R. Banumathi, J.
1. These appeals are directed against the dismissal of applications for revocation of the Letters of Administration granted in O.P. No. 157/2001 and declining stay of all further proceedings in pursuance of Letters of Administration granted on 17.09.2001. Since both appeals arose out of common order and questions involved are one and the same, both appeals were heard together.
2.Brief facts necessiated for disposal of these appeals are as follows:
The property in question is the self acquired property of one Purushothaman, who died on 1.4.1998, leaving his wife P. Ranganayaki as the only legal heir. The appellants have purchased the property from the said Ranganayaki under two Sale Deeds dated 15.02.1999 and the appellants are said to be in possession and enjoyment of the property. The respondent, who is the brother of Purushothaman has filed C.S. No. 227/1999 on 26.3.1999 against Ranganayaki as well as the appellants, seeking a Decree for cancellation of two Sale Deeds executed by Ranganayaki and the suit is pending. Respondent has filed O.P. No. 157/2001 for the grant of Letters of Administration in respect of the Will dated 20.09.1997 said to have been executed by Purushothaman. Ranganayaki was impleaded as respondent in O.P. No. 157/2001. Though O.P. No. 157/2001 was filed in 1999, it was numbered only in 2001 and in the mean time, Ranganayaki died on 19.10.1999. In the O.P., name of Ranganayaki was struck off and Letters of Administration was granted by order dated 17.09.2001. Stating that appellants are purchasers of the property from Ranganayaki and that they have got caveatable interest in the property, appellants have filed applications to revoke the Letters of Administration granted in O.P. No. 157/2001 and also sought stay of all further proceedings.
3. Respondent has contested those applications contending that his brother Purushothaman had duly executed Will dated 20.9.1997. Respondent has filed C.S. No. 227/1999 for cancellation of the Sale Deeds executed by Ranganayaki in favour of the appellants who have been impleaded as Defendants 1 and 2 in C.S. No. 227/1999. In O.P. No. 157/2001, Public Notice was issued in Newspapers and pendency of O.P. was brought to the notice of the general public. According to the respondents, as per the recitals in the Will, Ranganayaki can have only life interest and that she cannot mortgage or sell the property. Respondent mainly contended that he has proved the Will dated 20.09.1997 to the satisfaction of the Court and only after following the procedure, Letters of Administration was granted and that he has not suppressed any material facts for obtaining Letters of Administration.
4. Upon consideration of rival contentions, the learned Single Judge has held only if a person is entitled to inherit the property, he can be said to have caveatable interest in the property. Pointing out that already civil suit is pending between the parties, wherein respondent has sought to set aside the Sale Deeds in favour of the appellants, the learned Single Judge held that the appellants have no caveatable interest and on those findings, dismissed the application for revocation of Letters of Administration.
5. Challenging the impugned Order, the learned Senior Counsel Mr. S. Parthasarathy has interalia made the following submissions:
A person having interest in the property left by the deceased even if it is by subsequent purchase, he has got a right of being heard in the proceedings for grant of Letters of Administration;
The test is whether grant of Letters of Administration displaces any interest acquired by the purchaser and in this case, the grant of Letters of Administration in favour of the respondents has the effect of displacing the right of the appellants.
Even slightest interest in the estate will entitle one to be a party in the probate proceedings.
6. Countering the arguments, the learned Counsel for the respondent has submitted that when civil suit C.S. No. 227/1999 has been filed seeking for cancellation of the Sale Deeds, the appellants have no caveatable interest. Placing reliance upon 2005 (4) CTC 165 Ramani U. Krishnan v. Dr. Ammini Praveen Joshua @ Veena, the learned Counsel has submitted that the ambit of enquiry in probate proceedings is limited and thirty party right cannot be gone into in the probate proceedings. It was further contended that in the civil suit, the respondent has indicated the proposed steps to be taken for probating the Will and the appellants had knowledge of the probate proceedings and even then, they have not chosen to file caveat or raise objection. The learned Counsel has also submitted that after effecting paper publication, and only in compliance of procedure, Letters of Administration was granted and the same cannot be revoked.
