MADRAS HIGH COURT
JAMMI HANUMANTHA RAO VS ARATLA
LATCHAMMA
LATCHAMMA
ON 23-12-1926
Summarised Judgement (Scroll for Complete Judgement)
Introduction
The appellant applied
for the probate of the will of one Narasamma, dated 4th June, 1920. The grant
of probate was opposed by the respondent who is the widow of the brother of
Narasamma’s husband, and the District Judge held that it was not proved that
Narasamrna executed the will and dismissed the application.
for the probate of the will of one Narasamma, dated 4th June, 1920. The grant
of probate was opposed by the respondent who is the widow of the brother of
Narasamma’s husband, and the District Judge held that it was not proved that
Narasamrna executed the will and dismissed the application.
Facts
of the Case:
of the Case:
Mr. Jagannadha Doss for
the appellant raises the contention that the respondent was not entitled to
oppose the grant of probate as she had no interest in the estate of the
deceased so as to be entitled to. enter caveat under Section 69 of the Probate
and Administration Act (V of 1881).
the appellant raises the contention that the respondent was not entitled to
oppose the grant of probate as she had no interest in the estate of the
deceased so as to be entitled to. enter caveat under Section 69 of the Probate
and Administration Act (V of 1881).
As there is a conflict
of authority on this point and as the respondent has not appeared to oppose the
appeal, we asked Mr. Anantha Aiyar to appear as amicus curiae, and we are
thankful to him for bringing to our notice the cases opposed to the contention
of the appellant. Under Section 69 “In all cases it shall be lawful for
the District fudge, if he thinks fit, to 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.”
What is the nature of the interest which a person should have in order to
entitle him to enter a caveat?
of authority on this point and as the respondent has not appeared to oppose the
appeal, we asked Mr. Anantha Aiyar to appear as amicus curiae, and we are
thankful to him for bringing to our notice the cases opposed to the contention
of the appellant. Under Section 69 “In all cases it shall be lawful for
the District fudge, if he thinks fit, to 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.”
What is the nature of the interest which a person should have in order to
entitle him to enter a caveat?
The contention of the
appellant is that the person who enters a caveat should claim a right to the
property under the testator, and if he claims the property adversely to the
testator he is not entitled to oppose the grant of probate, for his right would
not be affected By the grant of probate or letters of administration with the
will annexed. The respondent claims the right to maintenance out of the income
of the property devised under the will as she is the widow of the undivided
brother of the testatrix’s husband. The relationship is not denied, and the
only question is whether the claim to maintenance against the property devised
by the will, granting that the allegation of the respondent is true, would
entitle her to oppose the grant of probate.
appellant is that the person who enters a caveat should claim a right to the
property under the testator, and if he claims the property adversely to the
testator he is not entitled to oppose the grant of probate, for his right would
not be affected By the grant of probate or letters of administration with the
will annexed. The respondent claims the right to maintenance out of the income
of the property devised under the will as she is the widow of the undivided
brother of the testatrix’s husband. The relationship is not denied, and the
only question is whether the claim to maintenance against the property devised
by the will, granting that the allegation of the respondent is true, would
entitle her to oppose the grant of probate.
Observation
of Court:
of Court:
It was suggested that
his presence could not be secured at the time when the case came on for
hearing. If an application had been made to the learned Judge he certainly
would have granted an adjournment for the examination of the Revenue Inspector.
The Revenue Inspector did not attest the will.
his presence could not be secured at the time when the case came on for
hearing. If an application had been made to the learned Judge he certainly
would have granted an adjournment for the examination of the Revenue Inspector.
The Revenue Inspector did not attest the will.
This looks very
suspicious. If the will is a genuine will, there is no reason why the appellant
should not have! examined the Revenue Inspector as his witness. P. Ws. 2 and 3
are relations; and we see no reason to differ from the finding of the learned
Judge that it has not been satisfactorily proved that the will was executed by
Narasamma or that at the time of the alleged execution of the will she was in a
sound disposing state of mind.
suspicious. If the will is a genuine will, there is no reason why the appellant
should not have! examined the Revenue Inspector as his witness. P. Ws. 2 and 3
are relations; and we see no reason to differ from the finding of the learned
Judge that it has not been satisfactorily proved that the will was executed by
Narasamma or that at the time of the alleged execution of the will she was in a
sound disposing state of mind.
