Baggiammal vs G. Rajagopala Chetty

Clark, J.—The petitioner has applied for a grant of letters of administration with the will annexed to the estate of Gudisai Narayanaswami

Chetty, deceased. The respondent has lodged a caveat against that grant. The object of the present summons is to have the respondent''s caveat

struck off on the ground that the respondent has no interest in the estate of the deceased. The following table will serve to show the relationship of

the parties.

Ramu Chetty (deceased)

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__________________________________________

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Govinda Chetty (deceased) Venkatesa Chetty (deceased)

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Peria Muniswami Chetty (deceased) Chinna Muniswami Chetty

(deceased)

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G. Narayanaswami Chetty (deceased) : |

Baggiammal (petitioner) (legatee) G. Rajagopala Chetty (respondent).

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Kannammal (daughter) : Appadorai

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Pratapan.

It is common ground that the deceased and the respondent were members of a joint and undivided Hindu family ; but according to the

petitioner, there was a partition in status on the 7th June, 1945. The will which is dated the 14th June, 1945, is on the footing of that partition and is

a disposition by the deceased of his share in the family properties. It is alleged that the deceased died on the 21st January, 1946.

In her petition for the grant, the petitioner included the respondent as one of the relatives of the deceased and accordingly citation was issued to

him. In response he filed a caveat and later a written statement of his defence. The ground of the respondent''s caveat shortly stated is that the

deceased was not in a sound and disposing state of mind in June, 1945, when he is said to have made the will. He was then about seventy years of

age and it is alleged had suffered a paralytic stroke. In consequence of this stroke and of his great age it is said that he was thereafter affected both

in body and mind. According to the affidavit in support of the caveat and the written statement of defence, the respondent on this ground disputed

the validity both of the will and of the alleged partition.

The petitioner has filed a suit (C.S. No. 129 of 1946) in this Court against the respondent and his sons for partition of the family property by

metes and bounds. The petitioner''s daughter and grandson are also parties to this suit which is now pending.

The petitioner''s contention on the present summons is that the respondent has no interest in the estate of the deceased and accordingly was not

entitled to file a caveat. On that ground she prays that the caveat may be struck off, the written statement removed from the file and that she may

be permitted to prove the will in common form.

The answer of the respondent is twofold. First he contends that such a summons does not lie and secondly he claims to have an interest in the

estate of the deceased as a reversioner.

The first point taken is purely procedural and is based on Section 295 of the Succession Act which provides that contentious cases are to take,

as nearly as may be, the form of a regular suit. Now in accordance with the usual practice, on the lodging of the caveat the petition and the caveat

were registered and numbered as a suit and a written statement was filed by the respondent. Necessarily, however, those pleadings do not deal

with the question of the right of the caveator to lodge the caveat, for a caveator is not required to state his interest in the estate of the deceased in

his written statement. According to Order XXXIV, Rule 50 of the Original Side Rules that must be stated in the affidavit filed in support of the

caveat. In the present case there was no express statement in that affidavit of the interest relied on by the respondent ; but that omission, it seems

to me, may well be due to the fact that citation was issued to the caveator which no doubt led him to suppose that he was regarded as necessary

party to the proceedings. Be that as it may, the respondent''s contention is that the decision of this question is one which can properly be dealt with

only in the suit and not as is attempted here, on a Judge''s summons in separate proceedings. I cannot accept that contention. As I have said, the

point would not ordinarily arise on the petition and written statement, the pleadings in the ""suit "", and it is I think, on that account that in similar

proceedings in the High Court of Justice in England such a matter is dealt with by summons. The circumstances in which a summons for

discontinuance of proceedings may be taken out are set out at page 378 of the 18th Edition of Tristram and Coote''s Probate Practice. It is there

stated that apart from the case of the taking out of such a summons by consent, it may be taken out, "" where a caveator enters an appearance to a

warning showing insufficient interest"". It appears that in the English procedure the "" warning "" refers to the notice to appear issued against the

caveator by the party whose application for a grant has been stopped and accordingly the case now before me would appear to have reached the

point at which according to the English procedure a summons for discontinuance of proceedings would be the proper procedure to be taken by a

petitioner who desired to establish that the caveator had insufficient interest to justify his lodging of the caveat. Order XXXIV, Rule 62 of the

Original Side Rules provides that the practice and procedure of the Probate Division of the High Court of Justice in England shall be followed in

this Court so far as they are applicable and not inconsistent with the terms of Order XXXV, the Succession Act and the Code of Civil Procedure.

