SUPREME COURT OF INDIA
KRISHNA KUMAR BIRLA VS
RAJENDRA SINGH LODHA & ORS ON 31 MARCH, 2008
RAJENDRA SINGH LODHA & ORS ON 31 MARCH, 2008
Summarised
Judgement (Scroll for Complete Judgement)
Judgement (Scroll for Complete Judgement)
Introduction:
What is a caveatable
interest within the meaning of the Indian Succession Act, 1925 (1925 Act)
vis-a-vis the Rules framed by the Calcutta High Court in the year 1940 is the
question involved herein.
interest within the meaning of the Indian Succession Act, 1925 (1925 Act)
vis-a-vis the Rules framed by the Calcutta High Court in the year 1940 is the
question involved herein.
Facts of the Case:
Smt. Priyamvada Devi
Birla (PDB) and her husband Madhav Prasad Birla (MPB) were admittedly very
wealthy persons. They owned an industrial empire known as the MP Birla Group of
Industries. They were issueless and known for their charitable disposition.
They used to run several charitable institutions.
Birla (PDB) and her husband Madhav Prasad Birla (MPB) were admittedly very
wealthy persons. They owned an industrial empire known as the MP Birla Group of
Industries. They were issueless and known for their charitable disposition.
They used to run several charitable institutions.
Both MPB and PDB are
said to have executed mutual wills on identical terms on or about 10th May,
1981 bequeathing his/her respective estate(s) barring certain specific legacies
to the other and on the death of the survivor to the `charities’ to be
nominated by the executors.
said to have executed mutual wills on identical terms on or about 10th May,
1981 bequeathing his/her respective estate(s) barring certain specific legacies
to the other and on the death of the survivor to the `charities’ to be
nominated by the executors.
However, the said wills
were revoked and another set of mutual wills were executed on 13th July, 1982
in terms whereof, four executors were appointed in each set of Will (1982
Will).
were revoked and another set of mutual wills were executed on 13th July, 1982
in terms whereof, four executors were appointed in each set of Will (1982
Will).
On or about 18th April,
1999, PDB executed her last Will (1999 Will) bequeathing her entire estate to
the first respondent i.e. Rajendra Singh Lodha (RSL). He was also appointed as
the sole executor. She executed a codicil on 15th April, 2003.
1999, PDB executed her last Will (1999 Will) bequeathing her entire estate to
the first respondent i.e. Rajendra Singh Lodha (RSL). He was also appointed as
the sole executor. She executed a codicil on 15th April, 2003.
PDB died on 3rd July,
2004.
2004.
KKB, BKB, and
Yashovardhan Birla (YB), the appellants herein, having come to learn of the
execution of the said Will filed caveats on 14th July, 2004 to oppose the grant
of probate of the 1999 Will. Ganga Prasad Birla (GPB) and Smt. Laxmi Devi Newar
also entered caveats on 19th July, 2004.
Yashovardhan Birla (YB), the appellants herein, having come to learn of the
execution of the said Will filed caveats on 14th July, 2004 to oppose the grant
of probate of the 1999 Will. Ganga Prasad Birla (GPB) and Smt. Laxmi Devi Newar
also entered caveats on 19th July, 2004.
In his application for
grant of probate, GPB accepted that Smt. Laxmi Devi Newar and Smt. Radha Devi
Mohatta were the heirs and legal representatives of PDB. In the said
application, Pradip Kumar Khaitan and Kashinath Tapuria were also parties.
grant of probate, GPB accepted that Smt. Laxmi Devi Newar and Smt. Radha Devi
Mohatta were the heirs and legal representatives of PDB. In the said
application, Pradip Kumar Khaitan and Kashinath Tapuria were also parties.
A suit was filed by the
surviving executors of the two 1982 Wills before the Calcutta High Court which
was numbered as C.S. No.221 of 2004 claiming inter alia for a declaration that
the first respondent as the alleged executor and sole beneficiary of the 1999
Will of PDB is not entitled to deal with the assets of PDB in any manner
contrary to and inconsistent with the terms of the 1982 Will. The cause of
action for the said suit was founded on the doctrine of mutual Wills.
surviving executors of the two 1982 Wills before the Calcutta High Court which
was numbered as C.S. No.221 of 2004 claiming inter alia for a declaration that
the first respondent as the alleged executor and sole beneficiary of the 1999
Will of PDB is not entitled to deal with the assets of PDB in any manner
contrary to and inconsistent with the terms of the 1982 Will. The cause of
action for the said suit was founded on the doctrine of mutual Wills.
It is stated that PDB
was also related to KKB through his wife.
was also related to KKB through his wife.
Relationship between the
parties is not in dispute. It is also not in dispute that MPB left behind two
sisters Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta, who are his as also
PDB’s heirs and legal representatives.
parties is not in dispute. It is also not in dispute that MPB left behind two
sisters Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta, who are his as also
PDB’s heirs and legal representatives.
STATUTORY PROVISIONS
Provisions relating to
grant of `Probate’ is contained in Chapter IV of the 1925 Act.
grant of `Probate’ is contained in Chapter IV of the 1925 Act.
Section 283 of the 1925
Act enumerates the powers of the District Judge. Section 283(1)(c) of the 1925
Act confers power upon the District Judge to issue citations calling upon all
persons claiming to have any interest in the estate of the deceased to come and
see the proceedings before the grant of `Probate’ or `Letters of
Administration’.
Act enumerates the powers of the District Judge. Section 283(1)(c) of the 1925
Act confers power upon the District Judge to issue citations calling upon all
persons claiming to have any interest in the estate of the deceased to come and
see the proceedings before the grant of `Probate’ or `Letters of
Administration’.
Sub-section (2) of
Section 283 postulates that the citation shall be fixed up in some conspicuous
part of the court-house, and also the other spaces as specified therein.
Section 284 of 1925 Act provides for the lodging of caveats against grant of
Probate or Letter of Administration with a copy of the Will annexed with a
District Judge or a District Delegate.
Section 283 postulates that the citation shall be fixed up in some conspicuous
part of the court-house, and also the other spaces as specified therein.
Section 284 of 1925 Act provides for the lodging of caveats against grant of
Probate or Letter of Administration with a copy of the Will annexed with a
District Judge or a District Delegate.
“26. Notice to
caveator to file affidavit. – Where an application for grant of probate or
letters of administration with or without the will annexed is presented after a
caveat has been filed,, the Registrar shall forthwith issue notice to the
caveator, calling upon him to file his affidavit or affidavits in support of
his caveat within eight days from the service of such notice.”
caveator to file affidavit. – Where an application for grant of probate or
letters of administration with or without the will annexed is presented after a
caveat has been filed,, the Registrar shall forthwith issue notice to the
caveator, calling upon him to file his affidavit or affidavits in support of
his caveat within eight days from the service of such notice.”
Notice to prove will in solemn form, – The party opposing a will may, with his
affidavit, give notice to the party setting up the will that he merely insists
upon the will being proved in solemn form of law, and only intends to
cross-examine the witnesses produced in support of the will, and he shall
thereupon be at liberty to do so, and shall not, in any event, be liable to pay
the costs of the other side, unless the Court shall be of opinion that there
was no reasonable ground for opposing the will.”
affidavit, give notice to the party setting up the will that he merely insists
upon the will being proved in solemn form of law, and only intends to
cross-examine the witnesses produced in support of the will, and he shall
thereupon be at liberty to do so, and shall not, in any event, be liable to pay
the costs of the other side, unless the Court shall be of opinion that there
was no reasonable ground for opposing the will.”
Observation of Court:
The court is concerned
with the genuineness of the Will. If it is found to be valid, no further
question as to why did she do so would be completely out of its domain. A Will
may be executed even for the benefit of others including animals. Various
documents have been placed before us by the learned counsel appearing on behalf
of the first respondent to show that MPB was not happy in regard to management
of Birlas’ Group of Companies and by the division thereof which took place
after the demise of G.D. Birla in 1983.
with the genuineness of the Will. If it is found to be valid, no further
question as to why did she do so would be completely out of its domain. A Will
may be executed even for the benefit of others including animals. Various
documents have been placed before us by the learned counsel appearing on behalf
of the first respondent to show that MPB was not happy in regard to management
of Birlas’ Group of Companies and by the division thereof which took place
after the demise of G.D. Birla in 1983.
The petitioner is and
was at all material times aware of the same.
was at all material times aware of the same.
(h) By reason of the
aforesaid, the petitioner was, at all material times, in a fiduciary
relationship with the deceased.”
aforesaid, the petitioner was, at all material times, in a fiduciary
relationship with the deceased.”
The said arguments,
therefore, do not appeal to us to determine the issues in favour of Birlas. We
wish that these contentions were not raised before us.
therefore, do not appeal to us to determine the issues in favour of Birlas. We
wish that these contentions were not raised before us.
Whether RSL has a
cavetable interest in the proceeding in respect of the probate of the Will of
MPB dated 13th July, 1982 is also in question in this appeal.
cavetable interest in the proceeding in respect of the probate of the Will of
MPB dated 13th July, 1982 is also in question in this appeal.
We have already held
that GPB has caveatable interests as executor of MPB in respect of his Will of
1982. We, therefore, see no reason as to why RSL would not have a caveatable
interest being a beneficiary under the 1999 Will in the proceedings for grant
of probate of the Will of MPB dated 13th July, 1982. If the grounds taken in
the appeal are to be upheld, the same ex facie would destroy the case of the appellants
in the other cases. SUIT ON MUTUAL WILLS
that GPB has caveatable interests as executor of MPB in respect of his Will of
1982. We, therefore, see no reason as to why RSL would not have a caveatable
interest being a beneficiary under the 1999 Will in the proceedings for grant
of probate of the Will of MPB dated 13th July, 1982. If the grounds taken in
the appeal are to be upheld, the same ex facie would destroy the case of the appellants
in the other cases. SUIT ON MUTUAL WILLS
Judgement:
In our opinion, the High
Court was right in opining that a caveatable interest may arise only after suit
for enforcement of mutual Will is decreed and not prior thereto.
Court was right in opining that a caveatable interest may arise only after suit
for enforcement of mutual Will is decreed and not prior thereto.
——————————————————
Complete Judgement
.SUPREME COURT OF INDIA
KRISHNA KUMAR BIRLA VS RAJENDRA SINGH LODHA & ORS ON 31 MARCH, 2008
Author:
A B Field
A B Field
Bench:
S.B. Sinha, Harjit Singh Bedi
S.B. Sinha, Harjit Singh Bedi
REPORTABLE
IN THE SUPRME COURT OF INDIA
CIVIL APPELALTE JURISIDCTION
CIVIL APPEAL NO. _2277 OF 2008
(Arising out of SLP (C) NO. 2089 OF 2007)
Krishna Kumar Birla……. Appellant
Versus
Rajendra
Singh Lodha and others……….. Respondents
Singh Lodha and others……….. Respondents
WITH
CIVIL
APPEAL NOS. 2275,2279,2276,2274,2278 OF 2007 (Arising out of SLP (C) NOS.
10176, 10571, 19040, 2090 AND 2091 OF 2007)
APPEAL NOS. 2275,2279,2276,2274,2278 OF 2007 (Arising out of SLP (C) NOS.
10176, 10571, 19040, 2090 AND 2091 OF 2007)
S.B.
SINHA, J.
SINHA, J.
1. Leave granted.
INTRODUCTION
2. What is a caveatable
interest within the meaning of the Indian Succession Act, 1925 (1925 Act)
vis-a-vis the Rules framed by the Calcutta High Court in the year 1940 is the
question involved herein.
interest within the meaning of the Indian Succession Act, 1925 (1925 Act)
vis-a-vis the Rules framed by the Calcutta High Court in the year 1940 is the
question involved herein.
BACKGROUND FACTS
3. Smt. Priyamvada Devi
Birla (PDB) and her husband Madhav Prasad Birla (MPB) were admittedly very
wealthy persons. They owned an industrial empire known as the MP Birla Group of
Industries. They were issueless and known for their charitable disposition.
They used to run several charitable institutions.
Birla (PDB) and her husband Madhav Prasad Birla (MPB) were admittedly very
wealthy persons. They owned an industrial empire known as the MP Birla Group of
Industries. They were issueless and known for their charitable disposition.
They used to run several charitable institutions.
4. Both MPB and PDB are
said to have executed mutual wills on identical terms on or about 10th May,
1981 bequeathing his/her respective estate(s) barring certain specific legacies
to the other and on the death of the survivor to the `charities’ to be
nominated by the executors. However, the said wills were revoked and another
set of mutual wills were executed on 13th July, 1982 in terms whereof, four
executors were appointed in each set of Will (1982 Will).
said to have executed mutual wills on identical terms on or about 10th May,
1981 bequeathing his/her respective estate(s) barring certain specific legacies
to the other and on the death of the survivor to the `charities’ to be
nominated by the executors. However, the said wills were revoked and another
set of mutual wills were executed on 13th July, 1982 in terms whereof, four
executors were appointed in each set of Will (1982 Will).
The executors nominated
in MPB’s Will were :-
in MPB’s Will were :-
1. Smt. Priyamvada Devi
Birla (PDB)
Birla (PDB)
2. Krishna Kumar Birla
(KKB)
(KKB)
3. Kashinath Tapuria and
4. Pradip Kumar Khaitan
;
;
Whereas the executors
nominated in PDB’s will were :-
nominated in PDB’s will were :-
1. Madhav Prasad Birla
(MPB)
(MPB)
2. Ganga Prasad Birla
(GPB)
(GPB)
3. Kashinath Tapuria
4. Pradip Kumar Khaitan
5. MPB died on 30th
July, 1990.
July, 1990.
6. On or about 18th
April, 1999, PDB executed her last Will (1999 Will) bequeathing her entire
estate to the first respondent i.e. Rajendra Singh Lodha (RSL). He was also
appointed as the sole executor. She executed a codicil on 15th April, 2003.
April, 1999, PDB executed her last Will (1999 Will) bequeathing her entire
estate to the first respondent i.e. Rajendra Singh Lodha (RSL). He was also
appointed as the sole executor. She executed a codicil on 15th April, 2003.
7. PDB died on 3rd July,
2004.
2004.
PROCEEDINGS BEFORE THE
HIGH COURT
HIGH COURT
8. KKB, BKB, and
Yashovardhan Birla (YB), the appellants herein, having come to learn of the
execution of the said Will filed caveats on 14th July, 2004 to oppose the grant
of probate of the 1999 Will. Ganga Prasad Birla (GPB) and Smt. Laxmi Devi Newar
also entered caveats on 19th July, 2004.
Yashovardhan Birla (YB), the appellants herein, having come to learn of the
execution of the said Will filed caveats on 14th July, 2004 to oppose the grant
of probate of the 1999 Will. Ganga Prasad Birla (GPB) and Smt. Laxmi Devi Newar
also entered caveats on 19th July, 2004.
9. In his application
for grant of probate, GPB accepted that Smt. Laxmi Devi Newar and Smt. Radha
Devi Mohatta were the heirs and legal representatives of PDB. In the said
application, Pradip Kumar Khaitan and Kashinath Tapuria were also parties.
for grant of probate, GPB accepted that Smt. Laxmi Devi Newar and Smt. Radha
Devi Mohatta were the heirs and legal representatives of PDB. In the said
application, Pradip Kumar Khaitan and Kashinath Tapuria were also parties.
10. On or about 19th
July, 2004 the first respondent, RSL filed an application for grant of probate
of 1999 Will (P.L.A. No. 204 of 2004) before the High Court of Calcutta showing
Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta, the two sisters of MPB, as
the only heirs and legal representatives of the testatrix.
July, 2004 the first respondent, RSL filed an application for grant of probate
of 1999 Will (P.L.A. No. 204 of 2004) before the High Court of Calcutta showing
Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta, the two sisters of MPB, as
the only heirs and legal representatives of the testatrix.
11. Smt. Radha Devi
Mohatta also entered a caveat on 22nd July, 2004.
Mohatta also entered a caveat on 22nd July, 2004.
12. First respondent
took out an application which was marked as GA No.2721 of 2004 seeking
discharge of caveats entered by or on behalf of KKB, BKB, GPB and YB before the
High Court of Calcutta. Appellants as also Smt. Laxmi Devi Newar filed their
respective affidavits in support of the respective caveats filed on 30th July,
2004. An affidavit in support of her caveat was also filed by Smt. Radha Devi
Mohatta.
took out an application which was marked as GA No.2721 of 2004 seeking
discharge of caveats entered by or on behalf of KKB, BKB, GPB and YB before the
High Court of Calcutta. Appellants as also Smt. Laxmi Devi Newar filed their
respective affidavits in support of the respective caveats filed on 30th July,
2004. An affidavit in support of her caveat was also filed by Smt. Radha Devi
Mohatta.
