Dipankar Datta, J.@mdashSmt. Rajlaxmi Devi before her death had executed a will. She had bequeath all her immovable properties in favour of
the two Petitioners, her close relatives. One Sri Nirmal Kumar Chattaraj was appointed as executor. The will was duly registered. The executor
died on December 15, 1986 before he could apply for grant of probate. The Petitioners being the beneficiaries of the said will applied for grant of
letters of administration, giving rise to Misc. Case No. 87/2001 which is pending consideration before the learned Civil Judge, Lalbagh,
Murshidabad. In the said Misc. Case, the Petitioners impleaded the opposite parties 1 and 2 as well as opposite parties 4 and 5 as Respondents.
After service of process, they have entered appearance but have not filed their respective objections to the application for grant of letters of
administration.
2. On or about February 17, 2003, the opposite party No. 3 filed an application for addition of party under Order I Rule 10(2) of the CPC
(hereafter the Code) read with Section 151 thereof praying for his impleadment as Respondent in the said misc. case. It was alleged therein that he
had acquired some interest in the estate of the testatrix by way of purchase from the opposite party No. 2 and one Sri Aditya Kumar Chattaraj
and, therefore, he ought to be heard before the Court grants relief as prayed for, if at all. According to him, the contents of the will were not
explained to the testatrix and without understanding the same, she had been compelled to execute it in the presence of the attesting witnesses. It
was further averred in the application for addition that the opposite party No. 3 has filed a suit for declaration and permanent injunction before the
learned Civil Judge (Junior Division) at Lalbagh, Murshidabad against, inter alia, the Petitioner No. 1 herein as principal Defendant and the State of
West Bengal being the proforma Defendant and that the Petitioner No. 1 being the Defendant No. 1 in the said suit is contesting the same by filing
his written statement.
3. The learned Judge upon hearing the parties, vide order No. 15 dated July 2, 2005, allowed the application for addition based on his opinion that
the opposite party No. 3 had substantial interest in the property that was the subject of the said misc. case by dint of purchase. Relying on the
decision of the Supreme Court reported in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar, , the learned Judge
was further of the view that opposite party No. 3 is a proper party and if he is not allowed to be impleaded, his interest is likely to be affected by
the result of the said misc. case.
4. This order is under challenge in this revisional application under Article 227 of the Constitution of India.
5. Mr. Banerjee, learned advocate appearing for the Petitioners contended that the suit instituted by the opposite party No. 3 is admittedly pending
where he sought for declaration and injunction in respect of the property allegedly purchased by him and the trial Court, upon consideration of the
rival claims, would be in a position to decide the claim regarding his title. It was further contended that having regard to the settled law that while
deciding whether probate or letters of administration is to be granted or not the Court examines the testamentary capacity of the testator and does
not decide the question of title, the opposite party No. 3, who is a stranger to the proceedings of the misc. case, cannot have any caveat able right.
According to him, the opposite party No. 3 was neither a necessary nor a proper party who could have set up a valid claim for his impleadment as
Respondent in the said misc. case. In any event, having regard to the fact that the suit for declaration filed by him is pending where the contentious
issue raised by the parties relating to title could be thrashed out, the Court ought not to have allowed the application for addition and erred in doing
so.
6. In support of his contention, he relied on the decisions of the Supreme Court reported in Sunil Gupta Vs. Kiran Girhotra and Others, Ghulam
Qadir Vs. Special Tribunal and Others, and the decision of this Court reported in 2000 (1) CLJ 640 (Sri Dinendra Kumar Bose v. Sri Tapan
Kumar Bose).
