Venkatapathyd Krishna Murti vs V. Srinivasan And V. Srinivasan
2004 Latest Caselaw 112 Bom

JUDGMENT

S.J. Vazifdar, J.

1. The Notice of Notion is taken out by the plaintiff/petitioner to have the caveat filed by the defendant dismissed and to process the above petition as if it is uncontested.

2. The plaintiff filed the above petition for grant of letters of administration with the Will and Testament of his brother one Venkatapathy Ramnath (hereinafter "the deceased") annexed. The defendant is the son of one V. V. Ramnath a predeceased brother of the deceased.

3. The petitioner's case is that the deceased died on 20th June, 2001 leaving behind his last Will and Testament dated 28th June, 2000. No executors having been named in the Will, the plaintiff filed the petition pursuant to Section 232 of The Indian Succession Act, 1925. Under Section 232, when a deceased has made a Will, but has not appointed an executor, a universal or residuary legatee may be admitted to prove the Will and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered.

4. As stated earlier the plaintiff is the brother of the deceased. The defendant/Caveator, is the son of one V. V. Ramnath, who was the predeceased brother of the deceased. Thus V. V. Ramnath was not alive on the date of the death of the deceased.

5. Section 9 of The Hindu Succession Act, 1956 reads as under :--

"Order of succession among heirs in the Schedule, -- Among the heirs specified in the schedule, those in Class I shall take simultaneously and to the exclusion of all other heirs; those in the first entry in Class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession".

Admittedly there are no Class I heirs. Class II of the Schedule insofar as it is relevant; reads as under:--

I. .....................

II.         (1) ...., (2) ...., (3) brother,  (4) ....
 

III.        .....................
 

IV.       (1) Brother's son (2) ............ (3) ......... (4) ...............
 

V.         .....................
 

VI.       .....................
 

VII.      .....................
 

VIII.     ..................... 
 

6. Mr. Engineer, the learned counsel appearing on behalf of the plaintiff, submitted that in view of these uncontroverted facts, the defendant has no interest in the estate of the deceased and consequently no locus-standi to file the present caveat. The submission is well founded.

7. The plaintiff and the defendant fall under entries II and IV respectively of Class II of the Schedule to the Hindu Succession Act, 1956. In view of Section 9 of the Act, the plaintiff would succeed to the estate of the deceased in priority to the defendant on intestacy. Even assuming therefore that the Will is set-aside, the defendant would have no interest whatever in the estate of the deceased.

8. In support of his submission, Mr. Engineer relied upon the judgment of D. R. Dhanuka, J., (as he then was) in the case of - Jayshree Raghuvir Balgi v. Gokuldas Sheshgiri Prabhu, 1993 Mh.L.J. 746. In that case, the deceased died on 30th June, 1983 leaving behind his widow and two daughters. They therefore, were Class I heirs. One of the daughters filed a petition for probate in respect of the Will left by the deceased. The nephew of the deceased filed a caveat.

It was inter alia held that even if the deceased had died intestate, his estate would have been inherited by the plaintiffs therein and not by the defendant. It was thus held in Paragraph 5 : "In this case, the nephew of the deceased has filed the caveat although he is not the heir in any sense of the term".

9. Relying upon an earlier judgment of this Court, it was further held that the caveator cannot claim adversely to the testator and seek resolution of a title dispute by a Probate Court. In this view of the matter, the learned Judge held as under:--

"6. On the averments made in the affidavit in support of the caveat, I have reached the conclusion that the Caveator in this case is not entitled to challenge the Will. Since the Caveator has no locus standi to challenge the Will, the merits of controversy raised by the Caveator are irrelevant......"

10. The judgment is binding on me. In any event, I am in respectful agreement with the judgment. Mr. Choudhari, the learned counsel appearing on behalf of the defendant sought to distinguish the judgment on the ground that the plaintiffs there were Class I heirs whereas the plaintiff in this case is a Class II heir. The submission is not well founded. The ratio is not restricted to cases where the plaintiff is a Class I heir. There is nothing in the judgment that even remotely supports this view. If the plaintiff establishes that the defendant has no interest in the estate of the deceased and would have no interest therein even if he were to succeed in establishing the facts pleaded, it would follow that the defendant has no locus-standi to file a caveat.

11. Mr. Choudhari submitted that the fact that the citation was served on the defendant ipso-facto recognized in him an interest in the estate of the deceased entitling him to file a caveat. Mr. Choudhari relied upon the citation to support this submission. This submission is not well founded either.