13. The executors of the
1982 Wills filed two applications being P.L.A. No. 241 of 2004 for grant of
probate of the Will of MPB dated 13th July, 1982 and P.L.A. No. 242 of 2004 for
grant of probate of the Will of PDB dated 13th July, 1982 before the Calcutta
High Court on 17th August, 2004 purported to have been executed by MPB and PDB,
indisputably on the premise that even if the probate of the 1999 Will executed
by PDB is granted in favour of the first respondent, he would be under an
obligation to abide by the directions contained in the purported mutual Wills.
1982 Wills filed two applications being P.L.A. No. 241 of 2004 for grant of
probate of the Will of MPB dated 13th July, 1982 and P.L.A. No. 242 of 2004 for
grant of probate of the Will of PDB dated 13th July, 1982 before the Calcutta
High Court on 17th August, 2004 purported to have been executed by MPB and PDB,
indisputably on the premise that even if the probate of the 1999 Will executed
by PDB is granted in favour of the first respondent, he would be under an
obligation to abide by the directions contained in the purported mutual Wills.
14. A suit was filed by
the surviving executors of the two 1982 Wills before the Calcutta High Court
which was numbered as C.S. No.221 of 2004 claiming inter alia for a declaration
that the first respondent as the alleged executor and sole beneficiary of the
1999 Will of PDB is not entitled to deal with the assets of PDB in any manner
contrary to and inconsistent with the terms of the 1982 Will. The cause of
action for the said suit was founded on the doctrine of mutual Wills.
the surviving executors of the two 1982 Wills before the Calcutta High Court
which was numbered as C.S. No.221 of 2004 claiming inter alia for a declaration
that the first respondent as the alleged executor and sole beneficiary of the
1999 Will of PDB is not entitled to deal with the assets of PDB in any manner
contrary to and inconsistent with the terms of the 1982 Will. The cause of
action for the said suit was founded on the doctrine of mutual Wills.
15. Two deeds of
appointments dated 23rd August, 2004 and 24th August, 2004 were also executed
appointing YB and BKB as surviving executors of the Wills of MPB and PDB (1982
Wills) in place of PDB and MPB respectively. Whereas appointment of YB was
accepted; that of BKB was not.
appointments dated 23rd August, 2004 and 24th August, 2004 were also executed
appointing YB and BKB as surviving executors of the Wills of MPB and PDB (1982
Wills) in place of PDB and MPB respectively. Whereas appointment of YB was
accepted; that of BKB was not.
16. An application (G.A.
No. 2721 of 2004) was filed by the first respondent to discharge the caveators
viz. KKB, BKB, GPB and YB before the Calcutta High Court.
No. 2721 of 2004) was filed by the first respondent to discharge the caveators
viz. KKB, BKB, GPB and YB before the Calcutta High Court.
HIGH COURT JUDGMENTS
17. A learned Single
Judge of the High Court allowed the said application of discharge of the
caveats filed by KKB, BKB and YB. However, the caveat filed by GPB was
retained. It may be placed on record that the first respondent, RSL, also
entered into a caveat in the proceedings arising out of an application for
grant of probate of 1982 Wills. Application for discharge of caveat of RSL was
also dismissed.
Judge of the High Court allowed the said application of discharge of the
caveats filed by KKB, BKB and YB. However, the caveat filed by GPB was
retained. It may be placed on record that the first respondent, RSL, also
entered into a caveat in the proceedings arising out of an application for
grant of probate of 1982 Wills. Application for discharge of caveat of RSL was
also dismissed.
18. Appeals were filed
under clause 15 of the Letters Patent of the Calcutta High Court before the
Division Bench of the Calcutta High Court thereagainst. Cross-objections were
filed by RSL in the said appeal against retaining the caveat filed by KKB, BKB
and YB as also the appointment of YB as the executor of MPB. The appeals as
also the cross-objections have been dismissed by the Division Bench of the
Calcutta High Court by reason of the judgment impugned herein.
under clause 15 of the Letters Patent of the Calcutta High Court before the
Division Bench of the Calcutta High Court thereagainst. Cross-objections were
filed by RSL in the said appeal against retaining the caveat filed by KKB, BKB
and YB as also the appointment of YB as the executor of MPB. The appeals as
also the cross-objections have been dismissed by the Division Bench of the
Calcutta High Court by reason of the judgment impugned herein.
PROCEEDINGS BEFORE US.
19. We may, at the
outset, notice the details of the SLPs filed by the parties herein :-
outset, notice the details of the SLPs filed by the parties herein :-
1. SLP (Civil) No.2089
of 2007 has been filed by Krishna Kumar Birla (KKB) against the order of
discharge of his caveat in P.L.A. No.204 of 2004.
of 2007 has been filed by Krishna Kumar Birla (KKB) against the order of
discharge of his caveat in P.L.A. No.204 of 2004.
2. SLP (Civil) No. 2090
of 2007 has been filed by Basant Kumar Birla (BKB) against the order of
discharge of his caveat in P.L.A. No.204 of 2004.
of 2007 has been filed by Basant Kumar Birla (BKB) against the order of
discharge of his caveat in P.L.A. No.204 of 2004.
3. SLP (Civil) No. 2091
of 2007 has been filed by Yashovardhan Birla (YB) against the order of
discharge of his caveat in P.L.A. No. 204 of 2004.
of 2007 has been filed by Yashovardhan Birla (YB) against the order of
discharge of his caveat in P.L.A. No. 204 of 2004.
4. SLP (Civil) No. 10571
of 2007 has been filed by Rajendra Singh Lodha (RSL) against the refusal of
order of discharge of caveat filed by Ganga Prasad Birla (GPB) in P.L.A. No.
204 of 2004.
of 2007 has been filed by Rajendra Singh Lodha (RSL) against the refusal of
order of discharge of caveat filed by Ganga Prasad Birla (GPB) in P.L.A. No.
204 of 2004.
5. SLP (Civil) No. 19040
of 2007 has been filed by Krishna Kumar Birla (KKB) against non-discharge of
caveat of Rajendra Singh Lodha in the goods of MPB.
of 2007 has been filed by Krishna Kumar Birla (KKB) against non-discharge of
caveat of Rajendra Singh Lodha in the goods of MPB.
6. SLP (Civil) No. 10176
of 2007 has been filed by Rajendra Singh Lodha (RSL) challenging appointment of
Yashovardhan Birla (YB) as an executor of the Will of Madhav Prasad Birla of
1982 in place of Priyamvada Devi Birla (PDB).
of 2007 has been filed by Rajendra Singh Lodha (RSL) challenging appointment of
Yashovardhan Birla (YB) as an executor of the Will of Madhav Prasad Birla of
1982 in place of Priyamvada Devi Birla (PDB).
FAMILY OF BIRLAS
20. Before embarking on
the questions raised in these appeals we may notice the genealogy of the family
of the testatrix –
the questions raised in these appeals we may notice the genealogy of the family
of the testatrix –
GENEALOGICAL TABLE Raja
Baldeodas Birla (D) Jugalkishor (D) Rameshwardas (D) Ghanshyamdas (D) Brajmohan
(D) Gajanand (D) Madhav Prasad (D) Lakshmi Niwas (D) Krishna Kumar Basant Kumar
Ganga Prasad Ashok Vardhan (D) Sudarshan Aditya Vikram (D) Chandra Kant.
Baldeodas Birla (D) Jugalkishor (D) Rameshwardas (D) Ghanshyamdas (D) Brajmohan
(D) Gajanand (D) Madhav Prasad (D) Lakshmi Niwas (D) Krishna Kumar Basant Kumar
Ganga Prasad Ashok Vardhan (D) Sudarshan Aditya Vikram (D) Chandra Kant.
21. Krishna Kumar (KKB)
and Basant Kumar (BKB) Kumar Mangalam cousins of Yashovardhan Sidharth Kumar
are the Madhav Prasad (MPB); whereas Yashovardhan (YB) is the grand son of
Vedant Nirvan Aryaman Vikram sister of MPB.
and Basant Kumar (BKB) Kumar Mangalam cousins of Yashovardhan Sidharth Kumar
are the Madhav Prasad (MPB); whereas Yashovardhan (YB) is the grand son of
Vedant Nirvan Aryaman Vikram sister of MPB.
22. It is stated that
PDB was also related to KKB through his wife.
PDB was also related to KKB through his wife.
23. Relationship between
the parties is not in dispute. It is also not in dispute that MPB left behind
two sisters Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta, who are his as
also PDB’s heirs and legal representatives.
the parties is not in dispute. It is also not in dispute that MPB left behind
two sisters Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta, who are his as
also PDB’s heirs and legal representatives.
STATUTORY PROVISIONS
24. Provisions relating
to grant of `Probate’ is contained in Chapter IV of the 1925 Act.
to grant of `Probate’ is contained in Chapter IV of the 1925 Act.
25. Section 283 of the
1925 Act enumerates the powers of the District Judge. Section 283(1)(c) of the
1925 Act confers power upon the District Judge to issue citations calling upon
all persons claiming to have any interest in the estate of the deceased to come
and see the proceedings before the grant of `Probate’ or `Letters of
Administration’. Sub-section (2) of Section 283 postulates that the citation shall
be fixed up in some conspicuous part of the court-house, and also the other
spaces as specified therein. Section 284 of 1925 Act provides for the lodging
of caveats against grant of Probate or Letter of Administration with a copy of
the Will annexed with a District Judge or a District Delegate.
1925 Act enumerates the powers of the District Judge. Section 283(1)(c) of the
1925 Act confers power upon the District Judge to issue citations calling upon
all persons claiming to have any interest in the estate of the deceased to come
and see the proceedings before the grant of `Probate’ or `Letters of
Administration’. Sub-section (2) of Section 283 postulates that the citation shall
be fixed up in some conspicuous part of the court-house, and also the other
spaces as specified therein. Section 284 of 1925 Act provides for the lodging
of caveats against grant of Probate or Letter of Administration with a copy of
the Will annexed with a District Judge or a District Delegate.
26. The form in which
caveat is entered has been prescribed in Schedule V appended to the Act, is to
the following effect :-
caveat is entered has been prescribed in Schedule V appended to the Act, is to
the following effect :-
“SCHEDULE [ See
section 284 (4) ] FORM OF CAVEAT Let nothing be done in the matter of the
estate of A, B,, late of ________ deceased, who died on the day of ____ at
_____ without notice to C.D. of ___________”.
section 284 (4) ] FORM OF CAVEAT Let nothing be done in the matter of the
estate of A, B,, late of ________ deceased, who died on the day of ____ at
_____ without notice to C.D. of ___________”.
27. The Calcutta High
Court framed rules laying down the procedure for dealing with the applications
filed before it in its testamentary and intestate jurisdiction.
Court framed rules laying down the procedure for dealing with the applications
filed before it in its testamentary and intestate jurisdiction.
28. It is contained in
Chapter XXXV thereof. Rule 4 provides for “Application for probate or
letters of administration, or a certificate”. Rule 5
Chapter XXXV thereof. Rule 4 provides for “Application for probate or
letters of administration, or a certificate”. Rule 5
(a) inserted in the year
1948 provides that in all applications for grant of Probate or Letters of
Administration with the Will annexed, the names of the members of the family or
other relatives upon whom the estate would have devolved in case of an
intestacy together with their present place of residence shall be stated. Rule
24 provides for filing of caveat on the same terms as contained in Section 284
of the 1925 Act. Rule 25 provides for “Affidavit in support of the
caveat” in the following terms :-
1948 provides that in all applications for grant of Probate or Letters of
Administration with the Will annexed, the names of the members of the family or
other relatives upon whom the estate would have devolved in case of an
intestacy together with their present place of residence shall be stated. Rule
24 provides for filing of caveat on the same terms as contained in Section 284
of the 1925 Act. Rule 25 provides for “Affidavit in support of the
caveat” in the following terms :-
“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.” (emphasis added).
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.” (emphasis added).
29. Rule 26 provides for
“Notice to caveator to file affidavit”. It reads as under:–
“Notice to caveator to file affidavit”. It reads as under:–
“26. Notice to
caveator to file affidavit. – Where an application for grant of probate or
letters of administration with or without the will annexed is presented after a
caveat has been filed,, the Registrar shall forthwith issue notice to the
caveator, calling upon him to file his affidavit or affidavits in support of
his caveat within eight days from the service of such notice.”
caveator to file affidavit. – Where an application for grant of probate or
letters of administration with or without the will annexed is presented after a
caveat has been filed,, the Registrar shall forthwith issue notice to the
caveator, calling upon him to file his affidavit or affidavits in support of
his caveat within eight days from the service of such notice.”
30. Rule 27 provides for
the “Consequence of not filing the affidavit”. Rule 28 provides that
upon the affidavit being filed in support of the caveat (Notice whereof shall
immediately be given by the caveator to the petitioner), the proceedings shall,
by order of the 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 and deemed as a plaint filed against
the caveator, and the affidavit filed by the caveator being treated as his
written statement in the suit.
the “Consequence of not filing the affidavit”. Rule 28 provides that
upon the affidavit being filed in support of the caveat (Notice whereof shall
immediately be given by the caveator to the petitioner), the proceedings shall,
by order of the 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 and deemed as a plaint filed against
the caveator, and the affidavit filed by the caveator being treated as his
written statement in the suit.
31. Rule 29 provides for
service of “Notice to prove will in solemn form” in the following
terms:-
service of “Notice to prove will in solemn form” in the following
terms:-
“29. Notice to
prove will in solemn form, – The party opposing a will may, with his affidavit,
give notice to the party setting up the will that he merely insists upon the
will being proved in solemn form of law, and only intends to cross-examine the
witnesses produced in support of the will, and he shall thereupon be at liberty
to do so, and shall not, in any event, be liable to pay the costs of the other
side, unless the Court shall be of opinion that there was no reasonable ground
for opposing the will.”
prove will in solemn form, – The party opposing a will may, with his affidavit,
give notice to the party setting up the will that he merely insists upon the
will being proved in solemn form of law, and only intends to cross-examine the
witnesses produced in support of the will, and he shall thereupon be at liberty
to do so, and shall not, in any event, be liable to pay the costs of the other
side, unless the Court shall be of opinion that there was no reasonable ground
for opposing the will.”
32. Rule 30 provides for
“Trial of preliminary issue” as under :-
“Trial of preliminary issue” as under :-
“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.”
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.”
33. We may also take
note of Section 73 of the Indian Trusts Act, 1882, which reads as under :-
note of Section 73 of the Indian Trusts Act, 1882, which reads as under :-
“Section 73 –
Appointment of new trustees on death, etc. Whenever any person appointed a
trustee disclaims, of any trustee, either original or substituted, dies, or is
for a continuous period of six months absent from India, or leaves India for
the purpose of residing abroad, or is declared an insolvent, or desires to be
discharged from the trust, or refuses or becomes, in the opinion of a principal
civil court of original jurisdiction, unfit or personally incapable to act in
the trust, or accepts an inconsistent trust, a new trustee may be appointed in
his place by–
Appointment of new trustees on death, etc. Whenever any person appointed a
trustee disclaims, of any trustee, either original or substituted, dies, or is
for a continuous period of six months absent from India, or leaves India for
the purpose of residing abroad, or is declared an insolvent, or desires to be
discharged from the trust, or refuses or becomes, in the opinion of a principal
civil court of original jurisdiction, unfit or personally incapable to act in
the trust, or accepts an inconsistent trust, a new trustee may be appointed in
his place by–
(a) the person nominated
for that purpose by the instrument of trust (if any), or
for that purpose by the instrument of trust (if any), or
(b) if there be no such
person, or no such person able and willing to act, the author of the trust if
he be alive and competent to contract, or the surviving or continuing trustees or
trustee for the time being, or legal representative of the last surviving and
continuing trustee, or (with the consent of the court) the retiring trustees,
if they all retire simultaneously, or (with the like consent) the last retiring
trustee. Every such appointment shall be by writing under the hand of the
person making it.
person, or no such person able and willing to act, the author of the trust if
he be alive and competent to contract, or the surviving or continuing trustees or
trustee for the time being, or legal representative of the last surviving and
continuing trustee, or (with the consent of the court) the retiring trustees,
if they all retire simultaneously, or (with the like consent) the last retiring
trustee. Every such appointment shall be by writing under the hand of the
person making it.
On an appointment of a
new trustee the number of trustees may be increased.
new trustee the number of trustees may be increased.
The Official Trustee
may, with his consent and by the order of the court, be appointed under this
section, in any case in which only one trustee is to be appointed and such
trustee is to be the sole trustee.
may, with his consent and by the order of the court, be appointed under this
section, in any case in which only one trustee is to be appointed and such
trustee is to be the sole trustee.
The provisions of this
section relative to a trustee who is dead include the case of a person
nominated trustee in a will but dying before the testator, and those relative
to a continuing trustee include a refusing or retiring trustee if willing to
act in the execution of the power.”
section relative to a trustee who is dead include the case of a person
nominated trustee in a will but dying before the testator, and those relative
to a continuing trustee include a refusing or retiring trustee if willing to
act in the execution of the power.”
