Singh & Ors. Vs. Pamela Manmohan Singh  INSC 181 (10 March 2010)
APPELLATE JURISDICTION CIVIL APPEAL NO.8031 OF 2001 Shri Jagjit Singh and
others ...Appellants Versus Mrs. Pamela Manmohan Singh ...Respondent
Whether the appellants, who claim to have purchased the property
described as 6-B, Jangpura, Mathura Road, New Delhi from Major K.V. Kohli (one
of the two heirs of Mrs. Rasheel Kohli) are entitled to contest the application
filed by the respondent - Mrs. Pamela Manmohan Singh (the other heir of Mrs.
Rasheel Kohli) for grant of letter of administration is the question which
arises for consideration in this appeal filed against order dated 22.1.2001
passed by the learned Single Judge of Delhi High Court in Civil Revision No.791
of 1994 whereby he set aside the order passed by Additional District Judge
allowing an application filed by the 2 appellants under Section 151 of the Code
of Civil Procedure (CPC) for permission to file objections in Probate Case No.272
The property in question was leased out by the Government of India
to Mrs. Rasheel Kohli sometime in 1957 for a period of 90 years.
Rasheel Kohli availed loans from Oriental Bank of Commerce and Grindlays Bank
and mortgaged the suit property. Oriental Bank of Commerce filed Suit No.75 of
1979 in the High Court of Delhi against M/s. Zirconium, K.V. Kohli and Mrs.
Rasheel Kohli for the recovery of their dues. Grindlays Bank also filed Suit
No.259 of 1978 against K.V. Kohli and others for recovery of Rs.9,58,195/-. In
the second suit, a statement was made by the counsel for the defendants that
his clients will not alienate property No.198, Golf Links, New Delhi and plot
No.6, Block - B, Jangpura, New Delhi or encumber the same till the next date.
taking note of the counsel's statement, the learned Single Judge directed the
defendants in the suit not to alienate or encumber the property or realise or
appropriate the rent.
In 1979, Mrs. Rasheel Kohli filed Suit No.180 of 1979 for eviction
of Khairati Lal, who had been inducted as a tenant. During the pendency of the
suit, Khairati Lal made a statement before the Court on 6.8.1984, the relevant
portion of which is extracted below:
decree for possession of the plot in dispute be passed against me in favour of
the plaintiff together with a decree for Rs.25,000/- as mesne profits upto 31st
August, 1979. I may be allowed time to vacate the plot in dispute upto 31st
October, 1986. I give an undertaking to the Court that I shall deliver vacant
possession of the plot in dispute to the plaintiff on 1st November, 1986. I
further give an undertaking that I will not alienate, transfer, in any manner,
or part with its possession in favour of any one, nor shall create any charge
till the vacant possession of the same is delivered by me to the plaintiff. I
also agree to pay mesne profits at the rate of Rs.1250/- per month from 1st
September, 1979 onwards."
However, instead of abiding by the undertaking given by him in the
Court, Khairati Lal handed over possession of the suit property to the partners
of M/s. Texla Service Center with whom Mrs. Rasheel Kohli is said to have
entered into an agreement dated 30.8.1984 for sale of the suit property for a
sum of Rs.11 lacs and received a sum of Rs.5 lacs in cash and Rs.6 lacs in the
form of bank guarantee.
After taking possession from Khairati Lal, M/s Texla Service
Center filed Suit No.182 of 1986 for specific performance of the agreement for
sale. In that suit, the High Court directed the parties to maintain status quo.
Mrs. Rasheel Kohli died on 11.10.1987. After about one month, Shri
K.V. Kohli (son of the deceased) executed three registered sale 4 deeds dated
6.12.1988 in favour of the appellants, though, at that time, warrant of attachment
issued pursuant to order dated 2.11.1988 passed by the Bombay High Court in
Suit No.2951 of 1987 was in force.
