JAMMI HANUMANTHA RAO Vs. ARATLA LATCHAMMA

JUDGEMENT

(1.) The appellant applied for the probate of the will of one Narasamma, dated 4 June, 1920. The grant of probate was opposed by the respondent who is the widow of the brother of Narasamma's husband, and the District Judge held that it was not proved that Narasamrna executed the will and dismissed the application.

(2.) Mr. Jagannadha Doss for the appellant raises the contention that the respondent was not entitled to oppose the grant of probate as she had no interest in the estate of the deceased so as to be entitled to. enter caveat under Section 69 of the Probate and Administration Act (V of 1881). As there is a conflict of authority on this point and as the respondent has not appeared to oppose the appeal, we asked Mr. Anantha Aiyar to appear as amicus curiae, and we are thankful to him for bringing to our notice the cases opposed to the contention of the appellant. Under Section 69 "In all cases it shall be lawful for the District fudge, if he thinks fit, to 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." What is the nature of the interest which a person should have in order to entitle him to enter a caveat? The contention of the appellant is that the person who enters a caveat should claim a right to the property under the testator, and if he claims the property adversely to the testator he is not entitled to oppose the grant of probate, for his right would not be affected By the grant of probate or letters of administration with the will annexed. The respondent claims the right to maintenance out of the income of the property devised under the will as she is the widow of the undivided brother of the testatrix's husband. The relationship is not denied, and the only question is whether the claim to maintenance against the property devised by the will, granting that the allegation of the respondent is true, would entitle her to oppose the grant of probate. In Garbini Dassi V/s. Pratap Chandra Shaha (1900) 4 C W N 602 it was held that the right to maintenance was not such an interest as would entitle a person to oppose the grant of probate. This is a direct authority in favour of the appellant. In Ahhiram Dass V/s. Gopal Dass (1889) I.L.R. 17 C 48 it was held by a Bench of the Calcutta High Court that " a person not claiming any of the property of the testator but disputing the right of the testator to deal with certain property as his own has not such an interest in the estate of the testator as entitles him to come in and oppose the grant of probate.

(3.) The learned Judges observe at page 52: The term" (meaning interest in Section 69) "does not necessarily refer to any particular property, bur. to the claim of any person to succeed by inheritance or otherwise to any portion of the estate of the deceased by reason of an interest, not on an adverse title to the testator to any particular property, but in the estate itself, whatever that may consist of. The form of the caveat too would seem to show that the person who enters a caveat admits that the particular property forms a portion of the estate of the testator, but objects either to the execution of the will or to the proposed manner of dealing with any portion of the estate.