SUBMISSION :
34. Mr. Ram Jethmalani,
the learned senior counsel appearing on behalf of the Appellant, KKB would
submit
the learned senior counsel appearing on behalf of the Appellant, KKB would
submit
(i) A caveat being
maintainable at the instance of common ancestors and near relatives of the
testator, the impugned judgment discharging the caveat is wholly unsustainable.
maintainable at the instance of common ancestors and near relatives of the
testator, the impugned judgment discharging the caveat is wholly unsustainable.
(ii) Appellant being an
executor of the 1982 Will executed by the husband of PDB namely MPB, has a
caveatable interest.
executor of the 1982 Will executed by the husband of PDB namely MPB, has a
caveatable interest.
(iii) Both the learned
Single Judge and the Division Bench of the High Court although recognized such
a right, but, committed a serious error in opining that the same does not
constitute a caveatable interest without considering the legal position,
namely, that the caveaters had obligations to see that the will of MPB be made
effective in letter and spirit so that all the bequeathed properties are
applied towards charitable disposition, particularly when a suit for the said
purpose has been filed.
Single Judge and the Division Bench of the High Court although recognized such
a right, but, committed a serious error in opining that the same does not
constitute a caveatable interest without considering the legal position,
namely, that the caveaters had obligations to see that the will of MPB be made
effective in letter and spirit so that all the bequeathed properties are
applied towards charitable disposition, particularly when a suit for the said
purpose has been filed.
(iv) The High Court
committed a manifest error in ignoring the effect of the suit despite holding
that if the suit succeeds, a caveatable interest would accrue to them.
committed a manifest error in ignoring the effect of the suit despite holding
that if the suit succeeds, a caveatable interest would accrue to them.
(v) Appellants having a
two fold duty to see that RSL, (1) in the event the probate is granted, applies
the estate of the deceased subject to charitable disposition; and (2) that he
will not take it as his absolute properties; the same thus gave rise to a right
and interest under and through which a caveat could be maintained by them.
two fold duty to see that RSL, (1) in the event the probate is granted, applies
the estate of the deceased subject to charitable disposition; and (2) that he
will not take it as his absolute properties; the same thus gave rise to a right
and interest under and through which a caveat could be maintained by them.
(vi) The caveators,
being co-sharers of the testatrix in respect of Kumaon Orchards wherefor an
agreement had been entered into on 15th July, 1997 conferring a right of
pre-emption against any co-sharer, must be held to have sufficient interest in
the estate.
being co-sharers of the testatrix in respect of Kumaon Orchards wherefor an
agreement had been entered into on 15th July, 1997 conferring a right of
pre-emption against any co-sharer, must be held to have sufficient interest in
the estate.
(vii) As the properties
were to be applied for charitable disposition, Section 92 of the Code of Civil
Procedure would be attracted in terms whereof interest must be shown to be
exiting in relation to the trust and not the trust property. Our attention in
this behalf has been drawn to the fact that the words “direct
interest” occurring therein were substituted by the word
“interest” only.
were to be applied for charitable disposition, Section 92 of the Code of Civil
Procedure would be attracted in terms whereof interest must be shown to be
exiting in relation to the trust and not the trust property. Our attention in
this behalf has been drawn to the fact that the words “direct
interest” occurring therein were substituted by the word
“interest” only.
(viii) Rule 30 of the
Calcutta High Court Rules is ultra vires Section 295 of the 1925 Act in so far
as it lays down a purported qualification for entering into a caveat, although
no such requirement is provided thereunder.
Calcutta High Court Rules is ultra vires Section 295 of the 1925 Act in so far
as it lays down a purported qualification for entering into a caveat, although
no such requirement is provided thereunder.
(ix) As the judicial
precedent prior to 1925 would apply even in the post-1925 era, the High Court
should have proceeded on the basis that the qualifications which are necessary
for the purpose of having a caveatable interest would be the same even for
revocation.
precedent prior to 1925 would apply even in the post-1925 era, the High Court
should have proceeded on the basis that the qualifications which are necessary
for the purpose of having a caveatable interest would be the same even for
revocation.
(x) The resultant trust
involved in execution of mutual Wills must be construed having regard to the
surrounding circumstances, as in all such cases the person making the latter
Will was a party to the earlier one. As the testatrix in this case purportedly
has gone back on her agreement and the case of the appellant being that she
never changed her mind as she did not execute the 1999 Will, the right of the
appellants had a right to enter a caveat in the probate proceedings.
involved in execution of mutual Wills must be construed having regard to the
surrounding circumstances, as in all such cases the person making the latter
Will was a party to the earlier one. As the testatrix in this case purportedly
has gone back on her agreement and the case of the appellant being that she
never changed her mind as she did not execute the 1999 Will, the right of the
appellants had a right to enter a caveat in the probate proceedings.
(xi) In the proceeding
for grant of the Probate of the 1982 Will of MPB, RSL did not have any
caveatable interest as he has no interest in his property.
for grant of the Probate of the 1982 Will of MPB, RSL did not have any
caveatable interest as he has no interest in his property.
35. Mr. K.K. Venugopal,
learned senior counsel appearing for BKB, supplementing the argument of Mr.
Jethmalani submitted :
learned senior counsel appearing for BKB, supplementing the argument of Mr.
Jethmalani submitted :
(i) The High Court has
committed a serious error in holding that the appointment of BKB in place of
MPB in his Will could not have been filled up as he expired during the life
time of PDB.
committed a serious error in holding that the appointment of BKB in place of
MPB in his Will could not have been filled up as he expired during the life
time of PDB.
(ii) In view of the
contention of the appellants that the 1999 Will is a bogus one, the vacancy
could be filled up in equity.
contention of the appellants that the 1999 Will is a bogus one, the vacancy
could be filled up in equity.
(ii) BKB having a
special interest in the charitable disposition of the properties of PDB has, a
caveatable interest in terms of Section 232 of the 1925 Act.
special interest in the charitable disposition of the properties of PDB has, a
caveatable interest in terms of Section 232 of the 1925 Act.
(iii) As by reason of
the agreement dated 15th July, 1997, the parties agreed that a stranger to the
family should not enjoy any property, there being a clog on the right to sell
the same, the same must be held to be applicable also in a case of gift or
will.
the agreement dated 15th July, 1997, the parties agreed that a stranger to the
family should not enjoy any property, there being a clog on the right to sell
the same, the same must be held to be applicable also in a case of gift or
will.
(iv) Appellants being
the cousins and, thus, being interested in the spiritual wellbeing of the
trustee, were also entitled to enter their respective caveats.
the cousins and, thus, being interested in the spiritual wellbeing of the
trustee, were also entitled to enter their respective caveats.
(v) Since the extent of
right of a person for lodging a caveat had not been laid down under a statute,
the decisions rendered from time immemorial holding that only a bare right
(which would also mean a bare contention, i.e., which would give rise to an
arguable point at the hearing constitutes a caveatable interest) should be held
to be still a good law.
right of a person for lodging a caveat had not been laid down under a statute,
the decisions rendered from time immemorial holding that only a bare right
(which would also mean a bare contention, i.e., which would give rise to an
arguable point at the hearing constitutes a caveatable interest) should be held
to be still a good law.
(vi) Section 283(1)(c)
of the 1925 Act should not be treated to be the sole repository for the purpose
of determining the right of a caveator. The interpretation of the word
“caveat”, if given its natural meaning, the same would mean a right
to oppose.
of the 1925 Act should not be treated to be the sole repository for the purpose
of determining the right of a caveator. The interpretation of the word
“caveat”, if given its natural meaning, the same would mean a right
to oppose.
36. Mr. Arun Jaitley,
learned senior counsel appearing on behalf of YB urged :-
learned senior counsel appearing on behalf of YB urged :-
(i) YB being a grandson
of the brother of MPB and his appointment as the executor in terms of the deed
of appointment dated 24th August, 2004 having been accepted, the High Court
must be held to have committed a manifest error in holding that he had not
acquired a caveatable interest.
of the brother of MPB and his appointment as the executor in terms of the deed
of appointment dated 24th August, 2004 having been accepted, the High Court
must be held to have committed a manifest error in holding that he had not
acquired a caveatable interest.
(ii) YB being a party to
the suit could oppose execution of the Will having regard to the fact that he
has shown existence of an interest in all the three sets of proceedings, viz,
grant of Probate of 1982 Wills, grant of Probate of 1999 Will and the suit
filed by the members of the Birla family to enforce the agreement of MPB and
PDB in terms of the 1982 Wills executed by them.
the suit could oppose execution of the Will having regard to the fact that he
has shown existence of an interest in all the three sets of proceedings, viz,
grant of Probate of 1982 Wills, grant of Probate of 1999 Will and the suit
filed by the members of the Birla family to enforce the agreement of MPB and
PDB in terms of the 1982 Wills executed by them.
(iii) Determination of
validity of the Wills being interdependent, inasmuch as, in the event probates
are granted in respect of the 1982 Wills, then the 1999 Will could not be
implemented; and even in the event, probate in respect of 1999 Will is granted,
the suit can still be decreed so as to give effect to the mutual wills.
validity of the Wills being interdependent, inasmuch as, in the event probates
are granted in respect of the 1982 Wills, then the 1999 Will could not be
implemented; and even in the event, probate in respect of 1999 Will is granted,
the suit can still be decreed so as to give effect to the mutual wills.
(iv) YB had a right to
maintain the suit on the premise that the properties should be given to
charity, thus, had a right to challenge the 1999 Will at the threshold.
maintain the suit on the premise that the properties should be given to
charity, thus, had a right to challenge the 1999 Will at the threshold.
(v) The High Court
committed a manifest error in opining that caveatable interest would depend
upon the decree to be passed in the suit instead of a right to maintain the suit.
committed a manifest error in opining that caveatable interest would depend
upon the decree to be passed in the suit instead of a right to maintain the suit.
(vi) In any view of the
matter, when there exists two Wills, a person who can challenge a rival will,
will have a caveatable interest in respect thereof.
matter, when there exists two Wills, a person who can challenge a rival will,
will have a caveatable interest in respect thereof.
37. Mr. Harish N. Salve,
learned senior counsel appearing on behalf of RSL, on the other hand, would
contend:
learned senior counsel appearing on behalf of RSL, on the other hand, would
contend:
(a) A caveatable
interest having regard to phraseology used in Section 284 of the 1925 Act would
mean a real interest which the caveator could have derived in the estate of the
deceased in the event the grant of probate is refused.
interest having regard to phraseology used in Section 284 of the 1925 Act would
mean a real interest which the caveator could have derived in the estate of the
deceased in the event the grant of probate is refused.
(b) In view of the
provisions of Hindu Succession Act, 1956 that there being no possibility of any
person other than heirs to derive a remote interest in the estate of the
deceased, the decisions of various High Courts to the effect that the
reversioner and/or distant relatives would have a caveatable interest are no
longer good law.
provisions of Hindu Succession Act, 1956 that there being no possibility of any
person other than heirs to derive a remote interest in the estate of the
deceased, the decisions of various High Courts to the effect that the
reversioner and/or distant relatives would have a caveatable interest are no
longer good law.
(c) A caveatable
interest being different from the right of a person to oppose grant of probate
on the basis of title, the impugned judgments should not be interfered with.
interest being different from the right of a person to oppose grant of probate
on the basis of title, the impugned judgments should not be interfered with.
(d) Consideration in
regard to locus standi to maintain a Public Interest Litigation or a suit under
Section 92 of the Code of Civil Procedure is irrelevant for determination of
issues arising in a probate proceeding. The said contention having not been
raised in the affidavit filed by any of the appellants herein before the High
Court, should not be permitted to be raised before this Court for the first
time. In any event by taking recourse to the said provision, the nature and
character of a probate proceeding cannot be changed.
regard to locus standi to maintain a Public Interest Litigation or a suit under
Section 92 of the Code of Civil Procedure is irrelevant for determination of
issues arising in a probate proceeding. The said contention having not been
raised in the affidavit filed by any of the appellants herein before the High
Court, should not be permitted to be raised before this Court for the first
time. In any event by taking recourse to the said provision, the nature and
character of a probate proceeding cannot be changed.
(e) The claim of the
appellants to have a caveatable interest in their capacity as agnates is wholly
unsustainable as the sisters of MPB are alive. They do not have a caveatable
interest even as executors of the Will of MPB of 1982 or otherwise.
appellants to have a caveatable interest in their capacity as agnates is wholly
unsustainable as the sisters of MPB are alive. They do not have a caveatable
interest even as executors of the Will of MPB of 1982 or otherwise.
(f) 1982 Will of MPB is
not affected by the 1999 Will, particularly, when appellants are not the
legatees thereunder and as such the question of surviving executor deriving any
interest in his place would not arise.
not affected by the 1999 Will, particularly, when appellants are not the
legatees thereunder and as such the question of surviving executor deriving any
interest in his place would not arise.
(g) An executor under a
Will would not remain an executor upon his ceasing to hold the said office or
by a renouncement or his removal or death, but, such contingencies having not
taken place, no purported vacancy had arisen, and thus, the question of filling
up the same does not arise.
Will would not remain an executor upon his ceasing to hold the said office or
by a renouncement or his removal or death, but, such contingencies having not
taken place, no purported vacancy had arisen, and thus, the question of filling
up the same does not arise.
(h) As mutual Wills are
not rival Wills, persons claiming as executors of the Will of MPB did not
derive any caveatable interest, as they remained unaffected by subsequent
Wills.
not rival Wills, persons claiming as executors of the Will of MPB did not
derive any caveatable interest, as they remained unaffected by subsequent
Wills.
(i) In regard to the SLP
filed by R.K. Lodha, for refusing him to be impleaded as a party on the plea
that he had no caveatable interest, it was submitted that having regard to the
contention that MPB did not execute any Will, he should have been impleaded as
a party as representative of PDB.
filed by R.K. Lodha, for refusing him to be impleaded as a party on the plea
that he had no caveatable interest, it was submitted that having regard to the
contention that MPB did not execute any Will, he should have been impleaded as
a party as representative of PDB.
(j) Reference to Section
263 of the 1925 Act and the decisions rendered thereupon are wholly irrelevant
as considerations for applications thereof have nothing to do with the
application under Sections 283 and 284 thereof.
263 of the 1925 Act and the decisions rendered thereupon are wholly irrelevant
as considerations for applications thereof have nothing to do with the
application under Sections 283 and 284 thereof.
38. Mr. Anindya Kumar
Mitra, learned senior counsel appearing in some of the matters for RSL urged:
Mitra, learned senior counsel appearing in some of the matters for RSL urged:
(i) The 1925 Act having
retained the phraseologies used in the earlier as well as the successor Acts,
the same meaning to the words as was earlier operating, should be assigned.
retained the phraseologies used in the earlier as well as the successor Acts,
the same meaning to the words as was earlier operating, should be assigned.
(ii) Rules of the
Calcutta High Court, having been framed in terms of Section 122 of the Code of
Civil Procedure, 1908, are valid in law.
Calcutta High Court, having been framed in terms of Section 122 of the Code of
Civil Procedure, 1908, are valid in law.
(iii) Theory of mutual
Wills do not stand in the way of grant of probate of a later Will.
Wills do not stand in the way of grant of probate of a later Will.
COMPARATIVE PROVISIONS
OF THE 1881 ACT AND THE 1925 ACT
OF THE 1881 ACT AND THE 1925 ACT
39. Grant of probate or
Letters of Administration with a copy of the Will annexed, used to be governed
by the Probate and Administration Act, 1881 (for short “the 1881
Act”) Rules were framed by the Calcutta High Court in terms of the
provisions thereof.
Letters of Administration with a copy of the Will annexed, used to be governed
by the Probate and Administration Act, 1881 (for short “the 1881
Act”) Rules were framed by the Calcutta High Court in terms of the
provisions thereof.
40. We may briefly
notice that Section 69 of the 1881 Act corresponds to Section 283 of the 1925
Act. Section 70 of the 1881 Act corresponds to Sub-sections (1), (2) and (3) of
Section 284 of the 1925 Act, whereas Section 71 of the 1881 Act corresponds to
sub-section (4) of Section 284 of 1925 Act.
notice that Section 69 of the 1881 Act corresponds to Section 283 of the 1925
Act. Section 70 of the 1881 Act corresponds to Sub-sections (1), (2) and (3) of
Section 284 of the 1925 Act, whereas Section 71 of the 1881 Act corresponds to
sub-section (4) of Section 284 of 1925 Act.
41. The statement
required to be made as envisaged in Schedule V of the 1925 Act was a part of
Section 71 of the 1881 Act. Section 72 of the 1881 Act corresponds to Section
285 and Sections 73 and 83 of the 1881 Act correspond to Sections 286 and 295
of the 1925 Act.
required to be made as envisaged in Schedule V of the 1925 Act was a part of
Section 71 of the 1881 Act. Section 72 of the 1881 Act corresponds to Section
285 and Sections 73 and 83 of the 1881 Act correspond to Sections 286 and 295
of the 1925 Act.
