Ranawat, J. - (1.) THESE four appeals are connected and they are therefore decided by one judgment.
(2.) KHAWAS Balabux, it is said, made a will on the 24th of July 1948, by which most of his property was bequeathed in favour of Mahesh Kumar, his granichild. KHAWAS Balabux died on the 28th of July 1948 leaving behind him two sons Lekhraj and Gajraj. Gajraj was given away in adoption in some other family and Mahesh Kumar is the son of Gairaj. Mst. Phulan Devi, widow of KHAWAS Balabux filed an application in the court of the District Judge, Jaipur City, on behalf of Mahesh Kumar as his guardian for grant of letters of administration on the 30th of October 1948 under sec. 278 or the Jaipur Succession Act. The District Judge transferred the application 10 the Civil Judge, Jaipur City, for disposal. One Mohammad Siddiq against whom KHAWAS Balabux filed a suit for possession of certain immovable property filed an objection in the court of the Civil Judge, Jaipur City, against grant of letters of administration. The Civil Judge thereupon submitted the petition along with the objection application filed by Mohd. Siddiq to the court of the District Judge. When the case was pending in the court of the District Judge Biharilal filed an objection petition on the 4th of February 1950 on the ground that he had obtained a money decree on the 30th of November 1949 against Lekhraj, one of the sons of KHAWAS Balabux, who was his heir-at-law, for Rs. 54375/-, besides costs, and he had got an attachment order in his favour in the month of May 1950, by which some of the immovable properties left by KHAWAS Balabux were attached. Similarly Rai Bahadur Hiralal and Rai Bahadur Kesri Singh also filed objection petitions on the ground that they had both obtained money decrees against Lekhraj and in execution of their decrees separately they had obtained attachment orders against the properties left by KHAWAS Balabux some time after the filing of the application for grant of letters of administration. Subsequently on the 4th of April 1950 Beharilal and Rai Bahadur Seth Hiralal filed regular caveats. The learned District Judge on the 27th February 1950 rejected the applications of Mohammad Siddiq, Beharilal, Rai Bahadur Seth Hiralal and Rai Bahadur Seth Kesri Singh on the ground that they had no interest in the estate of the deceased. The caveats were therefore discharged. Both Beharilal and Rai Bahadur Seth Hiralal filed appeals against the order of the District Judge dated the 27th February 1950. The proceedings for grant of letters of administration pro-ceeded in the court of the District Judge and ultimately on the 6th of June 1950 letters of administration were granted to Mahesh Kumar through his grand-mother Mst. Phulan Devi, who was required to furnish security in immovable property to the value of Rs. 1,50,000/- for proper administration of the estate. Beharilal and Rai Bahadur Seth Hiralal have again filed appeals against the order of the District Judge dated the 6th June 1950. In all the four appeals the same questions are agitated. Mohammad Siddiq and Rai Bahadur Kesri Singh have not filed any appeals against the orders of the District Judge, Jaipur, and it is not necessary here to deal with their cases. In their appeals Beharilal and Rai Bahadur Seth Hiralal have pleaded that both of them are the attaching decree-holders of the property of Lekhraj an heir-at-law of Khawas Balabux and that they possess an interest in the estate of the deceased Khawas Balabux sufficient to enable them to file caveats. They further pleaded that the will set up by the petitioner was 2 forged document which was made in order to defraud the creditors of Lekhraj, the heir-at-law of the deceased testator. The rights of the appellants, it was contended, would suffer if they were not allowed to file caveats and that there was no other remedy open to them to challenge the genuineness of the will except by way of filing caveats. A very important question of law is involved in these cases as to whether a creditor of an heir-at-law of the deceased testator who has in execution of his decree obtained attachment of the property of the deceased can be deemed to be a person having an interest in the estate of the deceased testator within the meaning of sec. 283 of the Jaipur Succession Act. The language of sec. 283 of the Jaipur Succession Act is exactly the same as that of sec. 283 (I) (c) of the Indian Succession Act of 1925, which runs as follows: - 'issue citations 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. " This question came up for decision before a Division Bench of the Calcutta High Court in Baijnath Sahai and others vs. Desputtysingh (I. L. R. 2 Cal. 208 ). In that case a Hindu testator died leaving Babu Desputty singh, a minor, alleged to be his adopted son and Babu Reetbhunjan Singh, an heir-at-law of the deceased, who would supceed if there was no will or if there was no adoption. Abdul Hye, a creditor of Babu Reetbhunjan Singh, filed objections against the grant of the probate of will or letters of administration in favour of Babu Desputtysingh on the ground that Abdul Hye was a creditor of the heir-at-law of the deceased testator. Kemp, J. observed that the appellants (Abdul Hye and others) cannot be said to be the parties having any interest in the estate of the deceased within the meaning of sec. 250 of the Act. The appellants who are the creditors of Reetbhunjan Singh, who, in the event of Babu Bindessuree Singh having died without executing a will, and without having adopted Babu Desputtysingh,' on whose behalf the application for probate was made, he being a minor, may be the heir of the late Babu