On 30.11.1987, K.V. Kohli filed application for grant of probate
by claiming that his mother had executed Will dated 7.3.1986 in his favour.
was registered as Suit No.379 of 1987. The respondent also filed an application
dated 6.3.1989 for grant of letter of administration by claiming that her
mother had executed Will dated 7.3.1987 in her favour.
application of the respondent was registered as P.C. No.106 of 1989.
the same was re-numbered as P.C. No.272 of 1993. The appellants filed an
application under Section 151 CPC for permission to file objections to the
grant of letter of administration in favour of the respondent. By an order
dated 26.3.1994, learned Additional District Judge allowed the application. The
relevant portions of that order are extracted below:
the present case, deceased Smt. Raseel Kohli was the owner of the property. She
died leaving a son K.V. Kohli and a daughter Pamela Manmohan Singh. Shri K.V.
Kohli is alleged to have acquired right in the property by virtue of will of
his mother dated 7.3.1986 and had sold one of the properties to the present
applicants by means of a registered Sale-deeds dated 6.12.1988. Whereas the
petitioner in the present case claims that her mother had executed another will
dated 23.9.1987, which is a later will in her favour. The 5 applicants who are
the purchasers from the vendor legatee of the first will, would be affected if
the later will is upheld, and as such they have locus standi to safeguard their
then contended that the sale was made after the injunction order was granted. A
perusal of the file shows that the present petition though purports to have
been drafted on 30.9.1989 the respondent was restrained from transferring the
property till further orders, then proceedings on 23.3.89.
the present property has been transferred before 23.3.1989 and this
circumstance will not affect the rights of the applicants.
regards delay, no doubt it appears that some other litigation is pending
between the parties, and the applicants had knowledge of the present
proceedings as appears from the written statement dated November, 1990, filed
by them in suit No.695 of 1990, pending in Delhi High Court, and it has been
contended that the application is belated and mala fide. However, as held
above, the applicants have locus standi to file caveat and to oppose the
present proceedings and as such they will also be entitled to move later on for
setting aside if the present petition for grant of probate is allowed as that
will affect their rights if the decision is taken in their absence. That would
unnecessarily involve the parties in fresh litigation. It is also seen that
original objector Shri K.V. Kohli has since died and the proceedings against
his LRs are ex-parte. However, an application for setting aside is pending.
Otherwise, also the case is at initial stages and even issues have yet not been
framed. The petitioner can be compensated by costs in delay."
The respondent challenged the aforementioned order in Civil
Revision No.791 of 1994, which was allowed by the learned Single Judge on the
Probate case filed by K.V. Kohli was dismissed on 13.5.1992 in default and,
therefore, there was no question of any Will being propounded by him.
appellants had committed fraud in obtaining possession from Khairati Lal
contrary to the undertaking given by him on 6.8.1984 and they effectively
prevented Mrs. Rasheel Kohli from taking possession of the property.
K.V. Kohli executed the sale deed when there was an order of injunction
restraining him from alienating the property in question and the whole case of
the applicants is based on the possession of the property through fraud
committed by them.
the applicants' rights are under investigation, they cannot claim to have any
caveatable interest in the estate of Mrs. Rasheel Kohli.
We have heard learned counsel for the parties. It is not in
dispute that the parties are governed by the provisions of the Indian
Succession Act, 1925 (for short, `the Act'). Section 283 of the Act reads as
Powers of District Judge.- (1) In all cases the District Judge or District
Delegate may, if he thinks proper,- (a) examine the petitioner in person, upon
require further evidence of the due execution of the Will or the right of the
petitioner to the letters of administration, as the case may be;
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.
citation shall be fixed up in some conspicuous part of the court-house, and
also the office of the Collector of the district and otherwise published or
made known in such manner as the Judge or District Delegate issuing the same
any portion of the assets has been stated by the petitioner to be situate
within the jurisdiction of a District Judge in another State, the District
Judge issuing the same shall cause a copy of the citation to be sent to such
other District Judge, who shall publish the same in the same manner as if it
were a citation issued by himself, and shall certify such publication to the
District Judge who issued the citation."
"caveatable interest" has not been defined in the Act, but the same
has been used and interpreted in some of the judicial decisions.
