was only a representative. It is contended that the property belonged to the foundation only and hence he was incompetent to execute a testamentary disposition. .7. In George Anthony Harris v. Millicent Spencer, A.I.R. 1933 Bom. 370, it was held thus: .“The person applying for revocation of the grant of probate or letters of administration must show that he is interested in the alleged will. That interest may be slight or even a bare possibility; but there must be some interest which the applicant is prima facie entitled to claim in the estate of the deceased. For revocation there may either be an application to revoke the grant or a substantive suit; but when the grant is revoked fresh proceedings have to be instituted in order to obtain proper representation to the estate of the deceased and that must be done by a petition under the Act.” .8. In Sadananda Pyne v. Harinam Sha and another, A.I.R. 1950 Cal. 179, it was held thus: .“In order to have the locus standi to apply for revocation of probate, a person must have an interest in the estate of the deceased, supposing he had died intestate. Thus, the creditor of a son who would have been heir on intestacy has locus standi to apply for revocation of probate. 179, it was held thus: .“In order to have the locus standi to apply for revocation of probate, a person must have an interest in the estate of the deceased, supposing he had died intestate. Thus, the creditor of a son who would have been heir on intestacy has locus standi to apply for revocation of probate. But a person who has merely the possession of a trespasser has no interest in the estate of the deceased. He has an interest against the estate of the deceased. He has, therefore, no locus standi to file such an application.” 9. In Smt.Dular Kuer v. Smt.Kesar Kuer and others, A.I.R. 1964 Pat. 518, it was held that in case the petitioners seeking for revocation had no possible chance of succeeding to the testator’s estate, the application is not maintainable. 10. In In the matter of the Last Will and Codicil of Smt. N. Venkatanarayamma, (1975)1 M.L.J. 379 , the question that came up for consideration was, whether a caveator can claim title in himself and take part in the proceedings for probate. Their Lordships held thus: “In a probate proceedings a caveator will not be entitled to raise title in himself to the deceased. The interest in the estate of the deceased mentioned in Sec.283 of the Indian Succession Act is but that interest which by a citation a person called upon may claim to have in the estate of the deceased and not the interest which the deceased did not own, but the claimant coming into the picture by citation claims to be vested in himself. In other words, the title of the testator or testatrix to the whole or any part of the property which is the subject-matter of disposition, is entirely and necessarily outside the scope of probate proceedings and that question will have to be settled by a regular trial. A caveator is in no better position by mere entry of caveat: a proceeding for probate cannot be and should not be allowed to be converted into a suit for resolving disputed title.” 11. A caveator is in no better position by mere entry of caveat: a proceeding for probate cannot be and should not be allowed to be converted into a suit for resolving disputed title.” 11. Mantha Ramamurthi on Law on Wills at page 641 has stated that a person denying the title of the testator or setting up title in himself, or a person who is not “interested in the estate of the deceased”, is not entitled to apply under Sec.263 of the Indian Succession Act to have the Probate or Letters of Administration revoked. 12. Paruck on “The Indian Succession Act” Eighth Edition - at page 617, has also stated basing on case law, that a person who claims property adversely to and not through the testator cannot apply for revocation. Likewise, a person who has merely possession of property as a trespasser has no interest in the estate of the deceased and his interest is only against the estate and, therefore, has no locus standi. 13. In this case, the respondent is not claiming any right under the testator, nor is he a beneficiary or a person who is likely to inherit the estate of the deceased. He has not shown that he has any interest in the property of the testator. The very case put forward by him is that the testator is not competent to execute the will in respect of the property. Litigation have been pending against him on the ground of trespass. He also filed a suit against the petitioners claiming exclusive right over the property. It shows that his claim is adverse to the interest of the testator, and he is claiming an independent title. In such circumstances, he cannot file an application under Sec.263 of the Indian Succession Act to get the Letters of Administration revoked. 14. The trial Court has dismissed the application on irrelevant grounds. It has simply stated that since various civil suits are pending between the parties, the petitioners should not have applied for Letters of Administration without making the respondent a party. The said approach by the court below is against the settled principle of law. The order of the court below is, therefore, set aside. The civil revision petition is allowed. No costs. I hold that LA. No.4 of 1992 filed by the respondent is not maintainable and the same is dismissed.