Das, J.@mdashThis is an appeal by one Paresh Chandra Das claiming to be the executor of a will alleged to have been executed by one Asita Bala Dasi and is directed against a decision of Mr. Bikash Chandra Ghosh, learned Subordinate Judge, seventh additional court, district 24-Parganas, dated September 22, 1951.
2. The will is purported to have been executed by Asita Bala on July 17, 1949, whereby she bequeathed her estate in favour of one Gopal Chandra Das, a son of Paresh Chandra Das. By that will she appointed Paresh Chandra Das as the executor. The will recites that Asita Bala was a widow of Haricharan Das and was a Baisnav by caste. On September 8, 1949, Asita Bala died. On January 16, 1950, Paresh Chandra Das filed an application for the grant of probate of the aforesaid will of Asita Bala. An objection was raised by one Bidhu Bhusan Banerjee who claimed to be an executor appointed under the last will of Haricharan Das, the legatees under that will being his sons Atul and Abani. It was alleged in the objection petition that a probate of the said will had been granted on August 10, 1939, and revocation proceedings had been pending at the instance of Asita Bala. The will, probate whereof was claimed, was said to be a forgery. On these objections the learned judge framed certain issues. One of the issues raised concerned the locus standi of the objector. Another issue that was raised related to the genuineness of the will. The learned Subordinate Judge was of the opinion that the objector had locus standi to contest the grant. He was also of the opinion that the will was not a genuine one. In this view he refused to grant a probate of the will of Asita Bala. Against this decision the propounder Paresh Chandra Das has appealed to this Court.
3. Mr. Dutt, learned advocate on his behalf, has urged that the objector Bidhu Bhusan had no locus standi to contest the grant of probate.
4. The question, therefore, is whether Bidhu Bhusan had locus standi to appear and contest the proceedings for the grant of probate. It is not disputed that the objector can come in and object to the grant provided he has an interest in the estate of the deceased. The relevant provision in the Indian Succession Act bearing on this point is to be found in Section 283(2)(c) of the Act. Section 283(1)(c) of the Indian Succession Act which correspondent Section 242 of the Succession Act (Act X of 1865) and Section 69 of the Probate and Administration Act (Act V of 1881) states that 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 an interest in the estate of the deceased to come and see the proceedings for the grant of probate of Letters of Administration. In other words, citations may be issued on persons who have an interest in the estate of the deceased. If the objector has an interest in the estate of the deceased, he has a right to come in and object to the grant of probate. The controversy which has arisen in this case concerns the meaning of the expression "an interest in the estate of the deceased". The learned Subordinate Judge was of the opinion that such an interest need not be derived through the testator, but may be an interest in the property which forms the subject of the grant of probate. The learned Subordinate Judge further opined that if a person has a right to sue for possession of the property which is the subject-matter of the grant, he has a right to object to the grant. Before I refer to the cases which may lend some colour to the view of the learned Subordinate Judge, it is necessary to find out the precise meaning of the expression "interest in the estate of the deceased". In order to ascertain the meaning of the expression one must bear in mind the well-known rule that it is not the practice of the court in its testamentary or intestate jurisdiction to go into the question of title in an application for the grant of probate. The court will not frame an issue or tike any evidence in order to determine who is entitled to the property which is the subject-matter of the devise (see the case of in The Goods of Saraswati Gala Devi, Nishi Kanta Chatterjee v. Ashutosh Mukherjee (1912) 17 C.W.N. 613). The effect of a grant of probate or Letters of Administration is to confer on the executor or the administrator, as the case may be, a right to represent the title of the person in respect of whose estate the grant is made. The right that is derived from the grant is a right to represent the estate of the deceased testator in case of grant of probate. It is not the function of (the court of probate to embark upon an enquiry when a title adverse to the testator is set up. If the expression "interest in the estate of the "deceased" included a case where the caveator lays a claim adversely to the testator, then in case this claim is contested, the court of probate would have to determine the question of adverse title but on the principle referred to above the court could not go into this question. It, therefore, follows that when the legislature used the expression "interest in the estate of the "deceased" the legislature meant to include persons who do not dispute the title of the deceased but claimed to have some interest in the estate left by the deceased. Therefore, a plain reading of Section 283(1)(c) of the Indian Succession Act inches me to the view that a person who claims adversely to the testator has no locus standi to come and see the proceedings for the grant of probate.
5. It has, however, been contended that a contrary view has been taken in some cases. Our attention was drawn to the case of Nobeen Chandra Sil v. Bhobosoondari Dabee ILR (1880) 6 Cal. 460, where Field, J., one of the Judges composing the Bench which decided that case, observed:
The test to determine what constitutes sufficient interest is to see whether the person is 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 (Act X of 1865).