7. In the light of the contentions of parties, two questions arise for our consideration:
(i)Whether appellants have caveatable interest and are entitled to contest the Will;
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(ii) Whether the appellants are entitled to seek revocation of Letters of Administration in O.P. No. 157/2001.
8. Admittedly, the appellants have purchased the property from Ranganayaki, wife of Purushothaman by two Sale Deeds dated 15.02.1999. Alleging that Purushothaman had executed the Will dated 27.09.1997, respondent has filed O.P. No. 157/2001 on 16.03.1999. But the same was numbered only on 27.02.2001. Respondent has also filed C.S. No. 227/1999 on 26.3.1999 against Ranganayaki and the appellants seeking cancellation of two Sale Deeds executed by Ranganayaki in favour of the appellants. Ranganayaki died on 19.10.1999. Though Testamentary O.P. was filed in March 1999, only after death of Ranganayaki, respondent seems to have taken steps to number the O.P., after a lapse of 23 months. Name of Ranganayaki was struck off in O.P. and O.P. was numbered on 27.02.2001 and the same was ordered on 17.09.2001.
9. Appellants claim through Ranganayaki, who is only the Class I Heir of Purushothaman. Appellants are purchasers from Ranganayaki, claiming through legal heir of Purushothaman, for caveatable interest in the property. Persons contending the Will must show an interest in the estate of a deceased person either by inheritance or otherwise. The test for determining whether a person has sufficient interest to sustain a caveat is whether a Will/grant displaces any right to which the caveator is otherwise entitled, if so, he has a interest. If not, he has no caveatable interest. In a catena of decisions, it is fairly well settled that any interest, however slight, is sufficient to entitle a party to oppose grant.
10. Placing reliance upon 2005 (4) CTC 165 Ramani U. Krishnan v. Dr. Ammini Praveen Joshua @ Veena, learned Counsel for the respondent has submitted that a person who is not claiming any right under testator nor a beneficiary to the Will nor who is likely to inherit estate of the deceased cannot file application under Section 263. In the said case, the applicant who sought revocation of the Will claimed a right based on an Agreement of sale. Referring to : [1967]1SCR293 Ram Baran Prasad v. Ram Mohit Hazra, and observing that the Agreement or contract for sale of immovable property would not of itself create any conclusion or charge of such property, the Court has held that the Agreement holder has no caveatable interest since her remedy is only in respect of Agreement of sale which has no connection with the probate of the Will. The said decision is not applicable to the facts of the case on hand.
11. Placing reliance upon : [1990]2SCR486 Elizabeth Antony v. Michel Charles John Chown Lengera, the learned Counsel for the respondent has submitted that in a probate proceeding, Court does not decide the disputes regarding title. The said decision is of no help to the respondent. In the said decision, the Supreme Court observed that by granting probate, Court is not deciding the disputes to the title and even with regard to the probate granted, it can be revoked as provided under Section 263 of the Act in any one of the cases mentioned therein. In paragraph 5, the Supreme Court has referred to the decisions, which are to the effect that any interest however slight and even a bare possibility of an interest, is sufficient to enter a caveat in a probate proceedings.
12. All persons who are entitled to contest a Will may apply for revocation of the grant. Persons seeking to revoke grant of probate or of Letters of Administration must prove that they have an interest in the estate of the deceased sufficient to entitle them. An interest acquired subsequent to the death of the Testator by a purchaser or a mortgagee of a part of the estate of the deceased is sufficient to seek revocation of the grant. : AIR1940Cal296 Dinabandau v. Sarala Sundari.
13. The question as to who is entitled to file an application under Section 263 of the Indian Succession Act has been the subject matter of several decisions of various High Courts. In 1892 ILR Cal. 37 Muddun Mohun Sircar v. Kali Churn Dey, the applicant was a purchaser from two sons of the deceased. It was held that purchase from such heir is a person claiming to have an interest in the estate of the deceased within the meaning of Section 69 of the Probate and Administration Act, and is entitled to apply for revocation of the probate of the Will so set up.
