Antony Vs. Michel Charles John Chown Lengera  INSC 139 (12 April 1990)
K. Jayachandra (J) Reddy, K. Jayachandra (J) Pandian, S.R. (J)
1990 AIR 1576 1990 SCR (2) 486 1990 SCC (3) 333 JT 1990 (2) 183 1990 SCALE
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.
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
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.
Subordinate Judge struck off the petitioner's caveat on the ground that she has
no caveatable interest.
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.
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.
Dismissing the petition, this Court,
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,
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.
they cannot deprive her right to invoke section 263 of the Act. [492D]
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.
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.
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
APPELLATE JURISDICTION: S.L.P. (Civil) No. 8896 of 1985.
the Judgment and Order dated 18.12. 1984 of the Madras High Court in Civil Revision Petition No. 5539 of 1983.
No. 28592 of 1988.
R.F. Nariman, J.P. Pathak, M.B. Shivraj and P.H. Parekh for the Petitioner.
Krishnamurthy Iyer and Mrs. S. Dikshit for the Respondent.
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.
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:
testatrix Mary Aline Browne was the wife of Herbet Evander Browne who was the
eldest son of one John Browne.
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 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.
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.
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.
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.
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
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.
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 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
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.
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:
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 has caveatable interest.
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:
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.
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.
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.
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
these observations, the special leave petition is dismissed.