Bindessuree Singh, but that does not entitle them to claim as of right as intere$ted in the estate of Babu Bindessuree Singh to oppose the grant of probate or letters of administration. In the same case the other Judge Birch, J. also observed as follows: - "sec. 250 contemplated the citation of those directly interested in the estate of the deceased. Its provisions cannot, I think, be strained to include creditors of the next-of-kin to the deceased. It is admitted that the appellants are not the only creditors of Reetbhunjan, but that there are several other creditors, and, if the appellants had succeeded in their opposition to the granting of letters of administration, they would not be in any better position than other creditors of Reetbhunjan. . . . . . . . . . . . . I would only remark that no case which has been cited supports the learned counsel's contention, that a creditor, not of the deceased, but of his next-of-kin, is a person interested in the estate of the deceased and entitled to come in and controvert a will said to have been executed by the deceased. . . . . . . . . If the appellants have any claim against the estate of the deceased. I fail to see how they can be deprived of their remedy by an order granting letters of administration. " It was held in that case that the creditors of an heir-at-law of the deceased testator are not the persons interested in the estate of the deceased in the meaning of sec. 250 of the Indian Succession Act. It may be noted that sec. 250 of the Indian Succession Act, as it then stood, is exactly in the same terms as sec. 283 (I) (c) of the present Succession Act or the Jaipur Succession Act. The decision in I. L. R. 2 Cal. 208 was discussed by their Lord-ships in their decision in Nilmonisingh Deo vs. Umanath Mookerjee (I. L. R. 10 Cal. 19) and their Lordships observed that the decision in I. L. R. 2 Cal. 201 was a right one. The next case cited in this behalf is reported in Komollochan Butt vs. Nilruttun Mundle (I. L. R. 4 Cal. 360), but that was a case where a caveat was lodged by an assignee of an immovable property of the estate of the deceased testator, which was transferred to the objector by the heir-at-law of the deceased testator. The decision in I. L. R. 4 Cal. 360 therefore cannot be of much help in the present case as this is not the case of an assignee but this is a case wherein objections have been filed by the attaching creditors of an heir-at-law of the deceased testator. In Umanath Mookhopadhya vs. Nilmoney Singh (I. L. R. 6 Cal. 429) it was held by a Division Bench of the Calcutta High Court that "a judgment-creditor, who has attached property of his debtor, which purports to have been inherited by such debtor from his deceased father, may, where the will of such deceased is set up, and proved at variance to his interest, apply for a revocation of the order granting probate of the will so set up. " An appeal was filed against this decision of the Calcutta High Court to the Privy Council and the decision is reported in I. L. R. 10 Cal. 19. The relevant observations of their Lordships are as follows: - "the case in which this judgment was given was that of a purchaser from the heir, (2 Cal. 208) but no distinction is made between a purchaser and an attaching creditor. Assuming that a purchaser can oppose the grant of a probate, or apply to have it revoked (which their Lordships do not decide) they entertain grave doubts whether an attaching creditor can do so, at least in a case which is not founded on the ground that the probate has been obtained in fraud of creditors. But as, after hearing the appellant's counsel upon the question of the will, their Lordships did not consider it necessary to hear the counsel for the respondents, the question whether the Raja could apply for the revocation of the probate has not been argued before them, and therefore they give no final opinion upon it. " (pp. 27 & 28 ). In Kishen Dai vs. Satyendra Nath Dutt and others (I. L. R. 28 Cal. 441) reliance was placed on the decisions of the Calcutta High Court in 6 Cal. 429 and 10 Cal. 19 and it was held that a mere creditor of an heir-at-law of the deceased testator had an interest in the estate of the deceased testator and consequently he was entitled to file an objection against the grant of a probate. The relevant observations of Rampani and Gupta JJ. are as follows: - "it appears to us that the Patna Loan Office is a person who has a right to come in and oppose the grant of probate under sec. 69 of the Probate and Administration Act, inasmuch as it is a corporate body having an interest in the estate of the deceased. The learned pleader for the appellant maintains that the Patna Loan Office cannot be a person claiming to have any interest in the estate of the deceased, because the Patna Loan Office claims to have an interest in the estate of Gopichand the brother of the deceased, and not in the estate of the deceased Balkishan. But we think that the pleader for the appellant puts too narrow a construction on the words in sec. 69, "claiming to have any interest in the estate of the deceased. " In our opinion, they mean "claiming to have an interest in the property left by the deceased," because it is clear that, when a person dies leaving any property, that property must descend to some one else, and, therefore, strictly speaking there can be no person claiming to have any interest in the estate of the deceased person. Every person who comes in to oppose the grant of probate must be a person claiming to have an interest in the estate left by the deceased. Now in this case the Patna Loan Office would seem to us to have a clear claim to an