42. The validity of the
Rules framed by the Calcutta High Court will have to be considered having
regard to the provisions of the 1881 Act.
Rules framed by the Calcutta High Court will have to be considered having
regard to the provisions of the 1881 Act.
We shall advert to the
said question a little later. THE WILLS
said question a little later. THE WILLS
43. The Relevant terms
of Will of MPB executed on 13th July, 1982 as also those of the Will executed
by PDB may be noticed at this juncture.
of Will of MPB executed on 13th July, 1982 as also those of the Will executed
by PDB may be noticed at this juncture.
44. MPB by his Will
appointed four executors including his wife. By reason thereof, he bequeathed
all his properties to his wife and only in the event of his wife predeceasing
him, the executors were to make over and/ or donate and/or settle for public
charitable purposes the estate as they might think fit and proper.
appointed four executors including his wife. By reason thereof, he bequeathed
all his properties to his wife and only in the event of his wife predeceasing
him, the executors were to make over and/ or donate and/or settle for public
charitable purposes the estate as they might think fit and proper.
Clause 3 of the 1982
Will reads as under:
Will reads as under:
“3. Subject to the
provisions of Clause 2 above, the Executors will have power to donate the
estate to one or more public charitable trusts, societies or institutions and/
or establish one or more public charitable trusts, societies or institutions
for public charitable objects as they may think fit.”
provisions of Clause 2 above, the Executors will have power to donate the
estate to one or more public charitable trusts, societies or institutions and/
or establish one or more public charitable trusts, societies or institutions
for public charitable objects as they may think fit.”
45. The Will purported
to have been executed by PDB was on the same terms except that one outsider
executor named therein was different, which we have noticed hereinbefore. She
also bequeathed her properties in favour of MPB. She, however, sought to
bequeath all ornaments and jewelleries, gold coins and articles to the three
daughters of K.K. Birla absolutely in equal proportion. Clause 4 of the said
Will is on similar basis to Clause 3 of the Will of MPB.
to have been executed by PDB was on the same terms except that one outsider
executor named therein was different, which we have noticed hereinbefore. She
also bequeathed her properties in favour of MPB. She, however, sought to
bequeath all ornaments and jewelleries, gold coins and articles to the three
daughters of K.K. Birla absolutely in equal proportion. Clause 4 of the said
Will is on similar basis to Clause 3 of the Will of MPB.
46. It is of some
significance that Shri P.L. Agarwal and Shri S.J. Khaitan are attesting
witnesses to the said Wills.
significance that Shri P.L. Agarwal and Shri S.J. Khaitan are attesting
witnesses to the said Wills.
47. PDB executed the
disputed Will on 18th April, 1999, in terms whereof any Will made prior thereto
stood cancelled. In the said Will, she categorically stated that she had been
running several business concerns and also managing properties and
institutions, bequeathed to her, in the true and sincere spirit of a trustee
for the larger benefit of the country and of the interest of shareholders and
workers.
disputed Will on 18th April, 1999, in terms whereof any Will made prior thereto
stood cancelled. In the said Will, she categorically stated that she had been
running several business concerns and also managing properties and
institutions, bequeathed to her, in the true and sincere spirit of a trustee
for the larger benefit of the country and of the interest of shareholders and
workers.
48. She nominated the
first respondent as her legatee. Except the fact that Shri P.L. Agarwal of
Khaitan and Company is also an attesting witness, it is not necessary for us to
notice the other stipulations made therein.
first respondent as her legatee. Except the fact that Shri P.L. Agarwal of
Khaitan and Company is also an attesting witness, it is not necessary for us to
notice the other stipulations made therein.
49. On or about 15th
April, 2003, a Codicil was executed with a view to avoid any confusion or
ambiguity in the 1999 Will. By reason thereof, certain declarations were made
and some directions were also issued to the first respondent.
April, 2003, a Codicil was executed with a view to avoid any confusion or
ambiguity in the 1999 Will. By reason thereof, certain declarations were made
and some directions were also issued to the first respondent.
THE SUIT (CS NO. 221 OF
2004)
2004)
50. The suit was instituted
by the purported three executors of both the Wills. Both the said Wills were
said to have been made over to Kashinath Tapuria; one of the appointed
executors thereunder. He is said to have produced the same only after the death
of PDB. It is stated that upon the death of MPB on 30th July, 1990, PDB as a
beneficiary of her husband’s Will came to possess, own and control his estate
and, thus, had taken and enjoyed the benefit under the said Will until her
death on 3rd July, 2004.
by the purported three executors of both the Wills. Both the said Wills were
said to have been made over to Kashinath Tapuria; one of the appointed
executors thereunder. He is said to have produced the same only after the death
of PDB. It is stated that upon the death of MPB on 30th July, 1990, PDB as a
beneficiary of her husband’s Will came to possess, own and control his estate
and, thus, had taken and enjoyed the benefit under the said Will until her
death on 3rd July, 2004.
51. The averments in the
plaint of the said suit proceeded on the basis that the Will dated 18th April,
1999 and Codicil dated 15th April, 2003 were not genuine. It was contended that
PDB had only a life interest in the estate and, thus, she was incompetent to
dispose of her own or the combined estate by alienation or dissipation in a
manner inconsistent with the terms and tenor of the mutual Wills. The validity
of the said Will was also questioned.
plaint of the said suit proceeded on the basis that the Will dated 18th April,
1999 and Codicil dated 15th April, 2003 were not genuine. It was contended that
PDB had only a life interest in the estate and, thus, she was incompetent to
dispose of her own or the combined estate by alienation or dissipation in a
manner inconsistent with the terms and tenor of the mutual Wills. The validity
of the said Will was also questioned.
Paragraph 15 of the
plaint reads as under:
plaint reads as under:
“15. Even on the
footing that the said purported will dated 18th April 1999 is genuine and valid
and had to the effect of revoking the earlier will of Smt. Priyamvada Devi
Birla dated 13th July, 1982, the plaintiffs would contend that on her death,
the defendant as alleged executor of the said purported will must hold the
estate of Smt. Priyamvada Devi Birla, now representing the combined estates of
Madhav Prasad Birla and Smt. Priyamvada Devi Birla, in trust for the agreed
ultimate beneficiaries of the mutual wills viz. charities which might be set up
or nominated by the executors of the will dated 13th July 1982 of Smt.
Priyamvada Devi Birla.”
footing that the said purported will dated 18th April 1999 is genuine and valid
and had to the effect of revoking the earlier will of Smt. Priyamvada Devi
Birla dated 13th July, 1982, the plaintiffs would contend that on her death,
the defendant as alleged executor of the said purported will must hold the
estate of Smt. Priyamvada Devi Birla, now representing the combined estates of
Madhav Prasad Birla and Smt. Priyamvada Devi Birla, in trust for the agreed
ultimate beneficiaries of the mutual wills viz. charities which might be set up
or nominated by the executors of the will dated 13th July 1982 of Smt.
Priyamvada Devi Birla.”
52. According to the
plaintiffs, they, as executors of the said Wills, became entitled to take
possession of the entire estate, make over, donate or settle the same for
public charitable purposes or to establish any public charitable trust at their
absolute discretion. A plea of constructive trust on the basis of the said
Wills was also raised.
plaintiffs, they, as executors of the said Wills, became entitled to take
possession of the entire estate, make over, donate or settle the same for
public charitable purposes or to establish any public charitable trust at their
absolute discretion. A plea of constructive trust on the basis of the said
Wills was also raised.
53. The defendant’s
right of sole beneficiary of the said Will dated 18th April, 1999 was
questioned, stating:
right of sole beneficiary of the said Will dated 18th April, 1999 was
questioned, stating:
“17. The defendant
as alleged executor and sole beneficiary of the said purported will dated 18th
April, 1999 is not entitled to put any impediment to or interfere with the
implementation of the said trust.”
as alleged executor and sole beneficiary of the said purported will dated 18th
April, 1999 is not entitled to put any impediment to or interfere with the
implementation of the said trust.”
54. The reliefs prayed
for in the said suit inter alia are:
for in the said suit inter alia are:
“a) Declaration
that the defendant as the alleged executor and sole beneficiary of the
purported will dated 18th April 1999 and/ or purported Codicil dated 15th April
2003 allegedly made by Smt. Priyamvada Devi Birla is not entitled to deal with
the estate of Smt. Priyamvada Devi Birla in a manner inconsistent with the
provisions of the Will dated 13th July, 1982 executed by Smt. Priyamvada Devi
Birla, save to the extent of making over the said estate to the Plaintiff for
the purpose of implementing the provisions of the said Will dated 13th July,
1982 made by Smt. Priyamvada Devi Birla.”
that the defendant as the alleged executor and sole beneficiary of the
purported will dated 18th April 1999 and/ or purported Codicil dated 15th April
2003 allegedly made by Smt. Priyamvada Devi Birla is not entitled to deal with
the estate of Smt. Priyamvada Devi Birla in a manner inconsistent with the
provisions of the Will dated 13th July, 1982 executed by Smt. Priyamvada Devi
Birla, save to the extent of making over the said estate to the Plaintiff for
the purpose of implementing the provisions of the said Will dated 13th July,
1982 made by Smt. Priyamvada Devi Birla.”
55. The plaint was drawn
by Khaitan and Company. One of its parties is also a defendant in the probate
proceedings. Pradip Kumar Khaitan is a party in the suit. He is an executor.
Witnesses to the said Will are Khaitans. They are also working as Advocates in
the proceedings instituted by or against Birlas.
by Khaitan and Company. One of its parties is also a defendant in the probate
proceedings. Pradip Kumar Khaitan is a party in the suit. He is an executor.
Witnesses to the said Will are Khaitans. They are also working as Advocates in
the proceedings instituted by or against Birlas.
ANALYSIS OF THE 1925 ACT
56. The 1925 Act is a
self contained Code. An application for grant of probate is to be filed in
terms of Sections 275 and 276 thereof. Particulars stated in the said
provisions are to be furnished by the applicant. The petition for grant of
probate is to be signed and verified. Citations in terms of Section 283 (1)(c)
are to be issued calling upon all such persons who claim to have any interest
in the estate of the deceased. Citations are issued in order to enable such
persons to see the proceedings before the grant of probate and if necessary to
oppose the same.
self contained Code. An application for grant of probate is to be filed in
terms of Sections 275 and 276 thereof. Particulars stated in the said
provisions are to be furnished by the applicant. The petition for grant of
probate is to be signed and verified. Citations in terms of Section 283 (1)(c)
are to be issued calling upon all such persons who claim to have any interest
in the estate of the deceased. Citations are issued in order to enable such
persons to see the proceedings before the grant of probate and if necessary to
oppose the same.
57. Such persons to whom
citations have been issued whether general or special, may file a caveat. All
proceedings are required to be taken only upon service of notice to the
caveator(s). Section 286 uses the word “contention” to mean
appearance of any one in person, or by his recognized agent, or by a pleader
duly appointed to act on his behalf, to oppose the proceeding. In the
contentious cases the procedures which are required to be adopted are specified
in Section 295.
citations have been issued whether general or special, may file a caveat. All
proceedings are required to be taken only upon service of notice to the
caveator(s). Section 286 uses the word “contention” to mean
appearance of any one in person, or by his recognized agent, or by a pleader
duly appointed to act on his behalf, to oppose the proceeding. In the
contentious cases the procedures which are required to be adopted are specified
in Section 295.
58. Only because neither
in Section 284 nor Section 295 a caveator is required to show any interest in
the estate of the deceased, whether the same would mean that anybody and
everybody who intends to oppose the grant of probate would be entitled to lodge
caveat, is the question.
in Section 284 nor Section 295 a caveator is required to show any interest in
the estate of the deceased, whether the same would mean that anybody and
everybody who intends to oppose the grant of probate would be entitled to lodge
caveat, is the question.
59. The 1925 Act in this
case has nothing to do with the law of inheritance or succession which is
otherwise governed by statutory laws or the custom, as the case may be.
case has nothing to do with the law of inheritance or succession which is
otherwise governed by statutory laws or the custom, as the case may be.
It makes detailed
provisions as to how and in what manner an application for grant of probate is
to be filed, considered and granted or refused. Rights and obligations of the
parties as also the executors and administrators appointed by the court are
laid down therein. Removal of the existing executors and administrators and
appointment of subsequent executors are within the exclusive domain of the
court. The jurisdiction of the Probate Court is limited being confined only to
consider the genuineness of the Will.
provisions as to how and in what manner an application for grant of probate is
to be filed, considered and granted or refused. Rights and obligations of the
parties as also the executors and administrators appointed by the court are
laid down therein. Removal of the existing executors and administrators and
appointment of subsequent executors are within the exclusive domain of the
court. The jurisdiction of the Probate Court is limited being confined only to
consider the genuineness of the Will.
A question of title
arising under the Act cannot be gone into the proceedings. Construction of a
Will relating to the right, title and interest of any other person is beyond
the domain of the Probate Court.
arising under the Act cannot be gone into the proceedings. Construction of a
Will relating to the right, title and interest of any other person is beyond
the domain of the Probate Court.
60. A person to whom a
citation is to be issued or a caveator, must have some interest in the estate
of the testator. Any person claiming any interest adverse to the testator or
his estate cannot maintain any application before the Probate Court. His remedy
would be elsewhere. The question with regard to the degree of interest or the
right which a caveator must show to establish his or her caveatable interest
before the Probate Court should be considered having regard to the
aforementioned legal propositions.
citation is to be issued or a caveator, must have some interest in the estate
of the testator. Any person claiming any interest adverse to the testator or
his estate cannot maintain any application before the Probate Court. His remedy
would be elsewhere. The question with regard to the degree of interest or the
right which a caveator must show to establish his or her caveatable interest
before the Probate Court should be considered having regard to the
aforementioned legal propositions.
CAVEATABLE INTEREST
61. Appellants herein
have raised a large number of contentions to show that they have a caveatable
interest.
have raised a large number of contentions to show that they have a caveatable
interest.
We may categorize them
as under:
as under:
(i)
Mutual Will;
Mutual Will;
(ii)
Family interest;
Family interest;
(iii)
Spiritual well-being of the testatrix
Spiritual well-being of the testatrix
(iv)
Pre-emption : Future domain doctrine;
Pre-emption : Future domain doctrine;
(v)
Preferential right – being executors of 1982 Will;
Preferential right – being executors of 1982 Will;
(vi)
Executor appointed in place of original Executor;
Executor appointed in place of original Executor;
(vii) Executor appointed in place of MPB
in purported conformity with the 1982
Will of PDB, viz., YB.
in purported conformity with the 1982
Will of PDB, viz., YB.
Before dealing with each
of the aforementioned contentions, let us consider what is meant by the term
“Caveatable interest”.
of the aforementioned contentions, let us consider what is meant by the term
“Caveatable interest”.
62. It has not been
defined under the Act. We may, therefore, notice the dictionary meaning of both
the terms “caveat” and “interest”.
defined under the Act. We may, therefore, notice the dictionary meaning of both
the terms “caveat” and “interest”.
Legal Thesaurus Regular
Edition by Wlliam C. Burton defines “interest” as under :-
Edition by Wlliam C. Burton defines “interest” as under :-
“Interest
(Ownership), noun Assets, belongings, claim, dominion, droit, holding lawful
possession, part, participation, percentage of ownership, portion, possession,
property, proprietorship, right, right of ownership, rightful possession ,
seisin, share, stake, title Associated Concepts : accounts bearing interest,
assignable interest, beneficial interest, common interest, contingent interest,
continuity of interest, controlling interest, future interest, interest in
hand, joint interest, legal interest, legal rate of interest, life interest,
person interested in a will, property interest, qualified interest, remainder
interest, remaining interest, transit of interest, undivided interest.
(Ownership), noun Assets, belongings, claim, dominion, droit, holding lawful
possession, part, participation, percentage of ownership, portion, possession,
property, proprietorship, right, right of ownership, rightful possession ,
seisin, share, stake, title Associated Concepts : accounts bearing interest,
assignable interest, beneficial interest, common interest, contingent interest,
continuity of interest, controlling interest, future interest, interest in
hand, joint interest, legal interest, legal rate of interest, life interest,
person interested in a will, property interest, qualified interest, remainder
interest, remaining interest, transit of interest, undivided interest.
63. “Caveat”
has been defined in Random House Webster’s Dictionary of the Law as under :-
has been defined in Random House Webster’s Dictionary of the Law as under :-
“caveat, n. 1, a
warning or caution; admonition.
warning or caution; admonition.
2. In certain legal
contexts, a formal notice of interest in a matter or property; for example, a
notice to a court or public officer to suspend a certain proceeding until the
notifier is given a hearing ; a caveat filed against the probate of a will.
contexts, a formal notice of interest in a matter or property; for example, a
notice to a court or public officer to suspend a certain proceeding until the
notifier is given a hearing ; a caveat filed against the probate of a will.