Judgement:
On both points I agree.
I think that the words in Section 69 of the Probate and Administration Act
“claiming to have any interest in the estate of the deceased ” are
intended to bear the same meaning as the words in the English Act “having
or pretending interest in the (personal) estate affected by a will.” That
is the view taken in Kishen Dai v. Satyendremath Dull (1901) I.L.R. 28 C 441
which I would follow.
I think that the words in Section 69 of the Probate and Administration Act
“claiming to have any interest in the estate of the deceased ” are
intended to bear the same meaning as the words in the English Act “having
or pretending interest in the (personal) estate affected by a will.” That
is the view taken in Kishen Dai v. Satyendremath Dull (1901) I.L.R. 28 C 441
which I would follow.
On the merits, I see no
reason to dissent from the conclusion of the District Judge. The appeal must be
dismissed.
reason to dissent from the conclusion of the District Judge. The appeal must be
dismissed.
————————————–
Complete Judgement
MADRAS HIGH COURT
JAMMI HANUMANTHA RAO VS ARATLA
LATCHAMMA ON 23-12-1926
LATCHAMMA ON 23-12-1926
Equivalent
citations: (1926) 51 MLJ 563
citations: (1926) 51 MLJ 563
Author:
Devadoss
Devadoss
JUDGMENT
Devadoss, J.
Devadoss, J.
1. The appellant
applied for the probate of the will of one Narasamma, dated 4th June, 1920. The
grant of probate was opposed by the respondent who is the widow of the brother
of Narasamma’s husband, and the District Judge held that it was not proved that
Narasamrna executed the will and dismissed the application.
applied for the probate of the will of one Narasamma, dated 4th June, 1920. The
grant of probate was opposed by the respondent who is the widow of the brother
of Narasamma’s husband, and the District Judge held that it was not proved that
Narasamrna executed the will and dismissed the application.
2. Mr. Jagannadha Doss
for the appellant raises the contention that the respondent was not entitled to
oppose the grant of probate as she had no interest in the estate of the
deceased so as to be entitled to. enter caveat under Section 69 of the Probate
and Administration Act (V of 1881). As there is a conflict of authority on this
point and as the respondent has not appeared to oppose the appeal, we asked Mr.
Anantha Aiyar to appear as amicus curiae, and we are thankful to him for
bringing to our notice the cases opposed to the contention of the appellant.
Under Section 69 “In all cases it shall be lawful for the District fudge,
if he thinks fit, to 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.” What is the
nature of the interest which a person should have in order to entitle him to
enter a caveat? The contention of the appellant is that the person who enters a
caveat should claim a right to the property under the testator, and if he
claims the property adversely to the testator he is not entitled to oppose the
grant of probate, for his right would not be affected By the grant of probate
or letters of administration with the will annexed. The respondent claims the
right to maintenance out of the income of the property devised under the will
as she is the widow of the undivided brother of the testatrix’s husband. The
relationship is not denied, and the only question is whether the claim to
maintenance against the property devised by the will, granting that the
allegation of the respondent is true, would entitle her to oppose the grant of
probate. In Garbini Dassi v. Pratap Chandra Shaha (1900) 4 C W N 602 it was
held that the right to maintenance was not such an interest as would entitle a
person to oppose the grant of probate. This is a direct authority in favour of
the appellant. In Ahhiram Dass v. Gopal Dass (1889) I.L.R. 17 C 48 it was held
by a Bench of the Calcutta High Court that ” a person not claiming any of
the property of the testator but disputing the right of the testator to deal
with certain property as his own has not such an interest in the estate of the
testator as entitles him to come in and oppose the grant of probate.
for the appellant raises the contention that the respondent was not entitled to
oppose the grant of probate as she had no interest in the estate of the
deceased so as to be entitled to. enter caveat under Section 69 of the Probate
and Administration Act (V of 1881). As there is a conflict of authority on this
point and as the respondent has not appeared to oppose the appeal, we asked Mr.
