A person who claims independently of the testator and disputes his right to dispose of the property has no interest entitling him to compel proof of the will in the solemn form.

JUDGMENT : - This is an appeal from the order of the learned Master in Application No.1056 of 1954 in O.P. No.374 of 1952.

2. The facts are : On 5-4-1937 Kanniappa Mudaliar executed his last will and testament. This Kanniappa Mudaliar had two daughters by name Rukmani Ammal and Thillainayagi Ammal. Thillai- nayagi Ammal is the respondent before us in this appeal. Under this will which has been filed in O.P. No.87 of 1954 and sent for by me and looked into in open Court, this Kanniappa Mudaliar has bequeathed his self-acquired properties in moieties with absolute rights to his aforesaid two daughters.

There is no dispute that subsequent to the death of Kanniappa Mudaliar and shortly after the execution of the will his daughters have been enjoying the properties bequeathed to them in moieties. Rukmani Ammal died sometime ago surviving her, her only son by name Santhana Mudali. This Santhana Mudali died on 18-12-1950. Before his death he had executed his last will and testament on 14-12-1950 under which he has bequeathed the properties got by him from his mother to Saradambal.

This Saradambal has obtained a probate in O.P. No.374 of 1952 on the will being proved in the common form. The aunt Thillainayagi Ammal has now come forward with this application No.1056 of 1954 for the issue of a citation to her on the ground that the will was executed by Santhana Mudali under undue influence, coercion and fraud and that it should be proved in the solemn form.

This was resisted by Saradambal and the next of kin of the deceased Santhana Mudali viz., Munuswami Mudali supports Saradambal and states that he is not asking for the will being proved in the solemn form and that he is satisfied about the probate granted to Saradambal.

3. The point for determination before the learned Master and myself is whether this Thillainayagi Ammal is such a person as can put the executor or other person interested under the will to proof of that will in the solemn form.

4. The learned Master has held in the affirmative and hence this appeal.

5. In appeal I am of opinion that the learned Master was not justified in holding that Thillainayagi Ammal is a party who may compel proof of the will in the solemn form. Here are my reasons.

6. Before entering into a discussion as to what constitutes "interest" for claiming citation, I may point out that notwithstanding their Lordships of the Privy Council deprecating the use of the terms, common form and solemn form not to be found in the Indian Succession Act - Mt. Ramanandi Kuer v. Mt. Kalawati Kuer, AIR 1928 PC 2 (A), they have become synonymous with non-contentious and contentious cases contemplated by the Indian Succession Act (- Walter Rebells v. Maria Rebells, 2 Cal WN 100 (B); - Elokeshi Dassi v. Hari Prosad Soor, 7 Cal WN 450 (C)).

7. The settled case-law, so far as the English Courts are concerned, in regard to parties who may compel proof of will in solemn form is summarised in the following classical commentaries: Tristram and Cootes Probate Practice, 19th Edition, page 468:

"The following persons may put an executor or other person interested under a will to proof of that will in solemn form:

The widow or husband of the deceased, and other persons entitled to a share of his estate in the event of an intestacy, or the personal representative of any of these. If the deceased died without relation entitled to his estate. ..." (with which we are not concerned here).

Williams on the Law of Executors and Administrators, 13th Edition, Volume I, page 80:

"The executor of a will proved in common form may be compelled, by a person having an interest, to prove it per testes in solemn form..... ......

Before a person can be permitted to contest a will, the party propounding has a right to call on him to show that he has some interest.

Similarly Mortimer on Probate Practice, page 588 - Kipping and Barlow v. Ash, (1845) 1 Rob. Eccl. 270 at p.273 (D) and - Dixon v. Allinson, (1864) 3 Sw and Tr 572 (E). But see - Crispin v. Dogl