Allahabad High Court
Smt. Savita Pandey W/O Sri Shiva Nand ... vs Sri Hanuman Prasad Poddar Smriti Sewa ... on 29 October, 2007
Equivalent citations: 2008(1)AWC366, AIR 2008 (NOC) 1158 (ALL.) = 2008 (1) ALJ 662, 2008 (1) ALL LJ 662, 2008 (4) AKAR (NOC) 552 (ALL.) = 2008 (1) ALJ 662, 2008 A I H C 1293, (2008) 2 HINDULR 177, (2008) 104 REVDEC 336, (2008) 62 ALLINDCAS 390 (ALL), (2008) 70 ALL LR 502, (2008) 1 ALL WC 366
Author: Janardan Sahai
Bench: Janardan Sahai
JUDGMENT Janardan Sahai, J.
1. The 1st respondent Hanuman Prasad Poddar Smriti Sewa Trust filed an application under Section 278 of the Indian Succession Act (hereinafter referred to as the Act) for grant of letters of administration with the Will of Smt. Dularey Devi annexed.
2. The application was originally allowed but the grant was subsequently revoked on the application of Suresh Kumar, the 4th respondent. Savita Pandey and others, the applicants 1 to 12 in this revision have filed an application for impleadment in the case alleging that Smt. Dularey Devi had transferred some land in favour of Malaviya Awas Samity Ltd., a registered Housing Society and that some of the applicants have purchased plots of land from the society while other applicants have purchased plots of land from Smt. Dulalrey Devi herself. The case of these applicants is that apart from the housing plots there was reserved some land for road and park in the lay out plan and the status of this land as road and park was to be maintained for the beneficial enjoyment of the plot holders. Another application for impleadment was filed by Smt. Sashi Prabha Upadhya the applicant no.13 who claims to have purchased a plot of land directly from Smt. Dularey Devi. Her case is that after the transfer made by Smt. Dularey Devi there remained with her no land which could have been bequeathed by the Will. All the applicants have denied the execution of the Will and have sought their impleadment on the ground that they have interest in the estate. The impleadment applications were opposed by the respondents. The trial court by its impugned order dated 24.5.07 has rejected both the impleadment applications. The finding is that challenge to the right of Smt.Dularey Devi to execute the Will is beyond the scope of a proceeding for grant of probate or letters of administration. The testators title in respect of the properties which have been disposed of by the Will cannot be questioned in these proceedings. It has also been found that the applicants can institute a separate suit in case they feel aggrieved by the user for other purposes of the land reserved for road or park. In Mrs. Eliizabeth Egberi v. A.J. Fanthome and Anr. AIR 1952 Alld. 452 it was held that a caveator who lays claim to a particular property and at the same time says that the property does not form part of the deceased's estate is not a person claiming interest in that estate and as such has no locus standi to oppose the grant of probate.
3. Section 283 of the Act provides for issuance of citation to a person who claims to have an interest in the estate of the deceased. Such a person can also file a caveat to contest the proceedings. The question for determination in this case is whether the applicants can be said to be persons claiming an interest in the estate of the deceased. From the case set up by the applicants it is clear that the right which the applicants claim is as purchasers of housing plots. The roads and the park given in the lay out it is claimed was meant for the beneficial enjoyment of the plot holders who have formed a residential colony. The applicants rely upon Smt. Tara Devi and Anr. v. Dr. G. Raj Shekhar and Ors. 2006(3) JCLR 415 (Alld.) in which the status of such right of the plot holders to the enjoyment of the park and use of roads has been held to be an easement by grant. Thus the applicants claim is based on easementary right over the portion said to be reserved for road and park. From the case of the applicants it is clear that they do not claim any new right having accrued to them on the death of Smt. Dulalrey Devi. Whatever rights the applicants have over the portions reserved for park or road accrued to them in the life time of Smt. Dularey Devi. The applicants do not claim to have succeeded to any portion of the estate of Smt. Dularey Devi upon her death.
