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Civil Rule No. 1371 of 1967, decided on 11th March 1969.

S. 283 (1) (c)‑Probate pro ceedings‑Persons claiming interest in property through deceased are persons to be affected by grant of probate‑--Persons not claiming property through deceased--‑Cannot claim to be party to such proceedings.

Kashi Nath Singh v. Dulhin Gulzari Kuer A I R 1941 Pat. 475; Janki Saran Shahi v. Rambahadur Sahi and another A I R 1932 Pat. 343; Chotoo Mahton and another v. Mt. Lachmi Kuer A I R 1930 Pat. 354 and Biraj Nath De and another v. Chander Mohan Banerji 19 All. 458 cited.

20 I C 342 and Pirojshah Bikhaji and others v. Pestonji Mer wanji I L R 34 Born. 459 ref.

M. A. Khaled for Petitioner.

Nemo for the Opposite‑Parties.

This revisional application calls in question an order made by the District Judge of Rangpur, on 4‑5‑1967, in Misc. Judicial Case No. 43 of 1966, allowing the Deputy Commissioner of that District to be made a party in a proceeding under section 283 of the Succession Act.

One Sital Mall died, it is alleged, after executing a will in favour of some of the beneficiaries including the petitioner who instituted the present proceeding for obtaining a probate of the said will. The Deputy Commissioner of Rangpur how ever, filed an application seeking to be a party in the said proceeding and objected to the granting of probate. One of the grounds taken by the Deputy Commissioner in the said petition is as follows:

"That the properties described in the petition did not belong to Sital Mall but to Seth Ottan Mall who employed Sital Mall to look after the properties when he (Seth Ottan Mall) left for India immediately before Independence in 1947 leaving the properties which are subject‑matter of this case along with other immense properties to his care and supervision under power‑of‑attorney executed by Seth Ottan Mall. In the last R. S. operation some entries have falsely been created in favour of Sital Mall with respect to some properties but there is no basis for those entries which cannot create any interest in favour of Sital Mall."

It will, therefore, be seen that the Deputy Commissioner challenges the ownership of Sital Mall in respect of some of the properties and he does not claim the property through the deceased if the contention of the Deputy Commissioner is correct and the entries in the record‑of‑rights are incorrect, he is to seek remedy under the appropriate Act. The present proceeding is with regard to the granting of probate. Persons who claim interest in the property through the deceased are the' persons who will be affected by the grant of the probate, There fore, the Deputy Commissioner is not a person who can claim to be a party in this proceeding. I will now read the material part of subsection (1) of section 283 of the Succession Act.

"In all cases the District Judge or the 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 or letters of administration."

The language employed in clause (c) is clear. In order to entitle a person to come and see the proceeding before the grant of the probate, he must show that he is interested "in the estate of the deceased". Here the Deputy Commissioner asserts that it is not the estate of the deceased as such he cannot "come and see the proceedings before the grant of probate".

The view expressed above finds support in the case of Kashi Nath Singh v. Dulhin Gulzari Kuer (A I R 1941 Pat. 475). In that case, at Division Bench of the Patna High Court consisting of Meredith and Shearer, JJ., held that a person seeking to be a party in such a proceeding must show that he had some interest in the estate of the deceased in respect of which the probate is sought. The learned Judges observed approving the views expressed in the case reported in 20 I C 342:

" .a person who claims outside and independently of a will or claims adversely to the testator and disputes his right to deal with the property, can in no sense be deemed to claim an interest in the estate of the deceased within the meaning of S. 283, Succession Act. That was a case in which the daughter of a Hindu had executed a Will disposing of pro perty she claimed to have inherited from her father and the contention put forward on behalf of the objector was that she had really taken no more than a life interest in the estate and was, therefore, not competent to dispose of it by will. The reasoning, it is obvious, applied a fortiori to the present case."

In the case before us also the Deputy Commissioner asserts that the testator was merely a caretaker and cannot dispose of the property by a will. He does not realise that a proceed ing instituted under the Succession Act is a proceeding relating to the granting of the probate. It does not affect the Deputy Commissioner's right to challenge the ownership of the property of the deceased in an appropriate proceeding and, it seems to us that, under a misapprehension he sought to be made a party in the proceeding under the Succession Act and the learned District Judge erred in allowing the said prayer.

To the same effect is the decision in the case of Pirojshah Bikhaji and others v. Pestonji Merwanji (I L R 34 Bom. 459).

In the case of Janki Saran Shahi v. Rambahadur Sahi and another (A I R 1932 Pat. 343) a Division Bench of the Patna High Court, consisting of Kulwant Sahay and Rowland, JJ. held that in order to give loucs standi to the objector it must be clear that they were claiming some interest in the estate of the testator. But where objectors were claim ing a paramount interest and challenging the title of the testator, a probate Court could not enter into a question of title. Accord ing to the learned Judges the Court was concerned with the proof of the will and if it was so proved the rightful claimants could obtain letters of administration.

In the case of Chotoo Mahton and another v. Mt. Lachmi Kuer (A I R 1930 Pat. 354) Jwala Prasad, J. also took the same view. In that case the learned Judge held that objectors to the granting of probate would have no locus standi to contest the grant if they were claiming interest adverse to the testator and the estates, that such objectors would not be bound by the proceedings and the order of the District Judge granting probate could not have the effect of conferring a title upon a party in respect of any property which the testator had no right to dispose of.

Similar view was expressed in the case of Biraj Nath De and another v. Chandar Mohan Banerji (19 All. 4 58). In that case it was observed by a Division Bench of the Allahabad High Court consisting of Edge, C. J. and Blai, J.

"It has been contended by Mr. Dwarka Nath Banerji for the appellant that where an application for probate of a will is contested and it is alleged that the property dealt with by the Will was not of the testator's or was not the property over which the testator had a power of testamentary disposal, it is the duty of the Court to try an issue raising this question. All we can say is that it would be exceedingly inconvenient if the Courts in this country had to try such issues. A Court could never be quite sure that it had got the proper parties before it. It would be difficult always to be sure that there was no collusion in the base. It is much safer in the interests of the public that issues as to the title to property should be decided when the issues are raised in a regular suit and not on an application for a grant of probate."

We respectfully agree with the views expressed above and it is not necessary for us to burden our judgment with other decisions in support of the conclusion already reached by us.

For the reasons stated above, the Rule is made absolute and the impugned order is set aside.

The learned Judge is now directed to give priority to this case over all other cases and dispose it of as expeditiously as possible. Let the records be sent down at once.

‑--I agree.

S. A. H. Rule made absolute.

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