1. In O. P. No. 234 of 1970, one Jayakumar prays for permission to prove in common form the Will of one Amaravathi Ammal and for the grant of probate in his favour.
2. Amaravathi Ammal, who was 83 years old at the time of the execution of the Will dated 14-4-1969 is said to have died on 6-7-1970. Under the Will, she is alleged to have bequeathed her properties worth over Rs. 65000 in favour of the petitioner Jayakumar, who belongs to a different community from that of the testatrix. It is also alleged that under the Will the petitioner has been appointed as the sole executor of the testatrix.
3. After publication in the papers one Sundarammal and one Ramaratnam have entered caveat. In her affidavit in support of her caveat, Sundarammal says that the deceased testatrix was her paternal aunt and that upon the death of the testatrix, have inherited her estate as her heirs-at-law. She also contests the truth and validity of the Will and contends that the testatrix had no testamentary capacity at the time the will is alleged to have been executed and that the testament has been brought about by foul play.
4. Ramaratnam, in his affidavit, in support of his caveat, impugns the will and contends that he is the foster son of the deceased Amaravathi Ammal and that on or about 7-4-1943, Ratnavelu Mudaliar, the husband of Amaravathi Ammal, entered into a contract with an Orphanage at Tanjore, in pursuance of which Ramaratnam, an orphan in the Orphanage, was allowed to be taken away by Ratnavelu Mudaliar and brought up by him and Amaravathi Ammal as their own son. In O. S. 1410 of 1968, on the file of the City Civil Court, Madras, Ramaratnam instituted a suit against Ratnavelu Mudaliar, Amaravathi Ammal and the Orphanage, in which he alleged that by virtue of the contract between the Orphanage and Ratnavelu Mudaliar, a trust had been created in respect of the properties of Ratnavelu Mudaliar in favour of Amaravathi Ammal on 27-7-19165 in breach of the said trust was void and not binding upon Ramaratnam. The contention of Ramaratnam is that he has thus a caveatable interest in the suit properties.
5. The petitioner in O. P. 234 of 1970 has filed Appn. No. 2750 of 1970 for discharging the caveat filed by Ramaratnam on the ground that Ramaratnam has no locus standi to enter a caveat. The petitioner has also filed Appn. No. 2751 of 1970 praying for the discharge of the caveat filed by Sundarammal on the same ground.
6. The point that arises for determination is whether either of the caveators has a caveatable interest in the property and is competent to challenge the petitioner in O. P. 234 of 1970 to prove the Will of Amaravathi Ammal in solemn form.
7. In English practice, a testament may be proved in tow ways, either in common form or in solemn form. When it is sought to be proved in common form, the executor merely presents the Will before the Judge, and without citing the parties interested, produces the proof affidavits of one or more of the attestors to the will, and the Judge, after satisfying himself on foot of the affidavits that the testament exhibited is true, proceeds to annex his probate and seal to the Will. In my view, the grant of probate in common form leads to pernicious results,. I have come across to pernicious results. I have come across several cases on the Original Side of this Court where decades after the grant of the Probate, interested persons have applied for and succeeded in obtaining revocation of the Probate granted on the ground that the will is ungenuine or had not been executed in a sound disposing state of mind.
But by the time the revocation is sought, most of the contemporaneous evidence relating to the will would have disappeared and the grantee of the probate would have wrought irremediable mischief by acting upon the grant, which whether granted in common form of solemn form,. operates in rem. On the contrary, when the will is to be proved is solemn form, the widest publicity is given to the proceedings and all parties, who have an interest in the subject-matter of the proceedings, appear in court and furnish valuable contemporaneous evidence which enables the court to render justice. It is my view that the English practice of proof of wills in common form is not only unsuitable for Indian conditions but also contrary to the requirements of the Indian Succession Act.
8. In Mt. Ramanandi Kuer v. Mt. Kalawati Kuer, AIR 1928 PC 2, their Lordships of the Judicial Committee observed as follows:
'It has been often pointed out by this Board that where there is a positive enactment of the Indian Legislature, the proper course is to examine the language of that Statute and to ascertain its proper meaning, uninfluenced by any consideration derived from the previous state of the law or of the English Law upon which it may be founded. These observations apply with peculiar force to testamentary, cases which are governed by the Indian Succession Act.'
9. I 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.
10. Section 283(1) of the Indian Succession Act provides as follows:--
'In all cases the District Judge or District Delegate may, if he things proper,...
(a) examine the petitioner in person, upon oath;
(b) 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;
(c) 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 follows from clause (c) of Section 283(1) that 'all persons claiming to have any interest in the estate of the deceased' may be 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. The 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.
In my 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 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.