Chunder Sil and others v. Bhobosoonduri Dabee (1881) ILR 6 Cal 460, a two-Judge
Bench of Calcutta High Court considered whether the persons who had obtained
money-decree and got attached share of one of the heirs of the deceased and
mortgagees of the immovable property left by the testator were entitled to
oppose the grant of probate on the basis of Will executed by the owner in
favour of his wife purporting to grant his entire property for her life and
after her death to his sons. The respondent applied for grant of probate of the
Will of Nobo Coomar Ganguli, who had died on 21.10.1877 leaving behind his 8
widow and two sons. The appellant Nobeen Chunder Sil, who had obtained
money-decree against one of the sons and Brojo Mohun Ghose and Obhoy Churn Sen
in whose favour mortgage was executed by two sons filed caveat against the
grant of probate. The District Judge refused to allow them to take part in the
proceedings or oppose the grant. The appeal preferred against the order of the
District Judge was allowed by the High Court of Calcutta. White, J., who was
member of two-Judge Bench referred to the judgments of Baijnath Shahai v.
Desputty Singh ILR 2 Cal 208 and Komollochun Dutt v. Nilruttun Mundle ILR 4 Cal
360 and observed:
cannot be disputed that the appellants have a direct interest in disputing the
will. They alleged that the will is a forgery, and has been concocted for the
purpose of overriding their mortgage and attachment. The authorities show that,
so long as the probate remains unrevoked, the attaching creditor could not
bring the attached property to sale, nor could the mortgagees by any suit get
the benefit of their mortgage. Their proceedings in each case would be defeated
by the production of the probate, for they could not raise the issue that the
will was forged. "A probate unrevoked," says Mr. Justice Williams in
Vol. I Williams on Executors, 7th edition, p. 549, "is conclusive both in
the Courts of law and equity, not only as to the appointment of executors, but
as to the validity and contents of the will, so far as it extends to personal
property." As a probate in India extends to immoveable property, the
doctrine applies in this country to all the property left by the deceased. The
only grounds on which the appellants could impeach the probate in a Civil Court
would be those stated in the 44th section of the Indian Evidence Act,
namely,-that the probate was granted by a Court not competent to grant it, or
that it was obtained by fraud or collusion, which means fraud or collusion upon
the Court, and perhaps also fraud upon the 9 person disinherited by the will -
Barnesly v. Powel; but they could not show that the will was never executed by
the testator or was procured by a fraud practised upon him. It is obvious,
therefore, that, unless the appellants have a locus standi in the Probate
Court, they are without remedy, supposing their case against the will to be
and Prinsep, JJ. in Komollochun Dutt v. Nilruttun Mundle have virtually decided
the question before us, so far as the mortgagee-appellants are concerned. The
plaintiff there had purchased from a widow an estate which she was supposed to
have inherited from her husband.
the brother of the husband obtained and produced at the trial probate of a will
of the husband, by which he bequeathed the whole property to his brother. The
plaintiff sued to recover the property from the possession of the brother,
alleging that the will was a forgery. This Court reversed a remand order of the
District Judge, which directed the first Court to try the question of the
genuineness of the will, and directed that the trial should be postponed in order
that the plaintiff might apply to the Probate Court of the District Judge to
revoke the grant of probate.
J. apparently based his decision upon the language of Section 242 of the Indian
Succession Act. But that section, whilst stating that the probate shall be
conclusive as to the representative title, is silent as to its effect with
respect to the validity and contents of the will. Its conclusive effect in the
latter respects is really the legal consequence of the exclusive jurisdiction
of the Court of Probate, as stated by Mr. Justice Williams in Vol. I, Williams
on Executors, p. 549. In the mofussil the District Judges are the sole Courts
of Probate, and it would be obviously inconsistent with the exclusive
jurisdiction conferred upon them, that probates until revoked should not be
conclusive as to the due execution of the will to which the grants relate.
mortgagee-appellants in the present case stand substantially in the same
position as the plaintiff in Komollochun Dutt v. Nilruttun Mundle; they are
purchasers pro tanto and assigns of the immoveable estate of the deceased,
although only for the limited purpose of securing 10 money which they have
advanced to the testator's heirs. If, according to the authority just cited,
they might apply to revoke the probate that has issued, it follows that they
may also enter a caveat and oppose the grant.
of an attaching creditor of the next-of-kin was not before the Court in
Komollochun Dutt v. Nilruttun Mundle, but Markby, J., intimated an opinion that
an attaching creditor was also entitled to apply to revoke probate. This point
has been, recently decided in favour of the attaching creditor in Umanath
Mookhopadhya v. Nilmoney Singh.