64. Whereas the counsel
for Birlas want us to take a liberal approach as contrasted to real interest,
submission of Mr. Salve is that all caveators must have a real interest in the
subject matter of the property. SOME PRECEDENTS
for Birlas want us to take a liberal approach as contrasted to real interest,
submission of Mr. Salve is that all caveators must have a real interest in the
subject matter of the property. SOME PRECEDENTS
65. What would be a
caveatable interest in the facts and circumstances of the present case is the
principal issue involved herein. With a view to find out an answer thereto, let
us notice some precedents operating in the field.
caveatable interest in the facts and circumstances of the present case is the
principal issue involved herein. With a view to find out an answer thereto, let
us notice some precedents operating in the field.
66. A large number of
decisions principally of the Calcutta, Bombay and Madras High Courts have been
cited by the appellants to show as to what constitutes a `caveatable interest’.
decisions principally of the Calcutta, Bombay and Madras High Courts have been
cited by the appellants to show as to what constitutes a `caveatable interest’.
67. We may, however, at
the outset, notice a decision of this Court in Elizabeth Antony v. Michel
Charles John Chown Lengera [(1990) 3 SCC 333] which is binding on us. Therein,
the testatrix, viz., one Mary Aline Browne, was the wife of one Herbet Evander
Browne, the eldest son of John Browne. Mary died on 28th March, 1972. She had
executed a Will on 12th March, 1962. An application for grant of a Letter of
Administration with a copy of the Will annexed was filed by Michel. Petitioner
Elizabeth Antony and her husband Zoe Enid Browne filed caveats on the plea that
the said Will was a forged document. The petitioner therein also claimed that
her daughter Browne had executed a Will on 23rd June, 1975 and she had executed
a deed of gift in favour of the petitioner. She also claimed herself to be a
trustee of John Browne Trust.
the outset, notice a decision of this Court in Elizabeth Antony v. Michel
Charles John Chown Lengera [(1990) 3 SCC 333] which is binding on us. Therein,
the testatrix, viz., one Mary Aline Browne, was the wife of one Herbet Evander
Browne, the eldest son of John Browne. Mary died on 28th March, 1972. She had
executed a Will on 12th March, 1962. An application for grant of a Letter of
Administration with a copy of the Will annexed was filed by Michel. Petitioner
Elizabeth Antony and her husband Zoe Enid Browne filed caveats on the plea that
the said Will was a forged document. The petitioner therein also claimed that
her daughter Browne had executed a Will on 23rd June, 1975 and she had executed
a deed of gift in favour of the petitioner. She also claimed herself to be a
trustee of John Browne Trust.
68. The Probate Court
held that they had no caveatable interest. Caveatable interest, therefore, was
claimed as an executor and legatee of the Will executed by Ms Zoe Enid Borwne
as also a deed of gift in respect of one item of the estate executed in their
favour. Caveatable interest was also claimed on the premise that the petitioner
was appointed a trustee of John Browne Trust. This Court noticed a large number
of High Court judgments. It was, however, opined that the petitioner therein
failed to establish a caveatable interest stating:
held that they had no caveatable interest. Caveatable interest, therefore, was
claimed as an executor and legatee of the Will executed by Ms Zoe Enid Borwne
as also a deed of gift in respect of one item of the estate executed in their
favour. Caveatable interest was also claimed on the premise that the petitioner
was appointed a trustee of John Browne Trust. This Court noticed a large number
of High Court judgments. It was, however, opined that the petitioner therein
failed to establish a caveatable interest stating:
“…We have perused
the entire order of the trial court in the context. Admittedly neither the
original nor a copy of the will said to have been executed by Zoe Enid Browne,
was filed. Now coming to the trust, it is in the evidence of PW 1 that John
Browne Trust has come to an end in March 1972 and the same was not in
existence. The trial court has considered both the documentary and oral
evidence in this regard and has rightly held that the petitioner has no
existing benefit from the trust. Likewise the registered gift deed or a copy of
it has not been filed. Before the learned Single Judge of the High Court also
same contentions were put forward. The learned Judge observed that from the
objections filed by the caveator she desires the court in the probate
proceedings to uphold her title on the strength of a gift deed and the trust
deed. It is observed:
the entire order of the trial court in the context. Admittedly neither the
original nor a copy of the will said to have been executed by Zoe Enid Browne,
was filed. Now coming to the trust, it is in the evidence of PW 1 that John
Browne Trust has come to an end in March 1972 and the same was not in
existence. The trial court has considered both the documentary and oral
evidence in this regard and has rightly held that the petitioner has no
existing benefit from the trust. Likewise the registered gift deed or a copy of
it has not been filed. Before the learned Single Judge of the High Court also
same contentions were put forward. The learned Judge observed that from the
objections filed by the caveator she desires the court in the probate
proceedings to uphold her title on the strength of a gift deed and the trust
deed. It is observed:
“Equally, the
petitioner has not placed before the court the will dated June 23, 1975 stated
to have been executed by Zoe Enid Browne to establish that under the will dated
March 12, 1962 stated to have been executed by Mary Aline Browne some interest
given to the petitioner under the will dated June 23, 1975 of Zoe Enid Browne,
is liable to be in any manner affected or otherwise displaced, by the grant of
letters of administration in respect of the will dated March 12, 1962 stated to
have been executed by Mary Aline Browne.”
petitioner has not placed before the court the will dated June 23, 1975 stated
to have been executed by Zoe Enid Browne to establish that under the will dated
March 12, 1962 stated to have been executed by Mary Aline Browne some interest
given to the petitioner under the will dated June 23, 1975 of Zoe Enid Browne,
is liable to be in any manner affected or otherwise displaced, by the grant of
letters of administration in respect of the will dated March 12, 1962 stated to
have been executed by Mary Aline Browne.”
Accordingly the learned
Judge held that the petitioner has not established that she has a caveatable
interest justifying her opposition to the probate proceedings for grant of
letters of administration. In this state of affairs, we are unable to agree
with the learned counsel that the petitioner has caveatable interest.”
Judge held that the petitioner has not established that she has a caveatable
interest justifying her opposition to the probate proceedings for grant of
letters of administration. In this state of affairs, we are unable to agree
with the learned counsel that the petitioner has caveatable interest.”
69. This Court, thus,
categorically opined that while granting a probate, the court would not decide
any dispute with regard to title. A separate suit would be maintainable
therefor. If probate is granted, they have a remedy in terms of Section 263 of
the 1925 Act also.
categorically opined that while granting a probate, the court would not decide
any dispute with regard to title. A separate suit would be maintainable
therefor. If probate is granted, they have a remedy in terms of Section 263 of
the 1925 Act also.
70. In the recent
judgment of Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon and others [2007
(12) SCALE 282], this court inter alia relying upon Chiranjilal Shrilal Goenka
v. Jasjit Singh and Ors. [(1993) 2 SCC 507] and upon referring to a catena of
decisions of the High Court and this Court, held that Probate court does not
decide any question of title or of the existence of the property itself.
judgment of Kanwarjit Singh Dhillon v. Hardayal Singh Dhillon and others [2007
(12) SCALE 282], this court inter alia relying upon Chiranjilal Shrilal Goenka
v. Jasjit Singh and Ors. [(1993) 2 SCC 507] and upon referring to a catena of
decisions of the High Court and this Court, held that Probate court does not
decide any question of title or of the existence of the property itself.
In Basanti Devi v.
Raviprakash Ramprasad Jaiswal [(2007) 12 SCALE 542], it is stated :
Raviprakash Ramprasad Jaiswal [(2007) 12 SCALE 542], it is stated :
“21. The Probate
Court, indisputably, exercises a limited jurisdiction. It is not concerned with
the question of title. But if the probate has been granted subject to
compliance of the provisions of the Act, an application for revocation would
also lie.”
Court, indisputably, exercises a limited jurisdiction. It is not concerned with
the question of title. But if the probate has been granted subject to
compliance of the provisions of the Act, an application for revocation would
also lie.”
71. Abhiram Dass v.
Gopal Dass [ILR 17 Calcutta 48] is a decision of the Division Bench of the
Calcutta High Court. In that case, the District Judge admitted the objection.
It was held that rival titles set up by the caveator can be gone into. Setting
aside the said judgment of the District Judge, the Division Bench of the High
Court held:
Gopal Dass [ILR 17 Calcutta 48] is a decision of the Division Bench of the
Calcutta High Court. In that case, the District Judge admitted the objection.
It was held that rival titles set up by the caveator can be gone into. Setting
aside the said judgment of the District Judge, the Division Bench of the High
Court held:
“… A person
disputing the right of a deceased testator to deal with certain property as his
own cannot be properly regarded as having an interest in the estate of the
deceased. His action is rather that of one claiming to have an adverse
interest…”
disputing the right of a deceased testator to deal with certain property as his
own cannot be properly regarded as having an interest in the estate of the
deceased. His action is rather that of one claiming to have an adverse
interest…”
72. Abhiram Dass (supra)
was followed by a Division Bench of the Bombay High Court in Prijoshah Bhikaji
v. Pestonji Merwanji [12 Bom LR 366] stating:
was followed by a Division Bench of the Bombay High Court in Prijoshah Bhikaji
v. Pestonji Merwanji [12 Bom LR 366] stating:
“…the interest
which entitles a person to put in a caveat must be an interest in the estate of
the deceased person, that is, there should be no dispute whatever as to the
title of the deceased to the estate, but that the person who wishes to come in
as caveator must show some interest in that estate derived from the deceased by
inheritance or otherwise.”
which entitles a person to put in a caveat must be an interest in the estate of
the deceased person, that is, there should be no dispute whatever as to the
title of the deceased to the estate, but that the person who wishes to come in
as caveator must show some interest in that estate derived from the deceased by
inheritance or otherwise.”
73. Madras High Court
also took the same view in Rahamtullah Sahib v. Rama Rau & Anr. [ILR 17
Madras 373] opining:
also took the same view in Rahamtullah Sahib v. Rama Rau & Anr. [ILR 17
Madras 373] opining:
“this possibility
should rest on existing facts and not on mere conjecture”.
should rest on existing facts and not on mere conjecture”.
74. It is also of some
significance to note that Abhiram Dass (supra) has been noticed by the Calcutta
High Court in Nikunj Kumar Lohia v. Narayan Prasad Garodia & Others [1996
(1) CHN 205], In the Goods of Mohammad Bashir (deceased) [AIR 1964 Cal 34] and
Smt. Namita Singha v. Joydeb Chandra Paul [AIR 2006 Cal 230]; by the Madras
High Court in M.S. Saraswathi v. M.S. Selvadurai & Anr. [(1997) 3 LW 541
(Mad)]; and by the Bombay High Court in Mrs. Perviz Sarosh Batliwalla &
Anr. v. Mrs. Viloo Plumber & Anr. [AIR 2000 Bom 189] and Rajiv Ramprasad
Gupta v. Rustom Sam Boyee [AIR 2003 Bom 242].
significance to note that Abhiram Dass (supra) has been noticed by the Calcutta
High Court in Nikunj Kumar Lohia v. Narayan Prasad Garodia & Others [1996
(1) CHN 205], In the Goods of Mohammad Bashir (deceased) [AIR 1964 Cal 34] and
Smt. Namita Singha v. Joydeb Chandra Paul [AIR 2006 Cal 230]; by the Madras
High Court in M.S. Saraswathi v. M.S. Selvadurai & Anr. [(1997) 3 LW 541
(Mad)]; and by the Bombay High Court in Mrs. Perviz Sarosh Batliwalla &
Anr. v. Mrs. Viloo Plumber & Anr. [AIR 2000 Bom 189] and Rajiv Ramprasad
Gupta v. Rustom Sam Boyee [AIR 2003 Bom 242].
75. Strong reliance has
been placed by Mr. Jethmalani on Nobeen Chander Sil and others v. Bhobosoondari
Debee [ILR 6 Calcutta 460]. Therein, Field, J. interpreting Section 242 of the
1925 Act opined that if any person can show that he was entitled to maintain a
suit in respect of property over which probate would have effect, he possesses
a sufficient interest to enter a caveat and oppose the grant of probate.
been placed by Mr. Jethmalani on Nobeen Chander Sil and others v. Bhobosoondari
Debee [ILR 6 Calcutta 460]. Therein, Field, J. interpreting Section 242 of the
1925 Act opined that if any person can show that he was entitled to maintain a
suit in respect of property over which probate would have effect, he possesses
a sufficient interest to enter a caveat and oppose the grant of probate.
76. Such a suit,
however, in our opinion must have a direct nexus with the estate of the
testator and not to enforce a right in respect of the application of the estate
of the testator under another will. Right to maintain a suit must be
independent of the wills sought to be probated. No legal right accrues under an
unprobated Will except in case where taking of probate is not mandatory. In
Nobeen Chander Sil (supra) the appellants therein had a direct interest in
disputing the Will. He had obtained a money decree against the testator. His
share was under attachment. In the aforementioned factual backdrop, it was held
:
however, in our opinion must have a direct nexus with the estate of the
testator and not to enforce a right in respect of the application of the estate
of the testator under another will. Right to maintain a suit must be
independent of the wills sought to be probated. No legal right accrues under an
unprobated Will except in case where taking of probate is not mandatory. In
Nobeen Chander Sil (supra) the appellants therein had a direct interest in
disputing the Will. He had obtained a money decree against the testator. His
share was under attachment. In the aforementioned factual backdrop, it was held
:
“What is the
meaning of the expression “persons claiming to have any interest ?”
It appears to me that the persons claiming to have any interest must be persons
having such an interest as would entitle them to maintain a suit in respect of
the subject matter of such estate – persons having, for example, such an
interest as, according to the practice of the Court of Chancery, would entitle
them to file a bill in a Court of Equity.”
meaning of the expression “persons claiming to have any interest ?”
It appears to me that the persons claiming to have any interest must be persons
having such an interest as would entitle them to maintain a suit in respect of
the subject matter of such estate – persons having, for example, such an
interest as, according to the practice of the Court of Chancery, would entitle
them to file a bill in a Court of Equity.”
77. It contains two
competing passages. One rendered by White, J. and another by Field, J.
competing passages. One rendered by White, J. and another by Field, J.
White, J. stated:
“It is not
necessary to consider whether the case cited by the District Judge is good law,
for it does not determine the question with which we have to deal. In that case
the parties opposing the probate were simple creditors of a person who was the
heir of the deceased, supposing the testator had died without a will, and
supposing also that he had not adopted a son. In the present case the
appellants have a claim upon the immoveable property left by the testator – two
of them as mortgagees of the persons who, if the testator left no will, are
entitled to create the mortgage, and one of the appellants as the attaching
creditor of one of these persons.”
necessary to consider whether the case cited by the District Judge is good law,
for it does not determine the question with which we have to deal. In that case
the parties opposing the probate were simple creditors of a person who was the
heir of the deceased, supposing the testator had died without a will, and
supposing also that he had not adopted a son. In the present case the
appellants have a claim upon the immoveable property left by the testator – two
of them as mortgagees of the persons who, if the testator left no will, are
entitled to create the mortgage, and one of the appellants as the attaching
creditor of one of these persons.”
78. Field, J., however,
expanded the ambit of `caveatable interest’.
expanded the ambit of `caveatable interest’.
A suit which would be
maintainable must have something to do with the estate of the testator. Inheritance
by Will itself may be a subject matter of contention. Whether the interest
claimed by the caveator is an established one or a bare claim must satisfy the
test that there exists an interest in the estate of the testator and the same
is not adverse thereto.
maintainable must have something to do with the estate of the testator. Inheritance
by Will itself may be a subject matter of contention. Whether the interest
claimed by the caveator is an established one or a bare claim must satisfy the
test that there exists an interest in the estate of the testator and the same
is not adverse thereto.
The said decision has
been followed by other High Courts as for example G. Jayakumar v. R. Ramaratnam
[AIR 1972 Mad 212] wherein it was held :-
been followed by other High Courts as for example G. Jayakumar v. R. Ramaratnam
[AIR 1972 Mad 212] wherein it was held :-
14. In support of this
view, their Lordships quoted the observations of Field J., in the matter of the
petition of Bhobosoonduri Dabee, ILR (1881) 6 Cal 460 to the following
effect:–
view, their Lordships quoted the observations of Field J., in the matter of the
petition of Bhobosoonduri Dabee, ILR (1881) 6 Cal 460 to the following
effect:–
“As to the test of
what constitutes a sufficient interest to entitle any particular person to be
made a party, according to the view which I have already stated, I think it
comes to this that any person has a sufficient interest who can show that he is
a entitled to maintain a suit in respect of the property over which the probate
would have effect under the provisions of Section 242 of the Indian Succession
Act.”
what constitutes a sufficient interest to entitle any particular person to be
made a party, according to the view which I have already stated, I think it
comes to this that any person has a sufficient interest who can show that he is
a entitled to maintain a suit in respect of the property over which the probate
would have effect under the provisions of Section 242 of the Indian Succession
Act.”
