KAMALA BAI NELSON Vs. SAM VEDARAJ

JUDGEMENT

(1.) An interesting question of some importance is raised for decision in this case. In response to a citation issued to the respondent in a petition for grant of letters of administration with the Will annexed the respondent appeared in court and after taking time filed his objection. That objection is on record. At that stage the petitioner moved the court praying that the proceedings should be declared non contentious and the application for grant of letters of administration disposed of accordingly. This was objected to by the respondent who had contested the validity of the Will in the objection. The reason for seeking the order of the court that the proceedings were to be treated as non contentious was that, as required by the rules, the respondent had failed to enter a caveat and file an affidavit within 14 days of the entry of the caveat as required by the rules framed by the High Court under the Indian Succession Act. The court below did not agree with this contention and held that notwithstanding the failure to enter caveat the respondent was entitled to contest the proceedings and the proceedings for grant of letters of administration had to be disposed of not as non contentious proceedings. The petitioner in the petition has filed this revision against that order.

(2.) It may be necessary to refer to the relevant provisions in the Indian Succession Act to appreciate the contentions of the parties in this case. S.264 of the Indian Succession Act, 1925 confers jurisdiction on the District Judge to grant or revoke probates and letters of administration in all cases within his District. S.268 makes the provisions of the Code of Civil Procedure applicable to proceedings of the court of the District Judge in relation to the grant of probate and letters of administration save as otherwise provided in the Act. Of course, this will be to the extent the circumstances of the case permit. An adjudication by a court in a probate application is a proceeding in rem. A probate or letter of administration shall have effect over all the property and estate, movable or immovable of the deceased throughout the State in which the probate is granted. The proviso to S.273 contemplates probate and letters of administration by the High Court which will have, unless otherwise directed by the grant, effect throughout the other States. Such probates granted under the proviso to S.273 are to be notified by the issue of a certificate to certain other courts including each of the other High Courts. S.276 deals with the contents of an application for probate and S.278 deals with the contents of an application for letters of administration. S.284 which is particularly relevant for the purpose of this case deals with the lodging of caveats and the procedure thereon. That section reads:

(3.) On a close consideration of the relevant provisions I do not think that there is any scope for the plea that unless a caveat is entered by a person who intents to oppose an application for the grant of letters of administration the proceedings should be declared non contentious, and ought not to be treated as a suit as contemplated by S.295 of the Act. It is true that provision has been made to enable a caveat to be lodged. That does not necessarily mean (I am now speaking de hors the rule framed by the High Court in 1970 to which I will make reference in due course) that unless a caveat is filed any person to whom a citation has been issued by the court one who intents to oppose the grant of the letters of administration is precluded from raising his objection. There is no provision in the Act which would justify such a view being taken. The provision in regard to lodging of a caveat is to be understood as an enabling provision intended to protect the rights of any person who may be interested in protecting himself against the grant of letters of administration without his having notice of the filing of such application. A decision in a probate application is one not only affecting parties to it but one which affects the whole world being a judgment in rem and therefore the advisability of a provision for protection of the interests of persons interested in opposing an application by alerting the court to the need of issuing citation to them. A caveat serves this purpose. A person may lodge a caveat and once that is lodged he is entitled to notice before the court passes the order on any application for probate or letters of . administration. He gets intimation so much so that he can ascertain whether the facts stated in the application for probate or letters of administration are true and he can then decide whether he should oppose the grant. May be that probate or the letter of administration is prayed for in accordance with what he considers to be the legitimate right of the applicant and himself. May be it is not the grant of any letters of administration to the applicant that is really opposed but the grant in the manner prayed for. That means he must have occasion not necessarily to oppose the grant of letters of administration but to ascertain and satisfy himself whether the application is objectionable. That opportunity he gets by lodging a caveat, for, when once he does that he is protected since there can be no disposal without notice to him. The term 'caveat' is defined as a notice not to do an act, given to some officer, ministerial or judicial, by a party having an interest in the matter. (Bouvier's Law Dictionary, Vol. I, P. 437). "It is a formal caution or warning not to do the act mentioned, and is addressed frequently to prevent the admission of Wills to probate, the granting of letters of administration." The filing of a caveat to the probate of a Will does not by itself constitute a contest, for, a person who files a caveat need not contest at all. Therefore the provision in S.284 of the Indian Succession Act enabling a person to file a caveat by itself need not be taken to be one which obliges any person who desires to contest an application for grant of letters of administration to file caveat in the first instance. De hors any other provision I would have no hesitation in thinking that a caveat may not be obligatory. That this is the position has been held by the Punjab Chief Court in Khazan Das v. Ram Saran Das (6 IC 650). The provision that caveat 'may' be lodged was noticed by that court and the court was of the view that the law does not say that anyone wishing to oppose an application 'must' lodge a caveat. Therefore non filing of a caveat was considered to be inconsequential in that case. The same view was expressed by the High Court of Calcutta in Bhobatanni Debi v. Hari Charan Banarjee (36 1916 IC 38). In that case a citation was issued to the respondent and the respondent, on the basis of such citation appeared and claimed her right to be heard. The mere non filing of a caveat did not involve any consequence adverse to the person who sought to oppose the grant in that case.