14. Observing that a purchaser of properties from heirs of a deceased person has a locus standi to apply for revocation of Letters of Administration of a Will said to have been executed by the deceased, in 1901 ILR Cal. 587 Lalit Mohan Bhuttacharjee v. Navadip Chandra Kaparia, the Court has held thus:
[T]he only question submitted for our decision is, whether the applicant had any locus standi to apply for revocation of these Letters of Administration. I think he had. He stood virtually in the shoes of the two sons, who claimed to be the heirs, and who had dealt with the property, as the sole owners of it. The applicant was the purchaser from the heirs, and, if the heirs could have applied for revocation of the Letters of Administration, I do not see why the purchaser could not do so, he being in the same position as they were. He was not in a position of an ordinary creditor, but he was the purchaser from the heirs. I think, therefore, that, if the heirs were entitled to sue for revocation of the Letters of Administration, the purchaser from them had a locus standi to make a similar application. This view seems to me to be consistent with certain decisions if this Court, namely, the case of Komol Lochun Dutt v. Nil Ruttun Mundle 1878 I.L.R.4 Calc. 360, and also the very recent case of Muddun Mohun Sircar v. Kali Churn Dey 1892 I.L.R. 20 Calc. 37.
15. Considering the scope of 'locus standi' of the person seeking revocation and the test for determination of locus standi, referring to various decisions, in 1995 (2) LW 852 S. Panchanathan v. Elappan (died) and 5 Ors., Justice Srinivasan [as His Lordship then was], has held thus:
22. The question as to who is entitled to file an application under Section 263 of the Indian Succession Act, has been the subject matter of several decisions of various High Courts. In Sadananda Pyme v. Harinam Sha : AIR1950Cal179 , a Division Bench of the Calcutta High Court held that a person holding an interest in the property in the event of intestacy is one, who Will have locus standi to file an application under Section 263 of the Indian Succession Act. In Promode Kumar Roy v. Sephalika Dutta : AIR1957Cal631 , a Division Bench of that Court held that person who has acquired an interest in the testator's estate, though after his death, by reason of the mortgage transfer by the testator's son and who is undoubtedly also a creditor of the testator's said son, whom the alleged Will purports to disinherit has plainly locus standi to apply for revocation of the grant, particularly when his allegation is that the grant was obtained in fraud of the creditors. In the Goods of Ganapati Sarkar AIR 1959 Cal. 227, a single Judge of that Court held that a slightest interest in the estate Will entitled one to be a party to probate proceedings. In another Bench decision the Calcutta High Court in Annapurna Kumar v. Subodh Chandra Kumar : AIR1970Cal433 , has held that any interest, however, slight, and even a bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. In Rao & Sons v. Chandamon del AIR 1971 Ori 95, a single Judge of that Court went to the extent of holding that creditors of the heirs at law of the testator were entitled to ask for revocation of probate and enter caveat during probate proceedings in response to a general citation. In Sima Rani Mohanti v. Puspa Rani Pal : AIR1978Cal140 , a Division Bench of that Court reiterated the proposition laid down in Annapurna Kumar's case : AIR1970Cal433 (supra).
23. Recently, a Division Bench of this Court, to which one of us was a party held in Gita @ Gita Ravi v. Mary Jenet James @ James : (1995)1MLJ467 held that explanation (a) to (e) in Section 263 of the Indian Succession Act is not exhaustive and the Court is not fettered by the explanation while deciding whether there is just cause for revocation of a grant. It is held that the explanation would only mean that in cases, where one of the circumstances set out in Clauses (a) to (e) is present, a legal fiction comes into existence to the effect that in such cases, there is just cause for revocation. If there are circumstances, which do not fall within the ambit of Clauses (a) to (e), but which warrant or necessitate the revocation of the grant, the Court is entitled to revoke the grant or annul the same even though there is no legal fiction.
