1. This appeal arises out of the judgment dated 28-3-1985 of Sengottuvelan, J. in Application No. 211 of 1985 in T.O.S.No. 19 of 1984, dismissing the same. The said application had been filed by the appellant herein to implead himself as second respondent in T.O.S.No. 19 of 1984 and for directing the plaintiff to amend the plaint accordingly.
2. The facts leading to the filing of the said application by the appellant may briefly be noted: One Dungarmal Bachumal Futnani died on 1st April, 1983, leaving a will and a codicil dated 28th June, 1982 and 29th March, 1983 respectively. He has left behind him two sons and eight daughters. The sons are Mohanlal D. Futnani and Vishanji Futnani. The wife of the deceased predeceased him. The first respondent herein, Mohanlal D. Futnani filed O.P.No.262 of 1984 for the issue of a probate in respect of the will claiming to be the named executor under the will. In the said O.P.No.262 of 1984 the son of the first respondent, viz., the second respondent herein, also figured as the second petitioner. The other son of the testator viz., the third respondent herein, filed a caveat and disputed the truth and genuineness of the will. Hence, the above said O.P. was converted into T.O.S.No. 19 of 1984. The properties dealt with by the said will and codicil of the deceased are situate in Madras, Bombay and Calcutta, known as 'Futnani Chambers'. The appellant herein, as already stated, filed Application No. 211 of 1985 for impleading himself as second respondent in T.O.S.No. 19 of 1984 on the ground that he is a necessary party to the said T.O.S. In the affidavit filed in support of his application, he has stated the following two grounds to substantiate his contention that he is a necessary party to the suit:
(1) that he is the son of the caveator and the grand-son of the testator; and
(2) that he owns a share in 'Futnani Chambers' which is one of the items covered by the will and as such he has got sufficient interest in the property and to oppose the will.
The said application for impleading was opposed by respondents 1 and 2 herein on the ground that the appellant had no caveatable interest and as such, he has no locus standi to figure as a party in the T.O.S. and that in any event, it is only the father of applicant, who may claim an interest in the said property and as such, the applicant has no present interest in 'Futnani Chambers' in respect of which he claims to have a share and that even if the applicant is found to own a fractional share in 'Futnani Chambers' that will not entitle him to figure as a party in the T.O.S., since the interest claimed by him is independent of the testator. After considering the rival . contentions, Sengottuvelan, J. has held that as the applicant claims to be a joint owner in 'Futnani Chambers' in Calcutta along with the deceased, he has no locus standi to get himself impleaded in the suit. In that view, he dismissed the application for impleading filed by the appellant, by his order dated 23rd March, 1985, The correctness of the said order of the learned Judge is being challenged in this Appeal.
3. Before us, Mr. V.P. Raman, the learned Counsel for the appellant puts foward the following three grounds as entitling the appellant to implead himself as a party-defendant in the T.O.S.:
(1) that the appellant is the grand-son of the testator and not a stranger and that but for the interception of the will, he will succeed to the estate of the deceased along with other heirs;
(2) that he is co-owner along with the deceased in the property known as 'Futnani Chamber' in Calcutta, which is one of the items covered by the will and therefore, he has got sufficient interest in the estate of the deceased to come into the picture as a second defendant in the suit; and
(3) that the contesting respondents herein who had applied for the probate having admitted in the affidavit of assets filed before this Court on 17th June, 1984 that an investment of Rs. 81,115/- in Navabharath Trading Corporation on behalf of the Hindu undivided family, has been made the applicant will have interest in the said admitted Hindu undivided family property but for the will and therefore, the appellant should be taken to have got sufficient interest to implead himself as the second defendant in the suit.
4. So far as the first contention is concerned, it is not in dispute, that the appellant is the son of the caveator and the grand-son of the testator. However, so long as the caveator is alive, his son, the appellant, cannot be claimed to be an heir at law, even if the deceased had died intestate. Under Section 8 of the Hindu Succession Act, it is only the son who can claim to succeed to the father as Class I heir and the grand-children of the deceased cannot claim to be class I heirs. Therefore, the fact that the appellant is a son of the caveator and a grandson of the testator will not clothe him with a caveatable interest.
5. Coming to the second ground, it is not in dispute that the interest claimed by the appellant is only as a co-owner of one of the properties covered by the will viz., 'Futnani Chambers' in Calcutta. When once the appellant claims interest as a co-owner along with the testator in respect of the property, that claim should be taken to be independent of the testator and not through, the testator. The question is whether a person who claims a title independent of the testator in the properties covered by his will can be said to have a caveatable interest, so as to enable him to contest the will by becoming a party-defendant in the suit.