Anantha Aiyar to appear as amicus curiae, and we are thankful to him for
bringing to our notice the cases opposed to the contention of the appellant.
Under Section 69 “In all cases it shall be lawful for the District fudge,
if he thinks fit, to 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.” What is the
nature of the interest which a person should have in order to entitle him to
enter a caveat? The contention of the appellant is that the person who enters a
caveat should claim a right to the property under the testator, and if he
claims the property adversely to the testator he is not entitled to oppose the
grant of probate, for his right would not be affected By the grant of probate
or letters of administration with the will annexed. The respondent claims the
right to maintenance out of the income of the property devised under the will
as she is the widow of the undivided brother of the testatrix’s husband. The
relationship is not denied, and the only question is whether the claim to
maintenance against the property devised by the will, granting that the
allegation of the respondent is true, would entitle her to oppose the grant of
probate. In Garbini Dassi v. Pratap Chandra Shaha (1900) 4 C W N 602 it was
held that the right to maintenance was not such an interest as would entitle a
person to oppose the grant of probate. This is a direct authority in favour of
the appellant. In Ahhiram Dass v. Gopal Dass (1889) I.L.R. 17 C 48 it was held
by a Bench of the Calcutta High Court that ” a person not claiming any of
the property of the testator but disputing the right of the testator to deal
with certain property as his own has not such an interest in the estate of the
testator as entitles him to come in and oppose the grant of probate.
3. The learned Judges
observe at page 52: The term” (meaning interest in Section 69) “does
not necessarily refer to any particular property, bur. 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, whatever that may consist
of. The form of the caveat too would seem to show that the person who enters a
caveat admits that the particular property forms a portion of the estate of the
testator, but objects either to the execution of the will or to the proposed
manner of dealing with any portion of the estate.
observe at page 52: The term” (meaning interest in Section 69) “does
not necessarily refer to any particular property, bur. 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, whatever that may consist
of. The form of the caveat too would seem to show that the person who enters a
caveat admits that the particular property forms a portion of the estate of the
testator, but objects either to the execution of the will or to the proposed
manner of dealing with any portion of the estate.
4. The learned Judges
declined to follow the two previous decisions of the same Court in In the
mailer of the petition of Bhobosoonduri Dabee (3) and In the mailer of the
petition of Hurro Lal Shaha (4). The case in Abhiram Dass v. Gopal Dass (1889)
I.L.R. 17 C 48 has been followed by other High Courts. In Pirojshah Bikhaji v.
Peslonji Merwanji (1910) I.L.R. 34 B 459 it was held following Abhiram Dass v.
Gopal Dass (1889) I.L.R. 17 C 48 that a person who wishes to come in as the
caveator must show some interest in the estate derived from the deceased by
inheritance or otherwise. The Patna High Court takes the same view in Kalajit
Singh v. Parmeshar Singh (1917) 1 Pat L W 308
declined to follow the two previous decisions of the same Court in In the
mailer of the petition of Bhobosoonduri Dabee (3) and In the mailer of the
petition of Hurro Lal Shaha (4). The case in Abhiram Dass v. Gopal Dass (1889)
I.L.R. 17 C 48 has been followed by other High Courts. In Pirojshah Bikhaji v.
Peslonji Merwanji (1910) I.L.R. 34 B 459 it was held following Abhiram Dass v.
Gopal Dass (1889) I.L.R. 17 C 48 that a person who wishes to come in as the
caveator must show some interest in the estate derived from the deceased by
inheritance or otherwise. The Patna High Court takes the same view in Kalajit
Singh v. Parmeshar Singh (1917) 1 Pat L W 308
5. The words of Section
69 are “claiming to have any interest in the estate of the deceased.”
