Full Judgment Text
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PETITIONER:
ELIZABETH ANTONY
Vs.
RESPONDENT:
MICHEL CHARLES JOHN CHOWN LENGERA
DATE OF JUDGMENT12/04/1990
BENCH:
REDDY, K. JAYACHANDRA (J)
BENCH:
REDDY, K. JAYACHANDRA (J)
PANDIAN, S.R. (J)
CITATION:
1990 AIR 1576 1990 SCR (2) 486
1990 SCC (3) 333 JT 1990 (2) 183
1990 SCALE (1)713
ACT:
Indian Succession Act, 1925: Sections 227, 263, 283-286
& 288: Will--Probate--Letters of Administration--Caveat
opposing probate of the Will--Caveatable interest based on
Will and Gift--Copies of Gift Deed and Will not filed in the
Probate Court--Held caveatable interest not substantiated.
Will--Probate Court--Findings regarding caveatable
interest effect of--Findings are relevant only to the extent
of granting of probate--Does not deprive of right to invoke
jurisdiction of probate court for revocation of
probate----Granting a probate is not deciding the disputes
to the title A probate granted can be revoked for just
Cause.
HEADNOTE:
The respondent, claiming to be the beneficiary to the
estate of deceased ’M’ under a will executed by her, filed
an application in the Sub Court for Letters of Administra-
tion. The petitioner lodged a caveat and opposed the probate
of the will on the ground that the will propounded by the
respondent was a fictitious one intended to disentitle ’Z’,
daughter of ’M’, from claiming interest in the estate of her
mother ’M’. The petitioner based her caveatable interest on
the basis of membership of the Trust, a gift-deed and a will
executed by ’Z’ which was subsequently probated in her
favour.
The Subordinate Judge struck off the petitioner’s caveat
on the ground that she has no caveatable interest.
The petitioner filed a Civil Revision Petition in the
High Court and a Single Judge of the High Court confirmed
the order of the Subordinate Judge.
In the special leave to this Court it was contended on
behalf of the petitioner that the courts below have erred
(i) in holding that she has no caveatable interest and in
striking off her caveat; (ii) that Z’s will in her favour
which was subsequently probated established her interest in
the estate on the date of entering the caveat.
487
Dismissing the petition, this Court,
HELD: 1. By granting a probate the Court does not decide
the disputes to the title. A probate granted can be revoked
under Section 263 of the Indian Succession Act, 1925. [492C]
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1.1 In the instant case the findings regarding the
caveatable interest of the petitioner have a limited effect
and are relevant only to the extent of granting of probate.
But they cannot deprive her right to invoke section 263 of
the Act. [492D]
2. The order of the Trial Court shows that admittedly
neither the original nor a copy of the will said to have
been executed by ’Z’ was filed. Likewise the registered
gift-deed or a copy thereof was not filed. It is also evi-
dent that the Trust has come to an end and the same was not
in existence. The Trial Court has considered both the docu-
mentary and oral evidence in this regard and has rightly
held that the petitioner has no existing benefit from the
trust. Accordingly, it cannot be held that the petitioner
has caveatable interest. [490F-G; 491C]
3. In the instant case it is not known whether the
citations were issued to all the persons interested before
the grant of the probate. The probate was also granted when
the special leave petition was pending in this Court yet the
respondent had no notice about this probate proceedings.
Under these circumstances it is not expedient to acknowledge
this probate proceeding and re-open the matter. [491 G-H]
Nabin Chandra Guha v. Nibaren Chandra Biswas and Ors., AIR
1932 Cal. 734; Gourishankar Chattoraj v. Smt. Satyabati
Debi, AIR 1931 Cal. 470; Shanti Devi Aggarwala v. Kusum
Kumari Sarkar & Ors., AIR 1972 Orissa, 178 and Narayan Sah
v. Smt. Devaki, AIR 1978 Patna 220, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: S.L.P. (Civil) No. 8896 of
1985.
From the Judgment and Order dated 18.12. 1984 of the
Madras High Court in Civil Revision Petition No. 5539 of
1983.
WITH
C.M.P. No. 28592 of 1988.
488
R.F. Nariman, J.P. Pathak, M.B. Shivraj and P.H. Parekh
for the Petitioner.
T.S. Krishnamurthy Iyer and Mrs. S. Dikshit for the
Respondent.
The Judgment of the Court was delivered by
K. JAYACHANDRA REDDY, J. We have heard both the sides
and the matter is being disposed of at the admission stage.
This petition is directed against the order of a learned
Single Judge of the Madras High Court confirming the order
passed by the Subordinate Judge, Nilgiris. The matter arises
under the Indian Succession Act, 1925 (’Act’ for short) and
the facts that give rise to the petition are as follows:
The testatrix Mary Aline Browne was the wife of Herbet
Evander Browne who was the eldest son of one John Browne.
