M.S Saraswathi v. M.S Selvadurai And Another

1. This is an application filed by the plaintiff to discharge the caveat filed by the defendants.

2. The affidavit filed in support of the application runs as follows:

(a) O.P. No. 471/88 on the file of this Court is for grant of probate in respect of the Will dated 1-11-1987 executed by the deceased Saravanan. Three of the daughters had given their consent for grant of probate. Citation was issued to two of the sons of the applicant, namely, M.S. Selvadurai and M.S. Rajakumar, who are the defendants who entered caveat and are contesting the proceedings. The third son Ravi Shankar is not opposing the probate. In view of the objections raised by the respondents O.P. No. 471/88 was converted into T.O.S. No. 8/90.

(b) The respondents have filed their written statement and in para 3 they have stated as follows:

"At the outset, these defendants submit that the plaintiff had no locus standi to probate the Will alleged to have been executed by her husband Mr. M.S. Saravanan as she had not been vested with any absolute interest in the alleged Will. These defendants submit that a clear reading of the alleged Will would go to show that the property bearing No. 115, T.S.V. Koil street, Mylapore, Madras-4 is an ancestral property of the deceased Saravanan. These defendants have got 1/4th share in the ancestral property bearing No. 115. T.S.V. Koil Street, Mylapore. These defendants state that t hey have children and that they also have a right in the said property by birth."

(c) The defendants/respondents are not only opposing the applicant's locus standi to pray for grant of probate, but they are also disputing the title of the testator contending that the subject matter of the Will is an ancestral property and that they have got a share in the property apart from entitlement by birth. As per the provisions of Section 283 of the Indian Succession Act only those persons who are having interest in the estate of the testator are entitled to take part and contest the proceedings. Any person who disputes the title of the testator to the property or any part of the property is disqualified from contesting the proceedings and such a person has no right to agitate the same in the probate proceedings. In as much as the respondents/defendants are claiming the property as ancestral property and claiming a share for them and for their children they are not entitled to contest the proceedings. The caveat has therefore to be discharged.

3. The application is opposed by the respondents/defendants contending inter alia that they have questioned in para 3 of the written statement the plaintiff's right to probate the Will, but that it is not an issue to be decided in the present proceedings and they have not taken that ground alone to contest the probate proceedings, that they have questioned the genuineness of the Will and in order to establish the suspicious circumstance under which the alleged Will has been brought about, the respondents/defendants have stated about the title also, that the other paragraphs in the written statement deal only with the genuineness of the Will which issue alone has to be decided in the proceedings, that under Hindu law the respondents/defendants being the sons of the deceased and being Class-I legal heirs, they are persons having an interest in the estate of the testator and in these circumstances they cannot be non-suited nor can they be disqualified from contesting the suit so long as they questioned the genuineness of the Will.

4. The point for consideration is whether the caveat is liable to be discharged. Before proceeding further in the matter it is eminently necessary to refer to Section 30 of the Hindu Succession Act, which runs as follows:

"Any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925, or any other law for the time being in force and applicable to Hindus."

"Explanation: The interest of a male Hindu in a Mitakshara co-parcenary property or the interest of a member of a Tarward, Tavazhi, Illom, Kutumba or Kavaru in the property of the Tarwad. Tavazhi, Illom, Kutumba or Kavaru shall, notwithstanding anything contained in this Act or in any other law for the time being in force, be deemed to be property capable of being disposed of by him or by her within the meaning of this Section."

"The right of the testator to dispose of his share of the joint family property, assuming for the sake of argument that the property subject matter of the Will is joint family property, is not disputed by the respondents/defendants at all. What they say in the written statement is that the property is joint family property and they are entitled to a share by birth as also their children. They do not stop with that. They proceed further to say that the Will cannot be probated by the petitioner/plaintiff. They also question the genuineness of the Will. With this background if we proceed to examine the case law on the point, it will be clear that this is not a case where the caveat has to be discharged."

5. The earliest case on this point is Rahamatullah Sahib v. Rama Rau and another (ILR 17 Mad. 373). It was held by a Division Bench that,

"in a suit brought to obtain probate of a Will, the defendant, before he can contest the Will, must show that he has some interest in the testator's estate. The fact of being a legatee under the Will, or a creditor of the testator, does not amount to such an interest."

