Smt. Dular Kuer v. Smt. Kesar Kuer And Others

1. This appeal under Section 299 of the Indian Succession Act, 1925 (Act 39 of 1925) is against the order dated the 27th November, 1962 of the First Additional District Judge, Gaya, rejecting the appellant's application for revocation of the probate dated the 10th April, 1954 granted to respondent No. 1, who was the sole legatee under a will dated the 1st. December, 1949 executed by her father, Bhuin Prakash, who died about twenty days later an the 21st December, 1949. The testator died leaving two daughters, namely, Manwati Kuer and Keshar Kuer (respondent No. 1). The former died in the year 1951 leaving two sons and two daughters; the sons being Rajkishore and Awadhkishore, and the daughters being Sidheshwar Kuer and Dular Kuer (appellant). The application for probate was made on the 14th December, 1953, and citations were issued to Rajkishore for self and as guardian of his minor brother Awadhkishore. No caveat was entered, and probate was granted, as mentioned above, on the 10th April, 1954. On the 13th November, 1959, the present appellant, Srimati Dular Kuer, one of the daughters of Manwati Kuer, filed her application for revocation on the grounds inter alia that the proceedings to obtain grant were defective in substance in so far as all the persons interested had not been impleaded, and citations had not been issued to them. According to her, from the genealogy set out in schedule II to her application, the only two persons who had been left out from being impleaded in the probate case were herself and her sister, Sidheshwar Kuer. The application for revocation was resisted by respondent No. 1, who filed a show cause petition on the 27th May, 1960 contending inter alia that appellant Dular Kuer had to locus standi to apply for revocation, because she never had any interest in the property of the testator, whether in his life-time or after his death, and that she had not even a bare possibility of getting an interest even in future. The learned Additional District Judge has given effect to this plea of respondent No. 1 and has dismissed the application for revocation of the grant on the preliminary ground that applicant Srimati Dular Kuer had no locus standi to make the application. Hence this appeal by the applicant.

2. Illustration (ii) of Sec. 263 shows that a grant made without citing parties, who ought to have been cited, is fit to be revoked. The question, however, is whether the applicant in this case can be said to have any interest—whether slight or otherwise in the testator's estate at the time of the testator's death; in other words, was there any possibility of her succeeding to the testator's estate, assuming that there was no will and he had died intestate. If the answer to this question is in the negative, it must be held that the applicant had no locus standi to claim citation or to oppose the grant, and, accordingly, her present application for revocation of the same would not be maintainable.

3. On the admitted genealogy, the testator died leaving two daughters, respondent No. 1 and the mother of the appellant, Manwati Kuer. In case of intestacy, the two daughters would have taken the estate jointly with rights of survivorship; and unless they had agreed that the right of survivorship should be existinguished as between themselves, on the death of Manwati Kuer the entire estate would have gone to respondent No. 1, Srimati Keshar Kuer; and on her death the estate would have gone to the two sons of Manwati who would/have taken the estate as full owners like any other male member; and on their death the succession would have passed to their heirs and not to the heirs of the testator, their maternal grandfather. In the above scheme of things, there was no place for Manwati's daughters at all. Assuming that there was an agreement between the two daughters of the testator existinguishing the right of survivorship as between themselves even that would not improve the position of the applicant or her sister at all. In that event as well, after the death of Manwati her sons would have been the natural heirs and they would have taken the estate as full owners like any other male heirs.

4. Between the daughters of the testator and the applicant, the order of succession would show that at least six full owners intervene, namely, the daughter's son, the father, the brother of the whole blood or of the half blood, the brother's sons, the brother's son's son and father's father. Before the Hindu Law of Inheritance (Amendment) Act, 1929 (Act No. II of 1929) came into force, a daughter's daughter was recognised as an heir only in Bombay and Madras, where she ranked as a bandhu. It will thus appear that at the time of the testator's death, the applicant had no possible chances of succeeding to the testator's estate; and, in the circumstances, she cannot be said to have had any locus standi to claim citation or to oppose the grant. Section 283(1)(c) requires issuing of citations upon persons having any interest in the estate of the deceased, and the applicant having no interest, as shown above, could not claim citation. It is not disputed that citations were issued to her two brothers, namely, to the two sons of Many/ail Kuer. In the circumstances, I am satisfied that the applicant had no locus standi to maintain the present application for the revocation of the grant and the learned Additional District Judge has rightly come to that conclusion.

