Madras High Court
Thillainayagi Ammal vs Saradambal on 11 January, 1955
JUDGMENT Ramaswami, J.
1. This is an appeal from the order of the learned Mastor in Application No. 1056 of 1954 in O. P. No. 374 of 1952.
2. The facts are : On 5-4-1937 Kanniappa Mudaliar executed his last will and testament. This Kanniappa Mudaliar had two daughters by name Rukmani Ammal and Thillainayagi Ammal. Thillaiyagi Ammal is the respondent before us in this appeal. Under- this will which has been filed in O. P. No. 87 of 1954 and sent for by me and looked into in open Court, this Kanniappa Mudaliar has bequeathed his self-acquired properties in moieties with absolute rights to his aforesaid two daughters.
There is no dispute that subsequent to the death of Kanniappa Mudaliar and shortly after the execution of the will his daughters have been enjoying the properties bequeathed to them in moieties. Rukmani Ammal died sometime ago surviving her, her only son by name Santhana Mudali. This Santhana Mudali died on 18-12-1950. Before his death he had executed his last will and testament on 14-12-1930 under which he has bequeathed the properties got by him from his mother to Saradambal.
This Saradambal has obtained a probate in O. P. No. 374 of 1952 on the will being proved in the common form. The aunt Thillainayagi Ammal has now come forward with this application No. 1036 of 1954 for the issue of a citation to her on the ground that the will was executed by Santhana Mudali under undue influence, coercion and fraud and that it should be proved in the solemn form.
This was resisted by Saradambal and the next of kin of the deceased Santhana Mudali viz., Munuswami Mudali supports Saradambal and states that he is not asking for the will being proved in the solemn form and that he is satisfied about the probate granted to Saradambal.
3. The point for determination before the learned Master and myself is whether this Thillainayagi Ammal is such a person as can put the executor or other person interested under the will to proof of that will in the solemn form.
4. The learned Master has held in the affirmative and hence this appeal.
5. In appeal I am of opinion, that the learned Master was not justified in holding that Thillainayagi Ammal is a party who may compel proof of the will in the solemn form. Here are my reasons.
6. Before entering into a discussion as to what constitutes "interest" for claiming citation, I may point out that notwithstanding their Lordships of the Privy Council deprecating the use of the terms, common form and solemn form not to be found in the Indian Succession Act -- 'Mt. Ramanandi Kuer v. Mt. Kalawati Kuer', AIR 1928 PC 2 (A), they have become synonymous with non-contentious and contentious cases contemplated by the Indian Succession Act (-- 'Walter Rebells v. Maria Rebells', 2 Cal WN 100 (B); -- 'Elokeshi Dassi v. Hari Prosad Soor', 7 Cal WN 450 (C)).
7. The settled case-law, so far as the English Courts are concerned, in regard to parties who may compel proof of will in solemn form is summarised in the following classical commentaries : Tristram and Coote's Probate Practice, 19th Edition, page 468:
"The following persons may put an executor or other person interested under a will to proof of that will in solemn form :
The widow or husband of the deceased, and other persons entitled to a share of his estate in the event of an intestacy, or the-personal representative of any of these. If the deceased died without relation entitled to his estate...." (with which we are not concerned here).
Williams on the Law of Executors and Administrators, 13th Edition, Volume I, page 80 :
"The executor of a will proved in common form may be compelled, by a person having an interest, to prove it per testes in solemn form.....
Before a person can be permitted tq contest a will, the party propounding has a right to call on him to show that he has some interest..." .
Similarly Mortimer on Probate Practice, page 588 -- 'Kipping and Barlow v. Ash', (1845) 1 Rob. Ecclause 270 at p. 273 (D) and -- 'Dixon v. Allinson', (1864) 3 Sw & Tr 572 (K). But see -- 'Crispin v. Doglipni', (below) (1860) 2 Sw and Tr 17 (F), where the "some" and "possibility" of interest contemplated in 'Kipping and Barlow v. Ash (D)', has been explained by Cresswell J.
