Calcutta High Court
Dr. Rajaram Jaipuria And Ors. vs Miss. Lakshmi Khanna on 20 June, 2003
Equivalent citations: (2004)1CALLT96(HC)
Author: D.K. Seth
Bench: Dilip Kumar Seth
JUDGMENT D.K. Seth, J.
1. The landlord of a premises sought to intervene in the probate proceeding in respect of a Will executed by the tenant in favour of an alleged stranger who as executor had applied for probate. The learned Probate Court denied intervention by the landlord-appellant on the ground that the landlord has no interest in the property. Learned counsel for the appellant submits that by the Will the tenant had bequeathed the right of tenancy in the property of which the appellant is the landlord who had initiated a suit for eviction against the tenant-testator. Therefore, by reason of the Will, the right of the landlord-appellant in respect of recovery of the tenanted premises would be affected and that as a landlord the appellant has an interest in the property, a subject matter in the probate proceedings. Therefore, the said finding adversely affects his right.
2. After hearing the learned counsel for the appellants and the respondent, we are of the view that there is no substance in the submission of the learned counsel for the appellants. The appellant admittedly is the landlord of the testator against whom the former had instituted a suit for eviction since pending. He seeks to intervene and oppose the grant of probate on the ground that the legatee is not an heir neither he ordinarily resided with the testator. Under the Indian Succession Act, 1925, the objection to the grant of probate is restricted to certain grounds. A grant of probate may be opposed on the grounds: (a) that the Will was not duly executed, (b) that the deceased was not of sound mind, memory and understanding at the time of execution, (c) that the execution of the Will was obtained by undue influence, (d) that the execution of the Will was obtained by fraud, (e) that the deceased did not know and approved of the contents of the Will, and (f) instrument was not intended to operate as a Will, or that it has been revoked. It can also be opposed on the ground of discovery of another Will on certain conditions.
3. Thus, we find that the scope of objection to the grant of probate is very limited. Therefore, the locus standi to oppose the grant is confined or limited only among persons interested in the estate. One must show that he has an interest in the estate in order to establish his locus standi in a Probate Court (Pirojshah v. Pestonji, 34 Bom 429). He must show an interest in the estate of deceased either by inheritance or otherwise. The test for determination is that whether the person has sufficient interest to sustain caveat--that the grant would displace any right to which a caveator is otherwise entitled. If the answer is yes, he has an interest, if no; he has. none (Swatantranandji v. Lunidaram, 39 Bom LR 490). If one claims outside and independent of the Will or claims adversely to the testator and disputes his right to deal with the property, cannot be said to claim an interest in the estate of the deceased (Kashi Nath v. Duthin Gulzari AIR 1941 Pat 475). A person claiming the property by paramount title cannot claim locus standi to oppose the grant of probate, Jannki v. Ram Bahadur, (1938) Indian Ruling 18; In the goods of: Mohommad Basir, . If the person alleges that the property, which the deceased purports to dispose of by his Will, is not capable of being so disposed of, such person cannot enter a caveat against the grant of probate. The probate Court cannot go into the question of title or rights of the parties to determine the interest therein [Ishwardeo v. Kamta Devi, ; Paresh Chandra v. Bidhu Bhusan 1955(1) Cal 429].
4. The interest of the landlord under whom the testator held the tenancy is in a sense a paramount title. The landlord has a paramount title to the estate sought to be bequeathed by the tenant/testator. The landlord cannot claim any interest in the tenancy right of the testator. The interest of the landlord in the suit property is that of recovery of the possession. Such recovery would demolish the tenancy right. As such the rights of the landlord and that of the tenant are adverse to each other. The interest of the landlord in the suit property has nothing to do with the interest in the tenancy. The two interests are distinct and separate for the purpose of grant of probate when a tenant executes a Will bequeathing the tenancy right. Therefore, the appellants cannot claim any interest in the subject matter of the Will of which probate is sought for and as such cannot claim to intervene.
5. Inasmuch as the landlord cannot take any of the grounds available to oppose the grant of probate, as enumerated hereinbefore unless he proves an interest in the tenancy right other than that of the landlord.
6. The learned counsel for the appellants contended that this grant of probate would adversely affect the pending suit for eviction against the testator and a third party, who cannot occupy the premises as tenant would be occupying the tenancy. This ground does not create an interest in the subject matter of the probate. The definition of tenant as defined in Section 2 Clause (h) is inclusive one. It includes such of the tenant's heir as were ordinarily residing with the deceased at the time of death. The expression "heir" used in the definition is to be understood as natural heir, but there are questions to be gone into in the suit for eviction, if occasion arise, and cannot be determined in the probate proceedings. Whether this execution of the Will amounts to assignment or transfer are also questions that can be gone into in the suit for eviction itself or whether on the death the tenancy ceased can also be determined in the suit for eviction. These questions are not germane to the question of grant of probate. These are not grounds on which the grant can be opposed. Therefore, the grounds on which the intervention is sought for are inadmissible for the purpose of grant of probate and as such the appellants cannot claim any interest in the estate of the deceased in order to intervene in the probate proceedings.
7. The right of the landlord in respect of the suit property is not affected by the Will, neither the suit for eviction would be affected by the Will. The appellants can proceed with the suit for eviction. Any right acquired under the Will is always subject to the litigation. If the transfer by Will in favour of person not recognized by the West Bengal Premises Tenancy Act is impermissible, then the question would not affect the right of the appellants. These are questions to be gone into in the suit itself. It appears that the right of tenancy is heritable as is protected within the scope of West Bengal Premises Tenancy Act and not beyond. If it is a transfer by Will, it cannot come within the scope thereof, in that event, there is no question of the appellants being affected by the Will. Thus, there is no scope of saying that the landlord has any interest in the probate proceedings. He might be interested in the property under tenancy of the deceased testator and might have a right to seek eviction of the testator or his heirs or otherwise, as the case may be. But that Will not entitle him to intervene in any probate proceedings. The right acquired in the probate is always subject to the suit already pending against the testator and any transfer would be hit; by the principles of lis pendence. Therefore, the appellant cannot claim any right to intervene.
8. In the circumstances, we do not find any infirmity in the order appealed against. The appeal is, therefore dismissed.
There will no other as to costs.
Urgent Xerox certified copy of this judgment, if applied for, office is directed to deliver the same as expeditiously as possible.
R.N. Sinha, J.
9. I agree.