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Komalangi Ammal (Minor) by Her Father and Guardian, Kandasami Chettiar Vs. M.K. Sowbhagiammal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1931Mad37; (1930)59MLJ529
AppellantKomalangi Ammal (Minor) by Her Father and Guardian, Kandasami Chettiar
RespondentM.K. Sowbhagiammal and anr.
Cases Referred and Kalajit Singh v. Parmesher Singh
Excerpt:
- .....of by his will are her own property. in other words, she is setting up a title adverse to the testator's title to the property. it is impossible to say that she has an interest in the deceased's estate when she is claiming that the property in question does not form part of the deceased's estate. it has long been settled that it is not the province of a court of probate to determine questions of title to a property which a testator purports to dispose of by his, will, the reason being that the grant of probate does no more than establish the factum of the will and the appointment of the executors (if any) named in the will. the grant of probate will not, therefore, prevent the appellant from bringing a suit, if she should be so advised, to recover from the executors, or any other.....
Judgment:

Ramesam, J.

1. Most of the decisions of all the High Courts are against the appellant. They are referred to by the learned Trial Judge and need not be repeated. The learned advocate for the appellant relies on Hanumantha Rao v. Lctchamma. I.L.R. (1926) M. 960 : 51 M.L.J. 563 This case has been considered by the Trial Judge. It is based on In the matter of the Petition of Bhobo-soonduri Dabee I.L.R. (1880) C. 460 a case which has not been followed in the Calcutta High Court ever since and certain other decisions. The cases in Arakal Bastian Ansap v. Narayana Aiyar I.L.R. (1910) M. 405 and Kishen Dai v. Satyendra Nath Dutt I.L.R. (1901) C. 441 also referred to in it are cases of judgment-creditors of a son of the testator. In Arakal Bastian Ansap v. Narayana Aiyar I.L.R. (1910) M. 405 the will was revoked and it was not necessary to rely on In the matter of the Petition of Bhobosoonduri Dabee. I.L.R. (1880) C. 460 The decision in Brinda Choivdhrain v. Radhica Chowdhrain I.L.R. (1885) C 492 is the case of a widow entitled to maintenance against her husband's estate, the husband being the, alleged testator. I do not see how Kishen Dai v. Satyendra Nath Dutt I.L.R. (1901) C. 441 supports the decision in Hanumantha Rao v. Letchamma. I.L.R. (1926) M. 960 : 51 M.L.J. 563 It is unnecessary for us to say whether Hanumantha Rao v. Letchamma I.L.R. (1926) M. 960 : 51 M.L.J. 563 is correctly decided or not and we are not to be taken as agreeing with all the observations in it.

2. In a case of the kind before us, all the authorities are agreed that the caveator has no interest to oppose the grant of the probate In so far as she claims that the jewels dealt with in the will are hers, it is not an interest in the estate of the deceased according to all the authorities. Whether the will is genuine or not, her right to the jewels cannot be affected In so far as she claims to be the wife of one of the grandsons, and can claim to be supported from the estate, her. position under the will is no worse than if the will did not exist.

3. The case of Kipping v. Ash (1845) 1 Rob. Eccl. 270 does not help the appellant The appeal is dismissed with costs.

Cornish, J.

4. I agree that the appeal should be dismissed. The interest which entitles a person to lodge a caveat 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 [see Pirojshah Bikhaji v. Pest omji Merwanji I.L.R. (1910) B. 459 and Kalajit Singh v. Parmesher Singh (1917) 39 I.C. 573. But here the caveator is alleging that the jewels which the testator has disposed of by his will are her own property. In other words, she is setting up a title adverse to the testator's title to the property. It is impossible to say that she has an interest in the deceased's estate when she is claiming that the property in question does not form part of the deceased's estate. It has long been settled that it is not the province of a Court of Probate to determine questions of title to a property which a testator purports to dispose of by his, will, the reason being that the grant of probate does no more than establish the factum of the will and the appointment of the executors (if any) named in the will. The grant of probate will not, therefore, prevent the appellant from bringing a suit, if she should be so advised, to recover from the executors, or any other persons in possession, the jewels which she claims as her own property.


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