Venkatasubba Rao, J.
1. The question that has been raised i regard to be a settled point--settled alike by weighty decisions and unbroken practice of the Court. But of late, I have found a tendency at the bar to raise this point, as if it is a debatable one and requires serious notice. I am delivering this considered judgment, to once for all state definitely what my view is and I am tempted to follow this course in this case on account of the lengthy argument addressed to me.
2. One Mangadi Ellappa Chetti died leaveing assets valued by the petitioners at about 10 lakhs. He is said to have left a will and this is an application for probate of that will. The following pedigree serves to explain the facts of the case.
Mangadi Ellappa Chetti-testator Subbaroya
Died July 1927 (left no widow) |
Kanniappa Chetti (Died 1922) M.S. Chengalroya Chetti
M. Sowbagiamma. Executiix & (2nd Caveator)
Gopala Chetti M. Komalangi Chengalroya
(minor) (1st Caveator) Chetti (minor)
3. The will is propounded by Sowbagiamma shown in the pedigree and her brother Thangavelu Chetti, these two persons being the executors named in the will. Caveats have been filed as shown in the pedigree by Komalangi and Chengalroya. The caveat of the latter may be summarily dismissed as he has not complied with the rules of the Court and has not cared to appear at the hearing. The former is a minor and is represented in these proceedings by her father. The petitioners take a preliminary objection, namely, that Komalangi does not possess such an interest as to support a caveat. The question I have to decide is, does she possess a sufficient interest and can she be heard as a caveator?
4. The interest alleged on her behalf is, that the testator purported to dispose of by the will, her stridhanam jewels, as if they belonged to himself. I am asked to go into the question of the ownership of these jewels and declare, by my judgment, that the deceased was not the owner and that his will in regard to them is inoperative. Two things I regard to be clearly settled by authority, firstly, that the interest alleged is not an interest as would support a caveat, secondly, that a Probate Court does not decide questions of title in regard to the property disposed of by the will.
5. The question may be thus shortly stated. The testator has disposed of property belonging to the objector. By reason of this fact, does the latter get an interest to oppose the grant of probate? One of the earliest cases, and one often cited, is Behary Lal v. Juggo Mohan I.L.R. (1878) C 1. In that case, the grant of probate was opposed on the ground that the testatrix who was a Hindu widow had only a life-interest and that her husband's property passed by survivorship to the latter's brother, the caveator. The District Judge refused the application for probate, holding that the widow had no power to dispose of the properties mentioned in the will. Garth, C. J., and McDonald, J., held
that upon an application for probate of a will, as long as it is made bona fide, it is not the province of the Court to go into questions of title with reference to the property of which the will purports to dispose.
The learned Judges add that the grant of probate does not confer upon the executor any title to property, which the testatrix had no right to dispose of, but that it only perfects the representative title of the executor to the property which belonged to the testatrix and over which she had a disposing power.
6. This case has been repeatedly followed in Calcutta; but I shall content myself with referring to two more decisions of that court. In Abhiram Doss v. Gopal Dass I.L.R. (1889) C 49 the caveator objected that the testator never owned the property with which the will dealt as the same belonged to a Mutt, to which the testator and the caveator belonged. The learned Judges, reversing the order of the lower court, held that a person, disputing the right of a testator to deal with property as his own, cannot be properly regarded as having an interest in the estate of the deceased. The second case is Srigobind Pershad v. Musstt. Laljhari (1909) 14 CWN 119. Letters of administration had been granted to a Hindu lady and the application was for revoking those letters inasmuch as the property was joint family property which passed to the petitioner by survivorship. On the ground that the interest to be shown in an application for revocation is the same as the interest to be possessed by a person opposing the grant, the court came to the conclusion that the applicant did not have sufficient interest and his application was accordingly rejected.
7. Now turning to Bombay, the law is very clearly stated in Bal Gangadhar Tilak v. Sakwarbai I.L.R. (1902) B 792. That was also a case of revocation of a grant already made, but the learned Judges point out that in this respect the same considerations apply to a revocation of a grant as to a grant itself. The law is thus stated:
We regard the grant of probate as decisive only of the genuineness of the will propounded and the right of the executors thereby appointed to represent the estate of the tesattor. It in no respect decides any question as to the disposing power of the testator or as to the existence of any disposable property.
It will be sufficient to refer to one other case of the Bombay High Court, Haridas v. Nanabai I.L.R. (1904) B 644. In that case, the grant was opposed on the ground that the property dealt with by the testator was joint family property which could not be disposed of by his will. The trial Judge, Russel, J., dismissed the caveat, holding that the defendant had no interest and adding, that, were he to decide differently, he should do so contrary to a long series of cases. The case was taken in appeal and this view was confirmed. Jenkins, C. J., observes that this was the view that was uniformly taken in Bombay, Calcutta and Allahabad. On enquiry from the Testamentary Registrar, the learned Judges found that this was the invariable practice on the Original Side of the Calcutta High Court. I regard this as a very valuable case and I may cite an important observation from that judgment:
The grant in no way hurts or prejudices the caveator, for it is general in its terms, specifying no item of property and prejudging nothing to the detriment of the appellant.