The Bench in that case had proceeded on the basis that a person claiming an interest independent of the testator to some of the properties covered by the Will cannot contest the suit. Another Division Bench of this Court approved the dictum laid down in Rahamtullah Sahib's case in Rajamanikam v. Farrar (AIR 1923 Madras 131 = 16 L.W. 455) and held that,

"before a person can be permitted to contest a Will, the party propounding it, has a right to call upon him to show that he has some interest. A bare possibility is sufficient provided it rests on existing facts, but the possibility of filing a caveat which would give the party concerned an interest is not sufficient, there must be a possibility of having an interest in the result of setting aside the Will."

6. In Jamni Hanumantha Rao v. Aratala Latchamma (AIR 1926 Madras 1193=24 L.W. 562)) in a case arising under probate and Administration Act, another Bench of this Court interpreting section 69 of that act, which is almost identical with Section 283(1)(c) of the Indian Succession Act (Act 39 of 1925) held as follows;

"The true principle deducible from the cases is that a person who is entitled to any portion of the estate left by the deceased or a right to claim maintenance from the estate of the deceased has an interest within the meaning of S. 69 of the Probate and Administration Act. It is not necessary that he should claim through the testator in order to enable him to oppose the grant of probate of the Will of the testator. If a person is likely to suffer by the grant of the probate of a forged Will or an invalid Will he has sufficient interest to enter a caveat."

However, the ratio of this decision was not followed in the inter decisions. In Sowbhagiammal v. Komalangiammal (AIR 1928 Madras 803 = 54 MLJ 382 = 27 L.W. 167 = 107 Indian Cases 420) which was confirmed in Komalangiammal v. Sowbhagiammal (AIR 1931 Madras 37 = 59 MLJ 529=(1930) 32 L.W. 431 = 128 Indian Cases 476), Venkatasubba Rao, J. stated the test of interest as follows:

"The test is, does the grant displace any right to which the convertor would otherwise be entitled? If so, he has such an interest; if not, he has not."

As already stated this went on appeal and the decision was confirmed in Komalangiammal v. Sowbhagiammal and another (supra). It was held that the testator disposing of by Will jewels belonging to the caveator does not amount to interest in deceased's property which would entitle the caveator to oppose grant of probate. One of the learned Judges, Cornish, J. had this to say:

"It has long been settled that it is not the province of a Court of probate to determine questions of title to a property which a testator purports to dispose of by his Will, the reason being that the grant of probate does no more than establish the factum of the Will and the appointment of the executors (if any) named in the Will. The grant of probate will not therefore prevent the appellant from bringing a suit, if she should be so advised to recover from the executors, or any other persons in possess ion, the jewels which she claims as her own property."

The Bench went on to say as follows:

"It is unnecessary for us to say whether Hanumantha Rao v. Latchamma ( AIR 1926 Madras 1193= 24 L.W. 562 is correctly decided or not, and we are not to be taken as agreeing with all the observations in it."

7. In Bai Parvatibai v. Raghunath Lakshman (AIR 1941 Bombay 60) the Bombay High Court held that,

"it is no part of the duty of the Testamentary Judge to consider the question of title to the property. A caveat cannot, therefore, be sustained on the mere ground that the property which is attempted to be disposed of by the deceased by the Will or in respect of which letters of Administration are asked for is joint family estate. The caveator should file a suit to establish his title to the property, and if adequate grounds are made out, he can obtain the appointment of a receiver or an injunction against the administrator."

8. In Baggiammal v. Rajagopala (AIR 1948 Madras 83 = (1947) 60 L.W. 313) the caveator contended that,

"the alleged partition of the joint family property and the Will were invalid as both were made when testator was under physical and mental incapacity and the caveator claiming by right of survivorship or in the alternative as reversioner, it was held that the caveator had shown sufficient interest in the estate of the deceased and that it did not amount to a mere denial of the testator's title. This did not amount to raising two entirely inconsistent pleas."

It was also held that the question, whether the caveator had an interest in the estate could be dealt with in the summons taken out by the petitioner to have the caveat struck out on the ground of the caveator not having interests the estate of the deceased and it was not open to the caveator to contend that it could properly be dealt with only in the suit.

9. In T.O.S. No. 16/73 N. Narasimhan and another v. N. Radhakrishna and another , after questioning the validity of the Will and the sound and disposing state of mind of the testatrix in the written statement, the defendant filed an additional written statement contending inter alia that the property mentioned in the Will did not belong to the testatrix and that there fore the deceased had no valid power to dispose of the same. In view of this, two additional issues were framed, viz.

