Sachchidanand Jha, J.
1. This order will dispose of the caveat filed by Smt. Manorama Devi objecting to grant of probate of the Will of late Rajo Singh. The applicant has challenged the locus standi of the caveator. The relevant
facts are as follows:
Rajo Singh died issueless leaving behind a widow Smt. Gaytri Devi on June 5, 1974. Ramautar Singh alias Ganesh Shanker who claims to be his nephew filed the application for grant of probate of the Will said to have been executed by Rajo Singh on May 19, 1972. Notice of the application was issued to Gaytri Devi. A general citation was also published in the newspaper. On April 9, 1991 Gayatri Devi appeared and filed two petitions, one for transfer of the case to the District Judge, Gaya and the other, to dismiss the application for probate. By orders passed on December 13, 1991 and March 27, 1992 respectively, the petitions were rejected with an observation that she may file caveat in accordance with law. It may be stated here that the said two petitions had been verified and affidavited by Smt. Manorama Devi describing herself as Bhabhi (brother's wife) of Gayatri Devi. Thereafter two witnesses were examined and discharged on July 10 and July 31, 1992. Gayatri Devi filed caveat on May 25, 1993. The said caveat was affidavited by one Dwarika Singh. The office pointed out certain defects. An affidavit was later filed on November 9, 1993 stating that the petition dated May 21, 1993 be treated as part of the affidavit. Another caveat, this time in the prescribed form, was filed by her on November 16, 1993. Nothing, however, was stated as to the objection to grant of probate. The maintainability of the caveat was heard. On behalf of the applicant plea was taken that the caveat had been filed by imposters and Gayatri Devi was not being allowed to come in the picture. It was also pointed out that the delay in filing affidavit, which is required to be filed within 8 days of the lodging of the caveat had not been explained. This Court accepted the contentions urged on behalf of the applicant and by order dated February 7,
1994 rejected the caveat. Gayatri Devi later died on June 10, 1994. The present caveat by Manorama Devi was filed on December 13, 1994.
3. The caveator apart from taking the usual plea that the Will in question is forged and fabricated has stated that Gayatri Devi had made a gift of the entire property left behind by Rajo Singh in her favour under registered deed dated February 21, 1990. She has also stated that the applicant herein had instituted Title Suit No. 29/90 to restrain Gayatri Devi from making transfer of the property and, after the execution of the deed, to add her (Manorama Devi) as party defendant which was rejected by the Court.
4. On the question of locus standi of the caveator, Mr. Sheo Dayal Singh, learned Counsel appearing on behalf of Manorama Devi submitted that even a bare possibility of interest is sufficient to entitle a person to enter caveat. The caveator having got the property from the sole heir of the deceased, she has vital stakes in the outcome of the proceeding and, therefore, she must be held to have interest in the estate of the deceased. Mr. L. N. Das appearing for the applicant, on the other hand, contended that the caveat petition filed by the donor having been rejected, it would be preposterous to entertain the caveat of the donee. It was pointed out that the order of this Court dated February 7, 1994 rejecting the caveat of Gayatri Devi has been upheld by the Supreme Court in SLP No. 6066 of 1994.
5. There are decisions galore on the interpretation of Clause (c) of Section 283(1) of the Indian Succession Act which provides for issue of citation calling upon 'all 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' and also enables the persons claiming such interest to oppose the grant on their own. Each case has been decided, as indeed it has to be, on its own facts. In the instant case, the point precisely is whether a donee from an heir of the testator is entitled to file caveat and oppose the grant. I may in this connection observe that I am not impressed by the plea of the applicant that merely by
reason of the rejection of the caveat of Gayatri Devi, the caveat filed by Manorama Devi should be held as not maintainable. It may sound odd to say so because, after all, the present caveator is only a transferee from the former caveator and she cannot, therefore, claim a better legal character than her, But it would appear that the caveat was not rejected on merits, that is, on the ground that she had no interest in the estate of the testator. And this could not be because she was none else than widow of the testator herself. The caveat was rejected on technical grounds.