The testatrix had a daughter of the name of Zoe Enid Browne
and she died on 8.10.1977. The respondent claiming to be the
beneficiary to the estate of Mary Aline Browne who died on
28.3.1972 under the terms of a will said to have been exe-
cuted by her on 12.3. 1962 filed an application for letters
of Administration with a copy of the will annexed in the Sub
Court, Nilgiris. The same is numbered as O.S. No. 23 of
1980. Alongwith the application the respondent also filed an
affidavit of an attestor of the Will. In that proceeding,
the petitioner and her deceased husband lodged a caveat on
the ground that the said Mary Aline Browne did not execute
any will and the will propounded by the respondent was a
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fictitious and forged one, intended to disentitle Zoe Enid
Browne, daughter of the testatrix from claiming interest in
the estate of her mother. The petitioner also claimed that
Zoe Enid Browne executed a will dated 23.6.1975 in favour
of the petitioner and that she also executed a gift-deed in
her favour. The petitioner also claimed that she was a
trustee of John Browne Trust and that therefore, the peti-
tioner has caveatable interest. Thus they opposed the pro-
bate of the will. Before the Sub-Court, several documents
were filed. The respondent herein contested the caveat
stating that the petitioner herein has no interest in the
estate. The learned Subordinate Judge held that the peti-
tioner is not in any manner related either to Mary Aline
Browne or Zoe Enid Browne. The learned Single Judge of the
High Court in an elaborate order having considered the rival
contentions dismissed the Civil Revision Petition holding
that the
489
petitioner cannot claim to be a person who has a caveatable
interest in the estate of the deceased testatrix Mary Aline
Browne. We are told that the will has subsequently been
probated and the letters of Administration have been grant-
ed.
The learned counsel for the petitioner contended that
both the courts below have erred in holding that the peti-
tioner has no caveatable interest. It is submitted that the
petitioner is executor and legatee of the will dated
23.6.1975 executed by Miss Zoe Enid Browne daughter of Mrs.
Mary Aline Browne and that Miss Zoe has also executed a
registered gift-deed dated 29.3.1974 in respect of the
second item of the estate and that the petitioner was also
appointed a trustee of John Browne Trust on 11.6.1975 and
therefore, in law the petitioner has an interest in the
property which is the subject-matter of the will and thus
have caveatable interest.
Under Section 283 of the Act, the District Judge or
District Delegate may, if he thinks proper, 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.
Section 284 provides for lodging caveat against grant of
probate or administration. Section 285 lays down that no
proceeding shall be taken on a petition for probate or
letters of administration after a caveat against the grant
thereof has been entered until the notice has been given to
the caveator. Section 286 deals with the power of a District
Delegate and lays down that he shall not grant probate or
letters of administration in any case in which there is
"contention" as to the grant, or in which it otherwise
appears to him that probate or letters of administration,
ought not to be granted in this Court. Under Section 288
where there is contention or where the District Delegate
thinks that probate or letters of administration should be
refused, the documents shall be returned to the applicant.
In the instant case the Sub-Judge comes within the meaning
of the District Delegate and the necessary powers were
conferred on him by a notification which is not in dispute.
According to the learned counsel the petitioner duly lodged
a caveat against the grant of probate and that both the
courts below have not properly appreciated the effect of
such a contention and erred in striking off the petitioner’s
caveat.
In Nabin Chandra Guha v. Nibaran Chandra Biswas and
Ors., AIR 1932 Calcutta 734, the Division Bench held that a
person who has a real interest in the estate which is or is
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likely to be prejudicially
490
affected or adversely affected by the will can oppose the
grant of probate or letters of administration. In Gourishan-
kar Chattoraj v. Smt. Satyabati Debi, AIR 1931 Calcutta 470,
it is held that the petitioner therein who was related to
the deceased through a common ancestor, can be said to have
interest in opposing the application for probate. In Shanti
Devi Aggarwalla v. Kusum Kumari Sarkar & Ors., AIR 1972
Orissa 178, Justice Ranganath Misra, as he then was, held
that the vendor legatee is entitled to enter caveat and the
purchaser having stepped into the shoes of vendor is also
entitled to enter the caveat. In Narayan Sah v. Smt. Davaki,
AIR 1978 Patna 220, considering the locus standi of a person
to oppose grant, it is held that any interest, however,
slight and even a bare possibility of an interest is suffi-
cient to entitle a person to enter caveat in a probate
proceeding.
