Indian Kanoon - Search engine for Indian Law

16] Mr.Makhija, learned counsel placed reliance on the judgment of the Supreme Court in case of Mrs. Elizabeth Antony vs. Michel Charles John Chown Lengera (2000) 3 SCC 333 and more particularly paragraphs 5 and 9 thereof and submits that any person even having slight and even a bare possibility of interest is sufficient to entitle a person to enter caveat in a probate proceeding. It is held in the said judgment that the findings regarding that the caveatable interest of the party have a limited effect and are relevant only to the extent of granting probate but that can deprive his right, if he has only to invoke section 263 of the Indian Succession Act, and it is up to that party to satisfy the Court. He submits that even if caveatable interest of the petitioner is not proved, the petitioner has still right to file a petition under section 263 of the Indian Succession Act, 1925 for revocation of the grant of Letters of Administration. Mr.Makhija, learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in case of Krishna Kumar Birla mp1713.doc vs. Rajendra Singh Lodha, 2008(4) SCC 300 and in particular paragraphs 76, 86, 88 to 95, 100 to 103, 109 and 110. 17] Insofar as issue nos.1 and 2 framed by this Court as to whether the respondent no.1 proves that she was an adopted daughter of the said deceased or not, is concerned, it is submitted by the learned counsel that the respondent no.1 has admittedly not led any evidence on the said issue, though the onus to prove the issue issue was on the respondent no.1. He submits that though this Court had granted second opportunity to the respondent no.1 to prove that the alleged Will of the said deceased was validly executed, in accordance with law and to prove that she was an adopted daughter of the said deceased, the respondent no.1 admittedly did not enter the witness box. This Court thus shall draw an adverse inference against the respondent no.1.

22] Insofar as issue no.3 that he has a caveatable interest and the necessary locus to file the instant petition is concerned, it is submitted by the learned counsel that even if the petitioner had slightest interest in the estate of the said deceased, the petitioner had locus to file the miscellaneous petition under section 263 of the Indian Succession Act, 1925, the Court has to independently satisfy itself that the Probate could be granted or not irrespective of the fact whether the petitioner had locus and/or caveatable interest or not. It is submitted that since the respondent no.1 obtained the Probate ex- parte without service of citation, this Court had no opportunity to make any enquiry as to whether the alleged Will was genuine or not. 23] It is submitted that the conscious of the Court has to be satisfied that the alleged Will executed by the said deceased was a mp1713.doc genuine Will and was executed in accordance with law. He submits that once these facts are brought to the notice of this Court by the petitioner at this stage, which were not brought to the notice of this Court by the respondent no.1, the Court can make an enquiry as to whether the Probate ought to have been granted to the respondent no.1 or not. He submits that even after grant of Probate granted in favour of the respondent no.1 is set aside in this petition, no prejudice would be caused to the respondents. The respondents in that event will have to prove the execution of the alleged Will in accordance with law, the Probate petition in that event would be restored to file and would not be dismissed in this petition itself. He submits that the said judgment of the Supreme Court in case of K.K. Birla (supra) has been referred to the Larger Bench in the case in Jagjit Singh & Ors. vs. Pamela Manmohan Singh (2010) 5 SCC 157.

54] Insofar as the judgment of the Supreme Court in case of Basanti Devi (supra) relied upon by the learned counsel for the petitioner is concerned, the said judgment is distinguished by the learned counsel for the respondent no.1 on the ground that the said matter was filed by grand-son of the deceased, who had caveatable interest. He submits that the facts before the Supreme Court are mp1713.doc clearly distinguishable in the facts and circumstances of this case and the said judgment would not assist the case of the petitioner. 55] Learned counsel for the respondent no.1 placed reliance on section 15 of the Hindu Succession Act, 1956 and would submit that the petitioner in this petition falls in class (d) if the petitioner proves that the properties were acquired by the said deceased from her parents which the petitioner has failed. She submits that under section 15(2) of the Hindu Succession Act, only if the said deceased would have inherited the property from her parents, the heirs of the deceased would have inherited some share and would have caveatable interest which conditions are not satisfied by the petitioner. My attention is also invited to the family tree annexed at page no.524 of the compilation of documents. She also invited my attention to page no.25 of the Miscellaneous Petition and submits that admittedly the petitioner had visited the office of the Collector and was thus fully aware of the execution of the Will by the respondent no.1.

115] In my view, even though at one stage the name of the another sister of the said deceased was disclosed in the Testamentary Petition as one of the heir of the said deceased, fact remains that the said name was subsequently deleted by carrying out amendment. If the name of a person is wrongly mentioned in the Testamentary Petition as one of the heir or next-of-kin, by mentioning such name in the Testamentary Petition, itself would not create any caveatable interest in favour of such party unless it is proved that on intestacy, he or she would have inherited any property from the deceased. Be that as it may, though the petitioner had ample mp1713.doc opportunity to prove before this Court by leading cogent evidence that the said deceased had inherited any properties from her deceased parents and in that event the petitioner could make claim in respect of some share in the estate of the said deceased, the petitioner failed to prove such allegation before this Court. In my view, the entire case of the petitioner thus falls on the ground that he had caveatable interest or had locus to apply for revocation of the Probate granted in favour of the respondent No.1.