Karnataka High Court
R. Venkatachalam vs G.M. Mascarenhas on 22 August, 1990
Equivalent citations: ILR1991KAR197, 1990(3)KARLJ479
JUDGMENT Chandrakantaraj Urs, J.
1. This appeal is directed against the Order dated 13th March, 1990 made by the learned Probate Judge of this Court in Probate C.P.No. 13/1989.
2. The facts Leading to this appeal may be stated briefly and they are as follows:
One Dr. G.M. Mascarenhas filed Probate C.P.No. 13/1989 in this Court seeking probate of the last Will and testamentary disposition of one Miss. A.B. Madappa also known as Babs, since deceased. The Court admitted the petition arid issued direction for citation, in one issue of Times of India dated 2-9-1989, that direction was carried into effect by the petitioner in the Probate Court. But even before the citation was given effect to by the Court, the appellant before us had entered caveat in Probate Court and, therefore, the question arose in the Probate Court whether the appellant before us could be said to have locus standi to enter caveat. In deciding that question, the learned Judge has considered the provisions made in Section 283(1)(c) of the Indian Succession Act read with Section 284(1) of the same Act. In the course of the order made, the learned Judge has chosen to place reliance on the decision of the High Court of Madras in the case of M.K. SOWBHAGIAMMAL AND ANR. v. KOMALANGI AMMAL AND ANR., AIR 1928 Madras 803 wherein Venkatasubba Rao, J., held that "interest in the estate of the deceased" occurring in Clause (c) of Sub-section (1) of Section 283 was limited to a direct interest and could not be in the nature of any other claim by way of title or other remote interest. He also devised the test to find out the nature of interest as to whether it would fall within the expression "interest in the estate of the deceased" as follows:
"Has the caveator the necessary interest? 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."
3. This dicta of the learned Judge was in disagreement with the earlier decision of the same High Court in the case of JAMNI HANMANTHA RAO v. ARATALA LACHAMMA, AIR 1926 Madras 1193.
4. In the case of D.S. SRIRAMIAH SETTY v. SMT. D. KANTHAMMA, AIR 1971 Mysore 1483 Chandrashekhar, J., as he then was, chose to follow the later ruling of the Madras High Court as the one giving the correct view of the law. Regard being had to that, the learned Probate Judge felt himself bound by the decision already rendered by the learned single Judge of this Court and therefore held that the caveat was not maintainable and consequently declared that the caveator had no locus standi to lodge the caveat and it was accordingly ordered.
5. Aggrieved by the said order, the present appeal is preferred under Section 4 of the Karnataka High Court Act, 1961, to the Division Bench.
6. Before us Mr. B.P. Holla, learned Counsel appearing for the appellant, canvassed the following propositions for our consideration with a view to persuade us to liberally construe the expression "interest in the estate of the deceased" occurring in Clause (c) of Sub-section (1) of Section 283 to include the interest of a joint owner in the part of the estate disposed of in the Will, an item of the estate disposed of in the Will, in respect of which probate had been sought. The proposition made by him was that one co-owner may enter caveat in respect of a Will alleged to have been executed by the other co-owner. In order to sustain the proposition or make it more acceptable to us, he placed great reliance on the decision of the Supreme Court in the case of SRI RAM PASRICHA v. JAGANNATH AND ORS. The passage relied upon by the learned Counsel occurs in Paragraph-28 and is as follows:
"28. Mr. V.S. Desai reads to us from 'Salmond on Jurisprudence' (18th Edition) and relies on the following passage in Chapter 8 (Ownership), paragraph 46 at page 254:
"As a general Rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have ownership of the same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co-ownership. Partners, for example, are co-owners of the chattels which constitute their stock-in-trade, of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers. It is not correct to say that property owned by co-owners is divided between them, each of them owning a separate part. It is an undivided unity, which is vested at the same time in more than one person....The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of what is owned."