6. The point at issue is covered by the decision of the Calcutta High Court in Nobeen Chunder Sil v. Bhobosoondari Dabee, (1881) II. R 6 Cal 460. In that case, the Court considered the cases of both the attaching creditor and mortgagee from the next-of-kin of the deceased. One appellant was the judgment-creditor and the other two were mortgagees from the testator's sons. With respect to the mortgagees it was stated :
'Those two persons are mortgagees, and being assignees of Nobo Coomar's (testator) sons, may be said to stand in the shoes of these sons. If the contention of these two persons is true, - namely, that Nabo Coomar died intestate, and that the Will propounded by his widow is a forgery, concocted for the purpose of perpetrating a fraud upon them, - it becomes an important question to consider whether they have not such an interest as well enable them to show that the Will is a forgery, and has been manufactured for the purpose of practising a fraud upon them.'
The Court noticed the decision of Komol-lochun v. Nilruttun Mundle, (1879) IL R 4 Cal 360, which was the case of a widow selling her husband's property on his death and the other brother propounding a Will said to have been executed by his brother, the deceased. (The instant case too is a ease of the widow making a gift of her husband's property and the brother's son propounding the Will). The Court observed:
'This is a case which appears to stand on all
fours with the case of Komollochun v. Nilruttun Mundle; and if these caveators are
unable to contest the validity of the Will in another Court (because of the conclusiveness attached to it after it is probated), and are also precluded from coming in to see the probate proceedings and opposing the grant of probate, it is clear that they will be entirely without a remedy.'
(words within brackets mine)
and finally held :--
'As to the text (test ?) of what constitutes a sufficient interest to entitle any particular person to be made a party, according to the view which I have already stated, I think it comes to this, that any person has a sufficient interest who can show that he 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 (1865).'
7. The above dictum has been approved and followed by this Court in the goods of the Esate of Mrs, Elgic Augusta Black, R. S. Sinha v. Miss Salena Hector, AIR 1941 Pat 151 and Kalika Singh v. Awadhesh Narain Singh, AIR 1983 Pat 149. In AIR 1941 Pat 151 the point for consideration was whether creditor of legatee can oppose grant of probate. The Court observed that the interest which entitled a person to object to the grant of probate must be an interest in the estate and not merely an interest in the result of the probate proceeding or 'interest' in the remote sense of the term and held that a mere creditor of the testator or legatee cannot oppose the grant of probate of the testator's Will but an attaching creditor, that is, a creditor who has attached a portion of the estate may be said to be person who has interest in the estate. In M/s. Rao & Sons v. Chandramoni Dei, AIR 1971 Ori 95, a single Judge of the Orissa High Court has gone to the extent of holding, following AIR 1994 PC 11, that creditors of heirs at Will can also ask for revocation of probate and enter caveat during probate proceedings in response to the general citation.
8. The test in my opinion is 'whether but for the Will, the caveator would be entitled to a right of which that will deprive him'. If
answer to the question is in the affirmative, he must be held to have an interest in the estate and entitled to oppose the grant. In the instant case if the Will was not there (assuming it to be genuine), after the death of Rajo Singh, his widow as the absolute owner of his estate would have been fully competent to deal with the entire property in the manner she liked including making a gift which is said to have been done in favour of the present caveator on February 21, 1990. The Will, if allowed to stand would therefore certainly deprive her of interest in the propery. Her locus standi to challenge the genuineness of the Will thus cannot be doubted. If she can maintain a suit in respect of the property left behind by the testator, on the basis of the deed of gift executed in her favour by the testator's widow cannot be doubted, whatever be the outcome of the suit, why cannot she maintain caveat and oppose the grant of probate ?
9. In Mutukdhari Singh v. Smt. Prem Devi, AIR 1959 Pat 570, this Court had occasion to consider the locus standi of stepsister of the testator. After discussing various authorities on the point the learned Judge held that the step-sister had interest in the estate of the deceased as contemplated by Section 283(1)(c) of the Succession Act and, therefore, entitled to apply for revocation of the grant. It has been observed therein (at p. 576 para 46)
'It is, however, well settled now that any interest however slight, and even the bare possibility of an interest, is sufficient to entitle a person to oppose a testamentary paper. It has been held in several decisions that although a reversioner under the Hindu Law has no present alienable interest in the property left by the deceased still he has substantial interest in the protection or devolution of the estate, and as such is entitled to appear and be heard in a probate proceeding.'
The said decision was followed in Narayan Sah v. Devaki, AIR 1978 Pat 220. In that case, it was pointedly urged that only such person has right to enter caveat who claims interest in the estate of the deceased at the
time of date of death of testator. The plea was rejected and it was held that any interest, however, slight and even a bare possibility of it was sufficient to entitle a person to enter caveat.
