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Tuesday, October 25, 2016

“caveatable interest”.= a person establishing prima facie interest in the estate of the testator should be permitted to maintain a caveat and contest a claim for probate. -Caveat. Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his attorney file a caveat in the Registry in Form No.12.= whether the caveator has a caveatable interest - The preliminary issue does not relate to the validity or legality of the Will sought to be probated but only to the issue whether the caveator has an interest for which he can maintain the caveat.- “the Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.”- although the caveator Yasheel Jain did not file the original Will, the Division Bench has noted that he has filed a photocopy of the prior Will allegedly executed by the testator and has also produced the registered envelope through which such copy was sent to him by the testator along with the forwarding letter written by him. Upon such materials, the Division Bench recorded its prima facie satisfaction that the caveat should not be discharged. - whether Malati is really a lawful widow of the testator or not cannot be conclusively adjudicated in the probate proceedings and therefore, only a prima facie view was possible to decide whether her caveat should be discharged or not. We find ourselves in agreement with the views taken by the High Court in the impugned judgments. The appeals are, therefore, dismissed but with no order as to costs. 2016 Oct. http://judis.nic.in/supremecourt/imgst.aspx?filename=44263

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.473 of 2009


Saroj Agarwalla (Dead) Thr. LR
Abhishek Agrawalla                                 …..Appellant

      Versus

Yasheel Jain                                       …..Respondent

                                   W I T H

                         CIVIL APPEAL NO.474 OF 2009


                               J U D G M E N T


SHIVA KIRTI SINGH, J.

Both the appeals arise out of same proceedings initiated  by  the  appellant
for grant of probate on the basis of a Will claimed to be the last Will  and
testament  of  appellant’s  brother  Jagdish  Prasad  Tulshan.   Appellant’s
prayer to reject the caveats of respondents in  the  above  proceedings  was
turned down by a Division Bench  of  High  Court  at  Calcutta  by  impugned
orders, both dated 04.05.2007.   Both  the  appeals,  therefore,  have  been
heard together and shall be governed by this common judgment.

