A person claiming no interest in the property other than by alleged title through adverse possession has no right to be heard by the probate court.

1. The learned District Judge, Kottayam by the order impugned in OP.(LA) No. 86 of 1982 held that the appellant who had entered a caveat on the basis of his alleged adverse possession was not a person having an interest in the estate of the deceased, and was, therefore, not entitled to notice under S.283(1)(c) of the Indian Succession Act, 1925. The caveat was accordingly discharged.

2. The appellant described himself as an adopted son of the testator, but set forth his claim solely on the basis of his alleged title by prescription. Counsel for the appellant Shri. Balasubramanyan says that a person in possession has a perfectly good title against the whole world, except the true owner. It is therefore, in the interest of such a person to enter a caveat and contest the right of persons claiming under a Will. A judgment of a probate court being a judgment in rem, the interest of the appellant, who is in possession of the property bequeathed under the Will to the respondents, will, counsel says, be adversely affected unless he is heard before a probate is granted. Counsel for the respondents Shri C. S. Ananthakrishna Iyer, on the other hand, disputes the claim of the appellant. He says that the case of the appellant being solely based on his alleged title by prescription, he has no interest whatever to be entitled to notice of the proceedings before the probate court. If he has perfected his title by adverse possession, it would be open to him to assert his title in appropriate proceedings, but he has no right to enter a caveat and oppose the grant of probate.

3. S.283 of the Indian Succession Act, 1925 says:

"283. Powers of District Judge.- (1) In all cases the District Judge or 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.

(2) ... ... ... ... ... ... ... ...

(3) ... ... ... ... ... ... ... ...

Only persons claiming to have an interest in the estate of the deceased are entitled to notice under S.283(1)(c). Does a trespasser or a person claiming title by adverse possession belong to this case?

4. In Baijnath Shahai and others v. Desputty Singh. ILR 2 Cal. 208, it was held that creditors of the next¬of-kin were not persons interested in the estate of the deceased and were not entitled to oppose grant of probate or letters of administration. The probate or letters of administration were conclusive as to the representative status of the person obtaining them and the creditors could look to him for satisfaction of their debts. Persons having any claim against the estate of the deceased were not, however, deprived of their remedy by such grant.

5. As the law progressed, courts began to show less reluctance to interfere on behalf of creditors of next¬of-kin or assignees or transferees from them on the ground of fraud. It was suggested in Nilmoni Singh Deo v.Umanath Mookerjee, ILR 10 Cal. 19 that a purchaser or an attaching creditor of the next-of kin had a right to seek revocation of probate on the ground that it bad been obtained in fraud of creditors. In Dinabandhu Roy v. Sarala Sundari AIR 1940 Cal. 296, the court held that a creditor had the right to intervene in probate proceedings which started after he had advanced money to the heirs-at-law of the deceased. He also had the right to apply for revocation of the grant on the ground that the probate was obtained in fraud of the creditors of the heirs-at-law of the deceased testator. This decision was confirmed by the Privy Council in Sarala Sundari v. Dinabandu Roy, AIR 1944 PC 11. Lord Atkin stated:

"The question arises whether the creditor of an heir who says that be is being or is likely to be defeated in his rights against the heir by reason of property which otherwise appeared to be in possession of the heir being withdrawn by a will, is allowed to move to revoke the probate