A creditor has no interest in the estate of the deceased for the purpose of lodging a caveat in a probate proceeding.

Bhagabati Prasad Banerjee, J.: The appeal has been treated as on day’s list and taken up for hearing by consent of the particle after dispending with all the formalities and discharging the undertaking given by the appellant.

2. This, is an appeal against the order passed by the learned Trial Judge on 4th May, 1995 allowing the application for summary revocation of the caveat filed by the appellant Hari Charan Garodia in respect of the last Will and Testament of Hari Prasad Lohia since deceased in respect of which an application for probate was filed by his brother's son Nikunja Lohia.

3. The caveat was not filed by any of the heirs and/or the legal representative of the deceased Hari Prasad Lohia but by the appellant claiming to have interest in, the property of the deceased. The appellant claims that his interest in the property of the deceased is on the ground, that the appellant had filed a suit for a claim against the property of the deceased and obtained an order of attachment before judgment in the said suit by an order passed by Justice Hazari, J, (as His Lordship then was) on 27th August, 1993 in a suit filed by the appellant against Smt. Durga Debi Goenka & Ors. Apart from the said order of attachment before judgment it is stated that there was an award in respect of the shares of some of the Companies in which the deceased had shares. The question which arose before the learned Trial Judge was whether the appellant in terms of the caveat has locus standi for lodging such caveat. The learned Trial Judge on consideration of the matter by an order dated 4th May, 1995 revoked the said caveat, filed by the appellant on the basis of an application filed by the propounder of the Will for summary revocation of the said caveat.

4. Provisions of s. 283 of the Indian Succession Act reads as follows:

"283. Powers of District Judge: (1) In all cases the District Judge or District Delegate May, if he thinks proper –

(a) examine the petitioner in person, upon oath;

(b) require further evidence of the due execution of the will or the right of the petitioner to the letters of administration, as the case may be ;

(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.

(2) The Citation shall be fixed up in some conspicuous part of the Court-house, and also in the office of the Collector of the District and otherwise published or made known in such manner as the Judge or District Delegate issuing the same may direct.

(3) Where any portion of the assets has been stated by the petitioner to be situate within the jurisdiction of a District Judge in another State, the District Judge issuing the same shall cause a copy of the citation to be sent to such other District Judge, who shall publish the same, in the same manner as if it were a citation issued by himself, and shall certify such publication to the District Judge who issued the citation."

5. Accordingly, in view of provisions of s. 283 of the said Act if the appellant had interest in the property of the deceased the appellant had a right to lodge a caveat and was entitled to participate in the probate proceeding.

6. Mr. P.C. Sen, learned Counsel appearing on behalf of the appellant submitted that in the facts and circumstances of the case when an award has been given in favour of some of the shares of the company in which some shares were also held by the deceased and that the said shares admittedly are part of the estate of the deceased, the same should be considered as interest in the estate of the deceased. Secondly, it was pointed out that the suit was filed for certain charges in respect of which an attachment before judgment had been passed. On that account also it cannot be said that the appellant had no interest in the estate.

7. Mr. Sen further submits that the appellant had interest in the property particularly in view of the fact that t