1. Iswar Lanka, the testator, died on 28-11-61 leaving behind a son Lingaraj and a daughter Saraju Kumar, Chandramoni is the wife of Lingaraj, Chandramoni filed an application on 20-10-65 before the District Judge, Cuttack in Miscellaneous Case No. 12 of 1965 (Probate) alleging therein that Iswar Lanka executed an unregistered Will in her favour on 15-6-61, whereunder the properties mentioned in schedule ‘A’ of the application were disposed of in her favour. Those properties covered a pucca double-storeyed building in Cuttack town and kutcha and pucca houses in village Kuspangi in Banki P.S Any reference to the details of these properties would not be relevant. The main averment in the application was that Chandramoni was named as the executor of the Will which was executed by the testator out of his own freewill, without any coercion or inducement or threat by anybody, and that the testator was in a sound state of mind, health and understanding when he executed the will, and that the Will was duly executed. The deceased was said to have left, at the time of his death, two near relatives Lingaraj and Saraju Kumari, Chandramoni prayed for grant of a probate of the Will. By order No. 16 dated 9-5-66, the District Judge directed the issue of citations both general and special, fixing 1-7-66 for return. On that day, citations both special and general, were again directed to be issued fixing 3-8-66 for return. The order dated 3-8-66 shows that special citations were duly served on Lingaraj and the general citations were duly published. On 17-8-66 Lingaraj and Saraju Kumari filed written statements, fully admitting all the averments in the application and clearly stating that the properties which are the subject-matter of the Will belonged to the deceased. On 49-12-66 one Banamali Behera lodged a caveat. He averred in the caveat that the Will was forged and fabricated and did not contain the thumb impression of the testator. It was said that the testator knew to read and write very well and had never a shaky-hand. Furthermore, there was an assertion that the properties comprised in the Will belonged to Lingaraj and not to the testator. Lingaraj was heavily involved in debts exceeding 2 lakhs of rupees and Banamali Behera the caveator was one of the creditors who obtained a money decree for Rs. 11,000/-. In M.S No. 396 of 1963 in the Court of the Subordinate Judge, Cuttack, on 28-2-64. He attached some of the properties covered by the Will for Rs. 12,000/- in Execution Case No. 35 of 1966. Chandramoni filed an objection under Order 21, Rule 58 of the CPC in Misc. Case No. 257 of 1966 on 15-10-66. On 15-1-67, Messrs Rao & Sons, Bankers of Kaligalli Cuttack filed another caveat, alleging that the Will was forged, giving various reasons in support of the plea of forgery. On 24-7-64 they had filed Money Suit No. 244 of 1964 in the Court of the Subordinate Judge, Cuttack, for recovery of Rs. 2,00,000/- and odd from Lingaraj and the same was decreed on 2-11-65. On 27-11-65 Execution Case No. 14 of 1965 was filed.

2. Thus both Banamali Behera and Messrs Rao & Sons who filed caveats are creditors of Lingaraj. On the aforesaid pleadings the following issues were framed:—

1. Is the alleged Will a genuine and valid document?

2. is the Will duly executed and attested?

3. Has the caveator any locus standi to contest the Probate proceeding?

4. To what relief, if any, is the petitioner entitled?

3. The probate case had been transferred by the District Judge, to the file of the Addl. District Judge, Cuttack who heard issue No. 3 as a preliminary issue and held that the two creditors had no locus standi and rejected their caveats. It is against this order that Messrs Rao & Sons have filed Civil Revision No. 148 of 1968 and Banamali Behera has filed Civil Revision No. 198 of 1968.

4. The question of law is common to both the civil revisions and this is why both of them were analogously heard.

5. The only point for consideration is whether the creditors of Lingaraj can enter caveat in respect of the Will executed by his deceased father.

6. The learned Additional District Judge held that as both the caveators questioned the title of the testator and pleaded that the properties covered by the Will belonged to Lingaraj, the caveators were not entitled to maintain the caveats. In this view the learned Judge is correct. The matter is concluded by AIR 1954 SC 280, Ishwar Deo Narain v. Kamta Devi where their Lordships held that 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 a sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. Their Lordships expressed surprise that this elementary principle of law was overlooked by the Courts below in that case.

7. The position, therefore, is clear that the caveator cannot challenge the title of the testator to the disputed property in probate proceedings. That does not, however, mean that in a regular suit before a court of competent jurisdiction the caveator cannot raise that question. It only means that the title of the testator cannot be challenged in a probate proceeding which would continue on the assumption that the title vested in the testator.

8. Faced with this difficulty, Mr. Sinha and Mr. Rao appearing for the petitioners in the two revisions conceded that the objection raised by them that the property did not belong to the testator, but to Lingaraj cannot be gone into in the proceeding.

9. Mr. Rahenoma, for the opposite party, however, contended that once the caveators raised such a question the caveats should be rejected. There is no substance in this contention. It is open to parties to abandon a particular pleading once they become aware of its legal untenability. The averment being abandoned, it is open to the caveators to sustain the caveats on other grounds.