In the above said case, the respondent Ellappa Chettiar was a close relation standing in the same degree of relationship as the wife of the appellant and also a probable legal heir of the deceased. Bench has pointed out that consideration of material fact and failure to specify in Form 58 close relations of deceased who would normally be entitled to claim heirship in the absence of a testament would be sufficient to revoke grant of Letters of Administration and explanation (a) to (e) in Section 263 is not exhaustive.
16. Referring to various decisions in : AIR1972Ori178 Shanti Devi Agarwalla v. Kusum Kumari Sarkar, the learned Single Judge has held that even bare possibility of a interest is sufficient to entitle a person to oppose testamentary instrument. In the said case, part of property was purchased from one of the Legatees relying on second Will. That purchaser would be affected if probate is granted through first Will. The learned Single Judge has held that vendor legatee is entitled to enter caveat in respect of first Will, the purchaser having stepped into the shoes of the vendor is also entitled to enter caveat.
17. In view of well settled position, we are of the view that the appellants have caveatable interest. In the case before us, appellants having purchased the property from Ranganayaki - Class I Heir of Parushothaman, step into the shoes of Ranganayaki and are entitled to enter caveat and contest the Will. As per Order 25 Rule 31 of the High Court Original Side Rules, where administration is applied for one or some of the next-of-kin only there being another or other next-of-kin equally entitled thereto the Registrar may require proof by affidavit that notice of such application has been given to such other next-of-kin. Rule 51 makes it clear that any person intending to oppose the issue of a Grant of Probate or Letters of Administration must either personally or by his advocate file a caveat in the Registrar's Office in Form 69. Clause 7 of Form 55 which is an application for probate of Will, shows that the person has to implead next of kin or other person interested as party/respondents. The appellants having purchased the property from Ranganayaki are 'other persons' interested as party/respondents. In our view, the respondent ought to have impleaded the appellants who claim through Ranganayaki as party/respondents in the probate proceedings.
18. The learned Counsel for the respondent has submitted that the present appellants, who are the subsequent purchasers had claimed that the Will had been executed. In the application filed by them had claimed that they had purchased the property from Mrs. P. Ranganayagi, in whose favour there was a Will dated 24.10.1997 and the applicants had been informed by said Mrs. P. Ranganayagi that she had taken steps for probate of the Will on 7.9.1999 and since such papers had been returned, the purchasers have got the original Will papers from the counsel of late Mrs. P. Ranganayagi.
19. In the above background, learned Counsel for the Respondent has contended that since no Probate has been granted nor Letters of Administration has been issued for the so called Will dated 24.10.1997, the entire basis of the claim made by the present appellants, who are merely the purchasers, is non-existent and in this context it is further submitted that in view of the provisions contained in Sections 213 and 57 of the Indian Succession Act and in view of series of decisions including the Full Bench decision of this Court reported in AIR 1927 Madras 1054 Ganshamdoss Narayandoss v. Gulab bi Bai and : [2001]2SCR43 Clarence Pais and Ors. v. Union of India, the purchasers cannot have any right.
20. In AIR 1927 Mad 1054 Ganshamdoss Narayandoss v. Gulab Bi Bai, the question referred to the Full Bench was : 'Can a Defendant resisting a claim made by the plaintiff as heir-at-law rely in defence on a will executed in his favour at Madras in respect of property situate in Madras when the Will is not probated and no Letters of Administration with the Will annexed have been granted?'
21. Referring to various cases, the Full Bench has answered the question referred, holding as under:.as the mere existence of the Will does not necessarily displace the plaintiff's title and as it is necessary for the Defendant to go further and prove that some one other than the plaintiff has title under the will which he cannot prove by virtue of the provisions of Section 187, he cannot use the unprobated will as a defence.