There is nothing in the wording of the section to show that the caveator should
claim interest through the testator. All that is necessary to entitle a person
to enter caveat is to claim interest in the estate of the deceased. The words
‘interest in the estate’ do not necessarily convey the idea that the interest
should be claimed through the testator. If that was the intention of the
legislature the clause could have been differently worded so as to make the
meaning clear. In India under the Hindu Law, the widow of a co-parcener is
entitled to maintenance and if a person disposes of the property as his
self-acquisition in favour of the legatees, the widow of a co-parcener will be
driven to the necessity of filing a suit against the executor or legatee and
proving that it is joint family property.
69 are “claiming to have any interest in the estate of the deceased.”
There is nothing in the wording of the section to show that the caveator should
claim interest through the testator. All that is necessary to entitle a person
to enter caveat is to claim interest in the estate of the deceased. The words
‘interest in the estate’ do not necessarily convey the idea that the interest
should be claimed through the testator. If that was the intention of the
legislature the clause could have been differently worded so as to make the
meaning clear. In India under the Hindu Law, the widow of a co-parcener is
entitled to maintenance and if a person disposes of the property as his
self-acquisition in favour of the legatees, the widow of a co-parcener will be
driven to the necessity of filing a suit against the executor or legatee and
proving that it is joint family property.
A person claiming to be the undivided
brother of the testator claims an interest not through the deceased but
independently of him. Can he enter a caveat on the ground that the property
devised is the joint property of himself and the testator? It has been
consistently held that a reversioner is entitled to oppose the grant of
probate. In Syama Charan Baislya v. Prafulla Siiridari Gupta (1915) 19 C W N
882 it was held by Mookerjee, J. and Chapman, J., after an examination of the
authorities, “that although a reversioner under the Hindu Law has no
present alienable interest in the property left by the deceased, he has
substantial interest in the protection or devolution of the estate and as such
is entitled to appear and be heard in a probate proceeding.” See also
Akhileswari Dasi v. Haricharan (1933) 40 C L J 397. Can it be said that a
reversioner claims through the testator? If the principle of law enunciated in
Pirojshah Bikhaji v. Peslonji Merzvanji (1910) I.L.R. 34 B 459 and Abhiram Dass
v. Gopal Dass (1889) I.L.R. 17 C 48 is correct, a reversioner who does not
claim through the testator cannot oppose the grant of probate. A Hindu will may
contain a power to adopt. A reversioner who has interest in preventing the
estate from going to a third person by reason of a forged will containing a
power to adopt is entitled to protect the estate from going to strangers.
brother of the testator claims an interest not through the deceased but
independently of him. Can he enter a caveat on the ground that the property
devised is the joint property of himself and the testator? It has been
consistently held that a reversioner is entitled to oppose the grant of
probate. In Syama Charan Baislya v. Prafulla Siiridari Gupta (1915) 19 C W N
882 it was held by Mookerjee, J. and Chapman, J., after an examination of the
authorities, “that although a reversioner under the Hindu Law has no
present alienable interest in the property left by the deceased, he has
substantial interest in the protection or devolution of the estate and as such
is entitled to appear and be heard in a probate proceeding.” See also
Akhileswari Dasi v. Haricharan (1933) 40 C L J 397. Can it be said that a
reversioner claims through the testator? If the principle of law enunciated in
Pirojshah Bikhaji v. Peslonji Merzvanji (1910) I.L.R. 34 B 459 and Abhiram Dass
v. Gopal Dass (1889) I.L.R. 17 C 48 is correct, a reversioner who does not
claim through the testator cannot oppose the grant of probate. A Hindu will may
contain a power to adopt. A reversioner who has interest in preventing the
estate from going to a third person by reason of a forged will containing a
power to adopt is entitled to protect the estate from going to strangers.