8. The law in India is also the same and the persons who can apply and the persons who cannot apply have been classified in Mantha Ramamurti's Law of Wills (1948) (M. L. T. publication) at pages 471 to 773: P.L. Parruck's The Indian Succession Act (Third edition) (N.M. Tripathi and Co.) pages 461-462. N.C. Sengupta commentaries on the Indian Succession Act (N.M. Roychowdry & Co., Ltd. 72, Harrington Road, Calcutta)" pages 525 & following: N.D. Basu, The Indian Succession Act (Third Edition) pages 1053 & following: B.B. Mitra Indian Succession Act (Sixth Edition 1950 pages 380 & following: H.D. Cornish (former Judge of this Court) Probate Procedure in Br. India, pages 258 to 260; A.C. Dutt Indian Succession Act, page 636.
9. All persons who have an interest in the estate of the deceased' and are entitled to enter caveat and oppose the grant are also entitled to apply for the revocation of the grant: -- 'In re Hurro Lall Shaha', 8 Cal 570 (G); -- 'In re Bhobo Sundari, 6 Cal 460 (H); -- 'In re Nilmoney Singh', 6 Cal 429 (1) and -- 'A.A. Cany v. A. Omer', AIR 1920 Low Bur 106 (J). A person who has. a real interest in the estate which is or is likely to be prejudicially or adversely affected by the will can oppose the grant and hence can apply under Section 263: -- 'Nahin Chandra v. Nibaran Chandra', AIR 1932 Cal 734 (K).
In dealing with the question whether the caveator has the necessary interest to support the caveat, the test is whether the grant (under the Will) disposes any right to which the caveator would otherwise be entitled. If so he has such an interest; if not, he has not.
10. Applying this test, it has been held that the following persons have a right to apply :
I. An heir of the deceased, including the. widow, and the widow of a predeceased son and the widow of a predeceased son of the predeceased son: -- 'Shashi Bhushan v. Rajendra Nath', 40 Cal 82 (L); -- 'Brinda Chowdhrain v. Radhika Chowdhrain', 11 Cal 492 (M); -- 'In re Amrita Lall Mullick', 27 Cal 350 (N).
2. A presumptive reversioner, though his interest is merely contingent and inalienable : --'Shyama Charan v. Prafulla Sundari', AIR 1916 Cal 623 (O); -- 'Brindaban Chandra Shaha v. Sureswar Shaha', 10 Cal LJ 263 (P); -- 'Akhileswari Dasi v. Hari Charan Mirdha', AIR 1925 Cal 225 (Q); -- 'Khettramoni Dasi v. Shyama Churn Kundu', 21 Cal 539 (R); 8 Cal 570 (G); -- 'Bipin Behari Shaha v. Manoda Dasi', 6 Cal WN 912 (S); --'Hari Taran Sarkar v. Basanta Kumari Dasi', 5 Ind Cas 164 (1) (Cal) (T): -- 'Satindra Mohun v. Sarala Sundari Debi', AIR 1918 Cal 183 (U); -- 'Annoda Charan v. Atul Chandra', AIR 1920 Cal 159 (V). But a reversioner claiming adversely to the Will has no 'locus standi': -- 'Baistab Charan v. Ganga Sagar Saha Roy', 1 Cal LJ 258 (W).
3. A remote rovcrsioner, where the nearer & by her conduct unable to apply, or is colluding with the propouder of the will : -- 'Haridasi Dasi v. Bidhumukhi Dasi', AIR 1922 Cal 38 (X); --'Shama Charan Dey v. Reebala Dassi', AIR 1926 Cal 792 (Y).
4. A person having some interest in the estate of the deceased, however slight it might be, no matter even if it seems the possibility of an interest and a fortiori' a mortgagee: -- 'George Anthony Harris v. Millicent Spencer', AIR 1933 Bom 370 (Z); -- 'Kashi Chundra Deb v. Gopi Krishna Deb', 19 Cal 48 (Z1); -- 'Surbomongala Dassi v. Shashi Bhooshun Biswas', 10 Cal 413 (73), See also -- 'Gopes Chandra" v. Sylhet Loan Co. Ltd.', 41 Cal WN 120 (Z3). But as pointed out by Cresswell J. in (I860) 2 Sw and Tr 17 (F):
"The possibility of interest alluded to did not apply to the possibility of a party filling a character which would give him an interest, but as the possibility of his having an interest in the result of setting aside the will."