5. Reliance was placed on behalf of the appellant on the decision in the case of Priya Nath Bhattacharji v. Saila Bala Debi 11 Pat LT 343 : (AIR 1929 Pat 385). In that case, one Haran Chandra Banerjee, governed by the Dayabhag School of Hindu Law had made a will dated the 20th July, 1905 bequeathing all his properties to one Sarat Chandra one of the two sons he had from a woman named Bhabanmohini living in Benares; his son from his wife Kailashkamini Debi in whose favour he had executed an earlier will on the 12th October, 1890 having died on the 4th March, 1904.

6. The testator had died on the 17th September, 1307 leaving in his family at Bhagalpur his widow Kailashkamini Debi and the widow of his predeceased son Narojini and a sister's son Priyanath Bhattacharji, who was the applicant for revocation. No executor had been appointed under the will. On the 10th December, 1907, Sarat, the sole legatee, had applied for Letters of Administration of the will of 1905; and on his death the application was continued by his widow Sailbala and his four minor sons, who made an application for grant of Letters of Administration to Haran Chandra's Will and disclosed the existence of only Kailashkamini and Narojini in respect of whom the Court had ordered special citations. Charu Chandra, a brother of Sarat Chandra, had objected to the grant of Letters of Administration on various grounds including the allegation that the will was not genuine. A grant had, however, been made by the learned District Judge.

7. In those circumstances, Priyanath Bhattacharji, the sister's son of the testator, claiming that he had a reversionary interest in the estate of the deceased which entitled him to citation, had applied for revocation of the grant. His application having failed, he came up in appeal to this Court. Sir Courtney Terrell, C.J, who delivered the judgment in the case, dismissed the appeal on the finding that the appellant was fully aware and cognizant of the circumstances of the will and of the application for Letters of Administration and that he had stood by and acquiesced in the grant. It had further been found in that case that the special citations issued to the widow and the daughter-in-law of the testator had not been served on them. While dealing with the question whether the sister's son in that case was entitled to special citation, his Lordship made the following observations:

“Now it has long been well established that a person having a reversionary interest although such interest be inalienable and dependent upon remote contingencies is nevertheless substantially interested in the protection or devolution of the estate and as such is entitled to appear and be heard in a probate proceeding.”

8. Under the Dayabhag system, a sister's son is high up in the list of male sapindas, and, accordingly, had interest in the estate so as to entitle him to citation. In the present case, as discussed above, the position is entirely different. The applicant could not possibly show that but for the will she was entitled to an interest in the estate of the testator of which she was deprived of by the will. This case, therefore, in my opinion, is of no assistance to the appellant.

9. The next case referred to on behalf of the appellant is Promode Kumar Roy v. Saphalika Dutta, AIR 1957 Cal 631. In that case, an unregistered will purported to disinherit the testator's only living son and to make a debtor of all his movable and immovable properties. The daughter-in-law of the testator, namely, the wife of the only living son, had applied for Letters of Administration about twenty years after the death of the testator issuing citation to her husband only. The son, even though cited, had not appeared and the grant had been made ex parte and without opposition. During the twenty years which had elapsed between the testator's death and the discovery of the will which had led to the application for Letters of Administration, the testator's only son had been dealing with testator's property as an intestacy, and amongst the several other transactions, had borrowed from one Promode Kumar several sums of money on mortgages; and while a suit on the basis of one of the mortgages for recovery of money was pending against the testator's son, his wife alleging discovery of the unregistered will of her father-in-law on the 4th November, 1952 managed to obtain grant of Letters of Administration in respect thereto on the 22nd December, 1952.

10. In those circumstances, Promode Kumar, the creditor,., filed his application for revoking the grant on grounds inter alia that the grant had been obtained by the daughter-in-law of the testator in fraud of the creditors of her husband including himself. In the context of the above facts, it was held in that case that a person, who had acquired an Interest in the testator's estate by reason of a mortgage by the testator's son and who was admittedly also a creditor of the testator's said son whom the alleged will purported to disinherit, had plainly locus standi to apply of revocation of the grant, particularly when his allegation was that the grant was obtained in fraud of the creditors.