7. Mr. Roy, learned advocate representing the opposite party 3, on the contrary, supported the impugned order. He contended that long before
the application for grant of letters of administration was filed in 2001, the property in question was transferred in his favour in 1992 and he has a
substantial interest in the matter. Reliance was placed by Mr. Roy on the decision of the Supreme Court reported in G. Gopal Vs. C. Baskar and
Others, wherein it was ruled that a person having even a slight interest in the estate of the testator is entitled to file caveat and contest grant of
probate. Reliance was also placed by Mr. Roy on the Bench decisions of this Court reported in Nabin Chandra Guha Vs. Nibaran Chandra
Biswas and Others, Haripada Saha and Another Vs. Ghanasyam Saha and Another and 1983 (1) CLJ 169 (Saral Patwar v. Smt. Sushila Dassi).
He, accordingly, prayed for dismissal of the revisional application.
8. In reply, Mr. Banerjee contended that the opposite party No. 3 had taken the risk of purchasing the property without conducting proper search
and considering the fact that the will executed by the testatrix is a registered document, it must be held that the risk taken by him was a calculated
one and he is to suffer consequences arising there from.
9. I have heard learned advocates for the parties and considered the materials on record.
10. Before I proceed to decide the only issue that arises for a decision on the application as to whether the learned Judge was justified in allowing
the application for addition filed by the opposite party No. 3, thereby permitting him to contest the said misc. case, it would be proper to make a
survey of the decisions of the Supreme Court in relation to ''caveatable interest'' and under what circumstances a non-party could be allowed to
intervene in a proceeding for grant of probate or letters of administration.
11. In G. Gopal (supra), the learned Judges of the Supreme Court were of the view that the Respondents, who were grand children of the testator
claiming interest in his estate on the basis of a settlement deed executed by the testator himself which admittedly was revoked later on, had caveat
able interest in the estate of the testator and, therefore, were entitled to notice before the final order is passed. Their Lordships opined that ""(I)t is
well-settled that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the
will of the testator"".
12. Prior to the decision in G. Gopal (supra), another bench of two learned Judges of the Supreme Court in its decision reported in Krishna
Kumar Birla Vs. Rajendra Singh Lodha and Others, ) had the occasion to observe that a caveat able interest is an interest in the estate of the
deceased testator which may be affected by grant of probate of the will of the deceased. The test required to be applied is: Does the claim of grant
of probate prejudice the right of the caveator because it defeats some other line of succession in terms whereof the caveator asserted his right? It
was further held that what would be the caveat able interest would depend upon the fact situation obtaining in each case and no hard-and-fast rule,
as such, could be laid down. In paragraph 109 of the decision, Their Lordships held:
It is in that backdrop the question which is required to be posed is: Did the Calcutta High Court or the other High Court opine that even a
busybody or an interloper having no legitimate concern in the outcome of the probate proceedings would be entitled to lodge a caveat and oppose
the probate? The answer thereto, in our opinion, must be rendered in the negative. If anybody and everybody including a busybody or an
interloper is found to be entitled to enter a caveat and oppose grant of a probate, then Sections 283(1)(c) and 284 of the 1925 Act would have
been differently worded. Such an interpretation would lead to an anomalous situation. It is, therefore, no possible for us to accede to the
submission of the learned Counsel that caveat able interest should be construed very widely.
13. These decisions were considered by another bench of two learned Judges of the Supreme Court. In its decision reported in Shri Jagjit Singh
and Others Vs. Mrs. Pamela Manmohan Singh, , the learned Judges were of the view that conflicting views had apparently been expressed by
coordinate benches on the interpretation of the expression ""caveat able interest"". The learned Judges felt that the issue deserves to be considered
and decided by a larger bench and, accordingly, directed the registry to place the matter before the Hon''ble the Chief Justice for appropriate
order.
14. Having regard to the aforesaid decision in Jagjit Singh (supra), it can safely be concluded that there is no declaration of law on the point that
could be regarded as binding on me as precedent under Article 141 of the Constitution and it would be unsafe to proceed acknowledging the
pronouncement in either Krishna Kumar Birla (supra) or G. Gopal (supra) as the settled law. It would, however, not preclude me to decide the
issue raised herein based on the ratio decidendi of the other decisions that have been cited by the parties.