If a
reversioner who has no present interest in the estate is entitled to come in
and oppose the grant of probate, it is difficult to see how a person who claims
right to maintenance from the estate devised by the testator is not entitled to
oppose the grant of probate. Under the English Law the personal estate is his
absolute property and nobody has any right to it till he dies. But under the
Hindu Law a widow has the right to claim maintenance and the widow of an
undivided co-parcener is entitled to maintenance. If the property devised is
joint family property the reversioner is entitled to see that the reversion is
not endangered. In In the matter of the petition of Bhobosoonduri Dabee (3),
Field, J., after a very exhaustive examination of the authorities held that
under Section 242 of the Succession Act any person who can show that he is
entitled to maintain a suit in respect of property over which probate would
have effect, possesses a sufficient interest to entitle him to enter a caveat
and oppose the grant. In that case the testator left his widow and two sons and
purported to give the entire property to his widow for her life and after her
death to his two sons. A mortgagee of the son’s share and a decree-holder
against the other son opposed the grant of probate. Both the Judges who heard
the case (White and Field, JJ. ) held that the mortgagee of the son’s share was
entitled to oppose the grant of probate as by the will they would be left
without a remedy.
reversioner who has no present interest in the estate is entitled to come in
and oppose the grant of probate, it is difficult to see how a person who claims
right to maintenance from the estate devised by the testator is not entitled to
oppose the grant of probate. Under the English Law the personal estate is his
absolute property and nobody has any right to it till he dies. But under the
Hindu Law a widow has the right to claim maintenance and the widow of an
undivided co-parcener is entitled to maintenance. If the property devised is
joint family property the reversioner is entitled to see that the reversion is
not endangered. In In the matter of the petition of Bhobosoonduri Dabee (3),
Field, J., after a very exhaustive examination of the authorities held that
under Section 242 of the Succession Act any person who can show that he is
entitled to maintain a suit in respect of property over which probate would
have effect, possesses a sufficient interest to entitle him to enter a caveat
and oppose the grant. In that case the testator left his widow and two sons and
purported to give the entire property to his widow for her life and after her
death to his two sons. A mortgagee of the son’s share and a decree-holder
against the other son opposed the grant of probate. Both the Judges who heard
the case (White and Field, JJ. ) held that the mortgagee of the son’s share was
entitled to oppose the grant of probate as by the will they would be left
without a remedy.
6. In the Court of
Probate Act 20 and 21 Vic. c. 77, Section 61 the wording is: Others having or
pretending interest in the personal estate affected by a will should be cited
or summoned and may be permitted to become parties or intervene for their
respective interests.
Probate Act 20 and 21 Vic. c. 77, Section 61 the wording is: Others having or
pretending interest in the personal estate affected by a will should be cited
or summoned and may be permitted to become parties or intervene for their
respective interests.
7. A portion of that
section is practically copied in Section 69 of the Probate and Administration
Act (V of 1881) and Section 242 of the Indian Succession Act (X of 1886) with
slight modifications. Instead of the words ‘having or pretending interest in
the personal estate’ the wording in the Indian enactments is ‘claiming to have
an interest. Field, J., observed at page 471:
section is practically copied in Section 69 of the Probate and Administration
Act (V of 1881) and Section 242 of the Indian Succession Act (X of 1886) with
slight modifications. Instead of the words ‘having or pretending interest in
the personal estate’ the wording in the Indian enactments is ‘claiming to have
an interest. Field, J., observed at page 471:
As to the test of what
constitutes a sufficient interest to entitle any particular person to be made a
party, according to the view :which I have already stated, I think it comes to
this, that any person has a sufficient interest who can show that he is entitled
to maintain a suit in respect of the property over which the probate would have
effect under the provisions of Section 242 of the Indian Succession Act.
constitutes a sufficient interest to entitle any particular person to be made a
party, according to the view :which I have already stated, I think it comes to
this, that any person has a sufficient interest who can show that he is entitled
to maintain a suit in respect of the property over which the probate would have
effect under the provisions of Section 242 of the Indian Succession Act.