To the same effect is a
decision of Calcutta High Court in Nabin Chandra Guha v. Nibaran Chandra Biswas
and others [AIR 1932 Calcutta 734].
decision of Calcutta High Court in Nabin Chandra Guha v. Nibaran Chandra Biswas
and others [AIR 1932 Calcutta 734].
As would appear from the
discussions made hereinafter, the said view, to our mind, is not entirely
correct.
discussions made hereinafter, the said view, to our mind, is not entirely
correct.
A caveatable interest
was claimed therein on the basis of acquisition of a subsequent interest from
the daughter of the testator. The District Judge held that he did not have a
caveatable interest. The Calcutta High Court, interpreting Section 283 (1)(c)
of the 1925 Act, held:
was claimed therein on the basis of acquisition of a subsequent interest from
the daughter of the testator. The District Judge held that he did not have a
caveatable interest. The Calcutta High Court, interpreting Section 283 (1)(c)
of the 1925 Act, held:
“…And possibility
of an interest does not apply to possibility of a party filling a character
which would give him an interest but to the possibility of his having an
interest in the result of setting aside the will…”
of an interest does not apply to possibility of a party filling a character
which would give him an interest but to the possibility of his having an
interest in the result of setting aside the will…”
As the caveator acquired
an interest from the daughter, he was said to have a caveatable interest.
an interest from the daughter, he was said to have a caveatable interest.
79. Although we may not
be very much concerned with the caveatable interest of the reversioners, a
large number of decisions of the Calcutta and Madras High Courts were cited by
Mr. Jethmalani to show that such an interest was held to be a caveatable
interest.
be very much concerned with the caveatable interest of the reversioners, a
large number of decisions of the Calcutta and Madras High Courts were cited by
Mr. Jethmalani to show that such an interest was held to be a caveatable
interest.
80. One of the judgments
relied upon was Brindaban Chandra Shaha v. Sureshwar Shaha Parmanick and others
[10 Cal. LJ 263]. In that case, the caveator was found to have been entitled to
inherit the property of the testatrix, if the court refused to grant probate.
Noticing the statement of law that the interest of a Hindu reversioner
expectant upon the death of a Hindu female cannot be validly alienated, it was
held that a Hindu widow not only cannot dispose off the estate, but also cannot
bind the reversioner’s expectant rights. Having said so, a question was posed.
Does it necessarily mean that such a person has not such an interest in the
estate under Section 69 of the Probate and Administration Act so as to entitle
him to oppose the grant of probate of a Will which if probated is likely to
prejudice him? Answering the said question, this Court held:
relied upon was Brindaban Chandra Shaha v. Sureshwar Shaha Parmanick and others
[10 Cal. LJ 263]. In that case, the caveator was found to have been entitled to
inherit the property of the testatrix, if the court refused to grant probate.
Noticing the statement of law that the interest of a Hindu reversioner
expectant upon the death of a Hindu female cannot be validly alienated, it was
held that a Hindu widow not only cannot dispose off the estate, but also cannot
bind the reversioner’s expectant rights. Having said so, a question was posed.
Does it necessarily mean that such a person has not such an interest in the
estate under Section 69 of the Probate and Administration Act so as to entitle
him to oppose the grant of probate of a Will which if probated is likely to
prejudice him? Answering the said question, this Court held:
“…Although a
reversioner under the Hindu Law has no present interest in the property left by
deceased, yet it is manifest that he is substantially interested in the
protection or devolution of the estate. It is well-settled that a reversioner
can sue to restrain waste Hurry Doss v. Rangunmoney [(1851) Sev.657]. The
reversioner can, if he makes out a proper case obtain an order for the
appointment of the receiver….”
reversioner under the Hindu Law has no present interest in the property left by
deceased, yet it is manifest that he is substantially interested in the
protection or devolution of the estate. It is well-settled that a reversioner
can sue to restrain waste Hurry Doss v. Rangunmoney [(1851) Sev.657]. The
reversioner can, if he makes out a proper case obtain an order for the
appointment of the receiver….”
On that premise, a
reversioner was held to have a caveatable interest.
reversioner was held to have a caveatable interest.
81. Nobeen Chander Sil
(supra) and Abhiram Dass (supra) were also noticed therein. It was, however,
held that it was not necessary to express any opinion on the other questions
raised having regard to the fact situation obtaining therein.
(supra) and Abhiram Dass (supra) were also noticed therein. It was, however,
held that it was not necessary to express any opinion on the other questions
raised having regard to the fact situation obtaining therein.
82. In Gourishankar
Chattoraj v. Smt. Satyabati Debi [AIR 1931 Calcutta 470] the High Court held
that the applicant Gourishankar would not have inherited the estate of
testatrix Charumati (wife of Shyamsunder) and furthermore held that he was
neither a `sapinda’ nor a `sakulya’ nor a `samanodaka’ under the Dyabhaga
School of Hindu law. Despite the fact that no opinion was expressed upon the
rights of the competing heirs in the peculiar facts of that case, Gourishankar
was allowed to appear and oppose the application for the grant of Letters of
Administration.
Chattoraj v. Smt. Satyabati Debi [AIR 1931 Calcutta 470] the High Court held
that the applicant Gourishankar would not have inherited the estate of
testatrix Charumati (wife of Shyamsunder) and furthermore held that he was
neither a `sapinda’ nor a `sakulya’ nor a `samanodaka’ under the Dyabhaga
School of Hindu law. Despite the fact that no opinion was expressed upon the
rights of the competing heirs in the peculiar facts of that case, Gourishankar
was allowed to appear and oppose the application for the grant of Letters of
Administration.
83. No principle of law
was laid down therein. It does not have even a persuasive value. It, in our
opinion, does not lay down any law.
was laid down therein. It does not have even a persuasive value. It, in our
opinion, does not lay down any law.
84. The Madras High
Court, we may notice, in a recent judgment in M.S. Saraswathi (supra) had a
snapshot of a large number of decisions of various High Courts operating in the
field including the decisions of Calcutta, Bombay, Madras and Kerala High
Courts. It followed a Division Bench Decision In re Narasimha [AIR 1975 Madras
330] wherein it was held that Section 8 of the Hindu Succession Act would apply
and the caveator being an heir alone could claim a share and his son and, thus,
the applicant therein could not claim any share as he had no present interest
in the property. It was emphasized that a caveator if he denied the testator’s
title was liable to be discharged.
Court, we may notice, in a recent judgment in M.S. Saraswathi (supra) had a
snapshot of a large number of decisions of various High Courts operating in the
field including the decisions of Calcutta, Bombay, Madras and Kerala High
Courts. It followed a Division Bench Decision In re Narasimha [AIR 1975 Madras
330] wherein it was held that Section 8 of the Hindu Succession Act would apply
and the caveator being an heir alone could claim a share and his son and, thus,
the applicant therein could not claim any share as he had no present interest
in the property. It was emphasized that a caveator if he denied the testator’s
title was liable to be discharged.
85. Real vs. Bare
Interest test was considered in each of the cases having regard to the fact
situation obtaining therein. PROPOSITIONS OF LAW
Interest test was considered in each of the cases having regard to the fact
situation obtaining therein. PROPOSITIONS OF LAW
86. Section 283 of the
1925 Act confers a discretion upon the court to invite some persons to watch
the proceedings.
1925 Act confers a discretion upon the court to invite some persons to watch
the proceedings.
Who are they? They must
have an interest in the estate of the deceased. Those who pray for joining the
proceeding cannot do so despite saying that they had no interest in the estate
of the deceased. They must be persons who have an interest in the estate left
by the deceased. An interest may be a wide one but such an interest must not be
one which would not have the effect of destroying the estate of the testator
itself.
have an interest in the estate of the deceased. Those who pray for joining the
proceeding cannot do so despite saying that they had no interest in the estate
of the deceased. They must be persons who have an interest in the estate left
by the deceased. An interest may be a wide one but such an interest must not be
one which would not have the effect of destroying the estate of the testator
itself.
87. Filing of a suit is
contemplated inter alia in a case where a question relating to the succession
of an estate arises.
contemplated inter alia in a case where a question relating to the succession
of an estate arises.
88. We may, by way of
example notice that a testator might have entered into an agreement of sale
entitling the vendee to file a suit for specific performance of contract. On
the basis thereof, however, a caveatable interest is not created, as such an
agreement would be binding both on the executor, if the probate is granted, and
on the heirs and legal representatives of the deceased, if the same is refused.
example notice that a testator might have entered into an agreement of sale
entitling the vendee to file a suit for specific performance of contract. On
the basis thereof, however, a caveatable interest is not created, as such an
agreement would be binding both on the executor, if the probate is granted, and
on the heirs and legal representatives of the deceased, if the same is refused.
89. The propositions of
law which in our considered view may be applied in a case of this nature are:
law which in our considered view may be applied in a case of this nature are:
(i) To sustain a caveat,
a caveatable interest must be shown;
a caveatable interest must be shown;
(ii) The test required
to be applied is: does the claim of grant of probate prejudice his right
because it defeats some other line of succession in terms whereof the caveator
asserted his right.
to be applied is: does the claim of grant of probate prejudice his right
because it defeats some other line of succession in terms whereof the caveator
asserted his right.
(iii) It is a
fundamental nature of a probate proceeding that whatever would be the interest
of the testator, the same must be accepted and the rules laid down therein must
be followed. The logical corollary whereof would be that any person questioning
the existence of title in respect of the estate or capacity of the testator to
dispose of the property by Will on ground outside the law of succession would
be a stranger to the probate proceeding inasmuch as none of such rights can
effectively be adjudicated therein.
fundamental nature of a probate proceeding that whatever would be the interest
of the testator, the same must be accepted and the rules laid down therein must
be followed. The logical corollary whereof would be that any person questioning
the existence of title in respect of the estate or capacity of the testator to
dispose of the property by Will on ground outside the law of succession would
be a stranger to the probate proceeding inasmuch as none of such rights can
effectively be adjudicated therein.
APPLICATION OF THE
RULES:
RULES:
90. The bare possibility
test as advanced in Brindaban Chandra Shaha (supra) as adopted in Gourishankar
Chattoraj v. Smt. Satyabati Debi [AIR 1931 Cal 470], in our opinion would have
no application in the instant case. However, we may also notice that the
Calcutta High Court itself in some of the decisions have applied the real
interest test as for example Nabin Chander Guha (supra) and Dinabandhu Roy
Brajaraj Saha v. Sarala Sundari Dassya w/o Haralal Saha [AIR 1940 Calcutta
296].
test as advanced in Brindaban Chandra Shaha (supra) as adopted in Gourishankar
Chattoraj v. Smt. Satyabati Debi [AIR 1931 Cal 470], in our opinion would have
no application in the instant case. However, we may also notice that the
Calcutta High Court itself in some of the decisions have applied the real
interest test as for example Nabin Chander Guha (supra) and Dinabandhu Roy
Brajaraj Saha v. Sarala Sundari Dassya w/o Haralal Saha [AIR 1940 Calcutta
296].
91. We may furthermore
notice another line of decisions, where an interest in the estate of the
deceased-testator which may be affected by grant of probate of the will of the
deceased had been applied for determination of the issue of caveatable
interest, which, inter alia, are :-
notice another line of decisions, where an interest in the estate of the
deceased-testator which may be affected by grant of probate of the will of the
deceased had been applied for determination of the issue of caveatable
interest, which, inter alia, are :-
1. Abhiram Dass (supra)
2. Nikunj Kumar Lohia
(supra)
(supra)
3. M.S. Saraswathi
(supra)
(supra)
4. Perviz Sarosh
Batliwalla (supra)
Batliwalla (supra)
5. Rajiv Ramprasad Gupta
(supra)
(supra)
6. In the Goods of
Mahammad Bashir (deceased) (supra)
Mahammad Bashir (deceased) (supra)
7. Namita Singha (supra)
92. While determining
the said question, the law governing the intestate succession must also be kept
in mind. The right of the reversioner or even the doctrine of `spes
successonis’ will have no application for determining the issue in a case of
this nature.
the said question, the law governing the intestate succession must also be kept
in mind. The right of the reversioner or even the doctrine of `spes
successonis’ will have no application for determining the issue in a case of
this nature.
93. Two sisters of MPB
being alive (one of them is since deceased), indisputably in the event the
application for grant of probate of RSL in respect of the 1999 Will is refused
they will have an interest in the estate of the testatrix. The right of the
said sisters of MPB being definite and clear, it is not a case where it is
necessary to apply the bare possibility or the common ancestor test.
being alive (one of them is since deceased), indisputably in the event the
application for grant of probate of RSL in respect of the 1999 Will is refused
they will have an interest in the estate of the testatrix. The right of the
said sisters of MPB being definite and clear, it is not a case where it is
necessary to apply the bare possibility or the common ancestor test.
94. Both MPB and PDB
claimed their interest in certain companies. The subject matter of the Will is
not the ancestral property over which the caveators claim any interest. It is
one thing to say that the subject matter of the will is `coparcenary’ or a
`joint family property’ in which case the larger concept of interest in the
agnates would apply, but it is another thing to say that if people are
available who would otherwise represent the interest of the estate and against
whom citations have been issued, others who have no interest would also be entitled
to enter a caveat.
claimed their interest in certain companies. The subject matter of the Will is
not the ancestral property over which the caveators claim any interest. It is
one thing to say that the subject matter of the will is `coparcenary’ or a
`joint family property’ in which case the larger concept of interest in the
agnates would apply, but it is another thing to say that if people are
available who would otherwise represent the interest of the estate and against
whom citations have been issued, others who have no interest would also be entitled
to enter a caveat.
95. In the context of
the laws governing inheritance and succession, as they then stood, the widest
possible meaning to the term “interest” might have been given in a
series of decisions to which the learned counsel for the appellants rely upon
ranging from Nobeen Chunder Sil (supra) to Radharaman Chowdhuri and others vs.
Gopal Chandra Chakravarty [AIR 1920 Calcutta 459] so as to hold that a caveat
would be maintainable even at the instance of a person who had been able to
establish “some sort of relationship” and howsoever distant he may be
from the deceased which per se cannot have any application after coming into
force of the Hindu Succession Act. Ordinarily, therefore, a caveatable interest
would mean an interest in the estate of the deceased to which the caveator
would otherwise be entitled to, subject of course, of having a special interest
therein.
the laws governing inheritance and succession, as they then stood, the widest
possible meaning to the term “interest” might have been given in a
series of decisions to which the learned counsel for the appellants rely upon
ranging from Nobeen Chunder Sil (supra) to Radharaman Chowdhuri and others vs.
Gopal Chandra Chakravarty [AIR 1920 Calcutta 459] so as to hold that a caveat
would be maintainable even at the instance of a person who had been able to
establish “some sort of relationship” and howsoever distant he may be
from the deceased which per se cannot have any application after coming into
force of the Hindu Succession Act. Ordinarily, therefore, a caveatable interest
would mean an interest in the estate of the deceased to which the caveator
would otherwise be entitled to, subject of course, of having a special interest
therein.
96. Smt. Laxmi Devi
Newar and Smt. Radha Devi Mohatta were heirs and legal representatives of PDB.
Even in the event application of RSL for the grant of probate is dismissed,
they and/ or their respective heirs would continue to represent the estate of
PDB.
Newar and Smt. Radha Devi Mohatta were heirs and legal representatives of PDB.
Even in the event application of RSL for the grant of probate is dismissed,
they and/ or their respective heirs would continue to represent the estate of
PDB.
97. A Will is executed
when the owner of a property forms an opinion that his/ her estate should not
devolve upon the existing heirs according to the law governing intestate
succession. When, thus, a person who would have otherwise succeeded to the
estate of the testator, would ordinarily have a caveatable interest, any other
person must ordinarily show a special interest in the estate.
when the owner of a property forms an opinion that his/ her estate should not
devolve upon the existing heirs according to the law governing intestate
succession. When, thus, a person who would have otherwise succeeded to the
estate of the testator, would ordinarily have a caveatable interest, any other
person must ordinarily show a special interest in the estate.
98. Such a special
interest may be a creditor of the deceased as was the case in Sarala Sundari
Dassya v. Dinabandhu Roy Brajaraf Saha (Firm) [AIR 1944 PC 11]. But, in our
opinion, the same would not mean that even if the estate of the deceased is
being represented by the legal heirs, caveat can be entertained at the instance
of a person who has no real interest therein or in other words would merely
have a contingent interest.
interest may be a creditor of the deceased as was the case in Sarala Sundari
Dassya v. Dinabandhu Roy Brajaraf Saha (Firm) [AIR 1944 PC 11]. But, in our
opinion, the same would not mean that even if the estate of the deceased is
being represented by the legal heirs, caveat can be entertained at the instance
of a person who has no real interest therein or in other words would merely
have a contingent interest.
99. A transferee
pendente lite without the leave of the court would not have a caveatable
interest and as such cannot be impleaded as a party. A person cannot also be
impleaded as a party even on an apprehension that those who have a caveatable
interest and to whom citations have been made would not take any interest in the
litigation.
pendente lite without the leave of the court would not have a caveatable
interest and as such cannot be impleaded as a party. A person cannot also be
impleaded as a party even on an apprehension that those who have a caveatable
interest and to whom citations have been made would not take any interest in the
litigation.