I am of
opinion, therefore, that the appellants claim respectively such interests in
the estate of the deceased as entitle them, upon proof of their interests, to
file a caveat and oppose the grant of probate of the will of Nobo Coomar
J., who was the other member of the Bench referred to the law prevailing in
England, the provisions of the Indian Succession Act, 1865 and observed:
am, therefore, of opinion that, whether the persons interested came in the
first instance to oppose the grant of probate, or subsequently to have a grant
revoked or annulled, they must come to the Court of the District Judge;
this Court has thus an exclusive jurisdiction, it must be careful not to deny
all remedy to persons interested by refusing to allow them to be made parties
to its proceedings.
As to the
text 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 affect under the provisions of Section 242 of the Indian
In G. Jayakumar v. R. Ramaratanam A.I.R. 1972 Madras 212, the
learned Single Judge referred to some earlier judgments including the judgment
in Nobeen Chunder Sil and others v. Bhobosoonduri Dabee (supra) and observed:
shall therefore examine the language of the relevant sections of the Indian
Succession Act in order to ascertain the competency of both or either of the
caveators in these proceedings.
283(1) of the Indian Succession Act provides as follows:- "In all cases
the District Judge or District Delegate may, if he thinks proper,......
examine the petitioner in person, upon oath;
require further evidence of the due execution of the will or the right of the
petitioner to the letters of administration, as the case may be;
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"
follows from clause (c) of Section 283(1) that "all persons claiming to
have any interest in the estate of the deceased"
issued citations. "Any interest in the estate of the deceased" does
not mean such interest in the estate as is claimed through the deceased or as
heir of the deceased.
intention of the legislature as gatherable from the expression is that any
interest in the estate in respect of which the deceased is alleged to have
executed a testament would entitle the holder of that interest to attend and
oppose the probate proceedings.
view, the words "of the deceased" have been used only to identify and
describe the estate in respect of which the caveator claims interest and is not
intended to limit the caveator's interest to or equate it with the interest
which the 12 deceased held in the estate. The provision of Section 283 is
intended to give the widest possible publicity to the probate proceedings and
to give an opportunity to any person having the slightest and even the bare
possibility of an interest in the proceedings to challenge the genuineness of
the will and place before the court all the relevant circumstances before a
grant in rem is made in favour of the person claiming probate. If this is the
proper interpretation to be placed upon Section 283(1)(c) of the Indian
Succession Act, I have little doubt that both the caveators in this case are
entitled to intervene in these proceedings and challenge the proponent of the
will to give it in solemn form.
xxxx xxxx xxxx xxxx xxxx xxxx xxxx It is true that in that suit Ramaratnam
claims the property of Ratnavelu Mudaliar in derogation of the settlement deed
executed in favour of Amaravathi Ammal. In other words, he claims title
paramount to Amaravathi Ammal and contends that the testament executed by
Amaravathi Ammal in respect of the properties settled upon her by her husband
cannot affect him. If the more liberal interpretation which I have put upon
Section 283(1)(c) is correct, inasmuch as Ramaratnam claims an interest in the
estate in respect of which Amaravathi Ammal is alleged to have executed the
testament, he would be a person entitled to a citation.