6. Mr. Raman, learned Counsel for the appellant, relied on the Bench decision in Jammi Hanumantha Rao v. Aratla Latchamma : AIR1926Mad1193 and the decision of a single Judge in Jayakumar v. Ramaratnam : AIR1972Mad212 in support of his plea that even if the claim put forward by the appellant is independent of the testator and not through him, he is entitled to come into the picture. In Jammi's Caset : AIR1926Mad1193 the court observed that
The true principle deducible from the cases is that a person who is entitled to any portion of the estate left by the deceased or a right to claim maintenance from the estate of the deceased has an interest within the meaning of Section 69 of the. Probate and Administration Act. It is not necessary that he should claim through the testator in order to enable him to oppose that grant of probate of the will of the testator. If a person is likely to suffer by the grant of the probate of a forged will or an invalid will he has sufficient interest to enter a caveat.
The said decision has been followed by Maharajan, J. in Jayakumar's Case : AIR1972Mad212 wherein he held that Section 283(1)(e) of the Indian Succession Act 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 the probate.
7. The learned Counsel for the contesting respondents, however, referred to a catena of decisions beginning from the decisions in Rahmatullah Sahib v. Rama Rau,I.L.R.(1894) Mad.373, Rajamanikam v, Farkar A.I.R. 1923 Mad. 131, Komalangi Ammal v. M.K. Sowbhagiammal : AIR1931Mad37 , 'In re Last Will and Codicil, of Venkata Narasimha. : AIR1975Mad330 , all of which were Division Bench decisions taking a contrary view to the view expressed in Jammi's Case : AIR1926Mad1193 . In Rahmatullah's Case I.L.R.(1894) Mad.373, Muthuswami Ayyar and Best, JJ. held that
In a suit brought to obtain probate of a will the defendant, before he can contest the will, must show that he has some interest in the testator's estate. The fact of being a legatee under the will, or a creditor of the testator, does not amount to such an interest.
The judges in that case have proceeded on the basis that a person claiming an interest independent of the testator to some of the properties covered by the will cannot contest the will.
8. In Rajamanikam's Case A.I.R.1923 Mad. 131, another Division Bench consisting of Ayling and Odgers, JJ., approved the dictum laid down by the Division Bench in Rahmatullah's Case I.L.R. (1894) Mad. 373 and held that
Before a person can be permitted to contest a will, the party propounding it, has a right to call upon him to show that he has some interest. A bare possibility is sufficient provided it rests on existing facts, but the possibility of filling a caveat which would give the party concerned an interest is not sufficient, there must be a possibility of having an interest in the result of setting aside the will.
9. The decision in Jammi's Case : AIR1926Mad1193 , which is relied on by the learned Counsel for the appellant does not refer to the two earlier Bench Decisions in Rahmatullah's Case, I.L.R. (1894) Mad.373 and Rajamanikam's Case A.I.R. 1923 Mad. 131.
10. In M.K. Sowbagiambal v. Komalangi Ammal : (1928)54MLJ382 , Venkatasubba Rao, j, sitting singly expressed a doubt as to the correctness of the decision rendered in Hanumantha Rao's Case : AIR1926Mad1193 with the following observation:
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. Lakshmamma : AIR1926Mad1193 but f 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.
after holding that 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, and that is the long settled practice sanctioned in a series of judgments of great authority. This Judgment of Venkatasubbarao, J. has been affirmed in Komalangi Ammal : AIR1931Mad37 by a Division Bench of Ramesam and Cornish, JJ. In the said decision reliance was placed on the Division Bench decision in Jammi's Case : AIR1926Mad1193 over which doubt has been expressed by the learned single Judge, whose judgment was under appeal. The Bench after referring to the said decision felt that the judgment follows the decision on the Calcutta High Court in the matter of the Petition of Bhobosoonduri Dabee, I.L.R.(1881) Cal.460, which has not been followed even in the Calcutta High Court ever since and therefore, it is unnecessary for them to say whether Jammi's Case : AIR1926Mad1193 was decided correctly or not and that it is sufficient to say that they are not agreeing with the observations contained in that judgment. In that case, the Court clearly laid down that if a person sets up title adverse to the testator's title to the property, it is impossible to say that he has an interest in the deceased's estate and the adjudication of the question of title being foreign to the proceedings of Probate, such person cannot be allowed to enter a caveat.
11. Venkata Narasimha's Case : AIR1975Mad330 is also a decision of a Division Bench, wherein it has been held that the decision of Maharajan, J. in Jayakumar's Case : AIR1972Mad212 which in turn follows the decision of the Division Bench in Jam mi Hanumantha Rao v. Aratla Latchamma : AIR1926Mad1193 has not been correctly decided and that the scope of the probate petition is confined to an enquiry as to the disposing state of the mind of the testator and the disposition of the property by will and any caveat entered into will also be confined to the scope of the position and that a person who claims interest in the estate of the testator will have the locus standi to maintain the caveat, and that a proceeding for issue of probate cannot be and should not be allowed to be converted into a suit for resolving disputed title to any of the properties covered by the will. The learned judges also referred to the decision ' of the Supreme Court in Ishwardeo Narain Singh v. Kamala Devi : AIR1954SC280 where the following observation has been made by the Supreme Court;
The Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of deceased person, was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.