Thus, I am bound to follow the practice followed in the English Courts unless there is any other practice laid down. It seems to me that the only

way in which this matter could be dealt with in the suit itself would be for the petitioner to apply for leave to file a reply in which she could include

her present contention. There would then be room for raising an issue on the point. That however seems to me to be a somewhat cumbersome

procedure when there is the established practice in the English Courts of disposing of the matter by summons. Accordingly I hold that the

procedure now adopted is proper.

The second point taken by the respondent is the substantial issue. He claims to be entitled to lodge a caveat by reason of his interest in the estate

of the deceased as a reversioner. Now the petitioner''s first objection to this plea is that it was not raised in either the affidavit in support of the

caveat or in the written statement and she urges that it cannot now be raised for the first time on the summons. As I have said, the main ground of

the caveat is that the will is invalid by reason of the fact that the testator was not in sound disposing mind at the time when he is alleged to have

executed it. The partition in status relied on by the petitioner is alleged to have been effected at about the same time and the respondent urges that

both are invalid by reason of the mental incapacity of the testator. Consequently, with this plea the defence of the respondent proceeds to aver that

as there was no partition, the property which it is alleged the testator disposed of by the will passed to the respondent by survivorship and

accordingly that the testator did not die possessed of any properties and that on that ground his will must necessarily be inoperative. Now it is

conceded by Counsel on behalf of the respondent that the denial by him of the interest of the testator in the properties cannot entitle him to file a

caveat. It is of course a denial of the title of the testator and no person denying the testator''s title can on that account alone be entitled to lodge a

caveat. But in my view this does not dispose of the matter for if it is held contrary to the respondent''s main contention, that there was a valid

partition in status, the respondent would be entitled as a reversioner in the event of its being held that the will now sought to be proved was invalid.

Thus in that event the respondent clearly has an interest in the estate of the deceased. Counsel for the petitioner has urged that to take this view of

the matter involves allowing the respondent to raise two entirely inconsistent pleas. I cannot accept that contention. There would in my view be no

impropriety in the respondent pleading that he was entitled to the whole estate as survivor of the joint undivided Hindu family, and in the alternative,

that if a partition was held to have taken place he was entitled as a reversioner. If it is held in the suit now pending that there was a valid partition,

the respondent will necessarily become a reversioner and could only be displaced in that right by the acceptance as valid of the will now put

forward.

It is not disputed that the respondent is a reversioner though not the presumptive reversioner and as was held in Jammi Hanumantha Rao Vs.

Aratla Latchamma, .

It has been consistently held that a reversioner is entitled to oppose the grant of probate.

The correctness of the decision in that case was doubted in M.K. Sowbagiammal and Another Vs. Komalangi Ammal by guardian Kandaswami

Chetti and Another, . But those doubts were not on this point. In M.K. Sowbagiammal and Another Vs. Komalangi Ammal by guardian

Kandaswami Chetti and Another, . Venkatasubba Rao, J., stated the test of interest as follows:

The testis, does the grant displace any right to which the caveator would otherwise be entitled. If so he has such an interest, if not he has not.

Now applying this test to the present case it seems to me clear that if a grant is made in favour of the petitioner it necessarily follows that the

respondent''s right as a reversioner will be displaced. Of course that right will not arise if the alleged partition is not established ; but it seems that

that is a consideration of no importance in the present case which is one to establish the validity of the will and which proceeds on the footing that

there was a partition. To put it in another way, it is the petitioner''s case that the testator died possessed of an undivided half share in what were

formerly joint family properties. If her case on that footing is established, then the respondent clearly has a right to be present when the will which

will operate to displace his right as a reversioner is probated.

Accordingly I hold that the respondent has an interest in the estate of the deceased and was entitled to lodge the caveat., In the circumstances

of this case and as it is the respondent''s contention that both the will and the partition are invalid by reason of the testator''s incapacity in or about

June, 1945, it seems to me that the testamentary suit will be most conveniently dealt with along with the partition suit, C.S. No. 129 of 1946, and

the parties agree that this would be the most suitable procedure to adopt. Accordingly I direct T.O.S. No. 9 of 1946 to be heard along with C.S.

No. 129 of 1946.

The costs of this summons will be costs in the cause in T.O.S. No. 9 of 1946.