6. This view was, however, not concurred by White, J. The facts of that case, were these: One Nobo Coomar Ganguly he made a will appointing Bhobosoondari as the executor. An objection was raised to the grant of probate by an attaching decree-holder of one of the sons of the testator and by a mortgagee from two of the sons of the testator. The objectors in that case were, therefore, persons who were claiming an interest in the estate of the deceased testator either as an attaching creditor or as a mortgagee of the legal heirs of the testator. The claim that was put forward by the objectors was not a claim adverse to the title of the testator. The decision, therefore, was fully justified even if the view which I have propounded above is taken. In fact, White, J., proceeded on this basis.
7. This decision was followed by a Bench of this Court of which Field, J., was a member in the case of Kamona Soondary Dassee v. Hurro Lall Shaha ILR (1882) 8 Cal. 570.
8. The view taken by Field, J., was dissented from in the case of Abhiram Dass v. Gopal Dass ILR (1889) 17 Cal. 48. In that case the caveator claimed the property, the subject of the grant, not through the testator but on his own account. A Bench of this Court was of the opinion that he was not entitled to file a caveat. It was observed that the expression "persons claiming to have an "interest in the estate of the deceased" does not necessarily refer to any particular property but to the claim of any person to succeed by inheritance or otherwise to any portion of the estate of the deceased by reason of an interest and not on an adverse title to the testator to any particular property but to the estate itself whatever that may consist of. This decision, therefore, took the view that the person who may come in and object must claim an interest in the estate of the deceased through the latter and not on any title adverse to the testator. in a later case, namely, in the case of Syama Charon. Baisya v. Prafulla Sundari Gupta (1915) 19 C.W.N. 882, where the caveator was a reversionary to the estate of the deceased testator, this Court held that the reversionary has a substantial interest because he is interested in the protection and devolution of the estate of the testator. In a still later decision in the case of Nalinchandra Guha v. Nibaranchandra Biswas ILR (1932) 59 Cal. (Sic), the test that was propounded was that the caveator must have a real interest which is or is likely to be prejudicially or adversely affected by the will. In other words, if the will is probated, the effect of the grant may prejudicially affect the person claiming to file a caveat.
9. Mr. Dutt referred us to a recent decision of the Patna Court in the case of R.S. Sinha v. Miss. Salena Hector ILR (1940) 20 Pat 75. In that case Miss, Salena Hector, creditor of the deceased testator, filed a caveat on the ground that she was a person who had an interest in the estate of the deceased within Section 283(1)(c) of the Indian Succession Act. The Bench was of the opinion that the creditor had a right to come and oppose the grant. In support of this view reliance was placed on an earlier decision of the English Court in the case of Munzies v. Pulbrook and Ker (1841) 2 Court 848 (sic). In the course of the judgment Harries, C.J., cited with approval the view taken in the case of Abhiram Doss v. Gopal Dass Supra.. Fazl Ali, J''., however, was inclined to the view taken by Field, J., in the case of Nobeen Chandra Sil v. Bhabosoondari Dabee Supra. In the case of Jamuni Hanumantha Rao v. Aratla Latchamma I. L. R. (1926) 49 Mad. 960 a caveat had been filed by the widow of an undivided brother of the husband of the testatrix. A question arose whether the widow had an interest in the estate of the deceased. The Bench was of the opinion that the widow was to interested and in support of the view the Bench relied on the decision of Field, J., in the case of Nobeen Chandra Sil v. Bhabosoondari Dabee Supra. The view in the decision last cited was disapproved in a later Bench decision of the same Court in the case of Komalangi Ammal v. M.K. Sowbhagiammal (19 (Sic). Cornish, J., was of the opinion that the interest which entitles a person to lodge a caveat 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. I respectfully agree withy the test proposed by the learned Judge. As I have already observed, it is of fundamental importance that the person who comes in to object to the grant must do so on the footing that the grant of probate would be in respect of the estate of the deceased, that is to say, the estate which is sought to be devised by the will, probate whereof had been prayed for. In the present case, the objector claims to be an executor under the last will of the husband of the testatrix. The objector disputes in the objection petition the title of the testatrix to the property which is the subject matter of the present application for the grant of probate. Such a person who disputes the title of the testatrix can have no right to object to the grant. If the grant is made, on his own showing the caveator will not be affected, the caveator claiming an adverse or a paramount title. Our attention was drawn to the case of Haripada Saha v. Ghanasyam Saha (1945) 49 C.W.N. 713 in support of the view that even the possibility of an interest is sufficient to entitle a person to file an objection to the grant of probate. In the facts of that case, however, the person who lodged an objection was also a remote heir to the estate of the deceased testator. The decision in that case, therefore, has to be read in the light of the facts of that case. That case never intended to lay down a general proposition that a person who has any interest, even if adverse to the estate of the testator, would have a right to file a caveat.