10. It is now necessary to examine whether the caveators have any locus standi to lodge the caveats.

11. The factual position is not disputed that both the caveators are creditors of Lingaraj who had obtained money decrees and attached some of the properties separately. Further details are unnecessary. The position is also accepted that if there were no will then the property covered by the same would have been inherited by Lingaraj jointly with his aster, on the death of their father. If the Will had not been executed, part of the property of the deceased would have fallen to the share of Lingaraj and the caveators who are creditors would seize those properties for discharge of his debts.

12. On the aforesaid undisputed facts, the legal question for consideration is whether the creditors of the heirs at law of the deceased can enter caveat. Reliance is placed on Section 283(1)(c) of the Indian Succession Act (Act 39 of 1925) which runs thus:—

“283(1). In all cases the District Judge or District Delegate may, if he thinks proper—

(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.”

13. It is contended by Mr. Rahenoma that the expression “all persons claiming to have any interest in the estate of the deceased” does not include the creditors of the heirs at law of the deceased.

14. The answer to this contention is not free from difficulty and there appears to be some conflict of authority on the point. But to me, the matter seems concluded by AIR 1944 PC 11, Sarala Sundari v. Dinabandhu Roy which would be discussed at a later stage after discussion of other relevant authorities on the point.

15. (1901) ILR 28 Cal 441, Kishan Dai v. Satyendra Nath Dutt is a direct authority on the point in that case, but for a will the testator's property would have passed equally to his two brothers, Probate was opposed by the Bankipore Loan Office Ltd. on the ground that the will was a forgery and had been set up for the purpose of defrauding the company which held a decree against one of the said brothers. The petitioner in that case urged that the company had no locus standi in opposing the grant of probate inasmuch as it had no interest in the estate of the deceased. The objection was overruled and the caveat was held to be maintainable. Their Lordships observed thus:—

“But we think that the Pleader for the appellants puts too narrow a construction on the words in Section 69 “claiming to have any interest in the estate of the deceased”. In our opinion, they mean “claiming to have an interest in the property left by the deceased” because it is clear that when a person dies leaving any property that property must descend to someone else and therefore strictly speaking, there could be no person claiming to have any interest in the estate of the deceased person. Every person who comes in to oppose the grant of probate must be a person claiming to have an interest in the estate left by the deceased. Now, in this case the Patna Loan Office would seem to us to have a clear-claim to an interest in the property left by the deceased because if it were not for this will it would have a right to seize the property or that share of the property which should descend to Gopichand in execution of the decree which it has obtained against him.”

16. This case, is, therefore, a clear authority for the proposition that the creditors of the heirs-at-law of the testator can mam-tain the caveat and are persons claiming to have interest in the estate of the deceased.

17. The matter was further examined in AIR 1940 Cal 296, Dinabandhu Roy v. Sarala Sundari. That was a case of revocation of a will under Section 263 of the Indian Succession Act. That section lays down that the grant of probate or letters of administration may be revoked or annulled for just cause. The Explanation appended to that section enumerates 5 cases where the will shall be revoked or annulled. Illustration III runs thus:—

“The Will of which probate was obtained was forged or revoked.”

18. Thus, there can be a revocation of a probate of a will which was forged. In the case before their Lordships, the creditors of the heirs at law asked for revocation of the probate granted on the basis of the will executed by the testator. The objection against the prayer for revocation by the creditor was overruled and their Lordships concluded thus:—

“I accordingly hold that the appellant whose case is that the probate was obtained in fraud of the creditors of the heirs at law of Haralal had the right to intervene in the probate proceedings which were started after it has advanced money to Harala's sons and has therefore, the right to apply for revocation of the grant unless that right has been taken away from it by reason of the adjudication of Harala's sons as insolvents.”

19. (1901) ILR 28 Cal 441 was approved as laying down good law.

20. AIR 1940 Cal 296 directly came up for consideration in appeal in AIR 1944 PC 11. Their Lordships dismissed the appeal observing thus:

“It is suggested that it is only those persons who could be cited before the grant of probate who are the persons who could apply to revoke the probate. In their Lordship's view that is putting it on much too narrow a footing. One of the grounds for revoking probate is that the grant was obtained fraudulently by making a false suggestion which obviously covers the case of putting forward a forged will just as (c) would cover the case of a person putting forward a forged will even if when he or she propounded it, he or she did not know it was a forged will. In dealing with the first point that the grant was obtained fraudulently, 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. That is the view which was taken by their Lordships in (1907) 10 Ind App 80 (PC), Raja Nilmon Singh Deo v. Umanath Mukherji. It has been followed since in Calcutta, and their Lordships feel satisfied that in this case the applicants for revocation had every ground for applying and had a proper locus standi to come into Court and ask that the probate should be revoked.”