8. The learned Judges
who decided Abhiram Dass v. Gopal Dass (1889) I.L.R. 17 C 48 differed from In
the matter of the petition of Bhobosoonduri Dabee (3) on the ground that the
rule laid down by Field,J., was not adopted by White, J. Though White, J., did
not-lay down the rule in such broad terms as Field, J., yet he held that the
mortgagee of the son’s share was entitled to oppose the grant of probate of the
father’s will. In In the matter of the petition of Hurro Lal Shaha (4) it was
held that a presumptive reversioner to property with which a will deals has a
sufficient interest in the property to entitle him to maintain a suit in
respect of such property and that he is entitled to maintain a case for the
revocation of probate.
who decided Abhiram Dass v. Gopal Dass (1889) I.L.R. 17 C 48 differed from In
the matter of the petition of Bhobosoonduri Dabee (3) on the ground that the
rule laid down by Field,J., was not adopted by White, J. Though White, J., did
not-lay down the rule in such broad terms as Field, J., yet he held that the
mortgagee of the son’s share was entitled to oppose the grant of probate of the
father’s will. In In the matter of the petition of Hurro Lal Shaha (4) it was
held that a presumptive reversioner to property with which a will deals has a
sufficient interest in the property to entitle him to maintain a suit in
respect of such property and that he is entitled to maintain a case for the
revocation of probate.
The learned Judges followed the decision in In the
matter of the petition of Bhobosoonduri Dabee (3). In Kishen Dai v. Satyendranath
Dut (1901) I.L.R. 28 C 441 a Bench of the Calcutta High Court held that the
words interest in the estate of the deceased’ in Section 69 of the Probate and
Administration Act mean ‘interest in the estate left by the deceased’ and that
a judgment-creditor who but for the will would in execution of his decree have
a right to seize the property or that share of it which should descend to his
debtor and who alleges that the will has been set up for the purpose of
defrauding the creditors is a person claiming an interest in the estate of the
deceased and as such has a locus standi in opposing the grant of the probate of
the will.
matter of the petition of Bhobosoonduri Dabee (3). In Kishen Dai v. Satyendranath
Dut (1901) I.L.R. 28 C 441 a Bench of the Calcutta High Court held that the
words interest in the estate of the deceased’ in Section 69 of the Probate and
Administration Act mean ‘interest in the estate left by the deceased’ and that
a judgment-creditor who but for the will would in execution of his decree have
a right to seize the property or that share of it which should descend to his
debtor and who alleges that the will has been set up for the purpose of
defrauding the creditors is a person claiming an interest in the estate of the
deceased and as such has a locus standi in opposing the grant of the probate of
the will.
9. it cannot be said
that a Hindu son claims through his undivided father. If the father devises his
property as his self-acquisition, is not the son entitled to oppose the grant
of probate on the ground that it is a perjury? And it cannot be said in such a
case that he claims through the father. In Arakal Baslian Ansap v. Narayana
Aiyar (1910) I.L.R. 34 M 405 it was held that the judgment-creditors of the son
of the deceased, who had attached the son’s interest in his deceased father’s
estate before the application for probate, were entitled to oppose the grant of
probate. It is contended that the Privy Council in Nihmoni Singh Deo v. Umanath
Mooherjee (1883) I.L.R. 10 C 19 : 10 1 A 80 (P C) disallowed the contention
that an attaching creditor of a son’s share was entitled to oppose the grant of
the probate of the father’s will. Their Lordships did not decide the point but
only expressed a doubt. They observe at page 28:
that a Hindu son claims through his undivided father. If the father devises his
property as his self-acquisition, is not the son entitled to oppose the grant
of probate on the ground that it is a perjury? And it cannot be said in such a
case that he claims through the father. In Arakal Baslian Ansap v. Narayana
Aiyar (1910) I.L.R. 34 M 405 it was held that the judgment-creditors of the son
of the deceased, who had attached the son’s interest in his deceased father’s
estate before the application for probate, were entitled to oppose the grant of
probate. It is contended that the Privy Council in Nihmoni Singh Deo v. Umanath
Mooherjee (1883) I.L.R. 10 C 19 : 10 1 A 80 (P C) disallowed the contention
that an attaching creditor of a son’s share was entitled to oppose the grant of
the probate of the father’s will. Their Lordships did not decide the point but
only expressed a doubt. They observe at page 28:
They entertain grave
doubts whether an attaching creditor can do so, at least in a case which is not
founded on the gnound that the probate has been obtained in fraud of creditors.
doubts whether an attaching creditor can do so, at least in a case which is not
founded on the gnound that the probate has been obtained in fraud of creditors.