10. It was also urged that as the genuineness of the will has been challenged and as ostensibly the testator has no title, the court should allow the objector to come in and object in order that no fraud may be perpetrated on the court. In support of this submission reference was made to the case of Dinabandhu Roy Brajaraj Saha (Firm) v. Sarala Sundari Dassa (1939) 44 C.W.N. 149. In that case, however, the caveator was a creditor to the estate of the deceased. The objection was that the will had been executed with a view to defraud the creditors of the deceased testator Mitter, J., was of the opinion that ordinarily a creditor had no right to come in and intervene but where the will was in fraud of creditors, a creditor had sufficient interest to file a caveat. In that case, however, the creditor did not dispute the title of the testator to make the will in respect of which a grant had been applied for. That case is no authority for the general proposition contended for on behalf of the Respondent that where the will was a forgery and prima facie the testator had no title, the court should allow a person having an adverse title to come and object to the grant. It may be pointed out that the view taken by this Court in the aforesaid case has been affirmed by the Privy Council in the case of Sarala Sundar Dassya v. Dinabandhu Roy Brajaraj Saha (Firm) (1943) 48 C.W.N. 273 (P. C.). In the view of opinion, the preponderance of authority is in (Sic) that a person who files a caveat and asserts that he baa locus standi but claims title adverse to the testator is not entitled to come u/s 283(1)(o) of the Indian Succession Act and that such a person cannot file a caveat. The learned Subordinate Judge was, therefore, not right in his view that the objector had locus standi.
11. It was further contended, relying on a passage in, the judgment of the learned Subordinate Judge, that the learned Subordinate Judge had previously decided the issue as to locus standi and that the present appeal, in so far as it concerned the focus standi of the objector, is not maintainable. It was submitted that the preliminary judgment of the learned Subordinate Judge holding that the objector has locus standi was an appealable order under the provisions of Section 299 of the Indian Succession Act. Our attention was not drawn to any such preliminary order of the learned Subordinate Judge. There therefore, no basis for the submission made. But apart from this, in my opinion, the preliminary order holding that a person locus standi is not appealable at that stage; (see the case of Lakhi Narain Shaw v. Multan Chand Daga (1912) 16 C.W.N. 1009). The mere use the words "every order made by District Judge by virtue "of the powers hereby conferred on him" occurring in Section 299 of the Act does not mean that an appeal lies from every interlocutory order made in the course of the proceedings. It is only a final order under the provisions of the Indian Succession Act which is appealable u/s 299 of the Act. Moreover, in this case the final judgment which has been appealed from deals specifically with the issue as to locus standi. In this view, there is no force in the contention raised on behalf of the Respondent that the Appellant is not entitled to raise this objection in this appeal at this stage.
12. It was also contended that because Asita Bala had filed proceedings for revocation of the grant of probate of the will of Haricharan, the executor appointed under the will of Haricharan Das has some interest to come in and object to the grant of probate of the will of Asita Bala. In my opinion, this judgment proceeds on a misconception. In the present case, we concerned with the locus standi of the objector "Bidhu Bhusan (Sic) the executor appointed under the will of Haricharan (Sic) the reasons I have already given, as the objector claims an adverse title, he has no such locus standi. The question whether Asita Bala was or was not competent to apply for revocation of the grant of probate to Bidhu Bhusan Banerjee is not relevant in the present context. There is no force, there-fore, in the contention so raised on behalf of the respondent
13. The (Sic) order made by the learned Subordinate. (Sic) Asita Bala should not be admitted to (Sic) be maintained or not. I have already held that the objector had no locus standi to participate in the proceedings for the grant of probate. The proceedings which were had before the learned Subordinate Judge were, therefore, irregular inasmuch as the objector who had no locus standi had participated in the proceedings.
14. The decision arrived at by the learned Subordinate Judge must, therefore, be set aside. In my opinion, the proper order to pass is to discharge the caveat and to direct that the will be proved in common form before the proper court. If, however, an objection is raised by a person who has locus standi to contest the grant, the proceedings would then be treated as contested proceedings and would be heard in due course of law.
15. The appeal, therefore, succeeds and the matter is remitted to the court below to be dealt with in accordance with the observations made above. As the appeal has succeeded, the Appellant is entitled to the costs of this appeal, hearing fee being assessed at three gold mohurs.
Debabrata Mookerjee, J.
16. I agree.
