Holding

The petitioner did not have a caveatable interest; therefore, the probate stands and the petition to revoke it under Section 263 is dismissed.

Summary

The petitioner, Elizabeth Antony, lodged a caveat to oppose the grant of probate of a will claimed to have been executed by the deceased Mary Aline Browne, alleging that the will was fictitious and that she had a caveatable interest arising from a trust, a gift deed and a later will of Zoe Enid Browne. The Subordinate Judge and the Madras High Court held that no original or copy of the alleged will, gift deed or trust deed had been filed and that the trust had ceased to exist, concluding that the petitioner had no existing benefit and therefore no caveatable interest. On special leave, the Supreme Court examined whether the findings on caveatable interest limited the petitioner’s right to invoke Section 263 of the Indian Succession Act to revoke the probate. The Court held that granting probate does not decide title disputes and can be revoked under Section 263, but the petitioner’s lack of a substantiated interest precludes her from invoking that provision. Consequently, the petition was dismissed, affirming the lower courts' orders.

Issues considered

Whether the petitioner possessed a caveatable interest in the estate sufficient to lodge a caveat under the Indian Succession Act.
Whether the findings of the lower courts on the absence of a caveatable interest affect the petitioner’s right to invoke Section 263 to revoke the probate.
Whether a probate granted while a special leave petition is pending can be reopened or set aside in the absence of proper citations to all interested parties.

Legislation cited

Indian Succession Act, 1925s. 227, s. 263, s. 283, s. 284, s. 285, s. 286, s. 288

Subjects

caveatprobatecaveatable interestIndian Succession Actrevocation of probateletters of administrationtrustwill

Judgment

ELIZABETH ANTONY
A v.
MICHEL CHARLES JOHN CHOWN LENGERA

APRIL 12, 1990

B [S. RAlNAVEL PANDIAN AND K. JAYACHANDRA
- .- . REDDY, JJ.)

Indian Succession Act, 1925: Sections. 227, 263, · 283-286 &
288: Will-Probate-:. Letters' of Administratiori-Caveat opposin~ pfo- -.""";
bate of the Will-Caveatable interest based on Will and Gift-Copies of
Gift Deed and Will not filed in the Probate Court-Held caveatable y
c interest not substantiated. - ··

Will-Probate Court-Findings regarding caveatable interest
effect - of-Findings are relevant only to the extent of granting of
probate-Does not deprive of right to invoke jurisdiction of probate
D court for revocation of probate-Granting a probate is not deciding the
- disputes to the title-A probate granted can be revoked for just Cause.

The respondent, claiming to be the beneficiary to the estate or
deceased 'M' under a will executed by her, filed an application in the
Sob Conrt for Letters or Administration. The petitioner lodged a caveat
E and opposed the probate or the will on the ground that the will pro-
pounded by the respondent was a fictitious one intended to disentitle _/
•z•, danghter of 'M', from claiming interest in the estate of her mother
'M'. The petitioner based her caveatable interest on the basis of mem-
a
bership of the Trust, gin-deed and a will executed by 'Z' which was
subsequently probated in her favour.
F
_ The Subordinate Judge struck off the petitioner's caveat on the
ground that she has no caveatable 'interest.

The- petitioner filed a ~ivil
Revision Petition in the High Court-\-
and a Single Judge of the High Court confirmed the order of the Subor-
.G dinate Judge •

In the special leave to this Court it was contended on behalf of the
petitioner that the courts below have erred (i) in holding that she has no
caveatable interest and in striking off her caveat; (ii) that Z's will in her
favour which was subsequently probated established her interest_ in the~-
H _estate '!n the date of entering the caveat.
,.. --- .486
•
•
MRS. ELIZABE1H v. MICHEL A.87

Dismissing the petition, this Court,

HELD: 1. By granting a probate the Court does not decide the
disputes to the title. A probate granted can be revoked under Section ·
263 of the Indian Succession Act, 1925. [492C]
B
I .1 In the instant case the findings regarding the caveatable
interest of the petitioner have a limited effect and are relevant only to
the extent of granting of probate. But thev cannot deprive her right to '-'
invoke section 263 of the Act. [492D]