22. Placing reliance upon : [2001]2SCR43 Clarence Pais and Ors. v. Union of India, the learned Counsel for respondent has submitted that the scope of Section 213(1) of the Act is that it prohibits recognition of rights as an executor or legatee under a Will without production of a probate and sets down the rule of evidence. It was further submitted that though the appellants have stated that they are taking steps for probating the alleged will in favour of Rankanayaki, so far, such will is not probated and in view of prohibition under Section 213(1) of the Act. The appellants cannot claim any right in the property and the learned Single Judge has rightly dismissed the application. Considering the scope of Section 213(1) of the Act, in the aforesaid decision viz., : [2001]2SCR43 [cited supra], the Supreme Court has held that Section 213(1) of the Act does not prohibit a will being looked into for purposes other than those mentioned in the Section. It was further held as under:
The bar to the establishment of the right is only for its establishment in a Court of justice and not its being referred to in other proceedings before administrative or other tribunals. The section is a bar to everyone claiming under a will, whether as a plaintiff or Defendant, if no probate or Letters of Administration are granted.
23. We do not think that the aforesaid contention made by the respondent can be pressed into service to deny the prayer of the appellants regarding revocation of Letters of Administration. Assuming that there was a Will dated 24.10.1997, in respect of which neither Probate is granted nor Letters of Administration is issued, such Will cannot be admitted in evidence and may be such Will may have to be ignored. However, even assuming that there was no such Will or no right can be claimed on the basis of the Will without obtaining Probate or Letters of Administration, Ranganayaki is entitled to inherit the property of Purushothaman as she being Class I Heir entitled to succeed to the property in the absence of any testamentary disposition. If, on the other hand, it is found that the Will has not been duly executed, the widow, namely the vendor of the present appellants, has right to succeed to the property either as a widow or may be on the basis of the Will relied upon by the appellants. But for the Will propounded by the respondent, Ranganayaki would have inherited the property and obviously the Will propounded by the respondent displaces Ranganayaki and also the appellants, who are the purchasers from the said Ranganayaki from succeeding to the property of Purushothaman.
24. Next point for consideration is whether the appellants should fail as they have filed application seeking revocation of Letters of Administration at a belated stage after the Letters of Administration was granted. The learned Counsel for the respondent has submitted that the paper publication was effected and the appellants did have notice of probate proceedings and even then they have not taken steps to enter caveat to contest the Will. If a person who is a necessary party to probate proceedings is not made a party/respondents, in our view, neither his knowledge nor his acquiescence nor lapse of time Will be a bar. Illustration (ii) to the Explanation of 'just cause' in Section 263 makes it clear that if the grant is made without citing parties who ought to have been cited, it Will amount to a cause which is just to revoke or annul the Letters of Administration Pritam Das v. Nand Ram 1966 Punj. 88. A purchase of a share of the estate of the deceased is a 'person interested' and a probate issued without citation to him is liable to be set aside SD Ponnusamy Mudaliar v. S.K. Somasundaram 1992 (1) MLW 77; Sivagnanam v. Sadananda Mudaliar : AIR1978Mad265 .
25. It was further submitted that even in the suit C.S. No. 227/1999, the respondent has indicated the probable steps for probate of the Will and that the appellant had narrated about the probate proceedings to be initiated. We have noticed earlier that though O.P. No. 157/2001 was filed on 16.03.1999, the respondent had not taken steps for getting it numbered. Only after a lapse of about 23 months, the O.P. was numbered, particularly that too after death of Ranganayai. As mandated under Clause 7 of Form 55, respondent ought to have been impleaded the appellants who are the persons interested, claiming through Ranganayaki.
26. We have already referred to the decision of the Division Bench in 1995 (2) LW 831 Gita @ Gita Ravi v. Mary Jenet James @ James, wherein the Division Bench has observed that the explanation (a) to (e) are not exhaustive to seek revocation of Letters of Administration or grant of Letters of Administration.
27. For the foregoing reasons, Letters of administration granted in O.P. No. 157/2001 is hereby revoked and both the appeals are allowed. T.O.P. No. 157/2007 is ordered to be converted as suit. As contemplated under Order 25 Rule 62, Registry is directed to issue citation in Form No. 72, directing the respondents to leave in the Registrar's office [Original side], the original Letters of Administration within a period of four weeks from the date of this order. Both parties are directed to appear before the learned Single Judge on 24.09.2007 and the learned Single Judge shall proceed with the matter in accordance with law.