(1) Has the defendant an interest to support the caveat and is the caveat liable to be discharged? and

(2) Is the written statement liable to be struck off and is the defendant therefore precluded from opposing the suit will and codicil?

and the learned Judge held that the defendant could not support his caveat, since he claimed adverse interest to that of the testatrix. However, as he found that there was conflict between Komalangiammal v. Sowbagiammal (AIR 1931 Madras 37=32 L.W. 431) and Jayakumar v. Ramaratnam (AIR 1972 Madras 212=1972-I MLJ 4=85 L.W. 3) the learned single Judge Mohan, J. (as he then was) referred the question to a Bench. The Bench in the Judgment reported in In re Last Will and Codicil of Venkata Narasamma (AIR 1975 Madras 330 = 1975-I MLJ 379 = 88 L.W. 253) held following Iswardev Narain Singh v. Kamta Devi (AIR 1954 SC 280) wherein it was observed that,

"The Court of probate is only concerned with the question as to whether the document put forward as the last Will and the 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."

and that

The disputed question could not be considered by the probate Court. The matter went back to the learned single Judge. Before the learned single Judge, a second additional written statement was filed stating that the plaintiffs in that suit were only trustees and not executors and that in view of Section 222 of the Indian Succession Act, 1925, the application for probate was not maintainable. Yet another issue was framed regarding the maintainability of the suit. The learned single Judge considered the material available on this issue and on the main issue, namely whether the Will and the codicil relating to the case were genuine and valid and held in favour of the plaintiffs on both the issues. In arriving at a decision the learned Judge elaborately considered the case of the caveator on these issues and rejected the same not on the ground that the caveator had disputed the title of the testatrix in the case to execute the Will.

10. In Ittyanath Madathil Madhavi v. Sree Rama Varma (AIR 1969 Kerala 256) Caveat was sought to be sustained on the ground that the testator had no disposing power over items in annexure. It was held that the caveator not being one interested in the personal assets of the deceased, was not entitled to oppose the grant of Letters of Administration. In so deciding, the learned single Judge of the Kerala High Court followed the decisions in Abhiram Dass and Executor Jairam v. Gopal Dass (ILR 17 Calcutta 48) and Bai Parvathibai v. Raghunath Lakshman (AIR 1941 Bombay 60). In the Kerala case, the caveator had no objection to the grant of letters of Administration to the petitioner as legal representative of the deceased and in respect of his assets and estate as on intestacy nor even to the grant of letters of Administration with the Will annexed, in respect of the properties covered by the Will, provided the Court found that an administration of the estate was necessary. According to the caveator, the testator had only a life interest and on his death the properties descended on the caveator. The Court refused to decide the question of title.

11. In Narayan Sah v. Srimathy Devaki (AIR 1978 Patna 220), it was held following Nath Bhattachariji v. Saila Bala Debi (AIR 1929 Patna 385) that,

"Any interest however slight and even the bare possibility of an interest is insufficient to entitle a party to oppose a testamentary paper, that a person claiming interest in the whole property under the Will executed by a co-widow of the deceased, was entitled to safeguard his interest which he got under the Will and had no locus standi to oppose the grant of probate or the Letters of Administration of the Will executed by the other widow."

12. In Meenakshi Achi and others v. Dr. Chidambaram and others (1979 TLNJ 119) the matter arose in the following manner:

The respondents while admitting the petitioner's right, claimed certain properties from the estate as belonging to them under a letter left by the deceased and under certain customs. It was held that,

"Such a claim was not maintainable and the question of title cannot be gone into in probate and Letter of Administration proceedings."

13. In Sm. Chimmoyee Saha v. Debendra Lal Saha and others (AIR 1985 Calcutta 349) the plea taken was that the testatrix had only 1/8th share in the property. It was held that the probate Court could not decide such questions regarding title of testatrix. The Calcutta High Court followed its earlier decision in Ajit Chandra v. Akhil Chandra (AIR 1960 Calcutta 551).

14. In Thomas P. Jacob v. M.G. Varghese and others (AIR 1987 Kerala 193), a Division Bench of the Kerala High Court held that a person in possession of the property bequeathed by will alleging title by prescription, had no caveatable interest in the estate of the deceased and he was not entitled to notice and could not be heard before grant of probate.