6. As is obvious, the paragraph contains the general Rule in regard to the rights of a co-owner as explained by Salmond in the text on Jurisprudence. Therefore, what is obvious from the above Ruling which placed reliance on the observations of the learned Author is that wherever there is joint ownership, the joint owner exercises right over the entire estate of property of which he is a joint owner till by a process known to law, that interest or relationship is served, as for instance by a partition. He, therefore, contended that so long as there is a legal concern of one joint owner with the estate of a deceased joint owner whose Will is sought to be probated, the surviving joint owner has the locus standi and, therefore, a liberal construction is warranted in regard to the expression "interest in the estate of the deceased" occurring in Clause (c) of Sub-section (1) of Section 283.
7. No doubt, the proposition put forward is attractive; but before the Court accepts it, one must see the consequences of such a proposition being accepted. Probate proceedings, as rightly observed by the learned Probate Judge in the course of his Order under appeal, does no more than establish the due execution of a Will sought to be probated. It also decides impliedly, the person who executed the Well was of sound and disposing state of mind. It does no more than that and does not confer nor 90 into the question of title to the properties disposed of in the Will.
8. We have been taken through a catena of Decisions by the learned Counsel appearing on both sides, on the question of "interest in the estate of the deceased". The preponderance of the Judicial Rulings, to some of which we will refer to in the course of this order are in favour of limited construction.
9. In the case relied upon by this Court earlier, the caveator had claimed title to the jewellery disposed of by the testatrix, in M.K. Sowbhagiamma's case. It was in that context the observation was made, whether the person claiming title adverse to that of the testatrix could be said to have locus standi. It was ruled that she did not. If she was possessed of the jewellery and if she had title to it, there was always a mode or method in law to ascertain the titte and that would not include a right to enter caveat in probate proceedings which do not deal with deciding disputed title to properties. An identical question arose in the case of RAMYAD MAHTON v. RAM BHAJU MAHTON, AIR 1932 Patna 89. A Division Bench of the High Court of Patna categorically held that where an objector to the petition for granting the letters of administration claimed that he was joint in property which the testator left by Will, he had no locus standi to object to the grant of the letters of administration even where citations had been served on him. In other words, they distinctly and clearly ruled that joint owner had no locus standi to come on record as a caveator in probate proceedings.
10. We may at this stage observe that Mr. Holla, learned Counsel for the appellant, drew our attention to the facts of the case and pointed out that there the caveator claimed right to the property disposed of which he had acquired by survivorship being the sole surviving member of the joint Hindu family. That is no different than asserting independent title in the property disposed of which in similar cases, whether belonging to a Hindu testator or a non-Hindu testator, adverse title pleaded cannot be a ground to consider the same to be equivalent to the "interest in the estate of the deceased" occurring in Clause (c) of Sub-section (1) of Section 283. Therefore, we should definitely overlook the distinction sought to be made.
11. Next case which is of some relevance to decide, is the case of SWATANTRANANDJI v. LUNIDARAM JANGALDAS, AIR 1937 Bombay 397. In that case, the learned Probate Judge in the High Court of Bombay ruled as follows:
"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 inheritance or otherwise. A title adverse to that of the testator or to his estate or any portion thereof is not sufficient to sustain the interest. The test is generally this: will the grant of probate to the petitioner displace any right to which the caveator is otherwise entitled? If so, he has an interest; if not he has none".
12. Though the language is not identical, the test applied is similar to the test applied by Venkatasubba Rao, J., in M.K. Sowbhagiammal's case. We may point out that the facts of this case are clearly covered by the ruling of the learned Judge of the Bombay Probate Court in as much as he clearly held that any portion of the estate, even if owned by a caveator, would not entitle him to come in as a caveator in the guise of having any interest in the estate of the deceased.
