1
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.19635-19636 of 2017
(Arising out of S.L.P. (Civil ) Nos.28643-28644 of 2017)
YASH VARDHAN MALL
.... Appellant
Versus
TEJASH DOSHI
….Respondent
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
A Will was executed by Smt. Shrutika Doshi on
01.03.2013 by which she appointed her husband, the sole
Respondent herein, as the executor and trustee. Her minor
daughters were made the beneficiaries. It was mentioned in
the Will that in case the Respondent is unable to carry out or
act as the sole executor by giving effect to the Will and
testament, the Appellant shall become the sole executor.
The Will dated 01.03.2013 was registered with the
Sub-Registrar of Assurance at Calcutta on 25.05.2013.
Smt. Shrutika Doshi died on 26.05.2013. Another Will
2
executed by Smt. Shrutika Doshi on 22.04.2013 surfaced
wherein the Respondent was appointed as the sole executor
and in case he is unable to act as the sole executor his
father would replace him. As the Respondent did not apply
for grant of probate of the Will dated 01.03.2013 for two and
half years, the Appellant applied for a probate of the Will.
Thereafter, the Respondent filed P.L.A. No.123 of 2016 for
grant of probate of the Will dated 22.04.2013 before the
High Court at Calcutta. The Appellant filed a caveat on
15.06.2016 and on receipt of a notice of the filing of the
P.L.A. No.123 of 2016, the Appellant filed an affidavit in
support of the caveat on 10.01.2017. The Respondent filed
an application G.A. No.888 of 2017 in P.L.A. No.123 of 2016
for discharge of the Appellant’s caveat.
2. The petition filed by the Appellant for grant of probate
of the Will dated 01.03.2013 was dismissed by the District
Judge, Alipore on 17.04.2017. An appeal has been filed
against the said order which is pending in the High Court at
Calcutta.
3. A learned Single Judge of the High Court at Calcutta
heard G.A. No.888 of 2017 in P.L.A. No.123 of 2016 for
discharge of caveat. By an order dated 28.06.2017, the
3
learned Single Judge allowed the application filed by the
Respondent and discharged the caveat. The appeal filed
against the said order dated 28.06.2017 was disposed of by
a Division Bench of the High Court holding that there was no
reason to interfere with the order of the learned Single
Judge, though the Appellant had a caveatable interest.
Aggrieved thereby the Appellant has approached this Court.
4. The learned Single Judge referred to Chapter XXXV of
the The Rules of The High Court At Calcutta (Original Side),
1914 (hereinafter referred to as the ‘Rules’) to hold that the
affidavit filed in accordance with Rule 26 thereof did not
disclose legal grounds of objection to the grant of probate.
The learned Single Judge further held that the Appellant did
not have caveatable interest and discharged the caveat.
The Division Bench held that an executor of a previous Will
cannot be denied a right to lodge a caveat in respect of a
subsequent Will of the same testator. Even if the executor
is not a legatee under the Will, his obligation is to obtain a
probate of the Will and to administer the estate in
accordance with the terms of the Will. As the execution of
the Will dated 01.03.2013 was not disputed by the
Respondent, the Division Bench held that the Appellant has
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sufficient interest in the estate and was entitled to lodge a
caveat by virtue of his position as a trustee in respect of the
trust created by the first Will. Having held that the
Appellant has a right to object to the grant of probate of the
Will dated 22.04.2017, the Division Bench refused to
interfere with the order of the learned Single Judge for the
reason that the affidavit filed in support of the caveat did
not disclose any ground to doubt the due execution of the
Will dated 22.04.2013.
5. The Rules relevant for the purpose of adjudication of
the dispute in this case are as follows:
“24. Caveat. – Any person intending to oppose the issuing of a
grant of probate or letters of administration must either
personally or by his Advocate acting on the Original Side 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
Advocate acting on the Original Side. (Form No.13).
“25. Affidavit in support of caveat.—Where a caveat is entered
after an application has been made for a grant of probate or
letters of administration with or without the will annexed, the
affidavit or affidavits in support shall be filed within eight days of
the caveat being lodged, notwithstanding the long
vacation. Such affidavit shall state the right and interest of
caveator, and the grounds of the objections to the application.”
“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. Whereupon the trial of such
issue, if 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.”
6. An affidavit filed in support of the caveat according to
Rule 25 shall state the right and interest of the caveator and
5
the grounds of the objections to the application. The
affidavit filed in support of the caveat by the Appellant
mentions that Smt.Shrutika Doshi executed her last Will and
testament on 01.03.2013 which was registered on
22.05.2013. There is a reference to the Will dated
22.04.2013 alleged to have been executed by Smt.Shrutika
Doshi as her last Will and testament. It was further
mentioned in the affidavit that the Will dated 01.03.2013
being registered on 22.05.2013 has to be treated as the last
Will and testament of Smt.Shrutika Doshi. The Appellant did
not doubt the execution of the Will dated 22.04.2013, but
asserted that the Will dated 01.03.2013 which was
registered on 22.05.2013 was her last Will.