15. In Elizabeth Antony v. Michel Charles John Chown Lengera. (AIR 1990 SC 1576) it was held that the party against whom finding had been given that he had no caveatable interest could also invoke section regarding caveatable interest of the petitioner had a limited effect and only to the extent of granting of probate.

16. In Vyjayantimala Bali v. Rattan Chaman Bali (1990-I L.W. 27) Srinivasan, J. as he then was, held that the questions relating to title to the properties, their value, proper payment of probate duty, court fee, and under valuation were all beyond the scope of probate proceedings.

17. In Satish Vishanji Futnani v. Mohanlal Dungarmal Futnani and others (1985-II MLJ 331=98 L.W. 402) a grandson claiming to be a joint owner along with the deceased testator in a particular item of property, wanted to intervene. The Bench, after referring to Rahamtullah Sahib v. Rama Rau and another (supra). Rajamanikam v. Sarkar (supra), Jammi Hanumantha Rao v. Aratala Latchamma (supra). Komalangiammal v. Sowbhagiammal and another (supra) and In re Narasimha (AIR 1975 Madras 330) chose to follow Rahamatullah Sahib v. Rama Rau, Rajamanikam v. Sarkar , Komlangiammal v. Sowbhagiammal and another , In re Narasimha as against Jammi Hanumantha Rao v. Aratala Latchamma and held that a person claiming an independent title to a portion of the property covered by the Will has no caveatable interest. The reasoning of the Bench is as follows:

The said grandson is not a Class-I heir when the caveator is alive; co-ownership should be taken to be independent of the testator and not through testator and one of the items in the affidavit of assets belonged to the joint family and the testator had 1/3rd share. He also had daughters and the proviso to Section 6 of the Hindu Succession Act would apply and devolution would be not by survivorship, but by testamentary or intestate succession. According to the Bench, even assuming that the deceased had died intestate, Section 8 would apply and the caveator being an heir he alone could claim a share and his son, the applicant therein, could not claim any share as he had no present interest in the property. The Bench also gave its reasoning for following Komalangiammal's case as against Jammi Hanumantha Rao's case stating that the decision in Jammi Hanumantha Rao's case did not advert to the two earlier decisions of two Division Benches of this Court, namely, Rahamatullah Sahib v. Rama Rau (ILR 17 Madras 373) and Rajamanikam v. Sarkar (AIR 1923 Madras 131=16 L.W. 455). The Bench also expressed its view that the matter was not fit for being referred of a Fuller Bench.

18. In Rahamatulla Sahib's case the Judges had proceeded on the basis that a person claiming an interest independent of the testator to some of the properties covered by the Will could not contest the suit. In Rajamanikam v. Sarkar (AIR 1923 Madras 131=16 L.W. 455) the Bench while approving the dictum laid down in Rahamatulla Sahib's case held that,

"before a person can be permitted to contest a Will, the party propounding it has a right to call upon him to show that he has some interest. A bare possibility is sufficient, provided it rests on existing facts, but the possibility of filing a caveat which would give the party concerned an interest is not sufficient, there must be a possibility of having an interest in the result of setting aside the Will."

19. In a recent pronouncement in Application No. 523/97 in O.P. No. 298/96 B. Anantha krishnan v. Ethiraja Mudaliar dated 25-4-1997 Jagadeesan, J., after analysing the case law on the subject held following In re N. Narasimhan (AIR 1975 Madras 330) and Satish Vishanji Futnani v. Mohanlal Dungarmal Futnani and others (1985-II MLJ 331) that the caveator had not claimed any right or title through the testator as his heir and had also denied his title and the caveat was therefore liable to be discharged.

20. In the instant case, the caveator, R-2 has stated that the property dealt with under the Will was joint family property and the defendants had each an 1/4th share and that the defendants had children, who also got a right by birth. The caveator has not denied the right of the testator to execute a Will in respect of his share in the joint family property. But for the Will, the defendants would be entitled to a share in the property in respect of which the testator had a right to execute a Will as heir to the testator and the time-tested criterion laid down by Venkatasubba Rao, J. in Sowbhagiammal v. Komalangiammal (AIR 1931 Madras 37=27 L.W. 167)

"Does the grant displace any right to which the caveator would otherwise be entitled. If so he has such an interest, if not, he has not is satisfied."

The caveator in the present case does not stop with mentioning that the property is joint family property. He goes on to say that the Will is not genuine.

