Kochu Thommen, J.:— The learned District Judge, Kottayam by the order impugned in O.P(LA) No. 86 of 1982 held that the appellant who had entered a caveat on the basis of his alleged adverse possession was not a person having an interest in the estate of the deceased, and was, therefore, not entitled to notice under S. 283(1)(c) of the Indian Succession Act, 1925. The caveat was accordingly discharged.
2. The appellant described himself as an adopted son of the testator, but set forth his claim solely on the basis of his alleged title by prescription. Counsel for the appellant Shri Balasubramanyan says that a person in possession has a perfectly good title against the whole world, except the true owner. It is, therefore, in the interest of such a person to enter a caveat and contest the right of persons claiming under a will. A judgment of a probate court being a judgment in rem, the interest of the appellant, who is in possession of the property bequeathed under the will to the respondents will, counsel says, be adversely affected unless he is heard before a probate is granted. Counsel for the respondents Shri C.S Ananthakrishna Iyer, on the other hand, disputes the claim of the appellant. He says that the case of the appellant being solely based on his alleged title by prescription, he has no interest whatever to be entitled to notice of the proceedings before the probate court. If he has perfected his title by adverse possession, it would be open to him to assert his title in appropriate proceedings, but he has no right to enter a caveat and oppose the grant of probate.
3. Section 283 of the Succession Act, 1925 says:
“283. Powers of District Judge.—
(1) In all cases the District Judge or District Delegate may, if he thinks proper,—
(a) ………….
(b) ………….
(c) issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration.
(2) ………….
(3) ………….”
Only persons claiming to have an interest in the estate of the deceased are entitled to notice under S. 283(1)(c). Does a trespasser or a person claiming title by adverse possession belong to this class?
4. In Baijnath Shahai v. Desputty Singh, (1876) ILR 2 Cal 208, it was held that creditors of the next-of-kin were not persons interested in the estate of the deceased and were not entitled to oppose grant of probate or letters of administration. The probate or letters of administration were conclusive as to the representative status of the person obtaining them and the creditors could look to him for satisfaction of their debts. Persons having any claim against the estate of the deceased were not, however, deprived of their remedy by such grant.
5. As the law progressed, courts began to show less reluctance to interfere on behalf of creditors of next-of-kin or assignees or transferees from them on the ground of fraud it was suggested in Nilmoni Singh Deo v. Umanath Mookerjee, (1884) ILR 10 Cal 19 that a purchaser or an attaching creditor of the next-of-kin had a right to seek revocation of probate on the ground that it had been obtained in fraud of creditors. In Dinabandhu Roy v. Sarala Sundari, AIR 1940 Cal 296, the court held that a creditor had the right to intervene in probate proceedings which started after he had advanced money to the heirs-at-law of the deceased. He also had the right to apply for revocation of the grant on the ground that the probate was obtained in fraud of the creditors of the heirs-at-law of the deceased testator. This decision was confirmed by the Privy Council in Sarala Sundari v. Dinabandhu Roy, AIR 1944 PC 11, Lord Atkin stated:
“….. 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 heir 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 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. …….”
A creditor in such circumstances has thus come to be recognised as having the necessary interest to object to the grant of probate or letters of administration or seek revocation thereof. So is a purchaser or an assignee from a heir after the death of the testator: Nabin Chandra v. Nibaran Chandra, AIR 1932 Cal 734. So also a person entitled to the right to claim maintenance from the estate of the deceased: Hanumantha Rao v. Latchamma, AIR 1926 Mad 1193.
6. A person who enters a caveat must necessarily show that he has an interest in the estate derived from the deceased by inheritance or otherwise. By entering the caveat he admits that the particular property forms part of the estate of the testator, but objects to the execution of the will or the proposed mode of dealing with any portion of the estate. It was held as early as in Abhiram Dass v. Gopal Das, (1890) ILR 17 Cal 48:
“…… A person disputing the right of a deceased testator to deal with certain property as his own cannot be properly regarded as having an interest in the estate of the deceased…… The term (interest) used does not necessarily refer to any particular property, but to the claim of any person to succeed by inheritance or otherwise to any portion of the estate of the deceased by reason of an interest, not on an adverse title to the testator to any particular property, but in the estate itself. …….”
(emphasis supplied)
In Gopal Chandra Bose v. Ashutosh Bose, (1913) 20 Ind Cas 342, the court held that a person who claimed outside and independently of a will or claimed adversely to the testator, disputing his right to deal with the property, could not in any sense be regarded as having an interest in the estate of the deceased within the meaning of the Act. See also the observation of Shearer, J. in Kashi Nath Singh…Defendant v. Dulhin Gulzari Kuer…Plaintiff ., AIR 1941 Patna 475.
