- (1.) THE 1st respondent Hanuman Prasad Poddar Smriti Sewa Trust filed an application under section 278 of the Indian succession Act ( hereinafter referred to as the Act) for grant of letters of administration with the Will of Smt. Dularey Devi annexed. The application was originally allowed but the grant was subsequently revoked on the application of Suresh Kumar, the 4th respondent. Savita Pandey and others, the applicants 1 to 12 in this revision have filed an application for impleadment in the case alleging that Smt. Dularey Devi had transferred some land in favour of Malaviya Awas Samity Ltd. , a registered Housing Society and that some of the applicants have purchased plots of land from the society while other applicants have purchased plots of land from Smt. Dularey Devi herself. The case of these applicants is that apart from the housing plots there was reserved some land for road and park in the lay out plan and the status of this land as road and park was to be maintained for the beneficial enjoyment of the plot holders. Another application for impleadment was filed by Smt. Sashi Prabha Upadhya, the applicant No. 13 who claims to have purchased a plot of land directly from Smt. Dularey Devi. Her case is that after the transfers made by Smt. Dularey Devi there remained with her no land which could have been bequeathed by the Will. All the applicants have denied the execution of the Will and have sought their impleadment on the ground that they have interest in the estate. The impleadment applications were opposed by the respondents. The Trial Court by its impugned order dated 24. 5. 07 has rejected both the impleadment applications. The finding is that challenge to the right of Smt. Dularey Devi to execute the Will is beyond the scope of a proceeding for grant of probate or letters of administration. The testators' title in respect of the properties which have been disposed of by the Will cannot be questioned in these proceedings. It has also been found that the applicants can institute a separate suit in case they feel aggrieved by the user for other purposes of the land reserved for road or park. In Mrs. Elizabeth Egberi v. A. J. Fanthome and another, AIR 1952 Alld 452. it was held that a caveator who lays claim to a particular property and at the same time says that the property does not form part of the deceased's estate is not a person claiming interest in that estate and as such has no locus standi to oppose the grant of probate.
(2.) SECTION 283 of the Act provides for issuance of citation to a person who claims to have an interest in the estate of the deceased. Such a person can also file a caveat to contest the proceedings. The question for determination in this case is whether the applicants can be said to be persons claiming an interest in the estate of the deceased. From the case set up by the applicants it is clear that the right which the applicants claim is as purchasers of housing plots. The roads and the park given in the lay out it is claimed were meant for the beneficial enjoyment of the plot holders who have formed a residential colony: The applicants rely upon Smt. Tara Devi and another v. Dr. G. Raj Shekhar and others, 2006 (65) ALR 352 (Alld. ). in which the status of such right of the plot holders to the enjoyment of the the park and use of roads has been held to be an easement by grant. Thus the applicants claim is based on easementary right over the portion said to be reserved for road and park. From the case of the applicants it is clear tht they do not claim any new right having accrued to them on the death of Smt. Dularey Devi. Whatever rights the applicants have over the portions reserved for park or road accrued to them in the life time of Smt. Dularey Devi. The applicants do not claim to have succeeded to any portion of the estate of Smt. Dularey Devi upon her death.
(3.) FIELD, J. in Nobeen Chunder Sil v. Bhobosoondari Dabec, (1881) ILR (6) Calcutta 460, held "as to the 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". This test has been adopted in several cases including the decision of the Patna High Court in Kalika Singh v. Awadhesh Narain Singh and others, air 1983 Patna 149. ; In Annapurnn Kumar v. Subodh Chand, AIR 1970 Cal. 433. and g. Jaya Kumar v. R. Rathnam, AIR 1972 Mad. 212, it has been held that the slightest interest is sufficient. In these cases the Court has given a wider scope to the expression "a person claiming to have an interest in the estate of the deceased". In other cases the test which has been adopted is whether the caveator has any right which the Will seeks to displace. This test has been approved of in M. K. Sowbhagiammal v. Komalangi Ammal, air 1928 Mad. 803. ; Komalangi Ammal v. M. K. Sowbhagiammal, AIR 1931 Mad. 37. ; re Late Rajo Singh Ramautar Singh, AIR 1995 Pat. 122. and other cases. In certain other cases the Court has permitted impleadment of a party who had sought to challenge the Will on the ground that it was forged and set up by the propounder to deprive him of right to proceed against the properties which had devolved upon the heir of the deceased against whom the party seeking impleadment has a claim. Thus the rights of a creditor of the heir of deceased testator to contest the probate proceedings on the ground that the Will was set up to defraud the creditors of the heir has been maintained. The Courts have also permitted a person claiming maintenance from the estate of the deceased or purchasers or assignees from an heir after the death of the testator to contest the proceedings vide Hanumant Rao v. Lachhaman, 1926 Mad. 1193. and Navin Chand v. Nivaran Chand, 1932 Cal,734. The principle involved has been succinctly stated as follows by the Privy Council in Sarnla Sundari v. Dinabandhu Roy, 1944 PC 11. : ". . . . . . . . . . . . . The question arises whether the creditor of an heir who says that he is being or is likely to be defeated in his rights against the heir by reason of property which otherwise appeared to be in possession of the heirs being withdrawn by a Will is allowed to move to revoke the probate. . . . . . . . . . . . . . . . . . . . . . . . it appears to their Lordships to follow as a matter of course that if a person is complaining that he has in fact been defrauded, he is one of the persons who is injured by the fraud alleged and that that person is entitled to have his redress by applying to revoke the probate and thereby cause the fraud to become inoperative. If he had not such a right as that, it is very difficult to know what right a creditor in those circumstances, or a person injured by the fraud could have, otherwise the probate would stand and he would be affected by the probate which had been obtained ex hy-pothesi fraudulently. . . . . ";