100. A tenant occupying
the premises belonging to a testator was held not to have any caveatable
interest in the property of the testator. [See Jagdish Chander v. State &
Anr. 1988 RLR 678] In Sunil Gupta v. Kiran Girhotra & Ors. [2007 (12) SCALE
59], this Court held:
the premises belonging to a testator was held not to have any caveatable
interest in the property of the testator. [See Jagdish Chander v. State &
Anr. 1988 RLR 678] In Sunil Gupta v. Kiran Girhotra & Ors. [2007 (12) SCALE
59], this Court held:
“17. Citation, as
is well-known, should be conspicuously displayed on a notice board. Before
purchasing the properties, Amit Pahwa and consequently the appellant had taken
a calculated risk. In a situation of this nature, he is not a necessary party.
He took the risk of the result of the probate proceedings. His apprehension
that Raj Kumar may not take any interest in the litigation cannot by itself a
ground for interfering with the impugned judgment. It is speculative in nature.”
is well-known, should be conspicuously displayed on a notice board. Before
purchasing the properties, Amit Pahwa and consequently the appellant had taken
a calculated risk. In a situation of this nature, he is not a necessary party.
He took the risk of the result of the probate proceedings. His apprehension
that Raj Kumar may not take any interest in the litigation cannot by itself a
ground for interfering with the impugned judgment. It is speculative in nature.”
101. Reliance was placed
by Mr. Venugopal on an unreported decision of the Calcutta High Court in the
case of Goods of Santi Bhusan Bose, Application No. 85 of 1991 where caveat was
not discharged on the premise that the caveator would succeed in the event of
death of the heirs of the deceased. Apart from that fact, the said decision, in
our opinion, did not lay down the correct law, even the principles enunciated
will have no application in this case as the heirs of Smt. Laxmi Devi Newar and
Smt. Radha Devi Mohatta would succeed to their interest in the property and not
the appellants, as classified heirs succeed absolutely and upon death of any
such heir, the estate devolves upon the heirs of such absolute successor. There
could not, therefore, be any question of reversion of the property.
by Mr. Venugopal on an unreported decision of the Calcutta High Court in the
case of Goods of Santi Bhusan Bose, Application No. 85 of 1991 where caveat was
not discharged on the premise that the caveator would succeed in the event of
death of the heirs of the deceased. Apart from that fact, the said decision, in
our opinion, did not lay down the correct law, even the principles enunciated
will have no application in this case as the heirs of Smt. Laxmi Devi Newar and
Smt. Radha Devi Mohatta would succeed to their interest in the property and not
the appellants, as classified heirs succeed absolutely and upon death of any
such heir, the estate devolves upon the heirs of such absolute successor. There
could not, therefore, be any question of reversion of the property.
102. We are not
oblivious of the fact that a judgment rendered in a probate proceeding is a
judgment in rem. But, its application is limited. A judgment rendered in a
probate proceeding would not be determinative of the question of title. If a
probate has been obtained by fraud or suppression of material fact, the same
can be the subject matter of revocation of the grant in terms of Section 263 of
the 1925 Act. [See Elizabeth Antony (supra)].
oblivious of the fact that a judgment rendered in a probate proceeding is a
judgment in rem. But, its application is limited. A judgment rendered in a
probate proceeding would not be determinative of the question of title. If a
probate has been obtained by fraud or suppression of material fact, the same
can be the subject matter of revocation of the grant in terms of Section 263 of
the 1925 Act. [See Elizabeth Antony (supra)].
In Basanti Devi (supra),
it was held:
it was held:
“23. It is now well
settled that an application for grant of probate is a proceeding in rem. A
probate when granted not only binds all the parties before the Court but also
binds all other persons in all proceedings arising out of the Will or claims
under or connected therewith. Being a judgment in rem, a person, who is
aggrieved thereby and having had no knowledge about the proceedings and proper
citations having not been made, is entitled to file an application for
revocation of probate on such grounds as may be available to him. We are,
therefore, of the opinion that the application for revocation of the grant of
probate should have been entertained.”
settled that an application for grant of probate is a proceeding in rem. A
probate when granted not only binds all the parties before the Court but also
binds all other persons in all proceedings arising out of the Will or claims
under or connected therewith. Being a judgment in rem, a person, who is
aggrieved thereby and having had no knowledge about the proceedings and proper
citations having not been made, is entitled to file an application for
revocation of probate on such grounds as may be available to him. We are,
therefore, of the opinion that the application for revocation of the grant of
probate should have been entertained.”
[See also Sunil Gupta
(supra)].
(supra)].
These decisions relied
upon by Mr. Jethmalani relating to revocation of grant, as for example
Brindaban Chandra Shah (supra) are, thus, not applicable to the facts of the
present case.
upon by Mr. Jethmalani relating to revocation of grant, as for example
Brindaban Chandra Shah (supra) are, thus, not applicable to the facts of the
present case.
103. We may notice that
in Jagdish Prasad Tulshian vs. Yasheen Jain [AIR 2007 Calcutta 218], the
Calcutta High Court held:
in Jagdish Prasad Tulshian vs. Yasheen Jain [AIR 2007 Calcutta 218], the
Calcutta High Court held:
“20. In the case of
Elizabeth Antony v. Michel Charles John Crown Lengera reported in 1990 (3) SCC
333 : (AIR 1990 SC 1576), the Supreme Court was dealing with an application for
revocation of grant of a Probate and in the said case a party sought to
establish a caveatable interest on the basis of a Will though the said Will or
the copy thereof was not filed before the Court. In such a case, the Supreme
Court was of the view that it was not expedient to reopen the matter. In the
said case, the Supreme Court, however, held that for the purpose of revocation
of a grant within the scope of Section 263 of the Indian Succession Act, the
absence of caveatable interest does not stand in the way. In the case before
us, we are not concerned with a case of revocation of grant. Therefore, the
principle laid down in the said decision, cannot have any application to the
case before us. Moreover, in that case, even the copy of the purported Will was
not produced.”
Elizabeth Antony v. Michel Charles John Crown Lengera reported in 1990 (3) SCC
333 : (AIR 1990 SC 1576), the Supreme Court was dealing with an application for
revocation of grant of a Probate and in the said case a party sought to
establish a caveatable interest on the basis of a Will though the said Will or
the copy thereof was not filed before the Court. In such a case, the Supreme
Court was of the view that it was not expedient to reopen the matter. In the
said case, the Supreme Court, however, held that for the purpose of revocation
of a grant within the scope of Section 263 of the Indian Succession Act, the
absence of caveatable interest does not stand in the way. In the case before
us, we are not concerned with a case of revocation of grant. Therefore, the
principle laid down in the said decision, cannot have any application to the
case before us. Moreover, in that case, even the copy of the purported Will was
not produced.”
What would be the
cavetable interest would, thus, depend upon the fact situation obtaining in
each case. No hard and fast rule, as such, can be laid down. We have merely
made attempts to lay down certain broad legal principles.
cavetable interest would, thus, depend upon the fact situation obtaining in
each case. No hard and fast rule, as such, can be laid down. We have merely
made attempts to lay down certain broad legal principles.
INTERPRETATION
104. A statute must be
interpreted having regard to the purport and object of the Act. The doctrine of
purposive construction must be resorted to in a case of this nature. The court
must place itself in the chair of a reasonable legislator. In New Indian
Assurance Co. v. Nusli Neville Wadia and Anr. [2007 (14) SCALE 556], it was held
:
interpreted having regard to the purport and object of the Act. The doctrine of
purposive construction must be resorted to in a case of this nature. The court
must place itself in the chair of a reasonable legislator. In New Indian
Assurance Co. v. Nusli Neville Wadia and Anr. [2007 (14) SCALE 556], it was held
:
“50. Except in the
first category of cases, as has been noticed by us hereinbefore, Sections 4 and
5 of the Act, in our opinion, may have to be construed differently in view of
the decisions rendered by this Court. If the landlord being a State within the
meaning of Article 12 of the Constitution of India is required to prove
fairness and reasonableness on its part in initiating a proceeding, it is for
it to show how its prayer meets the constitutional requirements of Article 14
of the Constitution of India. For proper interpretation not only the basic
principles of natural justice have to be borne in mind, but also principles of
constitutionalism involved therein. With a view to read the provisions of the
Act in a proper and effective manner, we are of the opinion that literal
interpretation, if given, may give rise to an anomaly or absurdity which must
be avoided. So as to enable a superior court to interpret a statute in a
reasonable manner, the court must place itself in the chair of a reasonable legislator/
author. So done, the rules of purposive construction have to be resorted to
which would require the construction of the Act in such a manner so as to see
that the object of the Act fulfilled; which in turn would lead the beneficiary
under the statutory scheme to fulfill its constitutional obligations as held by
the court inter alia in Ashoka Marketing Ltd (supra).
first category of cases, as has been noticed by us hereinbefore, Sections 4 and
5 of the Act, in our opinion, may have to be construed differently in view of
the decisions rendered by this Court. If the landlord being a State within the
meaning of Article 12 of the Constitution of India is required to prove
fairness and reasonableness on its part in initiating a proceeding, it is for
it to show how its prayer meets the constitutional requirements of Article 14
of the Constitution of India. For proper interpretation not only the basic
principles of natural justice have to be borne in mind, but also principles of
constitutionalism involved therein. With a view to read the provisions of the
Act in a proper and effective manner, we are of the opinion that literal
interpretation, if given, may give rise to an anomaly or absurdity which must
be avoided. So as to enable a superior court to interpret a statute in a
reasonable manner, the court must place itself in the chair of a reasonable legislator/
author. So done, the rules of purposive construction have to be resorted to
which would require the construction of the Act in such a manner so as to see
that the object of the Act fulfilled; which in turn would lead the beneficiary
under the statutory scheme to fulfill its constitutional obligations as held by
the court inter alia in Ashoka Marketing Ltd (supra).
51. Barak in his
exhaustive work on `Purposive Construction’ explains various meanings
attributed to the term “purpose”. It would be in the fitness of
discussion to refer to Purposive Construction in Barak’s words:
exhaustive work on `Purposive Construction’ explains various meanings
attributed to the term “purpose”. It would be in the fitness of
discussion to refer to Purposive Construction in Barak’s words:
“Hart and Sachs
also appear to treat “purpose” as a subjective concept. I say
“appear” because, although Hart and Sachs claim that the interpreter
should imagine himself or herself in the legislator’s shoes, they introduce two
elements of objectivity: First, the interpreter should assume that the
legislature is composed of reasonable people seeking to achieve reasonable
goals in a reasonable manner; and second, the interpreter should accept the
non-rebuttable presumption that members of the legislative body sought to
fulfill their constitutional duties in good faith. This formulation allows the
interpreter to inquire not into the subjective intent of the author, but rather
the intent the author would have had, had he or she acted reasonably.”
also appear to treat “purpose” as a subjective concept. I say
“appear” because, although Hart and Sachs claim that the interpreter
should imagine himself or herself in the legislator’s shoes, they introduce two
elements of objectivity: First, the interpreter should assume that the
legislature is composed of reasonable people seeking to achieve reasonable
goals in a reasonable manner; and second, the interpreter should accept the
non-rebuttable presumption that members of the legislative body sought to
fulfill their constitutional duties in good faith. This formulation allows the
interpreter to inquire not into the subjective intent of the author, but rather
the intent the author would have had, had he or she acted reasonably.”
(See also Bharat
Petroleum Corporation Ltd. v. Maddula Ratnavalli & Ors. [(2007) 6 SCC 81,
para 22] In so doing, it would not be permissible for the court to construe the
provisions in such a manner which would destroy the very purpose for which the
same was enacted. The principles in regard to the approach of the Court in
interpreting the provisions of a statute with the change in the societal
condition must also be borne in mind.
Petroleum Corporation Ltd. v. Maddula Ratnavalli & Ors. [(2007) 6 SCC 81,
para 22] In so doing, it would not be permissible for the court to construe the
provisions in such a manner which would destroy the very purpose for which the
same was enacted. The principles in regard to the approach of the Court in
interpreting the provisions of a statute with the change in the societal
condition must also be borne in mind.
105. In Anuj Garg &
Ors. v. Hotel Association of India & Ors. [(2007) 13 SCALE 762], this Court
held :
Ors. v. Hotel Association of India & Ors. [(2007) 13 SCALE 762], this Court
held :
“8. Changed social
psyche and expectations are important factors to be considered in the upkeep of
law. Decision on relevance will be more often a function of time we are
operating in. Primacy to such transformation in constitutional rights analysis
would not be out of place. It will be in fitness of the discussion to refer to
the following text from “Habits of the Heart: Individualism and Commitment
in American Life” by R. Bellah, R. Madsen, W. Sullivan, A. Swidler and S.
Tipton, 1985, page 286 which suggests factoring in of such social changes.
psyche and expectations are important factors to be considered in the upkeep of
law. Decision on relevance will be more often a function of time we are
operating in. Primacy to such transformation in constitutional rights analysis
would not be out of place. It will be in fitness of the discussion to refer to
the following text from “Habits of the Heart: Individualism and Commitment
in American Life” by R. Bellah, R. Madsen, W. Sullivan, A. Swidler and S.
Tipton, 1985, page 286 which suggests factoring in of such social changes.
“The transformation
of our culture and our society would have to happen at a number of levels. If
it occurred only in the minds of individuals (as to some degree it already has)
it would be powerless. If it came only from the initiative of the state, it
would be tyrannical. Personal transformation among large numbers is essential,
and it must not only be a transformation of consciousness but must also involve
individual action. But individuals need the nurture of crops that carry a moral
tradition reinforcing their own aspirations.
of our culture and our society would have to happen at a number of levels. If
it occurred only in the minds of individuals (as to some degree it already has)
it would be powerless. If it came only from the initiative of the state, it
would be tyrannical. Personal transformation among large numbers is essential,
and it must not only be a transformation of consciousness but must also involve
individual action. But individuals need the nurture of crops that carry a moral
tradition reinforcing their own aspirations.
These are commitments
that require a new social ecology and a social movement dedicated to the idea
of such a transformation.”
that require a new social ecology and a social movement dedicated to the idea
of such a transformation.”
106. The decisions which
were rendered prior to coming into force of the Hindu Succession Act, thus, may
not be of much relevance. Now, if on the interpretation of law, as then stood,
a reversioner or a distant relative who could have succeeded to the interest of
the testator was entitled to file a caveat, they would not be now, as the law
of inheritance and succession is governed by a Parliamentary Act.
were rendered prior to coming into force of the Hindu Succession Act, thus, may
not be of much relevance. Now, if on the interpretation of law, as then stood,
a reversioner or a distant relative who could have succeeded to the interest of
the testator was entitled to file a caveat, they would not be now, as the law
of inheritance and succession is governed by a Parliamentary Act.
107. Directly or
indirectly the appellants and in particular KKB is questioning the title or
disposing power of the testator, which is impermissible in a probate
proceeding. Appellants, in fact, have been prevaricating their stand from
proceeding to proceeding. They have been raising various contentions which are
wholly impermissible in law.
indirectly the appellants and in particular KKB is questioning the title or
disposing power of the testator, which is impermissible in a probate
proceeding. Appellants, in fact, have been prevaricating their stand from
proceeding to proceeding. They have been raising various contentions which are
wholly impermissible in law.
108. Be that as it may,
even the decisions relied upon by Mr. Jethmalani were rendered in the factual
situation obtaining therein.
even the decisions relied upon by Mr. Jethmalani were rendered in the factual
situation obtaining therein.
109. It is in that
backdrop the question which is required to be posed is: Did the Calcutta High
Court or the other High Court opine that even a busy body or an interloper
having no legitimate concern in the outcome of the probate proceedings would be
entitled to lodge a caveat and oppose the probate? The answer thereto, in our
opinion, must be rendered in the negative. If anybody and everybody including a
busy body or an interloper is found to be entitled to enter a caveat and
oppose, grant of a probate, then Sections 283(1)(c) and 284 of the 1925 Act
would have been differently worded. Such an interpretation would lead to an
anomalous situation. It is, therefore, not possible for us to accede to the
submission of the learned counsel that caveatable interest should be construed
very widely.
backdrop the question which is required to be posed is: Did the Calcutta High
Court or the other High Court opine that even a busy body or an interloper
having no legitimate concern in the outcome of the probate proceedings would be
entitled to lodge a caveat and oppose the probate? The answer thereto, in our
opinion, must be rendered in the negative. If anybody and everybody including a
busy body or an interloper is found to be entitled to enter a caveat and
oppose, grant of a probate, then Sections 283(1)(c) and 284 of the 1925 Act
would have been differently worded. Such an interpretation would lead to an
anomalous situation. It is, therefore, not possible for us to accede to the
submission of the learned counsel that caveatable interest should be construed
very widely.