4. Field, J. in Nobeen Chunder Sil (1881) ILR Bhobosoondari Dabee (6) Calcutta 460 held "As to the test of what constitutes a sufficient interest to entitle any particular person to be made a party according to the view which I have already stated I think it comes to this; that any person has a sufficient interest who can show that he is entitled to maintain a suit in respect of the property over which the probate would have effect under the provisions of Section 242 of the Indian Succession Act". This test has been adopted in several cases including the decision of the Patna High Court in , Kalika Singh v. Awadhesh Narain Singh and Ors. In re Annapurna Kumar v. Subodh Chand and G. Jaya Kumar v. R. Rathnam In these cases the court has given a wider scope to the expression "a person claiming to have an interest in the estate of the deceased". In other cases the test which has been adopted is whether the caveator has any right which the Will seeks to displace. This test has been approved of in M.K. Sowbhagiammal v. Komalangi Ammal AIR 1928 Mad. 803; Komalangi Ammal v. M.K. Sowbhagiammal 1931 Mad. 37; Re Late Rajo Singh Ramautar Singh and other cases. In certain other cases the court has permitted impleadment of a party who had sought to challenge the Will on the ground that it was forged and set up by the propounder to deprive him of right to proceed against the properties which had devolved upon the heir of the deceased against whom the party seeking impleadment has a claim. Thus the rights of a creditor of the heir of deceased testator to contest the probate proceedings on the ground that the Will was set up to defraud the creditors of the heir has been maintained.
5. The courts have also permitted a person claiming maintenance from the estate of the deceased or purchasers or assignees from an heir after the death of the testator to contest the proceedings vide Hanumant Rao v. Lachhaman 1926 Mad. 1193 and Navin Chand v. Nivaran Chand 1932 Cal. 734 The principle involved has been succinctly stated as follows by the Privy Council in Sarala Sundari v. Dinabandhu Roy 1944 P.C. 11:
...The question arises whether the creditor of an heir who says that he is being or is likely to be defeated in his rights against the heir by reason of property which otherwise appeared to be in possession of the heirs being withdrawn by a Will is allowed to move to revoke the probate....
...it appears to their Lordships to follow as a matter of course that if a person is complaining that he has in fact been defrauded, he is one of the persons who is injured by the fraud alleged and that that person is entitled to have his redress by applying to revoke the probate and thereby cause the fraud to become inoperative. If he had not such a right as that, it is very difficult to know what right a creditor in those circumstances, or a person injured by the fraud could have, otherwise the probate would stand and he would be affected by the probate which had been obtained ex hypothesi fraudulently....
What is conclusively determined in the probate proceedings is whether the Will was duly executed and that the holder of the probate or letters of administration is entitled to represent the estate. The decision of the probate court that the Will being probated is the last Will of the deceased is a judgment in rem. (sic) The right of a person in the property which forms the subject matter of the estate which the Will seeks to displace is therefore recognised by the court as the basis on which he can be permitted to contest the probate proceedings as the judgment of the probate court would be binding upon him as also upon the rest of the world. In Bhobosoondari's case the court considered the cases of both, the attaching creditor and mortgagee from the next of kin of the deceased. It was held "...if these cavetors are unable to contest the validity of the Will in another court because of the conclusiveness attached to it after it is probated) and are also precluded from coming in to see the probate proceedings and opposing the grant of probate, it is clear that they will be entirely without remedy." The true test therefore for determining whether a person has a right to contest is that set out in Sowbagiammal's case 1928 Mad. 803 and the test is whether the caveator has a right in the properties subject matter of the Will which the Will seeks to displace. The Patna High Court in Re Late Rajo Singh considered its earlier decisions in Mrs. Elgie Augusta Black AIR 1941 Patna 151 and Kalika Singh AIR 1983 Pat. 149 and held that the test is whether but for the Will, the caveator would be entitled to a right of which that Will deprive(s)? him."
6. In the present case however the rights of the applicants to prevent the land which according to them was reserved for park or for road from being converted for use for other purposes can be protected independently in a suit and such right of the applicants is not affected by the grant of probate letters of administration. The decision of the probate court will not come in the way of the applicants filing a suit for protection of their rights. Indeed it is not within the scope of the probate court to decide as to whether the land reserved for park or for road has been allowed to be converted for use for other purposes. The probate court is not concerned with deciding the disposing power of he testator in respect of the properties covered by the Will. The court of probate is only concerned with the question as to whether the document put forward is the last Will and testament of a deceased person and was duly executed. The question whether the bequest is good or bad is not within the purview of the probate court vide Ishwar Deo Narain Singh v. Smt. Kamta Devi. No right of the applicants in the properties which formed part of the estate of the deceased has been displaced by the Will. The applicants have also no right in the proceedings to challenge the disposing power of the testator in respect of the properties covered by the Will
7. The applicants therefore cannot be said to be persons claiming any interest in the estate of the deceased. Their applications have therefore been rejected on good grounds by the court below. The revision is accordingly dismissed.