Calcutta High Court
Sri Benoy Ranjan Banerjee And Anr. vs Sri Sadhan Ranjan Banerjee on 18 December, 2001
Equivalent citations: (2002)1CALLT260(HC)
Author: T. Chatterjee
Bench: Tarun Chatterjee
JUDGMENT T. Chatterjee, J.
1. When some argument was advanced by the learned counsel for the parties on the question of grant of interim relief, it was suggested by the learned counsel for the parties that the appeal itself could be treated as on day's list and disposed of. Such being the stand taken by the parties we had taken up the hearing of the appeal itself and disposed of by this judgment.
2. This appeal is preferred against the judgment and or order passed by a learned Judge on 1st August, 2001 in C.A.N. No. 4747 of 2000 in connection with P.L.A. No. 94 of 2000 by which the application filed by the executor respondent for discharging the caveat filed on August 11, 2000 at the instance of the appellants was allowed.
3. Smt. Bakul Banerjee who was a spinster executed a Will in respect of her estate being premises No. AB-124, Salt Lake City, Sector-I, within Salt Lake Police Station (North) Calcutta-700 064 in favour of her sister Smt. Sujata Sengupta wife of one Shri Mukul Sengupta with absolute right to dispose of the property. This Will was alleged to have been executed by Sml. Bakul Banerjee on 26th July, 1994 in which Mr. Sadhan Banerjee was made . an executor of the same. Shri Sadhan Banerjee has made an application for grant of probate of the Will alleged to have been executed by Smt. Bakul Banerjee in this Court. In the said probate proceeding the appellants who are the brothers of the deceased Smt. Bakul Banerjee filed a caveat which was allowed. However an application was made by the alleged executor Sri Sadhan Banerjee for discharging the caveat. This application for not permitting the appellants to contest the probate proceeding was allowed by the learned Judge by the impugned order only on the ground that the appellants could not be said to have any locus standi to contest the probate proceeding in view of Section 15 of the Hindu Succession Act, 1956 which says that on the death of a Hindu female who had acquired property by herself, the estate of such a Hindu female dying Intestate shall devolve upon :-
(a) firstly, upon the sons and daughters [including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father: and
(e) lastly, upon the heirs of the mother.
4. Admittedly the appellants are the brothers of the deceased. It is true that their mother is still alive. It is also true that on the death of Smt. Bakul Banerjee who was a spinster, the property in usual succession shall devolve upon the mother in view of Section 15 of the Hindu Succession Act when the father Is not alive. It is equally true that Sub-Section (d) of Section 15 of Hindu Succession Act (hereinafter referred to as "the H.S. Act") comes after the devolution of the property of the deceased Smt. Bakul Banerjee on her mother in view of Sub-section (c) of Section 15 of the Act. Therefore, it is true that on the death of Smt. Bakul Banerjee the estate of the deceased would devolve upon her mother by usual succession. The appellants would come to Inherit the estate of the deceased only on the death of their mother as heirs and legal representatives of the deceased Smt. Bakul Banerjee along with the beneficiary of the Will who was the sister of the deceased. As noted hereinearlier, the learned trial Judge held that since the mother is very much alive, the brothers who are the appellants before us had no locus standi to contest the probate proceeding as. even if the WILL is not found to be genuine by the Court, in that case also the brothers cannot get the property of the deceased as the mother is very much alive. Feeling aggrieved by this order this appeal has been preferred by the brother before us.
5. Mr. Ghosh appearing on behalf of the brother/appellants contended that any interest, however silight, is sufficient to entitle a party to oppose a testamentary paper or instrument. In this connection Mr. Ghosh had drawn our attention to Section 283 of the Indian Succession Act, 1956 particularly Sub-section(c) of this Section and contended that since the brothers of the deceased had interest, however slight it may be, would come within the meaning of "all persons claiming to have any Interest in the estate of the deceased." This submission of Mr. Ghosh was contested by Mr. Ashoke Banerjee appearing on behalf of the executor/respondent. Mr. Banerjee contended that even if the Court finds that the WILL cannot be probated In that case also the brothers/ appellants would not Inherit the alleged estate of the deceased Smt. Bakul Banerjee in view of Section 15 of the Act and therefore, Mr. Banerjee contended that the appellants although they are the brothers of the deceased had no locus standi to contest the probate proceeding. Accordingly Mr. Banerjee contended that the learned trial Judge was fully justified in discharging the caveat filed at the instance of the appellants.