Relying on these decisions the learned counsel urged
that the petitioner in the instant case has substantial
interest in the estate. The learned counsel for the respond-
ent did not dispute the legal position. He, however, con-
tended that there was absolutely no material before the
Courts below to substantiate the alleged interest of the
petitioner in the estate. It is submitted that the so-called
will said to have been executed by Miss Zoe Enid Browne,
daughter of Mrs. Mary Aline Browne has not been filed.
Likewise, the gift-deed also was not filed. Coming to the
trust of John Browne it is submitted that the trust does not
exist and got extinguished. The learned counsel for the
respondent further submitted that except mentioning these
three aspects in a bare manner no other material was placed
before the Court. Having gone through both the orders we are
reclined to agree with the learned counsel for the respond-
ent that the petitioner did not establish her caveatable
interest. We have perused the entire order of the trial
court in this context. Admittedly neither the original nor a
copy of the will said to have been executed by Zoe Enid
Browne, was filed. Now coming to the trust, it is in the
evidence of P.W. 1 that John Browne Trust has come to an end
in March, 1972 and the same was not in existence. The trial
court has considered both the documentary and oral evidence
in this regard and has rightly held that the petitioner has
no existing benefit from the trust. Likewise the registered
gift-deed or a copy of it has not been filed. Before the
learned Single Judge of the High Court also same contentions
were put forward. The learned Judge observed that from the
objections filed by the caveator she desires the Court in
the probate proceedings to uphold her title on the strength
of a gift-deed and the Trust deed. It is observed:
"Equally, the petitioner has not placed before the Court
491
the will dated 23.6. 1975 stated to have been executed by
Zoe Enid Browne to establish that under the will dated 12.3.
1962 stated to have been executed by Mary Aline Browne some
interest given to the petitioner under the will dated
23.6.1975 of Zoe Enid Browne, is liable to be in any manner
affected or otherwise displaced, by the grant of letters of
administration in respect of the will dated 12.3.1962 stated
to have been executed by Mary Aline Browne."
Accordingly the learned Judge held that the petitioner has
not established that she has a caveatable interest justify-
ing her opposition to the probate proceedings for grant of
letters of administration. In this state of affairs, we are
unable to agree with the learned counsel that the petitioner
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has caveatable interest.
Learned counsel, however, submitted that the will exe-
cuted by Zoe Enid Browne on 23.6.1975 in favour of the
petitioner though not filed but was subsequently probated in
the year 1989 and the fact that probate is granted can be
taken into consideration by this Court as a subsequent
happening, as the appeal before this Court, is only a re-
hearing or the continuation of the matter. Reliance is
placed on Section 227 of the Act which reads thus:
"Effect of Probate--Probate of a will when granted estab-
lishes the will from the death of the testator, and renders
valid all intermediate acts of the executor as such."
It is submitted that since the will executed by Zoe Enid
Browne in favour of the petitioner is probated it must be
deemed that it was existing since the death of the testatrix
namely Miss. Zoe Enid Browne and that validates all interme-
diary acts. According to the learned counsel, the effect of
such a probate is that the petitioner’s interest in the
estate gets established even on the date of entering caveat.
We are unable to see any force in this submission. The said
probate, admittedly, took place in a court in the Madras
City. We do not know whether the citations were issued to
all the persons interested. This probate also admittedly was
granted when the special leave petition was pending in this
Court yet the respondent had no notice about this probate
proceeding. Under these circumstances, exercising our juris-
diction under Article 136 we do not see that it is expedient
to acknowledge this probate proceeding and re-open the
matter.
492
Lastly an attempt was made to show that the Sub-Court
has no jurisdiction but we find that there a necessary
notification issued by the High Court conferring powers on
the Sub Court. We see no force in any one of these submis-
sions.
The learned counsel, however, lastly submitted that the
petitioner inspite of having substantial interest in the
estate is losing her right, to prove that the alleged will
by Miss Zoe Enid Browne is not a genuine one and that it is
a fictitious one. We must point out that by granting a
probate, the court is not deciding the disputes to the
title. Even with regard to a probate granted, it can be
revoked as provided under Section 263 of the Act in any one
of the cases mentioned therein. But the learned counsel for
the petitioner submits that the findings of the Sub Court
and the High Court regarding the caveatable interest will
come in the petitioner’s way in seeking revocation of the
grant of probate. It is needless to say that the findings
regarding the caveatable interest of the petitioner have a
limited effect and are relevant only to the extent of grant-
ing of probate. But they cannot deprive his right, if he has
any, to invoke Section 263 of the Act and it is upto the
petitioner to satisfy the Court.
With these observations, the special leave petition is
dismissed.
T.N.A. Petition
dismissed.
493