counsel for the petitioner, however, relied upon a Division Bench ruling of
Ramesam and Cornish, JJ., reported in Komalngiammal v. Sowbhagiammal, ILR 54
Mad 24 = (AIR 1931 Mad 37) in support of the proposition that the interest
which entitles a person to lodge a caveat in an application for the probate of
a Will must be an interest in the estate of the deceased, that is to say, there
must be no dispute as to the title of the deceased to the estate. It is true
that this ruling would entail the dismissal of Ramaratnam's caveat because he
claims title paramount and is not possessed of any interest in the estate of
the deceased entitling him to oppose the grant of probate. But with great
respect, I must say I am unable to follow this ruling, because it is in direct
conflict with an earlier Division Bench ruling 13 of this court reported in
Hanmantha Rao v. Latchamma, ILR 49 Mad 960 = (AIR 1926 Mad 1193). There,
Devadoss and Waller, JJ. construed the meaning of Section 69 of the Probate and
Administration Act which ran as follows:
all cases it shall be lawful for the District Judge, 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."
It may be
noticed that Section 69 of the Probate and Administration Act, is identical
with Section 283(1)(c) of the Indian Succession Act. Their Lordships, while
construing Section 69 of the Act, observed as follows:
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.
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."
support of this view, their Lordships quoted the observations of Field J., in
the matter of the petition of Bhobosoonduri Dabee, ILR (1881) 6 Cal 460 to the
following effect:- "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."
In Krishna Kumar Birla v. Rajendra Singh Lodha and others (2008) 4
SCC 300, a two-Judge Bench of this Court categorized caveatable interest,
referred to the dictionary meanings of the words `caveat' and `interest' and
large number of precedents including Elizabeth Antony v. Michel Charles John
Chown Lengera (1990) 3 SCC 333, Kanwarjit Singh Dhillon v. Hardyal Singh
Dhillon (2007) 11 SCC 357, Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal
(2008) 1 SCC 267 and held that the probate court exercises a limited
jurisdiction and is not concerned with the question of title. If the probate is
granted, an application for revocation can be filed. The Court then noticed the
judgments of Calcutta and Madras High Courts to which reference has been made
hereinabove and observed:
To the same effect is a decision of the Calcutta High Court in Nabin Chandra
Guha v. Nibaran Chandra Biswas.
appear from the discussions made hereinafter, the said view, to our mind, is
not entirely correct. A caveatable interest was claimed therein on the basis of
acquisition of a subsequent interest from the daughter of the testator. The
District Judge held that he did not have a caveatable interest.
Calcutta High Court, interpreting Section 283(1)(c) of the 1925 Act, held:
And `possibility of an interest' does not apply to possibility of a party
filling a character which would give him an interest but to the possibility of
his having an interest in the result of setting aside the will."
caveator acquired an interest from the daughter, he was said to have a
two-Judge Bench then referred to some judgments relating to caveatable interest
of the reversioners and held:
Section 283 of the 1925 Act confers a discretion upon the court to invite some
persons to watch the proceedings.
they? They must have an interest in the estate of the deceased. Those who pray
for joining the proceeding cannot do so despite saying that they had no
interest in the estate of the deceased. They must be persons who have an
interest in the estate left by the deceased. An interest may be a wide one but
such an interest must not be one which would not (sic) have the effect of
destroying the estate of the testator itself. Filing of a suit is contemplated
inter alia in a case where a question relating to the succession of an estate
may, by way of example notice that a testator might have entered into an
agreement of sale entitling the vendee to file a suit for specific performance
of contract. On the basis thereof, however, a caveatable interest is not created,
as such an agreement would be binding both on the executor, if the probate is
granted, and on the heirs and legal representatives of the deceased, if the
same is refused.
propositions of law which in our considered view may be applied in a case of
this nature are:
sustain a caveat, a caveatable interest must be shown.
test required to be applied is: Does the claim of grant of probate prejudice
his right because it defeats some other line of succession in terms whereof the
caveator asserted his right? (iii) It is a fundamental nature of a probate
proceeding that whatever would be the interest of the testator, the same must
be accepted and the rules laid down therein must be followed. The logical
corollary whereof would be that any person questioning the existence of title
in respect of the estate or capacity of the testator to dispose of the property
by will on ground outside the law of succession would be a stranger to the
probate 16 proceeding inasmuch as none of such rights can effectively be
the propositions culled out in paragraph 86 were substantially diluted by
making the following observations in paragraph 103:
would be the caveatable interest would, thus, depend upon the fact situation
obtaining in each case. No hard-and- fast rule, as such, can be laid down. We
have merely made attempts to lay down certain broad legal principles."
then discussed the judgments of Calcutta High Court and observed:
In the context of the laws governing inheritance and succession, as they then
stood, the widest possible meaning to the term "interest" might have
been given in a series of decisions which the learned counsel for the
appellants rely upon ranging from Nobeen Chunder Sil to Radharaman Chowdhuri v.