10. They give no final
opinion upon it. If a testator purports to devise his property as his
self-acquisition in order to defeat his undivided brother or to defeat the
claim for maintenance of the widow of his co-parcener, does he not commit
fraud? and is not the brother or the widow entitled to question the genuineness
of the will? In Rahamatullah Sahib v. Kama Rao (1894) ILR 17 M 373 it was held
that a legatee under a will or a creditor of the testator had not such interest
as to entitle him to oppose the grant of probate. In the case of a creditor the
estate is liable whether the will is genuine or not. The executor, and if there
is no executor, the administrator, is bound to pay the debts of the testator
out of the estate and the creditor will not ordinarily suffer in any way by a
false will being propounded and probate thereof being obtained. There may be
cases where it may be to the interest of the creditor to oppose the grant of
probate if, by obtaining probate, an unscrupulous person or a person of no
means is enabled to make away with the property of the deceased and thereby
defeat the creditor. If the probate proceedings are fraudulent any person who
would surfer thereby is entitled to object to such proceedings.
opinion upon it. If a testator purports to devise his property as his
self-acquisition in order to defeat his undivided brother or to defeat the
claim for maintenance of the widow of his co-parcener, does he not commit
fraud? and is not the brother or the widow entitled to question the genuineness
of the will? In Rahamatullah Sahib v. Kama Rao (1894) ILR 17 M 373 it was held
that a legatee under a will or a creditor of the testator had not such interest
as to entitle him to oppose the grant of probate. In the case of a creditor the
estate is liable whether the will is genuine or not. The executor, and if there
is no executor, the administrator, is bound to pay the debts of the testator
out of the estate and the creditor will not ordinarily suffer in any way by a
false will being propounded and probate thereof being obtained. There may be
cases where it may be to the interest of the creditor to oppose the grant of
probate if, by obtaining probate, an unscrupulous person or a person of no
means is enabled to make away with the property of the deceased and thereby
defeat the creditor. If the probate proceedings are fraudulent any person who
would surfer thereby is entitled to object to such proceedings.
In Crispin v.
Doglioni (1860) 2 Sw & Tr 17 the natural son of the testator objected to
the grant of probate on the ground that by the law of Portugal he was entitled
to the whole of the deceased’s property and that he had instituted a suit in
Portugal against the executor in which he obtained a decree that he should be
put into possession of the property. The declaration did not state the nature
of the suit, nor the quesI tions involved in it, nor did the judgment show that
the plaintiff was in the same position as a legitimate son. The learned Judges
held that the foreign judgment alone did not show such an interest in the party
in whose favour it was made as to entitle him to dispute the will. If the
judgment of the foreign Court had given the property to him the learned Judges
might probably have allowed him to contest the grant of probate.In Brinda
Chowdhrani v. Radhica Chowdhrani (1885) I.L.R. 11 C 493 it was held that the
widow of a Hindu testator who had died leaving sons had sufficient interest to
call upon the executor to prove the will in solemn form per testes. At page 494
they observe:
Doglioni (1860) 2 Sw & Tr 17 the natural son of the testator objected to
the grant of probate on the ground that by the law of Portugal he was entitled
to the whole of the deceased’s property and that he had instituted a suit in
Portugal against the executor in which he obtained a decree that he should be
put into possession of the property. The declaration did not state the nature
of the suit, nor the quesI tions involved in it, nor did the judgment show that
the plaintiff was in the same position as a legitimate son. The learned Judges
held that the foreign judgment alone did not show such an interest in the party
in whose favour it was made as to entitle him to dispute the will. If the
judgment of the foreign Court had given the property to him the learned Judges
might probably have allowed him to contest the grant of probate.In Brinda
Chowdhrani v. Radhica Chowdhrani (1885) I.L.R. 11 C 493 it was held that the
widow of a Hindu testator who had died leaving sons had sufficient interest to
call upon the executor to prove the will in solemn form per testes. At page 494
they observe:
She is entitled to
maintenance and if she pleases to institute a suit, to have her maintenaince
made a charge upon the estate of her deceased husband.
maintenance and if she pleases to institute a suit, to have her maintenaince
made a charge upon the estate of her deceased husband.