11. So far as caveator Sundarammal is concerned, she claims to be the daughter of the brother of the testatrix. Admittedly, the testatrix died issue less, and left her surviving her sister and her brother's daughter. Sundarammal. under Section 15 of the Hindu Succession Act:
'The property I of a female Hindu dying intestate shall devolve according to the rules set out in Section 16:
(d) fourthly upon the heirs of the father.'
The sister of Amaravathi Ammal and daughter of Amaravathi Ammal' brother would both be heirs of the father of Amaravathi Ammal. It is, however, contended on behalf of the petitioner that Sunderammal being one degree removed from the sister of Amaravathi Ammal, would be excluded from inheritance. But Rule 2 of Section 16 of the Hindu Succession Act prescribes--
'If any son or daughter of the intestate had pre-deceased the intestate, leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death.'
It would therefore follow that though Sundarammal's father predeceased Amaravathi Ammal, Sundarammal would, along with the sister of Amaravathi Ammal, be entitled to succeed to the estate of Amaravathi Ammal. As she has a direct interest in the estate of Amaravathi Ammal, I hold she is competent to participate in these proceedings, even assuming that the restricted interpretation of the expression 'any interest in the estate of the deceased' is accepted.
12. As regards caveator Ramaratnam, he claims to be the foster son of Amaravathi Ammal and her husband Ratnavelu Mudaliar. As a foster son, no doubt, he would not be entitled to succeed to the estate of either of them. But even during the lifetime of Ratnavelu Mudaliar and Amaravathi Ammal he had instituted a suit in O. S. 1410 of 1968 on the file of the City Civil Court, Madras in which he claimed that Ratnavelu Mudaliar had entered into a contract with the orphanage, where by he agreed that Ramaratnam should become his heir and inherit his entire property. It is also the contention of Ramaratnam in O. S. 1410 of 1968 on the file of the City Civil Court, Madras, that by virtue of the Mudaliar had created a trust in his favour and that the settlement made by him subsequently in favour of Amaravathi Ammal was void inasmuch as it was in contravention of the trust.
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.
13. Learned 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 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:
'In 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, which constructing Section 69 of the Act, observed as follows:
'The words of Section 69 are 'claiming to have any interest in the estate of 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. All that 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.'
14. In support of this view, their Lordships quoted the observations of Field J., in In the matter of the petition of Bhobosoonduri Dabee, ILR (1881) 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 a 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.'
15. It was also pointed out by the Division Bench that Sec. 69 of the Probate and Administration Act was practically copied with slight modifications from the Court of Probate Act 20 and 21 Vict. C. 77, Section, 61, the wording of which is as follows:
'Other having or pretending interest in the personal estate affected by a will should be cited or summoned and may be permitted to become parties or intervene for their respective interest.'
Referring to this section, Waller, J. observed as follows:
'I think that the words in S. 69 of the Probate and Administration Act 'claiming to have any interest in the estate of the deceased' are intended to bear the same meaning as the words in the English Act 'having or pretending interest in the (personal) estate affected by the Will.''
16. Upon this view, the Division Bench held that a person entitled to have any portion of the estate left by a deceased or to a right to claim maintenance from such estate, has an interest within the meaning of section 69 of the Probate and Administration Act, and is entitled to object to the grant of probate of the will of the testator, and that the widow of an undivided brother of the husband of a testatrix is entitled to object to the grant of probate of her will. Though the Division Bench ruling in 49 Mad 960 : AIR 1926 Mad 1193 was cited before the Division Bench comprised of Ramesam and Cornish, JJ. the latter Division bench, without referring the matter to a Full Bench, merely observed as follows--
'It is unnecessary for us to say whether 49 mad 960 : AIR 1926 Mad 1193 is correctly decided or not, and we are not to be taken as agreeing with all the observations in it.''
These observations show that the later Division Bench did not agree with the view of the earlier Division Bench. If they did not agree, it was their plain duty to refer the matter to a Full Bench, as they could not validly overrule the earlier Division Bench ruling not only because it has not been validly overruled, but also because the views expressed therein are more conducive to the interests of justice which require that any person having even the slightest interest in proceedings of this kind should be encouraged to intervene and assist the court in arriving at a proper and just decision, before the court grants probates which have far reaching consequences upon the valuable rights of citizens. Following the earlier Division Bench ruling, I hold that the caveator Ramaratnam is entitled to intervene in these proceedings and challenge the will. Both the applications filed by the petitioner in the O. P. will therefore stand dismissed with costs. Under Order 25, rule 55 of the Original Side rules, I direct the O. P. to be numbered and registered as suit in which the petitioner shall be the plaintiff and the caveators shall be the defendants.
17. Order accordingly.