1. In this case the petitioner seeks to obtain probate of the draft of a document which is said to have been the last will of Lydia Isabel Myrtle Higgins, the document itself having been lost or destroyed after the testator's death. Caveats have been entered by A. J Fanthome, an advocate of this Court and his wife Mrs. Phyllis Fanthome, and a preliminary issue has been framed as to whether the caveators have any locus standi to contest this petition. That is the issue which I now have to decide.
2. The late Mrs. Higgins had a sister, Miss C. V. Willson, who died on 7-11-1945, leaving a will of which the first caveator was the executor and the second caveator the principal beneficiary. Probate of this will was granted to the first caveator on 22-2-1947. Mrs. Higgins died on 15-6-1918. The caveators contend that they are entitled to oppose the present petition on the ground thatthey have an interest in the estate of the late Mrs. Higgins.
3. The dispute centres round a house in Havelook Road, Lucknow, and thirty preferential shares in the Allahabad Bank Limited. These two items of property are included in Annexure A to the present petition as a part of the property of which Mrs. Higgins died possessed, and the same two items were included in the property of which it was said that her sister Miss Wilson died pos-sessed. The case for the caveators is that the house in Havelock Eoad belonged to Miss Wilson subject to a life interest in favour of Mrs. Higgins, and that consequently upon the death of Mrs. Higgins the house belonged exclusively to the estate of the late Miss Wilson. As regards the shares in the Allahabad Bank Limited learned counsel for the caveators says that those shares stood originally in the joint names of Mrs. Higgins and Miss Wilson. That may indeed prove to be true, but the contention of the caveators as set out in their written statement filed in this case is that they belonged to Miss Wilson alone and that Mrs. Higgins had no interest therein.
4. The answer to the preliminary issue turns upon whether, in such circumstances, the caveators are persona claiming to have an interest in the estate of the late Mrs. Higgins. In my opinion they are not, for it is, I think, well settled that a caveator cannot be said to have such an interest if he does not admit that the property in which he claims an interest forms part of the deceased's estate. A caveator who lays claim to a particular property and at the same time says that that property does not form part of the deceased's estate is not, and cannot be said to be, claiming an interest in that estate: See Abhiram Dass v. Gopal Dass, 17 Cal. 48, Pirojshah Bikhaji v. Pestonji Merwanji, 84 Bom. 459, Komalangi Ammal v. M. K. Sowbhagiammal, 64 Mad. 24, E. S. Sinha v. Miss Salena Hector, 20 Pat. 75.
5. A grant of probate does no more than establish the factum of the will and the legal character of the executor. It does not establish the executor's title to any of the property specified in the petition as belonging to the deceased testator nor that such property even exists, for it is not the province of a Court of Probate to determine questions of title. According to their own statements the caveators in this case have no interest in the estate of the late Mrs. Higgins for they deny that the two properties in dispute ever formed part of her estate. Whether probate of the alleged draft of Mrs. Higgin's will be granted or not such right as the caveators may have to institute proceedings for the establishment of a title to the property in dispute will not be affected.
6. On behalf of the caveators my attention has been drawn to three cases which it is contended are in conflict with the general principle which I have stated. Two of these cases Nabinchandra v. Nibaranchandra, 59 Cal. 1308 and Haripada Saha v. Ghanasyama Sah, 49 Cal. W. N. 713 are, in my opinion, clearly distinguishable, for the question which fell to be decided in those cases was not the nature of the interest claimed by the caveator but the quantum of such interest. The third case, In the matter of the Petition of Bhobosoonduri Dabee, 6 Cal. 460 does not assist the caveators. In that case Field J., said.
'As to the test of what constitutes a sufficient interest to entitle any person to be made a party, according to the view which I have stated, I think it comes to this, that any parson, 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, Succession Act.'
The reference is to Section 242, Succession Act of 1925which is substantially the same as S. 283 of theAct of 1925. In the present case it is the contention of the caveators that the property in disputenever formed pact of the estate of Mrs. Higgins,and consequently it follows that if probate isgranted of the draffs of the will of this lady itcan have no effect over that property. In myopinion this preliminary issue must be answeredin the negative, and I answer it accordingly.