12. The fallacy of Mr. Choudhary's submission lies in presuming that the service of a citation on a person predicates an interest in him in the estate of the deceased. The citation issued by this Court in its Testamentary and Intestate Jurisdiction reads thus :--

"If you claim to have any interest in the estate of the abovenamed deceased you are hereby cited to come and sue the proceedings before the grant of Probate/Letters of Administration with the Will annexed."

A person may acquire an interest in the estate of a deceased as a beneficiary under a Will or, in the absence of a Will, as an heir by operation of the law of intestate succession. I am not concerned here with the case of a creditor. The citation itself permits the person cited to file a caveat "If you claim to have any interest". A mere "claim" by any person to an interest does not create in him an interest, if otherwise he has none. The term "interest" connotes a right in the estate. In other words if a person has no right of any nature whatever in the estate can he be said to have an interest therein. I think not. I repeatedly asked

Mr. Choudhari to indicate whether the defendant would have a right of any nature in the estate even if the Will is set aside. I did not hear him to say he had any. It follows therefore that the defendant has no locus-standi to file the caveat.

13. A view to the contrary in a case such as this would lead to an unnecessary, if not, futile course of litigation. The defendant has no interest in the estate in view of a Will under which he is not a beneficiary. If the Will is established the plaintiff succeeds to the estate. Even if the Will is set aside the plaintiff and not the defendant inherits the estate anyway. What then is the purpose of such a litigation. None. The entire proceedings would be a mere, to put it mildly, academic exercise, an exercise in futility.

14. In Jayashree's case a similar argument was rejected. It was held :--

"5. The learned Counsel for the Caveator has relied upon the judgment of High Court of Orissa in the case of Rao and Sons v. Chandramoni Dei, AIR 1971 Orissa 95, in support of his contention that the Caveator had the necessary locus standi since general citation was issued in this case. The learned Counsel has, in terms, referred to para 14 of the said judgment. I have read para 14 of the said judgment again and again and, I find that the ratio of the said judgment does not support the case of the caveator. The relevant portion of para 14 of the said judgment reads as under:

"But when a general citation is issued under the law, persons having an interest in the estate of the deceased might come forward to enter caveat."

In that case it was further observed that the creditors of the heirs at law may come under the latter category and may have locus standi to file caveats. In this case; the nephew of the deceased has filed the caveat although he is not the heir in any sense of the term. The caveator claims adversely to the testator and raises title dispute which cannot be adjudicated by the Probate Courts."

15. It must, therefore, be held that the mere issuance of a citation to a person neither creates an interest in nor predicates the existence of any interest in him in the estate of a deceased. In fact the right to file a caveat predicates the existence in the caveator of an interest in the estate of the deceased. In other words, the existence of an interest in the estate of the deceased is a sine qua non to the right of a person to file a caveat. This interest must be in the nature of a valid right; in or to the estate of the deceased, either existing or which may arise if the caveator succeeds in his challenge to the grant of the probate or letters of administration.

16. Mr. Choudhari, did not contend that the Notice of Motion was not maintainable. That a Notice of Motion to have the caveat dismissed is maintainable even after the petition is numbered as a suit is clear from the judgment in Jayshree's case as well as from another judgment of this Court in the case of - Eruch Rustom Irani v. Limji Kaikashroo Panday, .

17. Mr. Engineer contended that the caveat ought also to be dismissed on the ground that it was filed beyond the period prescribed under Rules 401 and 402 of the Original Side High Court Rules. Mr. Choudhari, however, submitted that the citation was not properly served on him and therefore the caveat and the affidavit in support thereof were not filed beyond the period prescribed by Rules 401 and 402 of the Original Side High Court Rules. Considering the view that I have taken earlier, I do not think it necessary to decide this issue.

18. The Notice of Motion is made absolute in terms of prayers (a) and (b). The Prothonotary and Senior Master is directed to proceed further with the petition on the footing that it is uncontested, expeditiously granting the probate on the petitioner complying with all office requisitions including as to Court fees.

The defendant shall pay costs to the petitioner fixed at Rs. 2,500/-.

19. This order shall not affect any disputes regarding the title to any properties between parties.

20. At the request of the learned counsel for the defendant, this order shall remain stayed for a period of four weeks from today.

21. The Notice of Motion is disposed of accordingly.

All parties including the Prothonotary and Senior Master are requested to act on an ordinary copy of this order duly authenticated by the Associate/Court Stenographer of this Court.