interest in the property left by the deceased, because if it were not for this will, it would have a right to seize the property or that share of the property, which should descend to Gopichand, in execution of the decree which it has obtained against him. The Judge in the court below has relied on two rulings. The first of these is to be found in the case of Umanath Mookhopadhya vs. Nilmoni Singh (I. L. R. 6 Cal. 429) in which it is laid down that "the judgment-creditor, who has attached property of his debtor, which purports to have been inherited by such debtor from his deceased father, may, where the will of such deceased is set up and proved at variance to his interests, apply for a revocation of the order granting probate of the will so set up. " That would seem to support the view of the Judge that the Patna Loan Office has a locus standi in this case. That case was appealed to the Privy Council and the judgment of their Lordships of the Privy Council, which is to be found in the case of Nilmony-singh vs. Umanath Mookhopadhya (I. L. R. to Cal. 19) affirms the decision of this court on the merits, the will having been held by the Privy Council to be a genuine will. In their judgment it is said that, whether an attaching creditor can oppose the grant of probate or apply to have it revoked is a matter of grave doubt, at least in a case which is not founded on the ground that the probate has been obtained in fraud of the creditors. Now, in the first place, we observe that in this passage of the judgment of the Privy Council of their Lordships do not expressly say that an attaching creditor cannot oppose the grant of probate or apply to have it revoked, and in the second place they seem to imply that, in a case which is founded on the ground that the grant of probate has been obtained in fraud of the creditor, such attaching creditor would have a right to come in and oppose the grant of probate. That seems to us to be authority for holding that the Patna Loan Office has a right to come in and oppose the grant of probate, because in the present case it is expressly alleged by the Patna Loan Office that the will has been set up by two brothers of the deceased Gopi-chand and Puranchand, so as to defraud it and put the property of the deceased beyond its reach. We, therefore, must find that the Patna Loan Office has a locus standi in this case and is entitled to come in and oppose the grant of probate. " (PP. 443 to 445 ). Similarly, in a case reported in Dinabandhu Roy Brajraja Saha Firm vs. Sarala Sundari Dassya (I. L. R. 1940 Cal. 296) it was held that a creditor has a right to intervene in the probate proceedings started after he had advanced money to the heirs-at-law of the deceased and has therefore the right to apply for revocation of the grant, on the ground that the probate was obtained in fraud of the creditors of the heirs-at-law of the deceased testator unless that right has been taken away from him by reason of the adjudication of the heirs-at-law as insolvents. With due respect to the Hon'ble Judges who decided this case, it may be noted that the decision in I. L. R. 2 Cal. 208 which has been relied upon by the learned Judges has been misread. It has been observed in the judgment of R. C. Mitra, J. as follows: - "the creditor who opposed the grant in 2 Cal. 208 was not a creditor of the heir-at-law. He had no interest in the estate left by the deceased and would have had none till the adoption made by the latter had been set aside. " The decision in I. L. R. 2 Cal. 208 is very clear and there is no room for any doubt as regards the point that in that case an objection had been taken against the grant of probate by the creditor of an heir-at-law of the deceased testator. The principle laid down in 2 Cal. 208 which was subsequently approved by their Lordships of the Privy Council was that under the Indian Succession Act as made applicable by the Hindu Wills Act the creditors were not parties having any interest in the estate of the deceased and, therefore, were not entitled to oppose the grant of probate. The mis-understanding appears to have been caused perhaps by the head-note of the report which does not make a mention of the creditors of the heirs-at-law of the deceased testator but it speaks simply about the creditors in general. A perusal of the entire judgment in 2 Cal. 208 makes it evident that it was a case in which an objection was filed by a creditor not of the deceased testator but by an heir-at-law of the deceased testator. The judgment of the case in A. I. R. 1940 Cal. 296 has distinguished the ruling given in 2 Cal. 208 upon the basis of a misconception of the judgment given in that case. Further in 1940 Cal. 296 it has been observed that - "it is not necessary that a person applying for revocation should have an interest in the estate of the deceased at the time of his death. It is sufficient if he acquires an interest subsequently but before the application for probate is made or may be even while the proceedings for probate are pending. The decision in 1940 Cal. 296 is obviously opposed to the decision in 2 Cal. 208 which was a case of which the decision was approved by their Lordships of the Privy Council. Being contrary to I. L. R. 2 Cal. 208 the decision in 1940 Cal. 295 does not appear to be good law on this point. A recent decision of the Patna High Court which appears in M. S. Sinha vs. Miss Salena Hector (A. I. R. 1941 Patna 151) seems to lay down the correct law on this point. 2 Cal. 208 has been relied on in this case and the case law, both Indian and English, has been thoroughly discussed. As regards 28 Cal. 441 it has been observed in this judgment as follows: - "a somewhat different view was taken by another Bench of the Calcutta High Court in 28 Cal. 441 where it was held that a creditor of a testator's heir could object to probate if the will had been set up for the purpose of defrauding creditors. It is very difficult to reconcile these two Calcutta cases because it seems tolerably clear that in 2 Cal. 208 the will must have been put forward with a view to depriving the heir of his right to succeed to the testator's property. "