The appellant Saroj Agarwalla is the propounder of a Will, alleged  to  have
been executed by one Jagdish Prasad Tulshan.  She  claims  to  be  the  only
surviving sister of the testator at the time of his death.  She  prayed  for
grant of the Probate  of  the  Will  allegedly  executed  by  Jagdish.   The
respondent in the first appeal, i.e., C.A.No.473  of  2009  -  Yasheel  Jain
lodged a caveat claiming to be the son  of  a  pre-deceased  sister  of  the
testator and thus having interest in the estate of the deceased.  His  claim
is founded on two grounds, firstly as a nephew of the testator and  secondly
as the sole beneficiary under an alleged  prior  Will  of  the  testator  in
respect of the same estate.
A learned Single Judge considered the objection raised by the propounder  to
the caveat filed by Yasheel Jain and rejected  the  objection.   The  Single
Judge was of the view that the  provision  creating  the  right  to  file  a
caveat could be availed by a person who is not a  rank  outsider  and  could
claim to be an heir after the propounder was no longer alive.  In that  view
of the matter it was held that the caveat filed  by  Yasheel  could  not  be
discharged.  Since the Single Judge did not discuss  the  claim  of  Yasheel
based on an  earlier  Will,  Yasheel  filed  a  cross-objection  before  the
Division Bench.  The appeal and the cross  objection  were  heard  together.
The Division Bench dismissed the appeal of the  appellant  and  allowed  the
cross-objection by recording its prima facie  satisfaction  about  existence
of an earlier Will creating caveatable interest in favour of  Yasheel.   The
Division Bench did not approve the view of the  learned  Single  Judge  that
Yasheel had a caveatable interest  as  an  heir  of  the  testator  but  the
conclusion of the learned Single Judge was approved,  albeit  for  different
reasons as noted above.
In the connected civil appeal the prayer  of  the  appellant  for  grant  of
probate of the afore-discussed Will of Jagdish Prasad  Tulshan  was  opposed
by the respondent Malati Tulshan.  She claimed to be the second wife of  the
testator married on 28.02.1986 and lodged a separate caveat on  that  basis.
The propounder later filed an application for discharge of the  said  caveat
on the ground that Malati was never married to the testator and,  therefore,
had no caveatable interest in the matter.
The learned Single Judge rejected  the  application  for  discharge  of  the
caveat on the ground that  the  Will  propounded  by  the  appellant  itself
conferred  some  benefits  upon  Malati  and  therefore  she  had   acquired
caveatable interest.  Single Judge also relied upon Rule 9 of  Chapter  XXXV
of the Original Side Rules (hereinafter  referred  to  as  ‘the  Rules’)  of
Calcutta High Court to hold that in case any benefit  is  conferred  upon  a
person by virtue of the alleged Will, the said rule  provided  for  citation
and was attracted.  The Division Bench did not  agree  with  the  reasonings
given by the learned Single  Judge  and  held  that  mere  receipt  of  some
benefits under the Will cannot confer  a  caveatable  interest  in  a  third
party unless he claims interest in the  estate  of  the  deceased  otherwise
than by way of Will sought to be  probated.   But  the  conclusions  of  the
Single Judge were upheld on the basis of claim of Malati that she was  widow
of the testator.  The Division Bench came to hold  that  the  issue  whether
Malati  is  really  a  lawful  widow  of  the  testator  or  not  cannot  be
conclusively decided  in  the  probate  proceedings  but  once  prima  facie
materials support her claim, the application  filed  for  discharge  of  her
caveat deserves dismissal.  This view is founded on the reason furnished  by
Division Bench by pointing out that a judgment in  the  probate  proceedings
is a judgment in rem and,  therefore,  a  person  establishing  prima  facie
interest in the estate of the testator should be  permitted  to  maintain  a
caveat and contest a claim for probate.  At this stage, it is not  necessary
to establish caveatable interest by conclusive proof.   The  Division  Bench
finally made it clear that all its  observations  were  tentative  and  such
observations will not be binding upon the parties or upon  any  other  court
if the status of Malati is questioned in any proceedings.
On behalf of appellant, claim of Yasheel that he has a  caveatable  interest
on the basis of a  prior  Will  was  seriously  disputed  and  contested  by
learned senior advocate  Mr.  Jaideep  Gupta.   He  submitted  that  Yasheel
admittedly does not have  the  original  Will  with  him  as  noted  by  the
Division Bench itself and, therefore, once it has been held that he  has  no
caveatable interest as a nephew of the testator being son of a  pre-deceased
sister, the Division Bench erred in holding  that  he  has  an  interest  to
maintain his caveat on the basis of an alleged prior  Will  in  his  favour.
So far as interest of Malati is  concerned,  the  submission  on  behalf  of
appellant is that she has made conflicting claims, one, as a  widow  of  the
testator and the other based upon benefits  under  the  Will  sought  to  be
probated.  Since the recitals in the Will described Malati only  as  a  maid
servant, according to appellant she could not have claimed to be a widow  of
the testator.
The preliminary issue that has arisen in the probate  case  which  is  still
pending, relates to  “caveatable  interest”.   Chapter  XXXV  of  the  Rules
incorporate provisions relating to testamentary and intestate  jurisdiction.
Rule 1 defines  ‘non-contentious  business’  to  include  the   business  of
obtaining probate and letters of administration (with or  without  the  will
annexed, and  whether  general,  special  or  limited)  where  there  is  no
contention as to the right thereto, as also in contentious cases  where  the
contest is terminated and also includes  the  business  of  lodging  caveats
against the grant of probate or letters of  administration.   Rules  24,  28
and 30  are  relevant  to  the  issues  at  hand  and  are  hence  extracted
hereinbelow :

“24. Caveat. Any person intending to  oppose  the  issuing  of  a  grant  of
probate or letters of  administration  must  either  personally  or  by  his
attorney file a caveat in the Registry in Form No.12.  Notice of the  filing
of the caveat shall be given by the  Registrar  to  the  petitioner  or  his
attorney. (Form No.13).

… … … … …

28. Procedure on affidavit being filed.  Upon the affidavit  in  support  of
the caveat being filed (notice whereof shall immediately  be  given  by  the
caveator to the petitioner), the proceedings shall,  by  order  of  a  Judge
upon application by summons be numbered as a suit in  which  the  petitioner
for probate or letters of administration shall be  the  plaintiff,  and  the
caveator shall be the defendant, the petition  for  probate  or  letters  of
administration being registered as and deemed a  plaint  filed  against  the
caveator, and the affidavit filed by  the  caveator  being  treated  as  his
written statement in the suit.  The procedure in such suit shall, as  nearly
as may be, be according to the provisions of  the  Code  (Forms  Nos.14  and
15).

… … … … …

30. Trial of Preliminary issue. The Court may, on  the  application  of  the
petitioner by summons to the caveator before making the order  mentioned  in
rule 28, direct the trial  of  an  issue  as  to  the  caveator’s  interest.
Where, upon the trial of such issue, it appears that  the  caveator  has  no
interest, the Court shall order the caveat to be discharged, and  may  order
the issue of probate or letters of administration, as the case may be.”