2. The order of the Trial Court shows that admiUedly neither the
original nor a copy of the will said to have been executed by 'Z' was c
filed. Likewise the registered gill-deed· or a copy thereof was not filed. It
is also evident that the Trust has come to an end and the same was not in
existence. The Trial Court has considered both the documentary and
oral evidence in this regard and has rightly held that the petitioner has
no existing benefit from the trust. Accordingly, it cannot be held that
D
the petitioner has caveatable interest. [490F-G; 491 C]

3. In the instant case it is not known whether the citations were
issued to all the persons interested before the grant of the probate. The
probate was also granted when the special leave petition was pending in
this Court yet the respondent had no notice about this probate proceed·
ings. Under these circumstances it is not expedient to acknowledge this E
probate proceeding and re-open the matter. [491G-H]

Nabin Chandra Guha v. Nibaren Chandra Biswas and Ors.• AIR.
1932 Cal. 734; Gourishankar Chattoraj v. Smt. Satyabati Debi, AIR
1931 Cal. 470; Shanti Devi Aggarwa/a v. Kusum Kumari Sarkar &
Ors., AIR 1972 Orissa, 178 and Narayan Sah v. Sm/. Devaki, AIR 1978 F
Patna 220, referred to. ·

Y CIVIL APPELLAIB JURISDICTION: S.L.P. (Civil) No: 8896
of 1985. ·

From the Judgment and Order dated 18.12.1984 of the Madras G
High Court in Civil Revision Petition No. 5539 of 1983. · ·

WITH

C.M.P. No. 28592 of 1988.
H
488 SUPREME COURT REPORTS I1990] 2 S.C.R.

A R.F. Nariman, J.P. Pathak, M.B. Shivraj and P.H. Parekh for
the Petitioner.

T.S. Krishnamurthy Iyer and Mrs. S. Dikshit for the Respon- -'I
dent.

B The Judgment of the Court was delivered by

K. JAYACHANDRA REDDY, J. We have heard both the sides
and the matter is being disposed of at the admission stage.
'\
This petition is directed against the order of a learned Single ~

Judge of the Madras High Court confirming the order passed by the
c Subordinate Judge, Nilgiris. The matter arises under the Indian Sue-
cession _Act, 1925 ('Act' for short) and the facts that give rise to the
petition are as follows:

The testatrix Mary Aline Browne was the wife of Herbel Evan-
D der Browne who was the eldest son of one John Browne. The testatrix
had a daughter of the name of Zoe Enid Browne and she died on
8.10.1977. The respondent claiming to be the beneficiary to the estate
of Mary Aline Browne who died on 28.3.1972 under the terms of a will
said to have been executed by her on 12.3. 1962 filed an application for
letters of Administration with a copy of the will annexed in the Sub
E Court, Nilgiris. The same is numbered as O.S. No. 23 of 1980. Along-
_with the application the respondent also filed an affidavit of an attestor -...,/_
of the Will. In that proceeding, the petitioner and her deceased
husband lodged a caveat on the ground that the said Mary Aline
Browne did not execute any will and the will propounded by the
respondent was a fictitious and forged one, intended to disentitle Zoe
F Enid Browne, daughter of the testatrix from claiming interest in the •
estate of her mother. The petitioner also claimed that Zoe Enid
Browne executed a will dated 23.6.1975 in favour of the petitioner and
\.
that she also executed a gift-deed in her favour. The petitioner also
claimed that she was a trustee of John Browne Trust and that there-
fore, the petitioner has caveatable interest. Thus they opposed the
G probate of the will. Before the Sub-Court, several documents were
filed. The respondent herein contested the caveat stating that the
petitioner herein has no interest in the estate. The learned Subordi-
nate Judge held that the petitioner is not in any manner related either
to Mary Aline Browne or Zoe Enid Browne. The learned Single Judge ,
of the High Court in an elaborate order having considered the rival
H contentions dismissed the Civil Revision Petition holding that the
MRS. ELIZABE1H v. MICHEL (REDDY, J.( 489

petitioner cannot claim to be a person who has a caveatable interest in
the estate of the deceased testatrix Mary Aline Browne. We are told A
that the will has subsequently been probated and the letters of
Administration have been granted.