11. 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 Section 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.
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 Section 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.
12. The next contention
is that the judgment of the learned Judge is opposed to the evidence in the
case. The will bears the date 4th June, 1920. The application for probate was
made only in 1922. The will is said to have been executed on the day of the
testatrix’s death. She was ill for about a fortnight and the will is said to
have been written about 8 a. m. and she died the same afternoon. Persons
suffering from diabetes are as a rule in a comatic condition before death. It
is said that she was able to dictate the will at 8 o’clock, a few hours before
her death and she died suddenly on account of the boil bursting.
is that the judgment of the learned Judge is opposed to the evidence in the
case. The will bears the date 4th June, 1920. The application for probate was
made only in 1922. The will is said to have been executed on the day of the
testatrix’s death. She was ill for about a fortnight and the will is said to
have been written about 8 a. m. and she died the same afternoon. Persons
suffering from diabetes are as a rule in a comatic condition before death. It
is said that she was able to dictate the will at 8 o’clock, a few hours before
her death and she died suddenly on account of the boil bursting.
The evidence
on the side of the appellant is not at all satisfactory. The draft of the will
has not been produced and the chief witness for the appellant who is the sole
legatee under the will is a karnam and his conduct in the box was such as to
arouse suspicion. A Revenue Inspector was said to have been present at the time
of the execution of the will and he was not examined in the case. It was
suggested that his presence could not be secured at the time when the case came
on for hearing. If an application had been made to the learned Judge he
certainly would have granted an adjournment for the examination of the Revenue
Inspector. The Revenue Inspector did not attest the will. This looks very
suspicious. If the will is a genuine will, there is no reason why the appellant
should not have! examined the Revenue Inspector as his witness. P. Ws. 2 and 3
are relations; and we see no reason to differ from the finding of the learned
Judge that it has not been satisfactorily proved that the will was executed by
Narasamma or that at the time of the alleged execution of the will she was in a
sound disposing state of mind.
on the side of the appellant is not at all satisfactory. The draft of the will
has not been produced and the chief witness for the appellant who is the sole
legatee under the will is a karnam and his conduct in the box was such as to
arouse suspicion. A Revenue Inspector was said to have been present at the time
of the execution of the will and he was not examined in the case. It was
suggested that his presence could not be secured at the time when the case came
on for hearing. If an application had been made to the learned Judge he
certainly would have granted an adjournment for the examination of the Revenue
Inspector. The Revenue Inspector did not attest the will. This looks very
suspicious. If the will is a genuine will, there is no reason why the appellant
should not have! examined the Revenue Inspector as his witness. P. Ws. 2 and 3
are relations; and we see no reason to differ from the finding of the learned
Judge that it has not been satisfactorily proved that the will was executed by
Narasamma or that at the time of the alleged execution of the will she was in a
sound disposing state of mind.
Waller, J.
13. On both points I
agree. I think that the words in Section 69 of the Probate and Administration
Act “claiming to have any interest in the estate of the deceased ”
are intended to bear the same meaning as the words in the English Act
“having or pretending interest in the (personal) estate affected by a
will.” That is the view taken in Kishen Dai v. Satyendremath Dull (1901)
I.L.R. 28 C 441 which I would follow.
agree. I think that the words in Section 69 of the Probate and Administration
Act “claiming to have any interest in the estate of the deceased ”
are intended to bear the same meaning as the words in the English Act
“having or pretending interest in the (personal) estate affected by a
will.” That is the view taken in Kishen Dai v. Satyendremath Dull (1901)
I.L.R. 28 C 441 which I would follow.
14. On the merits, I
see no reason to dissent from the conclusion of the District Judge. The appeal
must be dismissed.
see no reason to dissent from the conclusion of the District Judge. The appeal
must be dismissed.
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AS
– 24122019
– 24122019