13. Again, in the case of BAI PARVATIBAI v. RAGHUNATH LAKSHMAN, AIR 1941 Bombay 60 Kania, J., as he then was held that a caveat cannot be sustained under Section 284 of the Indian Succession Act, 1925 on the ground that the property was joint family estate. No doubt, at the time the decision was rendered, the Hindu Succession Act was not in force. The customary Hindu Law did not provide for the making of a Will of the undivided coparcenery interest of coparcener. It is only after corning into force of the Hindu Succession Act, such a power is conferred on a coparcener or any other person claiming under other schools of law than the Mitakshara School. This certainly furthers the view expressed by the learned Probate Judge despite the argument to the contrary by Mr. Holla that a distinction must be made between the position of a coparcener before 1956 and after 1956. We do find that after 1956, the position is made harder for a coparcener to enter caveat in regard to the Will of a deceased coparcener in respect of the joint Hindu family property. When there was no right of disposition if a coparcener could not be a caveator in terms of Section 283 or 284 of the Succession Act, then his position after the Hindu acquired the right to make a Will would be much worse.
14. Therefore, the real test is to see whether the caveator has interest in the estate which is the subject-matter or part of the subject-matter of the testamentary disposition in respect of which caveat is entered or is interested in the result of it. In fact, the second proposition and the real thrust of the argument of Mr. Holla was that the caveator, being half owner of the Home School, did exercise all the rights of a full owner and if he failed to contest or if he was prevented from contesting the Will, he would be foisted with a co-owner who may be undesirable and who, therefore, will act as an impediment over his control and ownership of the joint property; therefore, he has a right tc be heard. This argument, in our opinion, is not only not appealing, but does not stand to reason. For instance, if there was no testamentary disposition of the property in question, notwithstanding the fact that the testatrix in the case was said to be a Christian by faith, if she had died intestate, her half interest admitted or conceded by the caveator (which we are told is still in dispute in certain civil proceedings pending) would have devolved on her normal legal heirs in the absence of any contract to the contrary in favour of the caveator appellant before us. Even then he would not have a choice in regard to the other joint owner of the property. Therefore, what really prompted the appellant to enter caveat was not the interest he has (which he has really does not have but conceded the interest to the extent of 50 percent in the Home School which is one of the dispositions made by the testatrix) but the effect of the result of the grant. This was expressly considered In re MRS. ELSIE AUGUSTA BLACK (R.S. SINHA v. MISS SALENA HECTOR, AIR 1941 Patna 151). A Division Bench consisting of Fazl Ali, J., late a Judge of the Supreme Court of India, ruled as follows:
"The interest, which entitles a person to object to the grant of probate, must be an interest in the estate and not merely an interest in the result of the probate proceedings or "interest" in any remote sense of the term. A mere creditor of the estate of the testator or a legatee under his will cannot oppose the grant of probate of the testator's will. The creditor merely by alleging that some of the debts mentioned in the will are not genuine or that the will is a forgery or that the named executor is acting fraudulently does not become a person interested in the estate of the deceased. A creditor who has attached a portion of the estate might possibly be a person who had an interest in the estate but a mere creditor without even a decree can hardly be said to have an interest in the estate. But proof of a former will of the testator in which a person is interested is a sufficient interest to enable him to contest the will set up."
15. From the foregoing passage extracted by us, it is seen that interest must be direct and it must be an interest which would devolve or would make the caveator the successor in interest to the property of the estate of the deceased. Any other form of interest would be alien to the expression "interest" in the interest of the estate of the deceased occurring in Clause (c) of Sub-section (1) of Section 283.
16. The argument of Mr. Holla that a liberal meaning should be given, in our opinion, in the special context of grant of probate, does not commend itself to us. On the other hand, having regard to the limited purpose of the grant of probate, the meaning must be restricted to serve the purpose of the Act and to serve granting of the probate and no more. It cannot be enlarged so that other civil disputes inter-se between the testatrix since deceased (on the facts of the case) and the caveator cannot be settled by allowing him to enter caveat. We feel that a liberal construction would lead to complications not envisaged in the matter of grant of probate or letters of administration. Therefore, restricted interpretation of the expression occurring in Clause (c) of Sub-section (1) of Section 283 is warranted and we, therefore, do not find any good reason to interfere with the order of the learned Probate Judge.
17. We, therefore, dismiss the appeal. But in the circumstances of the case, there will be no order as to costs.
18. All pending interlocutory applications, which are not otherwise disposed of, are deemed to have been dismissed.