6. Having heard the submissions of the learned counsel for the parties as noted hereinabove, we are of the view that the learned trial Judge was not justified in allowing the application filed by the executor/respondent for discharging the brothers/appellants to contest the probate proceeding. The expression "claiming to have any interest in the estate of the deceased", occurring in Clause-C of Section 283(1) of the Indian Succession Act came up for interpretation way back in the year 1909 before this Court. In the case of Brindaban Chandra Shaha v. Sureswar Shaha Paramanich and Others, 10 CLJ Sir Asutosh Mukherjee at page 268 of the said decision observed as follows :-
"It is obvious that the contention of the appellant reduces to the position that a Hindu reversloner is not entitled to appear in a probate proceeding because he does not possess a present alienable interest in the estate left by the deceased, a position for which, so far as we arc aware, there is no authority, and against which, it was not disputed by the learned vakil For the appellant, weighty reasons may be assigned on principle ... Althouth a reversioner under the Hindu law has no present interest in the property left by the deceased, yet it Is not manifest that he is substantially Interested in the protection or devolution of the estate."
7. Again in the case of SatindraMohan Taqore v. Sarala Sundari Debi and other, 27 Calcutta Law Journal at page 320 Sanderson, C.J. said in the Division Bench of this Court when immediate reversloner was not contesting the probate proceeding by filing a caveat was open for the next reversioner to enter caveat and contest the probate proceeding as the next reversloner had sufflcient interest to entitle them to enter caveat and contest the provate proceeding." In the case of Haripada Sana and Anr. v. Ghanasyam Saha & Ant. 49 C.W.N at page 713 Dr. Bijan Kumar Mukherjee (as His Lordship then) also laid down that any interest, however slight, and even the bare possibility of an interest Is sufficient to entitle a person to enter caveat in a probate proceeding. From the foregoing decision it can be easily deduced that the expression "claiming to have any interest in the estate of the deceased" as occurring in Clause-(c) of Section 283(1) of the Act would mean any interest, however slight, and even the bare possibility of an interest which would be sufficient to entitle a person to enter a caveat and contest the probate proceeding. Admittedly the deceased Smt. Bakul Banerjee died leaving her mother, the brothers who are the appellants before us and the sister on whom the estate of the deceased would devolve on grant of probate. The mother has not come forward to challenge the Will of her, daughter Smt. Bakul Banerjee since deceased. It is true that in view of Section 15 of the Hindu Succession Act the mother would inherit the property of the deceased Smt. Bakul Banerjee in the event probate is refused by the Court. But at the same time one fact cannot be lost sight of. It is an admitted position that on the death of the mother of the deceased, the present appellants being the brothers of the deceased and sons of the mother of the deceased along with the sister would come to inherit the estate of the deceased Smt. Bakul Banerjee if the property of the deased is not transferred to any other person by the mother either by execusion of a Will or by any other means. Therefore, in our view, there is a slight Interest or a bare possibility of an interest in the estate of the deceased Smt. Bakul Banerjee so far as the brothers/appellants are concerned, to inherit the property of the deceased on the death of their mother. That being the position, we must hold that there Is slight interest or a bare possibility of an interest of the appellants in the estate of the deceased which entitles the appellants to enter caveat in the probate proceeding. There is another aspect of this matter. From the application for discharge, we also do not find any defence being taken by the executor/ respondent as to whether the appellants were not entitled to enter caveat only because they would not come to inherit the estate of the deceased before the death of their mother in view of Section 15 of the Hindu Succession Act, 1956. Such question not having been raised by the executor/respondent in their application at this stage, we are afraid that the learned Judge was not justified to discharge the caveat of the appellants which was already granted earlier.
8. For the reasons aforesaid we are unable to sustain the impugned order which is under challenge in this appeal. Accordingly the impugned order under appeal is set aside and the appeal is allowed. The application filed by the respondent for discharging the caveat is hereby rejected. In view of the order passed in the appeal interlocutory application has now become Infructuous and is accordingly disposed of.
There will be no order as to costs.
The appellants will be entitled to contest the probate proceeding in accordance with law. Time to file affidavits in support of the caveat is extended for a period of two weeks after the Christmas vacation. The learned trial Judge is requested to dispose of the probate proceeding as early as possible preferably within a year, from the date of communication of this order.
A.K. Bisi, J.
9. I agree.