7. After holding that the Appellant has a caveatable
interest to object to the grant of probate of the Will dated
22.04.2013, the High Court refused to interfere with the
order of the learned Single Judge on the basis that the
affidavit filed in support of the caveat did not doubt the
execution of the Will. As per Rule 25, the right and interest
of the caveator and the grounds for objection to the
application have to be mentioned in the affidavit filed in
support of the caveat. The right and interest of the
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caveator as the executor of rival Will dated 01.03.2013 have
been mentioned in the affidavit filed in support of the
caveat and the High Court rightly upheld the contention on
behalf of the Appellant that he has caveatable interest. The
grounds for objection to the application for grant of probate
have also been mentioned in the affidavit. On a detailed
scrutiny of the affidavit filed in support of the caveat, we are
satisfied that the Division Bench went wrong in not
permitting the Appellant to contest the proceeding of
probate of the Will dated 22.04.2013, especially after
holding that he has a caveatable interest. It is relevant to
mention that the petition filed by the Appellant for grant of
probate of the Will dated 01.03.2013 was rejected by the
District Judge, Alipore on the ground that the application for
probate of the Will dated 22.04.2013 was pending and that
the Appellant had lodged a caveat in that proceeding. It
was further held in the said order passed by the District
Judge on 17.04.2017 that the Appellant will have sufficient
opportunity to prove his allegations against the Respondent
in the said proceeding.
8. This Court in Krishna Kumar Birla v. Rajendra
Singh Lodha and Ors. (2008) 4 SCC p.300 considered
7
the point of caveatable interest in a detailed manner and
held that no hard and fast rule can be laid down. The
existence of a caveatable interest would depend upon the
fact situation of each case. In the instant case, the High
Court found that the Appellant has caveatable interest, but
the caveat filed by the Appellant was discharged on the
ground that the affidavit filed in support thereof was bereft
of an averment doubting the due execution of the Will dated
22.04.2013. For the reasons stated supra, we are satisfied
that the affidavit filed in support of the caveat fulfils the
condition of Rule 25.
9. The appeals are allowed and the judgment passed by
the Division Bench of the High Court is set aside. No order
as to costs.
......................................J.
[ARUN MISHRA]
……................................J.
[L. NAGESWARA RAO]
New Delhi,
November 23, 2017.
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.19635-19636 of 2017
(Arising out of S.L.P. (Civil ) Nos.28643-28644 of 2017)
YASH VARDHAN MALL
.... Appellant
Versus
TEJASH DOSHI
….Respondent
J U D G M E N T
L. NAGESWARA RAO, J.
Leave granted.
A Will was executed by Smt. Shrutika Doshi on
01.03.2013 by which she appointed her husband, the sole
Respondent herein, as the executor and trustee. Her minor
daughters were made the beneficiaries. It was mentioned in
the Will that in case the Respondent is unable to carry out or
act as the sole executor by giving effect to the Will and
testament, the Appellant shall become the sole executor.
The Will dated 01.03.2013 was registered with the
Sub-Registrar of Assurance at Calcutta on 25.05.2013.
Smt. Shrutika Doshi died on 26.05.2013. Another Will
2
executed by Smt. Shrutika Doshi on 22.04.2013 surfaced
wherein the Respondent was appointed as the sole executor
and in case he is unable to act as the sole executor his
father would replace him. As the Respondent did not apply
for grant of probate of the Will dated 01.03.2013 for two and
half years, the Appellant applied for a probate of the Will.
Thereafter, the Respondent filed P.L.A. No.123 of 2016 for
grant of probate of the Will dated 22.04.2013 before the
High Court at Calcutta. The Appellant filed a caveat on
15.06.2016 and on receipt of a notice of the filing of the
P.L.A. No.123 of 2016, the Appellant filed an affidavit in
support of the caveat on 10.01.2017. The Respondent filed
an application G.A. No.888 of 2017 in P.L.A. No.123 of 2016
for discharge of the Appellant’s caveat.
2. The petition filed by the Appellant for grant of probate
of the Will dated 01.03.2013 was dismissed by the District
Judge, Alipore on 17.04.2017. An appeal has been filed
against the said order which is pending in the High Court at
Calcutta.
3. A learned Single Judge of the High Court at Calcutta
heard G.A. No.888 of 2017 in P.L.A. No.123 of 2016 for
discharge of caveat. By an order dated 28.06.2017, the
3
learned Single Judge allowed the application filed by the
Respondent and discharged the caveat. The appeal filed
against the said order dated 28.06.2017 was disposed of by
a Division Bench of the High Court holding that there was no
reason to interfere with the order of the learned Single
Judge, though the Appellant had a caveatable interest.
Aggrieved thereby the Appellant has approached this Court.