As regards the Allahabad High Court, I may refer to Birj Nath Dee v. Chandar Mohan Banerji I.L.R. (1897) A 458. In that case again, it was objected that the widow had no disposing power over the property or some of it dealt with by the will. Edge, C. J., and Blair, J., observe that it is not the practice of the Courts in India to try questions of title and finally decide them on applications for grant of probate or letters of administration. This was the view taken, in spite of the fact, that at the bar reliance was placed upon Tharp v. Maodonald (1878) LR 3 PD 76 to which the learned Judges also refer in their judgment.
8. Coming to our own High Court, Rahamtullah v. Rama Rao I.L.R. (1894) 17 M 373 (decided by Muthuswami Aiyar and Best, JJ.,) contains some useful observations. The question arose, whether a creditor of the testator can be said to have an interest in the latter's estate. The answer was in the negative. Discussing the nature of the interest which a caveator must possess, the learned Judges say:
There must be a possibility of having an interest in the result of setting aside the will.
A creditor of the testator, they observe, has no right to contest the will, for the reason that it is indifferent to him whether he shall receive his debt from an executor or an administrator, (I may add) or an heir. In my own experience, I am not aware of a single case, during the last 25 years, when any Judge, sitting on the Original Side of this Court, allowed a question of this kind to be raised in a testamentary proceeding. This is confirmed not only by Mr. Radhakrishnayya who appears for the petitioners but by Mr. Venkatramana Rao himself who represents the caveator.
9. The view I am taking is thus supported by authority and uniform practice of the court; furthermore, it is based on reason and sound common sense. The function of the Court of Probate is to decide whether the will propounded is the last will of the testator and whether the right to represent the estate may be conferred upon the applicant. The Court of Probate does not profess to decide the disputed title to every item of property mentioned in the will. If a testator disposes of, say, 15 items of property and 10 different claimants appear before the court, each claiming one of them as his own, is the court to postpone its decision on the validity of the will and on the representative character of the applicant, until it decides the disputed ownership of the various items? By delaying the grant, serious injury may be caused to the estate, there being none during this interval to represent it. Then, again, innumerable persons, each with his grievance, may come to oppose the grant, from one who claims a property worth some lakhs, down to one who sets up title to a property worth a paltry sum. It is certainly not to be expected that the application is to be decided in the presence of each one of these claimants. If, then, the scope of a testamentary proceeding-is correctly understood, no difficulty can arise. Can the executor to whom probate is granted, on the strength of that probate, recover property which is not the testator's? Does the probate confer on the executor right to property to which he is otherwise not entitled? If it is remembered that these questions ought to be answered in the negative, it does not in the least matter, what the properties are, which the testator professes to treat as his own and to dispose of by his will. The remarks I have made apply equally to applications for letters of administration. In dealing with the question--Has the caveator the necessary interest?--the test is, does the grant displace any right to which the caveator would otherwise be entitled? If so, he has such an interest, if not, he has not. An heir on intestacy has an interest in impeaching the will; for, but for the will, he would succeed to the property. A legatee under a previous will has a similar interest; for, he is interested in establishing the validity of that will and impeaching the validity of the later will which deprives him of the benefit. A reversionary heir under the Hindu Law has such an interest; for, normally, a widow has only a limited estate and the reversioner is interested in impeaching a will, which professes to enlarge that interest, or, again. which purports to confer upon her a right to make an adoption. [See Brindaban Chandra Saha v. Sureswar Saha (1909) CRILJ 263]. But in every case it must be shown that the caveator, but for the will, would be entitled to a right, of which that will deprives him.
10. I have said there has been of late a tendency at the bar, to treat the rule I have stated as open to question, and support is sought in certain observations of a Bench of this Court in a recent case, Hanumantha Rao v. Lakskmamma : AIR1926Mad1193 ; but I am sure I shall not be wrong if I assert (and I do so with some confidence) that the learned Judges could not have intended by their dicta to cast a doubt on a long settled practice sanctioned in a series of judgments of great authority.
11. In this case, I have come to the conclusion that the caveator is not possessed of an interest entitling him to oppose the grant and I dismiss his caveat with costs which I fix at Rs. 300.
12. It came to my notice that citation did not issue to the minor grandsons of the testator, Gopala and Chengalroya. They are certainly persons interested in the estate and I therefore directed citation to issue to them. As their mother happens to be one of the petitioners, a Court guardian has been appointed and the latter has filed a written statement. I shall now proceed to hear the application on its merits.
13. Mr. Venkatramana Rao now says that his client, the caveator, has another kind of interest. According to him, if there is a bare possibility of a person having an interest, that person is entitled to file a caveat. It is needless in this case to enquire whether this proposition is sound or not; the caveator is the wife of Gopala Chetti, the minor grandson of the testator, and whatever interest she may or may not have, she cannot be permitted to oppose the grant, when we find that as a matter of fact, her husband and her brother-in-law, who alone would be entitled to succeed on intestacy, are before the Court and are taking necessary steps. The contention is overruled and I direct the plaintiffs to examine their witnesses.