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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.473 of 2009
Saroj Agarwalla (Dead) Thr. LR
Abhishek Agrawalla
Versus
Yasheel Jain
Dated:October 24, 2016
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.”
8. 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.
9. 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 Lodha1
. 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.
10. 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
1
(2008) 4 SCC 300 etc.
Ishwardeo Narain Singh v. Kamta Devi AIR 1954 SC 280.
. 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.”
11. 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.
12. 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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