Union of India (Uoi) Vs. Ujagar Lal - Court Judgment

Excerpt:
- indian succession act, 1925 section 63: validity of will held, theory of spiritual well-being of deceased soul has no reference in judging validity of will. -- sections 275, 283 & 286: [s.b. sinha & h.s. bedi, jj] jurisdiction of probate court held, it is limited to decide the genuineness of will only. question of title or question of construction of will relating to right, title and interest of any other person is beyond the domain of the probate court. -- sections 275, 284 & 286: [s.b. sinha & h.s. bedi, jj] issuance of citation or filing of caveat held, persons must have some interest in the estate of testator. persons claiming any interest adverse to the testator or his estate cannot maintain any application before the probate court. -- sections 275 & 283: [s.b. sinha & h.s. bedi, jj] lodging of caveat by executor of will m and p husband and wife executing mutual wills bequeathing his/her property to other and in event of other predeceasing him or her, executors appointed in their respective wills to donate entire estate to charities death of m p taking over as beneficiary of will of m p by latter will bequeathing entire properties to stranger caveat lodged by executor of will of m objecting to the grant of probate on the ground that latter will p was in clear breach of mutual wills and that p also had no competence to dispose of property which stood impressed with trust - held, caveator-executor cannot be said to have acquired caveatable interest thereby. -- indian succession act, 1925. sections 283 & 275: [s.b. sinha & h.s. bedi, jj] filing of caveat - held, the person who files a caveat in probate proceedings must have an interest in the estate of the deceased. those who pray for joining the proceedings cannot do so despite saying that they had no interest in the estate of the deceased. they must be persons who have an interest in the estate left by the deceased. an interest may be a wide one but such an interest must not be one which would not have the effect of destroying the estate of the testator itself. the propositions of law which are applicable are (1) to sustain a caveat, a caveatable interest must be shown; (2) the test required to be applied is: does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right; (3) it is a fundamental nature of probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. the logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by will on ground outside the law of succession would be a stranger to the probate proceeding in as much as none of such rights can effectively be adjudicated therein. while determining whether the caveator has caveatable interest the law governing the intestate succession must also be kept in mind. the right of the reversioner or even the doctrine of spes successionis will have no application for determining the issue. a will is executed when the owner of a property forms an opinion that his/her estate should not devolve upon the existing heirs according to the law governing intestate succession. when, thus, a person who would have otherwise succeeded to the estate of the testator, would ordinarily have a caveatable interest, any other person must ordinarily show a special interest in the estate. such a special interest may be a creditor of the deceased. but, the same would not mean that even if the estate of the deceased is being represented by the legal heirs, caveat can be entertained at the instance of a person who has no real interest therein or in other words would merely have a contingent interest. a transferee pendente lite without the leave of the court would not have a caveatable interest and as such cannot be impleaded as a party. a person cannot also be impleaded as a party even on an apprehension that those who have a caveatable interest and to whom citations have been made would not take any interest in litigation. a reversioner or a distant relative of testator is not entitled to file caveat. -- sections 283 & 284: [s.b. sinha & h.s. bedi, jj] probate proceedings lodging of caveat held, a busy body or an interloper having no legitimate concern in the outcome of the probate proceedings is not entitled to lodge a caveat and oppose the probate. if any body and everybody including a busy body or an interloper is found to be entitled to enter a caveat and oppose, grant of probate, then sections 283 (1)(c) and 284 would lead to an anomalous situation. caveatable interest cannot be construed very widely. a caveatable interest is not synonymous with the word contention. a contention can be raised only by a person who has a caveatable interest. the dictionary meaning of contention, therefore, in the aforementioned context cannot have any application in a proceeding under the 1925 act. while interpreting the provisions of a statute, it must also bear in mind the admitted legal position that a probate proceeding should not be permitted to be converted into a title suit. it should not be permitted to become an unchartered field to be trespassed into by person even if he is not affected by testamentary disposition. existence of mutual wills by itself is not sufficient to create a caveatable interest. probate has to be granted to latter will even when made in prejudice of agreement not to revoke mutual wills. -- sections 283: lodging of caveat held, right of pre-emption, if any, is not affected by grant of probate. a right of pre-emption would arise only when a voluntary transfer is made for consideration in favour of a stranger and not prior thereto. the object of conferring the right of pre-emption of a co-sharer or owner of an adjacent immovable property is to exclude stranger from acquiring interest in an immovable property as a co-sharer or to keep objectionable strangers away from the neighbourhood. the same by itself does not constitute a caveatable interest. a right of pre-emption may run with the land but, the same would not constitute any caveatable interest. -- sections 283: rights and obligations of executor held, it arises only on the death of the testator. death of executor before death of testator cannot be said to have ceased to hold such office. stipulation in will to fill-up vacancy if any executor ceases to be so will not apply. substitute executor appointed to take place of named executor who pre-deceased the testator cannot claim caveatable interest. moreover, a mere executor does not have a caveatable interest in testators property. -- sections 283: caveatable interest mutual wills of husband and wife on death of husband wife taking over entire property second will executed by wife bequeathing entire property to a stranger held, stranger as beneficiary under second will of wife, has caveatable interest and can object to grant of probate. -- sections 301: death of executor filling up of vacancy held, it is either to be as per terms of will or as per law. it cannot be filled in equity. constitution of india -- article 227 & rules framed by calcutta high court, 1940, rule 30; [s.b. sinha & h.s. bedi, jj] probate proceedings determination as preliminary issue the caveatable interest held, rule 30 of 1940 rules framed by the calcutta high court providing for determination of the issue of caveatable interest as a preliminary issue is valid. the high court, in exercise of its powers conferred upon it under section 122 of c.p.c., could frame such rules. after coming into force of the constitution such rules can also be framed by the high court in exercise of its supervisory jurisdiction under article 227 of the constitution of india. it would be improper to say that there being no such provision in the act for determination of such an issue as preliminary issue, the high court should not have framed the rules. if converse say is accepted then in a similar situation supreme court also could not direct listing of the writ petitions under article 32 of the constitution of india for preliminary hearing in terms of the supreme court rules. the court having regard to its general power as also the power under order 14, rule 1 of c.p.c., can decide the matter by framing preliminary issues in regard to the maintainability or otherwise of the application. it is a rule of procedure and not of substance. a court is entitled to dismiss a lis at the threshold if it is found not maintainable. the court even in the absence of any rule must take the precaution of not indulging in wasteful expenditure of its time at the instance of the litigants who have no case at all - whether the respondent is entitled to the payment of interest for failure to released the death-cum-retirement gratuity under the rules?order1. though notice was sent to the respondent on may 8, 1992, till date neither the acknowledgment card nor unserved notice has been received back. under those circumstances, notice must be deemed to have served.2. leave granted.3. the only question argued in this appeal is: whether the respondent is entitled to the payment of interest for failure to released the death-cum-retirement gratuity under the rules? the tribunal in the impugned order made on 22.11.1990 in o.a. no. 1383/90 directed interest @ 7% per annum for the first twelve months and @10% per annum for the period thereafter. the admitted position is that the respondent was unauthorisedly in occupation of the quarter allotted to him and, therefore, he was not paid death-cum-retirement gratuity since the respondent had remained in possession unauthorisedly for more than two years. this question was considered by this court in raj pal wahi and ors. v. union of india and ors. slp (c) nos. 7688-91/88 decided on 27.11.1989 and held that in those circumstances, the court unable to hold that the petitioners are entitled to get interest for the delayed payment of death-cum-retirement gratuity as the delay in payment occurred due to the order passed on the basis of the said circular of railway board and not on account of administrative lapse. in this case, in view of the circular issued by the administration directing not to make payment of death-cum-retirement gratuity till the retired employee surrenders possession, the delay in payment was not due to any administrative lapse but on account of the circular issued by the board. under these circumstances, the respondent is not entitled to the interest as directed by the tribunal.4. the appeal is accordingly allowed. no costs.

