Madras High Court
J. Bakthavatchalam And Anr. vs P. Krishnamoorthy on 6 March, 1992
Equivalent citations: (1992)2MLJ407
JUDGMENT Mishra, J.
1. This appeal has been, posted after notice of motion and since we have heard learned Counsel for parties at length, we find it possible to dispose of the appeal itself at this stage.
2. One Padmini Chandrasekharan who died on 7.6.1980 at Madras had executed a will on 20.9.1975. That will was sought to be probated in O.P. No. 117 of 1981 on the file of this Court under Sections 222 and 276 of the Indian Succession Act. It appears that on 28.4.1981 probate was issued to the plaintiff/respondent. But on a petition by Padmini's husband in Application No. 1998 of 1982 it was revoked. In terms of an order finally passed by the Supreme Court by consent of the parties, the judgment of the Court in O.P.No.117 of 1981, dated 16.9.1982 and O.S. Appeal No. 96 of 1983, dated 12.3.1984 were set aside and it was ordered that on the caveat filed by him, the matter would be treated as a regular testamentary suit in the Original Side of the High Court. This order was passed by the Supreme Court on 11.9.1985 in Civil Appeal No. 4462 of. 1984. After the order and during the proceedings in the testamentary suit as ordered by the Supreme Court, Padmini's husband Chandrasekharan died on 31.5.1991. The appellants herein claiming to be heirs and legal representatives of Chandrasekharan applied for being added as defendant/caveators in place of Chandrasekharan. By the impugned order, a learned single Judge of this Court has said that the proposed parties cannot come on record as legal representatives of the deceased defendant in this action on account of the absence of any cavea table interest for them in the estate of the deceased, Padmini Chandrasekharan.
3. It is indeed a case, in our opinion, in which there isa glaring error or law apparent on the face of the record. The learned trial judge has taken notice of the interest of a person who should be cited or if an file caveat in these words.
In Piroishabikheli v. Pestonji Morwanji I.L.R. 34 Bom. 459 it is held that the interest which entitled a person to put in a caveat must be an interest in the estate of the deceased person, that is, there can be no dispute whatever as to the title of the deceased to the estate, but that the person who wishes to come in as the caveator may show some interest in the estate derived from the deceased by inheritance or otherwise. In Dular Kuer v. Kesar Kuer it is laid down that an interest or even an interest dependent upon remote contingencies was sufficient to entitle a person to oppose a will and to entitle him to citation. But the possibility of an interest should rest on existing facts and not mere conjectures. When at the time of the testator's death he had no possible chances of succeeding to the testator's estate, he has no locus standi to oppose the grant of probate. The decision in Sadananda Pyne v. Herinan Sha , states that 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. A person who has merely the possession of a trespasser has no interest in the estate of the deceased. He has therefore no locus standi to file such an application.
The rationale in those Judgments when applied to consider the locus standi of Padmini's husband to object to the grant of probate to the plaintiff/respondent must be found to have been in his favour. Otherwise, the Supreme Court would not have admitted him as a caveator or recognised a right in him to object to the grant of probate of the will. This cannot be disputed that any interest of a Hindu dying intestate shall vest in his heirs and his legal representatives in the order of succession and if a testament is created, a testamentary succession will follow. Chandrasekharan's interest which gave him a right to object to the grant of probate of the will to the plaintiff/respondent, thus on his demise must be deemed to have devolved upon his heirs and legal representatives. The interest that Chandrasekharan had thus to object to the grant of probate to the plaintiff must accordingly be deemed to have devolved upon his heirs and legal representatives, whether intestate or claiming under a testament.
4. There is no gainsaying that rules in the Code of Civil Procedure are not strictly applied to a probate proceedings under the Succession Act, for it is well-known and the learned single Judge has also noticed accordingly that Section 295 of the Indian Succession Act lays down that when the proceedings become contentious, it shall take as nearly as may be the form of a regular suit according to the provisions of the Code of Civil Procedure. In a proceeding as nearly as a suit to be decided in accordance with the provisions in the Code of Civil Procedure, it will be unjust to say that those who stand in the place of the deceased caveator shall have no interest to object to the plaintiff's claim for grant of probate.
5. Besides the cases that were cited before the learned single Judge, we must fairly accept a stand at the instance of the learned Counsel for the plaintiff/respondent based upon a judgment of a learned single Judge of this Court in the case of Baggiammal v. Balagopala A.I.R. 1948 Mad. 83. The view expressed in this judgment is as follows :
Now it is conceded by counsel on behalf of the respondent that the denial by him of the interest of the testator in the properties cannot entitle him to file a caveat. It is of course a denial of the title of the testator and no persons denying the testator's title can on that account alone be entitled to lodge a caveat. But in my view this does not dispose of the matter for if it is held contrary to the respondent's main contention, that there was a valid partition in status, the respondent would be entitled as a reversioner in the event of its being held that the will now sought to be proved was invalid. Thus in that event the respondent clearly has an interest in the estate of the deceased. Counsel for the petitioner has urged that to take this view of the matter involves allowing the respondent to raise two entirely inconsistent places. I cannot accept that contention. There would, in my view, be no impropriety in the respondent pleading that he was entitled to the whole estate as survivor of the joint undivided Hindu family, and in the alternative that if a partition was held to have taken place he was entitled as a reversioner. If it is held in the suit now pending that there was a valid partition the respondent will necessarily become a reversioner and could only be displaced in that right by the acceptance as valid of the will now put forward.
This clearly shows that there should be interest in the estate of the testator to justify a caveat and such right Chandrasekharan had, a fact which cannot be disputed. The appellants herein are claiming the very same right which Chandrasekharan claimed. Thus they fully justify their appearance as caveators in the place of Chandrasekharan.
6. For the reasons afore-mentioned, we are inclined to interfere with the impugned judgment. The same is accordingly set aside. The appellants herein have shown sufficient interest (the same as Chandrasekharan had) to be present in the proceedings as caveators and object to the grant of probate. They shall accordingly be entitled to be cited as defendants in the testamentary suit. No costs.