5. A person acquiring an interest in the properly after the death of the testator at the instance of the executor or heir of the deceased : -- 'Komollochun Dutt v. Nilrutten Mundee', 4 Cal 360 (Z4); -- 'Muddun Mohun Sirear v. Kali Churn Dey', 20 Cal 37 (75); -- 'Lalit Mohan v. Navadip Chandra', 28 Cal 587 (Z6); -- 'Digambar v. Narayan Vithal', 13 Bom LR 38 (Z7); -- 'Sheikh Azim v. Chandra Nath Namidas', 8 Cal WN 748 (Z8); -- 'Mokshadayini Dassi v. Karnadhar Mandal', AIR 1915 Cal 421 (Z9); 41 Cal WN 120 (Z3) or a purchaser from a judgment-creditor of the next of kin of the deceased -- 'Arakal Bastian v. Narayana Aiyar', 34 Mad 405 (Z10).
6. An attaching creditor or a creditor of an heir of the deceased, provided the probate has been obtained in fraud of creditors or the will purports to deprive the heir of a large share of inheritance : -- 'In re Mrs. Elsie Augusta Black (Estate); R.S. Sinha v. Miss Salena Hector', AIR 3941 Pat 151 (Z11); -- 'Firm Dinabandhu Roy Brajaraj Saha v. Sarala Sundari', AIR 1940 Cal 296 (Z12); -- 'Nilmoni Singh Deo v. Umanath Mookerjee', 10 Cal 19 (PC) (Z13); -- 'Lakhi Narain Shaw v. Multan Chand Daga', 16 Cal WN 1099 (Z14).
7. The executor under the will, if he is also a next-of-kin; -- 'Srinath Ghosh v. Mukundram Chukerhutty', 12 Cal WN 573 (Z15); -- 'Williams v. Evans', 1911 P 175 (Z16).
8. A legatee under a former superseded will :
-- "Draupadi Dasya v. Rajkumari Dasya', AIR 1919 Cal 1012 (Z17); -- 'Rahamtullah Sahib v. Rama Ran', 17 Mad 373 (Z18). A suit for revocation of a probate can be maintained by a legatee : --Mahyo v. Williams', 2 NWP HCR 268 (Z19). But he cannot impugn the will: 17 Mad 373 (Z18).
If any of these persons so entitled to apply happens to be a minor he can apply through a guardian : -- 'Sachindra Narain Sah v. Hironmoyee Dasi, AIR 1920 Cal 630 (Z20). Where there arc no heirs Government has 'locus standi' to oppose a grant but as soon as it appears that there are heirs the Government should retire : -- 'Rama Nath Chakravarti v. Collector of Khulna', AIR 1916 Cal 804 (Z21).
11. Applying the abovementioned test it has been held that the following persons have 'no locus standi' to apply :
1. An executor of the Will who has proved it and has no other interest on the ground that he cannot make himself the instrument of destruction of a Will which it is his duty to uphold : 12 Cal WN 573 (Z15).
2. A person denying the title of the testator or setting up title in himself : -- 'Ram Das v. Prem Das', AIR 1932 Pat 95 (Z22); -- 'Ralph v. Hale', 2 Pun L R 1902 (Z23); -- 'Kristo Gopal v. Baidya Nath', AIR 1939 Cal 87 (Z24); -- 'Abhirani Das v. Gopal Dass', 17 Cal 48 (Z25); -- 'Komalangi Ammal v. Sowbhagiammal', AIR 1931 Mad 37(Z26); -- 'Kashi Nath Singh v. Gulzari Kner, MR 1941 Pat 475 (Z27).
3. A person who is not interested in the estate of the deceased : Sri Gobind Prasad v. Mt. Lal Jhari Koeri', 14 Cal WN 119 (Z28); -- Pirojshah Bikhaji v. Pcstonji Merwanji', 34 Bom 459 (Z29); -- 'Subbaraya Pillai v. Ramasami Pillai, 23 Mad 171 (Z30); -- 'Narain Das v. Tirlok Tiwari', 29 All 4 (Z3l).
4. A person who claims to be joint with the testator ; -- 'Ramyad Mahton v. Ram Bhaju', AIR 1932 Pat 89 (Z32). .
5. A simple creditor of the estate : -- 'In the matter of Mee Tsee', 15 Suth WR 351 (Z33); --'Sowbhagiammal v. Komalangi Ammal', AIR 1928 Mad 803 (Z34); AIR 1941 Pat 151 (Z11), on the ground that it is matter of indifference whether creditor should receive his debt from an executor or an administrator.
6. A creditor of the heir, where, the grant is not in fraud of creditors : -- 'In the matter of the petition of Desputty Singh', 2 'Cal 203 (Z35).
