Supreme Court of India
YASH VARDHAN MALL VS TEJASH DOSHI on
23-11-2017
23-11-2017
C
A No.19635-19636 of 2017
A No.19635-19636 of 2017
S.L.P. (Civil ) Nos.28643-28644 of 2017
Summarised Judgement (Scroll for Complete Judgement)
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.
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.
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 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.
registered with the Sub-Registrar of Assurance at Calcutta on 25.05.2013. Smt.
Shrutika Doshi died on 26.05.2013. Another Will 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.
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.
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.
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 learned Single Judge
allowed the application filed by the Respondent and discharged the caveat.
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 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.
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.
An affidavit filed in support of the
caveat according to Rule 25 shall state the right and interest of the caveator
and 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.
caveat according to Rule 25 shall state the right and interest of the caveator
and 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.
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 right and interest of the
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.
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.
Judgement:
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.
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.
satisfied that the affidavit filed in support of the caveat fulfils the
condition of Rule 25.
The appeals are allowed and the
judgment passed by the Division Bench of the High Court is set aside. No order
as to costs.
judgment passed by the Division Bench of the High Court is set aside. No order
as to costs.
Complete Judgement
YASH VARDHAN MALL VS TEJASH DOSHI on 23-11-2017
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
Appellant
Versus
TEJASH DOSHI ….Respondent
JUDGMENT
L.
NAGESWARA RAO, J.
NAGESWARA RAO, J.
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 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.
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 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.
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 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.
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 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
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.
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
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:
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).
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.”
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 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.
the caveat according to Rule 25 shall state the right and interest of the
caveator and 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 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.
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 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 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.
v. Rajendra Singh Lodha and Ors. (2008) 4 SCC p.300 considered 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.
judgment passed by the Division Bench of the High Court is set aside. No order
as to costs.