21. None of the reported cases cited and decided after the Hindu Succession Act, had occasion to deal with a situation arising under Section 30 of the Hindu Succession Act. So far as the Indian Succession Act is concerned, it has only restricted application for Hindus Unlike the Hindu Succession Act, by which they are wholly governed. It should also not be forgotten that in case the genuineness of the Will is decided in favour of the plaintiff/propounder in the present proceedings, whether with or without contest, it would be a judgment in rem , vide Govind M. Asrani v. Jairam Asrani and another (AIR 1963 Madras 456) and Chiranjilal Shrilal Goenka v. Jasjit Singh (1993-II SCC 507).

22. It is also worthwhile to once again refer to the decision in Satish Vishnanji Futnani v. Mohanlal Dungarmal Futnani and others (1985-II M.L.J. 331=85 L.W. 402) where the Bench drew a distinction between a case of co-ownership claim independent of the testator and co-ownership claim through the testator. The Bench held that a person who claimed co-ownership independent of the testator had no caveatable interest. The Bench has impliedly held that in the case of co-ownership claim through a testator, the person so claiming has a caveatable interest.

23. In Govind M. Asrani v. Jairam Asrani and another (AIR 1963 Madras 456=76 L.W. 492) a Division Bench observed as follows:

"To put it in other words, the proceedings taken out either for the grant of probate or letters of Administration with the Will annexed are in the interest of the legatees and the question involved in such proceedings will be the same, namely, about the truth and genuineness of the Will. In both the cases, it will be open to a person interested to intervene. Final adjudication as to the genuineness of the Will in both cases will operate as a judgment in rem."

In Chiranjilal Shrilal Goenka v. Jasjit Singh (1993-II SCC 507), the Supreme Court has settled the law on the subject as follows:

"The only issue in a probate proceeding relates to the genuineness and due execution of the Will and the Court itself is under duty to determine. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the Will. Thus it does no more than establish the factum of the Will and the legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself."

The grant of probate is final, subject to appeal, if any or revocation if made in terms of the provisions of the Succession Act. It is a judgment in rem and conclusive and binds not only the parties but also the entire world.

"The executor/executrix nominated expressly in the Will is a legal representative entitled to represent the estate of the deceased but the heirs cannot get any probate before the probate Court. They are entitled only to resist the claim of the executor/executrix of the execution and genuineness of the Will. The grant of probate given the executor/executrix the right to represent the estate of the deceased, the subject matter in other proceedings."

"It is worthwhile to reiterate that after the Bench in In re N. Narasimhan ( AIR 1975 Madras 330) remanded the matter to the learned single Judge after holding that the question whether a particular bequest is good or bad is not within the purview of the Probate Court and that the question of disputed title could not be considered by the Probate Court, the learned single Judge considered the materials available even on the main issue, namely, whether the Will and the codicil relating to the case were genuine and valid in the presence of the caveator, whose caveat was sought to be dislodged, and his claim was rejected not on the ground that the caveator had disputed the title of the testatrix in the case to execute the Will, but on merits, namely, genuineness or otherwise of the Will."

24. In sum, I hold that there is no denial of title by the caveators in the sense that they claimed co-ownership independent of the testator as contemplated in the decision in Satish Vishanji Futnani v. Mohanlal Dungarmal Futnani and others (1985-M.L.J. 331=85 L.W. 402). They are the persons interested to intervene in the final adjudication as to the genuineness of the Will as held in Govind M. Asrani v. Jairam Asrani and Another (AIR 1963 Madras 456=76 L.W. 492). I am satisfied that the caveat is not liable to be discharged. Perhaps in case the caveators are thrown out of the proceedings, they may apply for revocation of the probate or letters of Administration. But, in my view, that will be an unnecessary exercise, if the caveator's are allowed to participate in the present proceedings subject to their satisfying the test laid down by Venkatasubba Rao, J. in Komalangiammal v. Sowbhagiammal (AIR 1931 Madras 37=32 L.W. 43)

"does the grant displace any right to which the caveator would otherwise be entitled? If so, he has such an interest; if not, he has not."

I hold that the grant by the testator in the instant case displaces the caveators right to succeed to the property as heirs to the testator and therefore, they have an interest which entitles them to intervene in the present proceedings. I therefore, hold that the caveat is not liable to be discharged. The application is dismissed. Th ere will be no order as to costs.