7. A surely of the grantee of Letters of administration : AIR 1920 Low Bur 106 (J).
8. A creditor of the legatee under the will: AIR 1941 Pat 151 (Z11), or
9. A reversioner, where the widow had already unsuccessfully applied, except on proof of fraud or collusion in the proceedings instituted by her: --'Durgagati Debi v. Saurabini Debi', 33 Cal 1001 (Z36).
10. A debtor of the deceased person: --'Santosh Kumar v. Jaladsashi Devi', AIR 1941 Pat 18 (237).
When once probate in solemn form has been granted no one who has been cited or has taken part in the proceedings, or who is cognizant of them can afterwards seek to have it cancelled ; --'In re Pitamhar Girdhar', 5 Bom 638 (Z38); --'Venkataratnam v. Satyavati', AIR 1924 Mad 578 (Z39). Where "a party has had full notice and has had the opportunity of availing himself of the contest^ he will be bound by the decision : Per C. Cresswell J. in -- 'Rateliffe v. Barnes', (1862) 2 Sw and Tr 486 (Z40).
In the words of Sir .John Nicoll in -- 'Newell v. Weeks', (1814) 2 Phill. Ecc. 224 (Z41), "spectators to the whole and privy to the whole, if they had been dissatisfied, they might have intervened at any moment of the proceedings. This right of intervention, coupled with their privity to the proceedings, is conclusive to show that they can have sustained no prejudice by not having been cited and not having before given a formal appearance."
Such persons cannot, therefore, have the grant revoked or the proceedings reopened. Of course, in such a case the burden of proving that the applicant, though not cited, had knowledge of the prior proceedings, is on the person alleging the same.
But this rule has no application where the prior grant was the result of a compromise, or the petitioner had then no locus standi to intervene in the prior proceedings, or had then no knowledge of the circumstances leading him to believe that the will was not genuine, or was a minor or Pardanashin lady: -- 'Young v. Holloway', (1895) .P 87 (Z42); -- 'O.V. Forbes v. V.G. Peterson', AIR 1941 Cal 417 (Z43).
12. To sum up, the interest which entitles a person to claim that a will should be proved in the solemn form must be a clear and real interest in the estate and not merely an interest in the result of the probate proceedings or interest in any remote sense of the word AIR 1941 Pat 151 (Z11). The interest in the estate of the deceased which would make it proper to issue citations on the objectormust be an interest under the deceased and not one paramount to that of the deceased, So a person who claims independently of the testator and disputes his right to dispose of the property has no such interest: -- 'Gopal Chandra Bose v. Asutosh Bose', 20 Ind Gas 342 (Cal) (Z44); AIR 1941 Pat 475 (Z27). The general proposition adumbrated in certain decisions like -- 'Hemanigini Debt v. Haridas Benerji', AIR 1918 Pat 525 (Z45); 17 Mad 373 (Z18); -- 'Kothandararn Naidu v. Subbier', AIR 1927 Mad 576 (246), that an interest however slight or the bare possibility of an interest is sufficient to entitle a person to oppose a will has been, if I may say so with respect, rightly questioned by Sanderson, C. J. and Woodroffe, J. in AIR 1918 Cal 183 (U), and is found too wide a proposition to admit of its being a precise and practical test-In fact in the following three decisions this general proposition has been put in its proper perspective. In AIR 1932 Cal 734 (K), it was rightly pointed out that this interest should he interpreted as implying a real interest which is or is likely to be prejudicially or adversely affected by the will. In -- 'Swatantranandji v. Lunidaram', AIR 1937 Bom 397 (Z47), it was observed that the test is generally this ;
"Will the grant of probate to the petitioner displace any right to which the caveator is other wise entitled? If so, he has an interest; if not, he has none."
In AIR 1928 Mad 803 (Z34), Venkatasubba Rao, J. after reviewing the entire case law on the subject has formulated the. following test:
"In dealing with the question -- has the cavealor the necessary interest -- the test is, does the grant displace any right to which the caveator would otherwise be entitled? ....In every case it must be shown that the caveator, but for the will would be entitled to a right of which that will deprives him."
13. In this case bearing these principles in mind if we examine the facts set out above we find that Thillainayagi Animal is not possessed of any interest entitling her to insist upon Saradambal proving the will in the solemn form.
14. In the result, I set aside the order of the learned Master dismiss the application am allow this appeal with costs throughout.