4. The learned Single Judge referred to Chapter XXXV of
the The Rules of The High Court At Calcutta (Original Side),
1914 (hereinafter referred to as the ‘Rules’) to hold that the
affidavit filed in accordance with Rule 26 thereof did not
disclose legal grounds of objection to the grant of probate.
The learned Single Judge further held that the Appellant did
not have caveatable interest and discharged the caveat.
The Division Bench held that an executor of a previous Will
cannot be denied a right to lodge a caveat in respect of a
subsequent Will of the same testator. Even if the executor
is not a legatee under the Will, his obligation is to obtain a
probate of the Will and to administer the estate in
accordance with the terms of the Will. As the execution of
the Will dated 01.03.2013 was not disputed by the
Respondent, the Division Bench held that the Appellant has
4
sufficient interest in the estate and was entitled to lodge a
caveat by virtue of his position as a trustee in respect of the
trust created by the first Will. Having held that the
Appellant has a right to object to the grant of probate of the
Will dated 22.04.2017, the Division Bench refused to
interfere with the order of the learned Single Judge for the
reason that the affidavit filed in support of the caveat did
not disclose any ground to doubt the due execution of the
Will dated 22.04.2013.
5. The Rules relevant for the purpose of adjudication of
the dispute in this case are as follows:
“24. Caveat. – Any person intending to oppose the issuing of a
grant of probate or letters of administration must either
personally or by his Advocate acting on the Original Side 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
Advocate acting on the Original Side. (Form No.13).
“25. Affidavit in support of caveat.—Where a caveat is entered
after an application has been made for a grant of probate or
letters of administration with or without the will annexed, the
affidavit or affidavits in support shall be filed within eight days of
the caveat being lodged, notwithstanding the long
vacation. Such affidavit shall state the right and interest of
caveator, and the grounds of the objections to the application.”
“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. Whereupon the trial of such
issue, if 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.”
6. An affidavit filed in support of the caveat according to
Rule 25 shall state the right and interest of the caveator and
5
the grounds of the objections to the application. The
affidavit filed in support of the caveat by the Appellant
mentions that Smt.Shrutika Doshi executed her last Will and
testament on 01.03.2013 which was registered on
22.05.2013. There is a reference to the Will dated
22.04.2013 alleged to have been executed by Smt.Shrutika
Doshi as her last Will and testament. It was further
mentioned in the affidavit that the Will dated 01.03.2013
being registered on 22.05.2013 has to be treated as the last
Will and testament of Smt.Shrutika Doshi. The Appellant did
not doubt the execution of the Will dated 22.04.2013, but
asserted that the Will dated 01.03.2013 which was
registered on 22.05.2013 was her last Will.
7. After holding that the Appellant has a caveatable
interest to object to the grant of probate of the Will dated
22.04.2013, the High Court refused to interfere with the
order of the learned Single Judge on the basis that the
affidavit filed in support of the caveat did not doubt the
execution of the Will. As per Rule 25, the right and interest
of the caveator and the grounds for objection to the
application have to be mentioned in the affidavit filed in
support of the caveat. The right and interest of the
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caveator as the executor of rival Will dated 01.03.2013 have
been mentioned in the affidavit filed in support of the
caveat and the High Court rightly upheld the contention on
behalf of the Appellant that he has caveatable interest. The
grounds for objection to the application for grant of probate
have also been mentioned in the affidavit. On a detailed
scrutiny of the affidavit filed in support of the caveat, we are
satisfied that the Division Bench went wrong in not
permitting the Appellant to contest the proceeding of
probate of the Will dated 22.04.2013, especially after
holding that he has a caveatable interest. It is relevant to
mention that the petition filed by the Appellant for grant of
probate of the Will dated 01.03.2013 was rejected by the
District Judge, Alipore on the ground that the application for
probate of the Will dated 22.04.2013 was pending and that
the Appellant had lodged a caveat in that proceeding. It
was further held in the said order passed by the District
Judge on 17.04.2017 that the Appellant will have sufficient
opportunity to prove his allegations against the Respondent
in the said proceeding.
8. This Court in Krishna Kumar Birla v. Rajendra
Singh Lodha and Ors. (2008) 4 SCC p.300 considered
7
the point of caveatable interest in a detailed manner and
held that no hard and fast rule can be laid down. The
existence of a caveatable interest would depend upon the
fact situation of each case. In the instant case, the High
Court found that the Appellant has caveatable interest, but
the caveat filed by the Appellant was discharged on the
ground that the affidavit filed in support thereof was bereft
of an averment doubting the due execution of the Will dated
22.04.2013. For the reasons stated supra, we are satisfied
that the affidavit filed in support of the caveat fulfils the
condition of Rule 25.
9. The appeals are allowed and the judgment passed by
the Division Bench of the High Court is set aside. No order
as to costs.
......................................J.
[ARUN MISHRA]
……................................J.
[L. NAGESWARA RAO]
New Delhi,
November 23, 2017.