10. Mr. Das, learned Counsel for the applicant, placed reliance on an unreported decision in Test Case No. 1/76 (Gajendra Prasad Singh v. Dr. Devendra Prasad Sinha) dated August 27, 1992. In that case the caveator was the purchaser from the donee of the testator. The learned Judge observed the applicants are not claiming any right, title or interest in the estate of the deceased either through him or his heirs and accordingly held that a caveator had no locus standi. In the instant case, the caveator claims her interest in the estate of the testator through his widow, his sole Class I heir. The decision, therefore, is of no avail to the applicant.
11. But in spite of my favourable opinion regarding competency of Manorama Devi as caveator, in the facts of the case, I am not inclined to entertain her caveat. As noticed above, she had verified and affidavited the petitions filed on behalf of Gayatri Devi on April 9, 1991. She, therefore, must be deemed to have full knowledge of the proceeding. She, however, filed the caveat only on December 13, 1994. I have not been able to find adirect decision on the point that caveat can be rejected on the ground of delay. There may be cases of default in lodging caveat by persons to whom special citation was issued. There may still be cases where in response to the general citation caveat was not filed. But what will be the position where a person despite knowledge of the proceeding, which is the object of issue of citation does not lodge the caveat within a reasonable period of time to oppose the grant? In the case of Brinda Chowdharain v. Radhika Chowdharain, (1885) ILR 11 Cal 492, it was observed :
'If it appeared that the applicant had notice, or had been aware of the former proceedings before the grant of probate issued, and had abstained then from coming forward, this would constitute a ground for refusing to allow her to intervene.'
In Rukmani Devi v. Narendra Lal Gupta, AIR 1984 SC 1866, the Apex Court has held that the failure on the part of a person, to whom the citation has been issued and served, to enter caveat and contest the proceeding precludes him from contesting the validity of the Will in other proceedings. The facts of the case were, no doubt, different. The special citation had been served on the appellants but they did not choose to appear and contest the grant. Later they filed a suit questioning the genuineness of the Will and also the jurisdiction of the Court to grant the probate. Their Lordships held that the decision of the probate Court is judgment in rem. A probate granted by the competent court is conclusive of validity of such Will until it is revoked. In that connection it was also observed (at p. 1868, para 2):
'Apart from anything else, the citation having been issued to the appellants and having been served upon them, their failure to enter caveat to contest the proceeding would preclude them from contesting the validity of the Will in other proceedings.'
The above judgment, no doubt, mentions about 'other proceedings' and not the same proceeding but in principle, in my opinion, it should not make much difference. The object of issue and service of special citation is to enable the person concerned to oppose the grant of probate or letters of administration. If they do not do so, they are stopped from challenging the same in any other proceeding.
12. It is true that a person who has interest in the estate of the deceased is entitled to apply for revocation of the grant afterwards even though he did not lodge caveat at the stage of grant, when probate or letters of administration is granted because the test of maintainability of the caveat under Section 284 read with Section 283 or the application for revocation under Section 263 is the same. But it is well settled that where a party is cognizant of the proceedings but chooses to stand by and allows the proceedings to be concluded, he should not be allowed to come in afterwards and have the grant revoked and proceeding reopened. In the words of Lord Penizance in Wytcherley v. Andrews, (1871)
LR 2 P&D; 327. 'If a person, knowing what was passing was content to stand by and see his battle fought by somebody else in the same, interest, he should be bound by the result and not be allowed to reopen his case'. In my opinion, the same principle should, apply in gross cases of neglect and default at the stage of grant also. Courts have always been averse to delay and look down upon defaulters, the lazy and indolent.
13. I am unable to appreciate why the caveator would hold herself back and file the caveat to oppose grant after over three years although she had knowledge of the proceeding since at least April 1991. As a donee of the property she was entitled to oppose the grant in her own right during the lifetime of Gayatri Devi. As noticed above, in the meantime two witnesses have already been examined. Going by the practice of the Court, in ex parte proceedings, witnesses in large number are not supposed to be examined. The proceeding might as well have come to an end earlier. Gayatri Devi also, as noticed above, died on June 10, 1994 itself. The caveator, however, intervened in the proceeding only in December, 1994. No explanation has been put forth why she did not file the caveat earlier. Her conduct and intention, in my opinion, do not appear to be bona fide. The delay, in my opinion, disentitles her to exercise her otherwise legitimate right of entering into caveat at the fag end of the proceeding.
14. The petition in question under Section 284
of the Indian Succession Act is, accordingly,
rejected.