- (1.) THIS appeal under sec. 18 of the Rajasthan High Court Ordinance, 1949 is directed against the judgment dated October 24, 1980 of a learned Single Judge of this Court, by which, he dismissed the appeal under s. 299 of the Indian Succession Act (No. XXXIX of 1925) (hereinafter referred to as 'the Act') whereby upholding the order dated September 1, 1980 of the District Judge, Jodhpur, by which, he held that the caveats filed by the appellants shall stand discharged and dismissed.
(2.) THE facts leading to this appeal may, briefly, be stated: THE respondent Jugrajmal alias Rajmal filed a petition under S. 276 of the Act for grant of probate in his favour on the basis of a Will dated July 7, 1980 executed by deceased Ridhmal. By this Will, the said Ridhmal bequeathed all the properties mentioned in the petition to the respondent. THE learned District Judge, Jodhpur issued citations under s. 283 of the Act calling upon all persons claiming to have any interest in the estate of deceased Ridhmal to come and see proceedings before the grant of probate. THE appellants lodged caveats. It was alleged by them that the deceased Ridhmal was a Jain Yati and the properties which were bequeathed by him were of Jain community and, therefore, he had no right to make a Will in respect of them. In other words, it was contended that the said Ridhmal being a Jain Yati had no right to make a testa mental disposition of the properties in dispute belonging to the Jain community. By his order dated September 1, 1980, the learned District Judge held that the caveators had no locus standi to enter the caveat to challenge the Will executed by the deceased Ridhmal in favour of the respondent. Feeling aggrieved, the appellants filed an appeal under s. 299 of the Act before this Court. THE learned Single Judge, by his order dated October 24, 1980 dismissed the appeal. Hence this special appeal by the appellants as aforesaid. We have heard Mr. B. N. Kalla, learned counsel for the appellants and have also read with requisite care the order of the learned District Judge dated September 1, 1980, which was confirmed by the learned Single Judge. The only question that calls for determination in this appeal is whether in view of the allegations made by the appellants when they entered caveats before the learned District Judge, they have locus standi to do so ? The material portion of S. 283 of the Act reads as under : "283. Powers of District Judge: (1) in all cases the District Judge or District Delegate may, if he thinks proper, - (a ). . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . (c) 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 of letters of administration. (2 ). . . . . . . . . . . . . . . . . . . . . (3 ). . . . . . . . . . . . . . . . . . . . . " S. 284 of the Act deals with caveats against grant of probate or administration. S. 284 of the Act came up for examination before a learned Single Judge of the Madras High Court in M. K. Sowbhagiammal vs. Komalanga (l ). The learned Judge held that in dealing with a question whether the caveator has the necessary interest, the test is whether the grant displaces any right to which the caveator would otherwise be entitled and, if so, he has such an interest; if not, he has not. It was observed as under : "in every case, it must be shown that the caveator but for the Will would be entitled to a right of which that Will deprives him. "
(3.) A Division Bench of the Patna High Court in Janki Saran vs. Ram-bahadur (2) observed as follows : ". . . . . . . . . . . . . . . . . . Here the objectors are claiming a paramount interest and challenging the title of the testatrix. A probate Court cannot enter into a question of title. Mr. Shivanandan Rai produced before us a copy of the judgment of the District Judge passed after remand by the High Court in the litigation reference to which is made by the District Judge and he wanted to show that it has now been established that Ramanandan had no right to execute the gift. Even then I think that it is not a ground for objection to the grant of letters of administration. He can have his title declared in a regular suit in the presence of the person to whom letters of administration have been granted and claim possession from him; but as a probate Court the question of title cannot be gone into. " (Italics Supplied) In Bai Parvatibai vs. Raghunath Lakshman (3 ). Kania, J. (as he then was) laid down as under : "in my opinion, a testamentary Court dealing with the question of issuing a grant of probate is concerned to see whether the Will is duly executed as required by law by a testator of sound and disposing state of mind. In case of grant of letters of administration, the Court has to see that the person properly entitled to represent the estate of the deceased according to the Succession Act has come to Court, and is given the grant It is no part of the duty of the testamentary Judge to consider the question of title of property. " (Italics Supplied) Brij Nath De V Chander Mohan Banerjee (4) and Bai Parvatibai's case (3) and other decisions were noticed in M. Madhavi vs. Sree Rama Verma (5 ). In that case, following the principles laid down in Bai Parvatibai's case (3), the Caveat which was sought to be sustained on the ground that the testator had no disposing power over the items in Annexure-A was dismissed. ;