12. Thus, the preponderance of judicial opinion is that a person claiming an independent title to a portion of the property covered by the will has no caveatable interest,
13. The learned Counsel for the appellant would say that even if the preponderance of the judicial opinion; is one way, since the Division Bench has taken the contrary view in Jammi Hanumantha Rao v. Aratla Latchamma : AIR1926Mad1193 the proper course is to have the conflict resolved by referring to a Fuller Bench. However, here, even before Jammi's Case : AIR1926Mad1193 there have been two decisions of Division Beaches taking contrary view viz., in Rahmatulla's Case, I.L.R.(1894) Mad.373 and Rajamanikam's Case A.I.R, 1923 Mad. 131, which have not been referred to in Jammi's Cass, (1928) 51 M.L.J. 563 : I.L.R. (1928) Mad.960 and two later Bench decisions in Komalangi Ammal's Case : AIR1931Mad37 and Venkata Narasimha's case (1975) 1 M.L.J. 379 taking a contrary view after refferring to Jammi's case : AIR1926Mad1193 . As pointed out in Komalangi. Ammal's case : AIR1931Mad37 the learned Judges in Jammi's case : AIR1926Mad1193 rested their decision on the basis of a judgment of Calcutta High Court in Dabee's Case, I.L.R. (1881) Cal.460, which decision has not been followed even in the Calcutta High Court in later decisions. In the light of these facts, we are of the view that this is not a fit case for being referred to fuller Bench as the Bench decision in Jammi's case : AIR1926Mad1193 has been referred to, but not followed by the later Bench Decisions in Komalangi Ammal's case : AIR1931Mad37 and Venkata Narasimha's Case : AIR1975Mad330 . In this view of the matter, we have to reject the appellant's second contention following the view expressed by at least four Division Benches of this Court in Rahmatulla's Case, I.L.R. (1894) Mad. 373, Rajamanikam's Case A.I.R.1923 Mad. 131, Komalangi Ammal's case : AIR1931Mad37 and Venkata Narasimha's case : AIR1975Mad330 .
14. Coming to the third ground, it is not in dispute that in the affidavit of assets filed by the petitioner for probate, a sum of Rs. 81,115 is referred to as belonging to the joint family and 1/3rd share therein belonged to the deceased. The question is whether the appellant has sufficient interest in the deceased's 1/3rd share in the coparcenary property so as to enable him to contest the will. Section 6 of the Hindu Succession Act deals with devolution of interest in the coparcenary property. That Section is as follows:
6. Devolution of interest in coparcenary property: When a male Hindu dies after the' commencement of this Act, having at the time of his death, an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the members of the coparcenary and not in accordance with this Act.
Provided that, if the deceased had left him surviving a female relative specified in class I of the schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
The learned Counsel for the appellant would say that in view of Section 6 of the Act, the deceased's interest in the coparcenary property will devolve by survivorship upon the surviving members of the coparcenary, if the deceased had died intestate the appellant, who is the son of the caveator, will have his share augmented as a result of the rule of survivorship and therefore, he has got sufficient interest in the admitted coparcenary property. The learned Counsel for contesting respondent would, however, rely on the proviso to Section 6 which shows that if the deceased had left behind him surviving a female relative specified in class I of the schedule, the interest of the deceased in the coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. In this case, admittedly, the testator had left not only two sons but eight daughters. Therefore, it is the proviso to Section 6 that is applicable to this case and not the main provision. If the rule of survivorship does not apply to the coparcenary interest, then, even if the deceased had died intestate, it is only Section 8 that will have to be applied and under that provision, the caveator being the Class I heir, he alone can claim an interest in the ' coparcenary property, if the deceased had died intestate the applicant will have no present interest at all even in the coparcenary property. Therefore, he has to be taken to have no sufficent interest at present even in the coparcenary property.
15. As a result of the above discussion, we hold that the order of the learned trial Judge does not call for any interference. The appeal, is, therefore, dismissed with costs. Counsel's fee Rs. 500/-.
16. learned Counsel for the appellant makes an oral application for the grant of leave to appeal to the Supreme Court against the judgment just now pronounced and also for stay of further proceedings in TOS pending the appeal before the Supreme Court. But having regard to the fact that the questions that came up for consideration before us are already covered by at least four division bench decisions of this Court we do not think that this is a fit case for the grant of leave to appeal to the Supreme Court. The oral application for grant of leave is therefore rejected.
17. In view of the rejection of the request for leave to appeal the request for stay cannot be granted.