11. It is quite clear that the interest of the creditor was gravely affected by the will, and in those circumstances their Lordships held that he ought to be given an opportunity to oppose the grant or to apply to have it revoked. That case is, in my opinion, clearly distinguishable on the facts from the instant case under consideration and, therefore, cannot afford any assistance to the appellant.

12. The learned Additional District Judge has referred/to two decisions of this Court, namely, one reported in Bibhuti Prasad Chaudhury v. Mt. Pan Kuer, 11 Pat LT 353 : (AIR 1930 Pat 488) and the other in Mutukdhari Singh v. Srimati Prem Debi, 1959 BLJR 281 : (AIR 19591 Pat 570) In the former case, where R, a Hindu, had died, and P. had applied for Letters of Administration on the strength of a will executed by R which was unsuccessfully challenged by G, the nearest agnatic relation and heir of R, and subsequently B, the son of G, had applied for revocation of the Letters of Administration granted to P. on the ground that there was no citation upon him, it was held by a Bench of this Court that B, the son of G, had no interest in the estate left by R, which on intestacy could devolve only upon G to the exclusion of B. Adami, J.:, who delivered the judgment in that case, after referring to various cases including the case of 11 Pat LT 343 : (AIR 1929 Pat 385), referred to above, and the well-known English decision in the case of Kipping and Barlow v. Ash, (1845) 163 ER 1035, observed as follows:

“In the case of Crispin v. Doglioni, (1860) 164 ER 897 which is referred to in the case of Rahamtullah Saheb v. Rama Rau, ILR 17 Mad 373 it was held that the possibility of filling a character which would give the party concerned an interest, was not sufficient; there must be a possibility of, having an interest in the result of setting aside the Will, and in this latter case it was remarked that the bare possibility mentioned in (1845) 163 ER 1035 should rest on existing facts and not on mere conjecture.”

13. Now, if the facts existing at the time of the proceedings in the present case in 1953 and 1954 are taken into account, it is quite clear that Rajkishore and Awadh Kislwre the two sons of Manwati Kuer, being alive, the appellant by no possible conjecture could have succeeded to the property as a result of the will being set aside. In the latter case, namely, 1959 BLJR 281 : (AIR 1959 Pat 570), Raj Kishore Prasad, J., sitting single, referred to various decisions including the decision reported in 11 Pat LT 353 : (AIR 1930 Pat 488), referred to above, and gave a summary of the principles deducible from those cases in paragraph 40 of his judgment, as reported. The fundamental principle as found by him was that an interest in the testator's estate, however slight or the bare possibility of an interest or even an interest dependent upon remote contingencies was sufficient to entitle a person to oppose a will and to entitle him to citation. He had, however, referred to the decision in the case of (1845) 163 ER 1035 with approval and held that the possibility of an interest should rest, on existing facts and not mere conjectures. Applying the principles, as summarised, to the facts of the case it was held in that case that a step-sister of the testator on which the property of the testator would have devolved in the case of intestacy after the death of the testator's widow and mother had an interest in the estate of the deceased as contemplated by Section 233(1)(c) of the Indian Succession Act which entitled her to apply for revocation of the grant. This case, in my opinion, is more or less on the same lines as the case reported in 11 Pat LT 353 : (AIR 1930 Pat 488); and I can perceive no points of conflict between the two. The principle as laid down in the case of (1845) 163 ER 1035, to the effect that a bate possibility of an interest was sufficient was accepted in both the cases, and the only question was of applying that principle as well as the other principles to the facts of each particular case. In the present case, as I have shown above, the appellant by no possible conjecture on the facts existing at the time of the probate proceedings could have succeeded to the property of the testator in the event of the will being set aside in the presence of tier two brothers who would have, taken as full owners and, accordingly, I find that there is no substance in this appeal which must be dismissed. In the result, the appeal fails and is dismissed with costs.

CH/CWM/D.V.C

14. Appeal dismissed.