Gopal Chandra Chakravarty so as to hold that a caveat would be maintainable
even at the instance of a person who had been able to establish "some sort
of relationship" and howsoever distant he may be from the deceased which
per se cannot have any application after coming into force of the Hindu
Succession Act. Ordinarily, therefore, a caveatable interest would mean an
interest in the estate of the deceased to which the caveator would otherwise be
entitled to, subject of course, to having a special interest therein.
decisions which were rendered prior to coming into force of the Hindu
Succession Act, thus, may not be of much relevance. Now, if on the
interpretation of law, as it then stood, a reversioner or a distant relative
who could have succeeded to the interest of the testator was entitled to file a
caveat, they would not be now, as the law of inheritance and succession is
governed by a parliamentary Act.
It is in that backdrop the question which is required to be posed is: Did the
Calcutta High Court or the other High Court opine that even a busybody or an
interloper having no legitimate concern in the outcome of the probate
proceedings would be entitled to lodge a caveat and oppose the probate? The
answer thereto, in our opinion, must be rendered in the negative. If anybody
and everybody including a busybody or an interloper is found to be entitled to
enter a caveat and oppose grant of a probate, then Sections 283(1)(c) and 284
of the 1925 Act would have been differently worded. Such an interpretation
would lead to an anomalous situation. It is, therefore, not possible for us to
accede to the submission of the learned counsel that caveatable interest should
be construed very widely.
caveatable interest is not synonymous with the word "contention". A
"contention" can be raised only by a person who has a caveatable
interest. The dictionary meaning of "contention", therefore, in the
aforementioned context cannot have any application in a proceeding under the
A little later another two-Judge Bench expressed an apparently
contrary view in G. Gopal v. C. Baskar and others (2008) 10 SCC 489.
evinced from paragraph 5 of the judgment, which is reproduced below:
only question that was agitated before us by Mr Thiagarajan, learned counsel
appearing for the appellant challenging the judgment of the High Court revoking
the probate granted in respect of the will executed by the testator, was that
the respondents having no caveatable interest in the estate of the deceased,
the application for revocation filed by them could not be allowed. We are
unable to accept these submissions made by Mr Thiagarajan, 18 learned counsel
appearing on behalf of the appellant only for the simple reason that admittedly
the respondents were grandchildren of the testator and they have claimed the
estate of the deceased on the basis of a settlement deed executed by the
testator himself which admittedly was revoked by the testator. That being the
position, we must hold that the respondents had caveatable interest in the
estate of the testator and, therefore, they are entitled to be served before
the final order is passed. It is well settled that if a person who has even a
slight interest in the estate of the testator is entitled to file caveat and
contest the grant of probate of the will of the testator.
It is thus evident that apparently conflicting views have been
expressed by coordinate Benches of this Court on the interpretation of the
expression "caveatable interest". In Krishna Kumar Birla's case, the
Bench did not approve the judgments of Calcutta High Court in Bhobosoonduri
Dabee's case and Madras High Court in G. Jayakumar's case wherein it was held
that any person having some interest in the estate of the deceased can come
forward and oppose the grant of probate. As against this, in G. Gopal's case,
the dictum that a person who is having a slight interest in the estate of the
testator is entitled to file caveat and contest the grant of probate has been
being the position, we feel that the issue deserves to be considered and
decided by a larger Bench.
The Registry is directed to place the matter before Hon'ble the
Chief Justice for appropriate order.
.............................J. [G.S. Singhvi]
.............................J. [C.K. Prasad]
March 10, 2010.