Judgment:
ORDER

1. Though notice was sent to the respondent on May 8, 1992, till date neither the acknowledgment card nor unserved notice has been received back. Under those circumstances, notice must be deemed to have served.

2. Leave granted.

3. The only question argued in this appeal is: whether the respondent is entitled to the payment of interest for failure to released the death-cum-retirement gratuity under the rules? The Tribunal in the impugned order made on 22.11.1990 in O.A. No. 1383/90 directed interest @ 7% per annum for the first twelve months and @10% per annum for the period thereafter. The admitted position is that the respondent was unauthorisedly in occupation of the quarter allotted to him and, therefore, he was not paid death-cum-retirement gratuity since the respondent had remained in possession unauthorisedly for more than two years. This question was considered by this Court in Raj Pal Wahi and Ors. v. Union of India and Ors. SLP (C) Nos. 7688-91/88 decided on 27.11.1989 and held that in those circumstances, the Court unable to hold that the petitioners are entitled to get interest for the delayed payment of death-cum-retirement gratuity as the delay in payment occurred due to the order passed on the basis of the said circular of Railway Board and not on account of administrative lapse. In this case, in view of the circular issued by the administration directing not to make payment of death-cum-retirement gratuity till the retired employee surrenders possession, the delay in payment was not due to any administrative lapse but on account of the circular issued by the Board. Under these circumstances, the respondent is not entitled to the interest as directed by the Tribunal.

4. The appeal is accordingly allowed. No costs.