21. The aforesaid Privy Council decision is, therefore, a final authority in support of the proposition that the creditors of the heirs at law can ask for revocation of the probate on the ground that the will was forged. In principle it makes no difference whether they ask for revocation or they lodge caveat in response to a general citation.

22. It should be made clear here that there is a difference between special and general citation. Special citations are issued to near relatives who are known to be the nearer heirs of the testator and who would be deprived of the property if probate is granted. Such special citations are not to be issued to creditors because the legatee is not expected to know specifically the creditors of the heirs at law. But when a general, citation is issued under the law, persons having an interest in the estate of the deceased might come forward to enter caveat. Creditors of the heirs at law come under the latter category and if they choose to file caveats, there is no legal justification for saying that the caveats are not entertainable and that the creditors have no locus standi. The Privy Council approved the Calcutta decisions decided after (1907) 10 Ind App 80 (PC). Obviously their Lordships were referring to ILR 28 Cal 441 to which reference was made in AIR 1940 Cal 296, which was under appeal before the Privy Council. The aforesaid Privy Council decision is, therefore, not only an authority for the proposition that creditors have locus standi to revoke a probate, but also for the proposition that they can enter caveat during the probate proceeding.

23. AIR 1958 Cal 377, Southern Bank Ltd. v. Kesar Deo also takes the same view and the learned Additional District Judge erroneously thought that it supported the contrary position. In that case (1901) ILR 28 Cal 441 was commented upon, not as to its intrinsic correctness, but with regard to the distinction between general and special citation not being kept in view. In that case, an argument was advanced that as no special citations were issued on the creditors it was open to the creditors to revoke the probate under Section 263(a) on the ground that “the proceedings to obtain the grant were defective in substance.”

24. Their Lordships held that no special citations are to be issued to the creditors of the heirs at law, in the probate proceedings. But in paragraph 12 their Lordships approved the substantive part of the dictum laid down in (1901) ILR 28 Cal 441. At any rate, after the pronouncement in AIR 1944 PC 11, if there is any view to the contrary given by any High Court, that cannot be followed as good law.

25. It is unnecessary to multiply authorities. I am satisfied that the caveats lodged in this case were maintainable.

26. Mr. Rahenoma placed reliance on AIR 1941 Pat 151, In re: Mrs. Elsie Augusta Black in support of his argument that creditors are not entitled to lodge caveats during the probate proceeding. This decision, prima facie, appears to support the contention. It takes a view contrary to what was propounded in (1901) ILR 28 Cal 441 and in AIR 1940 Cal 296, which were approved by the Privy Council in AIR 1944 PC 11. This decision cannot be taken as laying down good law. The decision was given prior to the aforesaid Privy Council decision. It is to be noted however that even in this case their Lordships did not express any final view. The learned Chief Justice observed:

“I do not wish in this case to lay down any general principles. But in my view Miss Salena Hector by merely alleging that some of the debts mentioned in this will are not genuine, does not thereby become a person interested in the estate of the deceased. If this will is proved she would not by that fact alone be materially affected. But even if she was, that would not in itself establish that she had an interest in the estate. It is sufficient in this case to confine our decision to the facts of the case, and in my view the allegations made in this case do not make Miss Salena Hector a person having an interest in the estate and that being so, she has no right to object to the granting of probate in common form.”

27. Despite the fact that their Lordships did not express any final view in the matter, they directed the genuineness of the Will to be still gone into in the case, though the caveat was rejected. Their Lordships observed that the facts of that case were somewhat peculiar, and that in their view it was in the interest of all parties that the courts should decide after investigation, whether the will was valid or not.

28. Mr. Rahenoma also placed reliance on AIR 1932 Pat 89, Ramyad Mahton v. Ram Bhaju Mahton*; AIR 1932 Pat 95, Ramdas v. Premdas and AIR 1932 Pat 343, Janki Saran v. Ram Bahadur. None of these cases supports his contention on the point. They merely dealt with cases where the caveat was in relation to the title of the testator. Their Loidships therefore rightly held that the title of the testator cannot be assailed in a probate proceeding.

29. On the aforesaid analysis, I am satisfied that the caveats are maintainable. The learned Additional District Judge exercised his jurisdiction illegally in rejecting them. Moreover in a case of this nature where various suspicious circumstances enveloping the Will are mentioned in the caveats, the learned Judge should not have decided the maintainability of the caveats as a preliminary issue separately, thereby unnecessarily prolonging the litigation. He should have gone into the entire matter fully and disposed of all the issues.

30. In the result, the impugned order of the Additional District Judge is set aside. The Civil Revisions are allowed with costs. Hearing fee Rs. 100/- (Rupees one hundred only) in each case.

31. Dr. B.N Misra disposed of the preliminary issue while he was additional District Judge, Cuttack.

32. He is now the District Judge. Let this case go back to him, to be disposed of as early as possible. Records be sent back at once.

33. Revisions allowed.