15. Heavy reliance was placed by Mr. Banerjee on the decision in Sunil Gupta (supra). I am afraid, the ratio of the decision is not applicable here.
There, the agreement for sale followed by the deed of sale was executed at a point of time when the probate proceedings were pending. This
would be evident from a bare reading of paragraph 17. Here, the alleged transfer of property by way of sale occurred nearly nine years before
institution of the said misc. case. Although it is true that the will executed by the testatrix is a registered document, the purchase does not seem to
be hit by the doctrine of lis pendens which was the case in Sunil Gupta (supra).
16. In Ghulam Quader (supra), the Supreme Court reiterated the law that grant of probate conclusively establishes valid execution of the will and
appointment of the executor but does not establish more than the factum of the will as the probate Court does not decide question of title or of the
existence of the property mentioned therein.
17. The Bench in Sri Dinendra Kumar Bose (supra) was considering two questions, viz. whether in proceedings for grant of probate it is open to
the trial Judge to go into the question of title of the testatrix and did the testatrix in the case at hand have the title to the property in question. The
first question was answered in the negative. Answer to the second question is not relevant for a decision on this application.
18. The Bench decisions cited by Mr. Roy, on the other hand, are now taken up for consideration.
19. In Nabin Chandra Guha (supra), the Bench noted that the words in Section 283 of the Indian Succession Act, 1925 that ""all persons claiming
to have any interest in the estate of the deceased"" have from time to time been explained by judicial decisions. Applying the law laid down in
various decisions, it was held by the Bench that a purchaser from an heir after the death of the testator has a locus stand; and to have it is not
necessary for the objector to show that he had an interest in the estate at the time of the testator''s death.
20. While holding that the trial Court was not justified in refusing the Petitioners an opportunity to contest the probate proceedings, the Bench in
Haripada Saha (supra) ruled that ""(I)t is well-settled that any interest, however, slight, and even the bare possibility of an interest is sufficient to
entitle a person to enter caveat in a probate proceeding"".
21. In Saral Patwar (supra), the Bench clearly laid down the law, on interpretation of Section 283(1) of the Act, that the expression ""claiming to
have any interest in the estate of the deceased"" appearing therein is wide enough to include persons having possibility of an interest and in case his
interest is such as is or is likely to have prejudicially or adversely affected by the grant, a person would be qualified to receive citation.
22. Notwithstanding the fact that a larger Bench of the Supreme Court might be in season of the issue that has been referred to it by the learned
Judges in Jagjit Singh (supra), nothing precludes me to decide this application being guided by the Bench decisions of this Court, which are binding
on me. Although in Krishna Kumar Birla (supra) it was held that the view expressed in Nabin Chandra Guha (supra) is not entirely correct, the
other two Bench decisions referred to above interpreting Section 283 of the Act in wide terms went unnoticed and, therefore, there could be no
impediment to apply the law laid down therein particularly when the propositions of law in paragraph 86 of the said decision stand substantially
diluted by the observations in paragraph 103 thereof.
23. In the present case, it is found that the opposite party No. 3 has questioned the will itself in his application for addition. Whatever be the worth
of the allegations made by him, it cannot be said that he has absolutely no interest in the estate of the deceased. From the materials on record it
could not be ascertained as to whether the vendors from whom the opposite party No. 3 allegedly purchased the property would have inherited
the properties left behind by the testatrix as if she died intestate. The property allegedly was disposed of in favour of the opposite party No. 3
nearly 9 years prior to institution of the said misc. case and the purchase that he has made stands the risk of being affected if the terms of the will
were to be made effective. I am of the considered view that the opposite party No. 3 does have the locus stand to object and in directing
impleadment of the opposite party No. 3 as Respondent in the said misc. case, the learned Judge has not acted beyond the bounds of his authority
or has not passed a perverse order or has not acted in flagrant violation of the fundamental principles of law and justice so as to warrant
interference in exercise of power conferred by Article 227 of the Constitution of India.
24. I find no merit in the application. The same stands dismissed, without costs.