7. It is settled law that in proceedings for probate or letters of administration, the court does not enter on the question of title to the property which the testator by his will proposed to leave. The only function of the court is to determine whether the Will had been genuinely made by the testator out of his free volition; whether it had been properly executed and attested in accordance with the law; and, whether the testator had the capacity to execute it. As stated by the Supreme Court in Ishwardeo Narain Singh v. Sm. Kamta Devi, AIR 1954 SC 280, 281:
“…… The Court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate Court. ………”
In Birj Nath De v. Chandar Mohan Banerji, (1897) ILR 19 All 458, it was stated:
“……. It has been contended …… that where an application for probate of a will is contested and it is alleged that the property dealt with by the will was not the testator's or was not property over which the testator had a power of testamentary disposal, it is the duty of the Court to try an issue raising this question. All we can say is that it would be exceedingly inconvenient if Courts in this country had to try such issues. A Court could never be quite sure that it had got the proper parties before it. It would be difficult always to be sure that there was no collusion in the case. It is much safer in the interests of the public that issues as to the title to property should be decided when the issues are raised in a regular suit, and not on an application for a grant of probate.”
Shearer, J. held in Kashi Nath Singh…Defendant v. Dulhin Gulzari Kuer…Plaintiff ., AIR 1941 Patna 475:
“In an application for probate of a will or for the grant of letters of administration with a copy of the will annexed the sole question that arises is whether or not the will is a true one. It is not open to the probate Court to decide whether or not the property with which a testator has purported to deal, in fact, belonged to him. ………..”
T.K Joseph, J. in John Simon v. George John, AIR 1955 Trav Co 177, 179 observed:
“9. As regards the argument that the application is a transparent device to secure from the probate court a decision upon a disputed question of title to the properties, it is difficult to see how a decision in the probate court can at all operate to help the parties one way or the other in a contested title suit. The grant of probate or letters of administration is decisive only of the genuineness of the Will and the right of the person to whom the grant is made to represent the estate. It is impossible to say, therefore, that the grant of probate or letters of administration with a copy of the Will annexed would be at all a bar to the determination of any question of title or to a suit for construction of the will. The fact that third parties may have acquired rights in the properties can be no ground for refusing probate or letters of administration as the one cannot prejudice or be prejudiced by the other.”
See also Ochavaram Nanabhai v. Dolatram Jamietram, (1904) ILR 28 Bom 644; Behary Lall Sandyal v. Juggo Mohun Gossain, (1879) ILR 4 Cal 1, 5; and, Dhane Ali Mia v. Sobhan Ali, AIR 1978 Cal 399.
8. These decisions show that like in the case of a purchaser, or an assignee, a creditor too has the locus standi to oppose the grant or to apply for revocation of the probate on the ground of fraud because his interests are adversely affected, when contrary to his expectation, the property which appeared to be in the possession of the heir-at-law is withdrawn by a will. That is a principle of equity going to the aid of a bona fide purchaser, assignee, creditor and the like to protect him against fraud. Equity in this regard protects those who claim under the will, and not those who claim outside or independently of the will or adversely to the testator. What is protected is an interest or an estate derived by reason of devolution, or by reason of transfer from the testator or his heirs. This principle has no application to the person whose only claim is based on possession which he can defend against all but the true owner, and even against the true owner by reason of prescription. The law protects his right to remain in possession until duly evicted by process of law. He is unconcerned with the devolution of the property of the deceased. His right is not derived from the testator or his successors, but acquired by reason of adverse possession. It does not matter to him whether the property devolves on A or B so long as he has a right to defend his possession on the strength of prescription. The decision of the probate Court being irrelevant to the title to the property, but only to the right to represent the estate of the deceased, a trespasser or a person entitled to possession by prescription has no interest in the final outcome of the proceedings in such a court. A claim based on title or possession must be determined in a proper suit. “It is much safer in the interests of the public that issues as to the title of property should be decided when the issues are raised in a regular suit, and not on an application for a grant of probate” [(1897) ILR 19 All 458). Matters of possession or title are not in issues in the proceedings of the probate Court. The caveator who claims no interest in the property otherwise than by reason of his alleged title by prescription has no right to be heard by the probate Court. Accordingly his caveat was rightly discharged.
9. In the circumstances we dismiss the appeal with costs.
Appeal dismissed.
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