A careful reading of Rules 28 and 30 makes it abundantly clear  that  before
the proceedings are numbered as a suit by orders of a Judge for being  tried
as a suit as per provisions of the Code of Civil Procedure (for short,  ‘the
Code’), the Court may take up as a preliminary issue, whether  the  caveator
has a caveatable interest, if such an application is filed before the  Court
by the petitioner.  Clearly the preliminary issues are  triable  before  the
proceedings are treated as a full-fledged suit  under  order  of  the  Judge
concerned.  Whereas suit is required to be tried as per  provisions  of  the
Code, the procedure for trial of preliminary issue  has  been  left  to  the
discretion of the court.  Rule 30 does not require the  court  to  come  out
with specific findings in respect of preliminary issue because the  language
used in Rule 30 requires the court  to  discharge  the  caveat  where,  upon
trial of  such  issue,  “it  appears  that  the  caveator  has  no  interest
........” (Emphasis supplied).  The preliminary issue  does  not  relate  to
the validity or legality of the Will sought to be probated but only  to  the
issue whether the caveator has an interest for which  he  can  maintain  the
caveat.
Learned counsel for both the parties have addressed us at some length as  to
the meaning of the words “caveatable interest”.  The  matter  is  no  longer
res integra in view of a detailed discussion of this term  in  the  case  of
Krishna Kumar Birla v. Rajendra Singh Lodha[1].   Paragraphs  59  to  86  of
this judgment refer to large number of authorities of this Court as well  as
various High Courts.  The conclusions flowing from that  judgment  including
the proposition of law in paragraph 86  clearly  support  the  case  of  the
respondents in both the appeals that they have a caveatable  interest.   The
test which may be applied in the present case is : Does the claim  of  grant
of probate prejudice the respondent’s right because it  defeats  some  other
line of succession in terms whereof the respondent as  a  caveator  asserted
his/her right?  Since the answer, in the facts of the case would be  in  the
affirmative, we are in agreement with the view taken by the  Division  Bench
that respondents have a caveatable interest.
A query arises as to why the  Division  Bench  has  recorded  its  views  as
“prima facie”.  The answer has been provided  by  learned  counsel  for  the
respondents by placing reliance upon paragraph 2 of  the  judgment  of  this
Court in the case of Ishwardeo Narain Singh v. Kamta  Devi[2].   This  Court
pointed out that “the Court of Probate is only concerned with  the  question
as to whether the document put forward as the last will and testament  of  a
deceased person was duly executed and attested in accordance  with  law  and
whether at the time of such  execution  the  testator  had  sound  disposing
mind.  The question whether a particular bequest  is  good  or  bad  is  not
within the purview of the Probate Court.”
Since we have noted the main submission on behalf of the appellant  earlier,
it is deemed proper to point out that although  the  caveator  Yasheel  Jain
did not file the original Will, the Division Bench has  noted  that  he  has
filed a photocopy of the prior Will allegedly executed by the  testator  and
has also produced the registered envelope through which such copy  was  sent
to him by the testator along with the  forwarding  letter  written  by  him.
Upon  such  materials,  the  Division  Bench  recorded   its   prima   facie
satisfaction that the caveat should not  be  discharged.   In  the  case  of
caveat by respondent Malati, the Division Bench noted the citations  in  the
Will propounded by the appellant showing Malati to be only  a  maid  servant
but on the basis of totality of facts and circumstances it rightly  came  to
the conclusion that a person by merely making a contrary  statement  in  the
Will cannot change a real relationship if it actually existed and  hence  at
least arguable case in favour of claim of Malati  as  regards  her  relation
with the testator  has  been  established  and  hence  she  deserves  to  be
permitted to contest the probate proceeding.  The Court, at  the  same  time
made it clear that whether Malati is really a lawful widow of  the  testator
or not cannot be conclusively adjudicated in  the  probate  proceedings  and
therefore, only a prima facie  view  was  possible  to  decide  whether  her
caveat should be discharged or not.

We find ourselves in agreement with the views taken by  the  High  Court  in
the impugned judgments.  The appeals are, therefore, dismissed but  with  no
order as to costs.

                       ……………………………………..J.
                       [DIPAK MISRA]


.…………………………………….J.
                             [SHIVA KIRTI SINGH]


New Delhi.
October 24, 2016

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[1]
      [2]               (2008) 4 SCC 300
[3]
      [4]               AIR 1954 SC 280

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