(1.) ISWAR Lanka, the testator, died on 28-11-61 leaving behind a son Lingaraj and a daughter Saraju Kumari. Chandramoni is the wife of Lingaraj. Chandramoni filed an application on 20-10-65 before the District Judge, Cuttack in Miscellaneous Case No. 12 of 1965 (Probate) alleging therein that ISWAR Lanka executed an unregistered Will in her favour on 15-6-61, whereunder the properties mentioned in schedule 'A' of the application were disposed of in her favour. Those properties covered a pucca double-storeyed building in Cuttack town and kutcha and pucca houses in village Kuspangi in Banki P. S. Any reference to the details of these properties would not be relevant. The main averment in the application was that Chandramoni was named as the executor of the Will which was executed by the testator out of his own freewill, without any coercion or inducement or threat by anybody, and that the testator was in a sound state of mind, health and understanding when he executed the will, and that the Will was duly executed. The deceased was said to have left, at the time of his death, two near relatives Lingaraj and Saraju Kumari. Chandramoni prayed for grant of a probate of the Will. By order No. 16 dated 9-5-66, the District Judge directed the issue of citations both general and special, fixing 1-7-66 for return. On that day, citations both special and general, were again directed to be issued fixing 3-8-66 for return. The order dated 3-8-66 shows that special citations were duly served on Lingaraj and the general citations were duly published. On 17-8-66 Lingaraj and Saraju Kumari filed written statements, fully admitting all the averments in the application and clearly stating that the properties which are the subject-matter of the Will belonged to the deceased. On 19-12-66 one Banamali Behera lodged a caveat. He averred in the caveat that the Will was forged and fabricated and did not contain the thumb impression of the testator. It was said that the testator knew to read and write very well and had never a shaky-hand. Furthermore, there was an assertion that the properties comprised in the Will belonged to Lingaraj and not to the testator. Lingaraj was heavily involved in debts exceeding 2 lakhs of rupees and Banamali Behera the caveator was one of the creditors who obtained a money decree for Rs. 11,000/-in M. S. No. 396 of 1963 in the Court of the Subordinate Judge, Cuttack, on 28-2-64. He attached some of the properties covered by the Will for Rs. 12,000/- in Execution Case No. 35 of 1966. Chandramoni filed an objection under Order 21, Rule 58, C.P.C. in Misc. Case No. 257 of 1966 on 15-10-66. On 15-1-67, Messrs. Rao and Sons, Bankers of Kaligalli. Cuttack filed another caveat, alleging that the Will was forged, giving various reasons in support of the plea of forgery. On 24-7-64 they had filed Money Suit No. 244 of 1964 in the Court of the Subordinate Judge, Cuttack, for recovery of Rs. 2,00,000/- and odd from Lingaraj and the same was decreed on 2-11-65. On 27-11-65 Execution Case No. 14 of 1965 was filed. Thus both Banamali Behera and Messrs. Rao and Sons who filed caveats are creditors of Lingaraj.
(2.) ON the aforesaid pleadings the following issues were framed:1. Is the alleged Will a genuine and valid document? 2. Is the Will duly executed and attested?
(3.) IT should be made clear here that there is a difference between special and general citation. Special citations are issued to near relatives who are known to be the nearer heirs of the testator and who would be deprived of the property if probate is granted. Such special citations are not to be issued to creditors because the legatee is not expected to know specifically the creditors of the heirs at law. But when a general citation is issued under the law, persons having an interest in the estate of the deceased might come forward to enter caveat. Creditors of the heirs at law come under the latter category and if they choose to file caveats, there is no legal justification for saying that the caveats are not entertainable and that the creditors have no locus standi. The Privy Council approved the Calcutta decisions decided after (1907) 10 Ind App 80 (PC). Obviously their Lordships were referring to ILR 28 Cal 441 to which reference was made in AIR 1940 Cal 296, which was under appeal before the Privy Council. The aforesaid Privy Council decision is, therefore, not only an authority for the proposition that creditors have locus standi to revoke a probate, but also for the proposition that they can enter caveat during the probate proceeding.