The learned counsel for the petitioner contended that both the B
courts below have erred in holding that the petitioner has no caveat-·
able interest. It is submitted that the petitioner is executor and legatee
.:/ of the will dated 23.6.1975 executed by Miss Zoe Enid Browne daugh-
ter of Mrs. Mary Aline Browne and that Miss Zoe has also executed a
'T registered gift-deed dated 29.3.1974 in respect of the second item ot the
, estate and that the petitioner was also appointed a trustee of John
Browne Trust on 11.6.1975 and therefore, in law the petitioner has an c
interest in the property which is the subject-matter of the will and thus
have caveatable interest.
·~
Under Section 283 of the Act, the District Judge or District
Delegate may, if he thinks proper, issue citations calling upon all D
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. Section 284 provides for lodging caveat against grant
of probate or administration. Section 285 lays down that no proceed-
ing shall be taken on a petition for probate or letters of administration
'~ after a caveat against the grant thereof has been entered until the E.
notice has been given to the caveator. Section 286 deals with the power
of a District Delegate and lays down that he shall not grant probate or
letters of administration in any case in which there is "contention" as
to the grant, or in which it otherwise appears to him that probate or
_) letters of administration, ought not to be granted in this Court. Under
Section 288 where there is contention or where the District Delegate F
thinks that probate or letters of administration should be refused, the
y documents shall be returned to the applicant. In the instant case the
Sub-Judge comes within the meaning of the District Delegate and the
necessary powers were conferred on him by a notification which is not
in dispute. According to the learned counsel the petitioner duly lodged
a caveat against the grant of probate and that both the courts below G
have not properly appreciated the effect of such a contention and erred
in striking off the petitioner's caveat.
.,.- In Nabin Chandra Guha v. Nibaran Chandra Biswas and Ors.,
AIR 1932 Calcutta 734, the Division Bench held that a person who has
a real interest in the estate which is or is likely to be prejudicially H
490 SUPREME COURT REPORTS [ 1990! 2 S.C.R.

affected or adversely affected by the will can oppose the grant of
A
probate or letters of administration. In Gourishankar Chattorajv. Smt.
Satyabati Debi, AIR 1931 Calcutta 470, it is held that the petitioner
therein who was related to the deceased through a common ancestor,
can be said to have interest in opposing the application for probate. In
Shanti Devi Aggarwal/av. Kusum Kumari Sarkar & Ors., AIR 1972
B Orissa 178, Justice Ranganath Misra, as he then was, held that the
. vendor legatee is entitled to enter caveat and the purchaser having
stepped into the shoes of vendor is also entitled to enter the caveat. In
Narayan Sah v. Smt. Davaki, AlR 1978 Patna 220, considering the
locus standi of a person to oppose grant, it is held that any interest,
however, slight and even a bare possibility of an interest is sufficient to
entiile a person to enter caveat in a probate proceeding.
c
Relying on these decisions the learned counsel urged that the
petitioner in the instant case has substantial interest in the estate. The
learned counsel for the respondent did not dispute the legal position.
He, however, contended that there was absolutely no material before
D the Courts below to substantiate the alleged interest of the petitioner
in the estate. It is submitted that the so-called will said to have been
executed· by Miss Zoe Enid Browne, daughter of Mrs. Mary Aline
Browne has not been filed. Likewise, the gift-deed also was not filed.
Coming to the trust of John Browne it is submitted that the trust does
not exist and got extinguished. The learned counsel for the respondent
E further submittea that except mentioning these three aspects in a bare
manner no other material was placed ·before the Court. Having
gone through both the orders we are mclined to agree with the learned
counsel for the respondent that the petitioner did not establish her
caveatable interest. We have perused the entire order of the trial court
in this context. Admittedly neither the original nor a copy of the will
F said to have been executed by Zoe Enid Browne, was filed. Now
coming to the trust, it is in the evidence of P. W. 1 that John Browne
·-
Trust has come to an end in March, 1972 and the same was not in \.r
existence. The trial court has considered both the documentary and
oral evidence in this regard and has rightly held that the petitioner has
no existing benefit from the trust. Likewise the registered gift-deed or
G a copy of it has not been filed. Before the learned Single Judge of the
High Court also same contentions were put forward. The learned
Judge observed that from the objections filed by the caveator she
desires the Court in the probate proceedings to uphold her title on the
strength of a gift-deed and the Trust deed. It is observed:

H "Equally, the petitioner has not placed before the Court
MRS. ELIZABETH v. MICHEL (RIIDDY, J.] 491

the will dated 23.6.1975 stated to have been executed by A
Zoe Enid Browne to establish that under the will dated
·12.3. 1962 stated to have been executed by Mary Aline
Browne some interest given to'the petitioner under the will
dated 23.6.1975 of Zoe Enid Browne, is liable to be in any
manner affected or otherwise displaced, by the grant of
letters of administration in respect of the will aated B
12.3.1962 stated to have beeo executed by Mary Aline
Browne."

Accordingly the learned Judge held that the pet1t1oner has not
established that she has a caveatable interest justifying her opposition
to the probate proceedings for grant of letters of administration. In c
this state of affairs, we are unable to agree with the learned counsel
that the petitioner has caveatable interest.
· ...£
Learned counsel, however, submitted that the will executed by
Zoe Enid Browne on 23.6.1975 in favour of the petitioner though not
filed but was subsequently probated in the year 1989 and the fact that D
probate is granted can be taken into consideration by this Court as a
subsequent happening, as the appeal before this Court, is only a
rehearing or the continuation of the matter. Reliance is placed on
Section 227 of the Act which reads thus:
\ ....
"Effect of Probate-Probate of a will when granted E
establishes the will from the death of the testator, and
renders valid all intermediate acts of the executor as such."

It is submitted that since the will executed by Zoe Enid Browne in
favour of the petitioner is probated it must be deemed that it was
existing since the death of the testatrix namely Miss. Zoe Enid Browne F
and that validates all intermediary acts. According to the learned
counsel, the effect of such a probate is that the petitioner's interest in
the estate gets established even on the date of entering caveat. We are
unable to see any force in this submission. The said probate, admit-
tedly, took place in a court in the Madras City. We do not know
whether the citations were issued to all the persons interested. This G
probate also admittedly was granted when the special leave petition
was pending in this Court yet the respondent had no notice about this
probate proceeding. Under these circumstances, exercising our juris-
diction under Article 136 we do not see that it is expedient to ack-
nowledge this probate proceeding and re-open the matter.
H
492 SUPREME COURT REPORTS [1990] 2 S.C.R. l
A Lastly an attempt was made to show that the Sub-Court has no
jurisdiction but we find that there a necessary notification issued by
the High Court conferring powers on the Sub Court. We see no force
in any one of these submissions. '
The learned counsel, however, lastly submitted that the peti-
B
tioner inspite of having substantial interest in the estate is losing her
right, to prove that the alleged will by Miss Zoe Enid Browne is not a
genuine one and that it is a fictitious one. We must point out that by
granting a probate, the court is not deciding the disputes to the title.
Even with regard to a probate granted, it can be revoked as provided
under Section 263 of the Act in any one of the cases mentioned
c therein. But the learned counsel for the petitioner submits that the
findings of the Sub Court and the High Court regarding the caveatable'
interest will come in the petitioner's way in seeking revocation of the
grant of probate. It is needless to say that the findings regarding the
caveatable interest of the petitioner have a limited effect and are rele-
vant only to the extent of granting of probate. But they cannot deprive
D his right, if he has any, to invoke Section ·263 of the Act and it is upto
the petitioner to satisfy the Court.

With these observations, the special leave petition is dismissed.

T.N.A. Petition dismissed.