(3.) FURTHER on, regarding the discussion the principle laid down in the judgment of their Lordships of the Privy Council in 10 Cal. 19 appearing in 28 Cal. 441 the observations in A. I. R. 1941 Pat. 151 are as follows: - "a Bench of the Calcutta High Court in 28 Cal. 441 appears to have taken this as an authority for the proposition that the creditor of the heirs of a testator can oppose the grant of probate if they allege that the will was executed in fraud of creditors. In my view, the observation of their Lordships does not support the view taken in this later Calcutta case. Their Lordships expressed the gravest doubts as to whether an attaching creditor could oppose the grant of probate or apply to have it revoked and all they said was that if it was shown that probate had been obtained in fraud of creditors the attaching creditor might possibly succeed in having the probate set aside though they do not decide the question. " The observations which have been reproduced above from the judgment of Harries, C. J. in 1941 Pat. 151 also apply with equal force to the decision in 1940 Cal. 296. According to the judgment in 1941 Pat. 151 the interest which entitles a person to object to the grant of a probate must be an interest in the estate and not merely an interest in the result of the probate proceedings or interest in any remote sense of the term. A mere creditor of the estate of a testator or of a legatee under a will cannot in accordance with this view be held to be entitled to oppose the grant of the probate. It has further been laid down by this judgment that the creditor, merely by alleging that some of the debts mentioned in the will are not genuine or that the named executor is acting fraudulently does not become a person interested in the estate of the deceased. A doubt has been expressed in this judgment as regards the position of an attaching creditor and it has been observed that a creditor who has attached a portion of the estate might possibly be a person who had an interest in the estate but a mere creditor without even a decree can hardly be said to have an interest in the estate. In a case reported in I. L. R. 34 Mad. 405 (Arakal Bastian Ansap vs. Barayana Aiyar) it has been held that an attaching creditor to an heir-at-law of the deceased testator in a case where attachment did take place before the filling of the probate application is a person having an interest in the estate of the deceased testator, having locus standi to file an objection to the probate of a will. The decision in 34 Mad. 205 is based on the authorities of the judgments in 6 Cal. 429 and 28 Cal. 441 both of which do not lay down the correct law. The judgment in 34 Mad. 405 therefore is not of much assistance in deciding this case. A further question arises as to whether a creditor who has obtained attachment of the properties of a deceased testator after the initiation of the probate proceedings is such a creditor who should be regarded as having an interest in the estate of the deceased. There appears no clear authority on this question as well as the question whether an attaching creditor as such can be regarded to have any such interest in the estate of the deceased testator as would entitle him to file an objection against the grant of a probate. In the decision of their Lordships of the Privy Council gravest doubt has been expressed as to whether an attaching creditor can be considered to be entitled to file objections against a grant of probate, otherwise than on the ground that the probate had been obtained in fraud of the creditors. An assignee of an heir-at-law of the deceased testator of some of the properties left by him has been held to be a person having such an interest as would enable him to file an objection in the probate; proceedings (vide 4 Cal. 360 and A. I. R. 1932 Cal. 734 Nabinchandra Guha vs. Nibaran Chandra Biswas), but except 28 Cal. 441 and A. I. R. 1940 Cal. 296 no case has been cited on behalf of the appellants which may go to support their case in this connection. As has already been discussed above, the decision in 28 Cal. 441 and 1940 Cal. 296 do not lay down the correct law. In the present case, both Biharilal and Rai Bahadur Seth Hiralal had obtained attachment of the property of the deceased testator after the filing of the probate proceedings and even though they may be persons interested in the result of the probate they cannot be regarded as the persons having any interest in the estate of the deceased testator. It can be inferred by way of implication from the judgment of their Lordships in 10 Cal. 19 that an attaching creditor cannot be regarded to possess any such interest in the estate of the deceased as would entitle him to file an objection in probate proceedings because gravest doubts have been expressed in the existence of such an interest of an attaching creditor. The lower court was therefore not wrong in holding that the attaching creditors have no locus standi in the probate proceedings and their objections were therefore rightly disallowed by the lower court. The result is that all the four appeals fail and are dismissed with costs. Sharma, J.- I agree. . ;