110. A caveatable
interest is not synonymous with the word `contention’. A `contention’ can be
raised only by a person who has a caveatable interest. The dictionary meaning
of `contention’, therefore, in the aforementioned context cannot have any
application in a proceeding under the 1925 Act.
interest is not synonymous with the word `contention’. A `contention’ can be
raised only by a person who has a caveatable interest. The dictionary meaning
of `contention’, therefore, in the aforementioned context cannot have any
application in a proceeding under the 1925 Act.
111. While interpreting
the provisions of a statute, we must also bear in mind the admitted legal
position that a probate proceeding should not be permitted to be converted into
a title suit. It should not be permitted to become an unchartered field to be
trespassed into by persons even if he is not affected by testamentary
disposition.
the provisions of a statute, we must also bear in mind the admitted legal
position that a probate proceeding should not be permitted to be converted into
a title suit. It should not be permitted to become an unchartered field to be
trespassed into by persons even if he is not affected by testamentary
disposition.
SECTION 284 OF THE ACT
112. Section 284 of the
1925 Act may have to be construed keeping in view the aforementioned legal
principles. It does not lay down the qualifications or disqualifications of the
caveator. Once a caveat is filed, it is for the court to determine the question
as to whether the caveator has any caveatable interest or not.
1925 Act may have to be construed keeping in view the aforementioned legal
principles. It does not lay down the qualifications or disqualifications of the
caveator. Once a caveat is filed, it is for the court to determine the question
as to whether the caveator has any caveatable interest or not.
113. Section 284 of the
1925 Act only provides for a forum and nothing more. It has nothing to do with
qualification. Drawing our attention to the decisions prevailing prior to
coming into force of the 1925 Act, some of which have been noticed by us
hereinbefore, as also the decision of the Bombay High Court in Pirajshah
Bikhaji & Others v. Pestonji Merwanji [(1910) ILR 34 Bombay 459], the
learned senior counsel contended that the legislature having not changed the
wordings of the earlier statute despite judicial interpretation of the
terminologies thereof, must be held to have not intended to rectify the same.
1925 Act only provides for a forum and nothing more. It has nothing to do with
qualification. Drawing our attention to the decisions prevailing prior to
coming into force of the 1925 Act, some of which have been noticed by us
hereinbefore, as also the decision of the Bombay High Court in Pirajshah
Bikhaji & Others v. Pestonji Merwanji [(1910) ILR 34 Bombay 459], the
learned senior counsel contended that the legislature having not changed the
wordings of the earlier statute despite judicial interpretation of the
terminologies thereof, must be held to have not intended to rectify the same.
114. In our opinion, it
is not necessary to go into the said question as we have held that the
decisions upon which reliance has been placed are either not good law or not
relevant for our purpose.
is not necessary to go into the said question as we have held that the
decisions upon which reliance has been placed are either not good law or not
relevant for our purpose.
RULES OF THE CALCUTTA
HIGH COURT
HIGH COURT
115. The Rules framed by
the Calcutta High Court provide for determination of the issue of caveatable
interest as a preliminary issue. We do not see any reason as to why the High
Court, in exercise of its powers conferred upon it under Section 122 of the
Code of Civil Procedure, could not frame such Rules. After coming into force of
the Constitution such Rules can also be framed by the High Court in exercise of
its supervisory jurisdiction under Article 227 of the Constitution of India.
the Calcutta High Court provide for determination of the issue of caveatable
interest as a preliminary issue. We do not see any reason as to why the High
Court, in exercise of its powers conferred upon it under Section 122 of the
Code of Civil Procedure, could not frame such Rules. After coming into force of
the Constitution such Rules can also be framed by the High Court in exercise of
its supervisory jurisdiction under Article 227 of the Constitution of India.
If the contention of Mr.
Jethmalani is to be accepted that there being no such provision in the Act for
determination of such an issue as preliminary issue, the High Court chould not
have framed the Rules, we are of the opinion that in a similar situation this
Court also could not direct listing of the writ petitions under Article 32 of
the Constitution of India for preliminary hearing in terms of the Supreme Court
Rules. The Court having regard to its general power as also the power under
Order XIV Rule 1 of the Code of Civil Procedure can decide the matter by
framing preliminary issues in regard to the maintainability or otherwise of the
application. It is a rule of procedure and not of substance. A court is
entitled to dismiss a lis at the threshold if it is found not maintainable. The
Court even in absence of any rule must take the precaution of not indulging in
wasteful expenditure of its time at the instance of the litigants who have no
case at all. We do not, therefore, find any legal infirmity in the Rules.
MUTUAL WILLS
Jethmalani is to be accepted that there being no such provision in the Act for
determination of such an issue as preliminary issue, the High Court chould not
have framed the Rules, we are of the opinion that in a similar situation this
Court also could not direct listing of the writ petitions under Article 32 of
the Constitution of India for preliminary hearing in terms of the Supreme Court
Rules. The Court having regard to its general power as also the power under
Order XIV Rule 1 of the Code of Civil Procedure can decide the matter by
framing preliminary issues in regard to the maintainability or otherwise of the
application. It is a rule of procedure and not of substance. A court is
entitled to dismiss a lis at the threshold if it is found not maintainable. The
Court even in absence of any rule must take the precaution of not indulging in
wasteful expenditure of its time at the instance of the litigants who have no
case at all. We do not, therefore, find any legal infirmity in the Rules.
MUTUAL WILLS
116. We have noticed the
recitals of the 1982 Wills purported to have been executed by MPB and PDB.
Whether the same constitutes a mutual Will in the sense that thereby an
agreement had been entered into by and between the husband and the wife in
regard to the application of the property is in question. We although may not
be directly concerned therewith, the law operating in the field should be
considered only on the premise as to whether the said doctrine creates any
caveatable interest in the executors of the will. A Will by its nature is
revocable. It is the last desire of the testator. Till he breathes his last, he
will have a final say. In short, the latter Will revoking the earlier Will
would be probated. It is one thing to say that the agreement between the
parties to the purported mutual Will would not affect any agreement or
arrangement on the application of the latter Will or the estate of the testator
must be administered in terms of such agreement.
recitals of the 1982 Wills purported to have been executed by MPB and PDB.
Whether the same constitutes a mutual Will in the sense that thereby an
agreement had been entered into by and between the husband and the wife in
regard to the application of the property is in question. We although may not
be directly concerned therewith, the law operating in the field should be
considered only on the premise as to whether the said doctrine creates any
caveatable interest in the executors of the will. A Will by its nature is
revocable. It is the last desire of the testator. Till he breathes his last, he
will have a final say. In short, the latter Will revoking the earlier Will
would be probated. It is one thing to say that the agreement between the
parties to the purported mutual Will would not affect any agreement or
arrangement on the application of the latter Will or the estate of the testator
must be administered in terms of such agreement.
The proposition of law
as such is not much in dispute. Despite the existence of a mutual Will, the
representative under the latter Will will take the property. He, however, takes
the property subject to the terms of the Mutual Will. Whether there exists any
such agreement enforceable either in equity or by way of a suit for specific
performance, will have to be considered only in the event the probate is
granted and not prior thereto.
as such is not much in dispute. Despite the existence of a mutual Will, the
representative under the latter Will will take the property. He, however, takes
the property subject to the terms of the Mutual Will. Whether there exists any
such agreement enforceable either in equity or by way of a suit for specific
performance, will have to be considered only in the event the probate is
granted and not prior thereto.
117. In Halsbury’s Laws
of England, Fourth Edition, Volume 50, page 108, it is stated:
of England, Fourth Edition, Volume 50, page 108, it is stated:
“221…Even when
there is such an agreement and one party has died after departing from it by
revoking or altering the will, the survivor having notice of the breach cannot
claim to have the later will set aside, since the notice gives him the chance
of altering the will as regards his own property; and the death of the deceased
party is itself sufficient notice for this purpose. If, however, the deceased
has stood by the agreement and not revoked or altered his will, the survivor is
bound by it, and although probate will be granted of a later will, the survivor
is bound by it, and although probate will be granted of a later Will made by
him in breach of the agreement, since a court of probate is only concerned with
the last will, the personal representatives of the survivor nevertheless hold
his estate in trust to give effect to the provisions of the joint will or
mutual wills.
there is such an agreement and one party has died after departing from it by
revoking or altering the will, the survivor having notice of the breach cannot
claim to have the later will set aside, since the notice gives him the chance
of altering the will as regards his own property; and the death of the deceased
party is itself sufficient notice for this purpose. If, however, the deceased
has stood by the agreement and not revoked or altered his will, the survivor is
bound by it, and although probate will be granted of a later will, the survivor
is bound by it, and although probate will be granted of a later Will made by
him in breach of the agreement, since a court of probate is only concerned with
the last will, the personal representatives of the survivor nevertheless hold
his estate in trust to give effect to the provisions of the joint will or
mutual wills.
Where mutual will,
whether constrained in a joint will or in separate documents, relate to joint
property, the agreement to make the mutual wills and the making of the
dispositions in pursuance of the agreement, sever the joint tenancy and convert
it into a tenancy in common.”
whether constrained in a joint will or in separate documents, relate to joint
property, the agreement to make the mutual wills and the making of the
dispositions in pursuance of the agreement, sever the joint tenancy and convert
it into a tenancy in common.”
[Emphasis supplied]
118. In Lewin on Trusts,
Seventeenth Edition, pages 270-271, it is stated:
Seventeenth Edition, pages 270-271, it is stated:
“10-27 …If the
survivor, whether or not after taking an actual benefit under the arrangement,
alters his will, his personal representative takes the property which is
subject to the agreement upon trust to perform the contract. Equity cannot
prevent the survivor from revoking his will, for instance, by marriage or
another will, but it causes his personal representatives to give effect to his
revoked will in so far as his contract bound him not to revoke it…”
survivor, whether or not after taking an actual benefit under the arrangement,
alters his will, his personal representative takes the property which is
subject to the agreement upon trust to perform the contract. Equity cannot
prevent the survivor from revoking his will, for instance, by marriage or
another will, but it causes his personal representatives to give effect to his
revoked will in so far as his contract bound him not to revoke it…”
[See also Theobald on
Wills, Sixteenth edition, pages 26, 27 (Paras 2.09 & 2.11) ].
Wills, Sixteenth edition, pages 26, 27 (Paras 2.09 & 2.11) ].
119. Similar statement
of law can be found In Williams, Mortimer and Sunnucks on Executors,
Administrators and Probate, 18th edition, pages 131-132.
of law can be found In Williams, Mortimer and Sunnucks on Executors,
Administrators and Probate, 18th edition, pages 131-132.
While dealing with the
probate issue, therefore, the authors categorically state that only the latter
Will would have to be probated.
probate issue, therefore, the authors categorically state that only the latter
Will would have to be probated.
120. We may notice a
decision rendered in our country in this regard.
decision rendered in our country in this regard.
In Kuppuswami Raja and
another v. Perumal Raja and Others [AIR 1964 Madras 291], the Madras High Court
stated the law, thus:
another v. Perumal Raja and Others [AIR 1964 Madras 291], the Madras High Court
stated the law, thus:
“We confess that
the matter is not free from difficulty. But after a careful consideration of
all the aspects of the matter, we are inclined to take the view that a joint
mutual Will becomes irrevocable on the death of one of the testators if the
survivor had received benefits under the mutual Will, and that there need not
be a specific contract prohibiting revocation when the arrangement takes the
form of not two simultaneous mutual Wills but one single document. In fact in
some of the cases referred to above this aspect that if the two testators had
executed one single document as one single mutual Will the position may be
different is actually adverted to. In our opinion, if one single document is
executed by both the brothers using the expressions “our property”
“our present wishes” “our Will” and such similar
expressions, it is strong cogent evidence of the intention that there is no
power to revoke except by mutual consent.”
the matter is not free from difficulty. But after a careful consideration of
all the aspects of the matter, we are inclined to take the view that a joint
mutual Will becomes irrevocable on the death of one of the testators if the
survivor had received benefits under the mutual Will, and that there need not
be a specific contract prohibiting revocation when the arrangement takes the
form of not two simultaneous mutual Wills but one single document. In fact in
some of the cases referred to above this aspect that if the two testators had
executed one single document as one single mutual Will the position may be
different is actually adverted to. In our opinion, if one single document is
executed by both the brothers using the expressions “our property”
“our present wishes” “our Will” and such similar
expressions, it is strong cogent evidence of the intention that there is no
power to revoke except by mutual consent.”
Such is not the case
here.
here.
121. Mr. Jethmalani has
relied upon a decision in Walker and Another v. Gaskill and Others [1914] P. 192.
Therein, Wills were made between the wife and husband in October, 1907. A
Codicil and subsequent Will were made in breach of a definite arrangement.
Plaintiffs thereof were appointed as executors under the Will of 22nd January,
1913. The husband died on 20th October, 1911 Terming the two Wills of 1907 as
mutual Wills, a contention was raised that the stipulations made therein
remained irrevocable despite the death of the husband. It was held “the
function of this Court as a Court of Probate is to ascertain and pronounce that
is the last Will, or what are the testamentary documents constituting the last
Will, of a testator, which is or are entitled to be admitted to probate”.
relied upon a decision in Walker and Another v. Gaskill and Others [1914] P. 192.
Therein, Wills were made between the wife and husband in October, 1907. A
Codicil and subsequent Will were made in breach of a definite arrangement.
Plaintiffs thereof were appointed as executors under the Will of 22nd January,
1913. The husband died on 20th October, 1911 Terming the two Wills of 1907 as
mutual Wills, a contention was raised that the stipulations made therein
remained irrevocable despite the death of the husband. It was held “the
function of this Court as a Court of Probate is to ascertain and pronounce that
is the last Will, or what are the testamentary documents constituting the last
Will, of a testator, which is or are entitled to be admitted to probate”.
122. The contention that
such a Will was irrevocable was held to be lacking any foundation. The court
refused to go into the question as to whether the court having the jurisdiction
to decide both the contentions independently should go thereinto by holding
that it being a court of probate and not a court of construction, it could only
construe testamentary documents to the extent of determining those testamentary
documents that should be admitted for probate.
such a Will was irrevocable was held to be lacking any foundation. The court
refused to go into the question as to whether the court having the jurisdiction
to decide both the contentions independently should go thereinto by holding
that it being a court of probate and not a court of construction, it could only
construe testamentary documents to the extent of determining those testamentary
documents that should be admitted for probate.
123. What could be done
and has not been done by a court of equity does not create a precedent. It does
not even have a persuasive value. In this country, we are bound to follow the
law laid down under the statute or the decision which create binding
precedents. An observation made by a Court of Probate would not persuade us to
hold that the High Court should have taken recourse to “advance from the
region of testamentary disposition into that of contracts and trusts and to
declare certain trusts upon the footing of contract” which could be done
by the Chancery Division.
and has not been done by a court of equity does not create a precedent. It does
not even have a persuasive value. In this country, we are bound to follow the
law laid down under the statute or the decision which create binding
precedents. An observation made by a Court of Probate would not persuade us to
hold that the High Court should have taken recourse to “advance from the
region of testamentary disposition into that of contracts and trusts and to
declare certain trusts upon the footing of contract” which could be done
by the Chancery Division.
124. The American law
operating in the field may be noticed from American Jurisprudence, Second
Edition, Vol. 79, page 850 in the following terms:
operating in the field may be noticed from American Jurisprudence, Second
Edition, Vol. 79, page 850 in the following terms:
“The breach of a
contract for the joint execution of a will, or the execution of separate wills,
containing reciprocal bequests, gives rise to the same remedies in favor of the
injured party as are employed in other cases of breach of contract to make a
will, namely, an action at law for damages and a suit in equity, but it is to
be observed that the latter is the type of relief usually invoked. In fact,
according to some authority, only a court of equity can take cognizance of an
allegation that the revocation of a joint and mutual will by the surviving
testator was in violation of his contract with the deceased testator.
contract for the joint execution of a will, or the execution of separate wills,
containing reciprocal bequests, gives rise to the same remedies in favor of the
injured party as are employed in other cases of breach of contract to make a
will, namely, an action at law for damages and a suit in equity, but it is to
be observed that the latter is the type of relief usually invoked. In fact,
according to some authority, only a court of equity can take cognizance of an
allegation that the revocation of a joint and mutual will by the surviving
testator was in violation of his contract with the deceased testator.
In any case, the
enforceability of a contract to make wills containing mutual and reciprocal
provisions depends, of course, upon the establishment of the contract by good
and sufficient evidence.
enforceability of a contract to make wills containing mutual and reciprocal
provisions depends, of course, upon the establishment of the contract by good
and sufficient evidence.
‘ 794. Remedy in probate
court; contest of revoking will. A probate court whose jurisdiction is limited to
the determination of the issue whether the instrument propounded is the last
will of the decent lacks power to enforce an agreement between two testators to
make wills which are mutual and reciprocal in their provisions. Generally
speaking, the remedy of a person injured by the violation of a contract for the
execution of wills containing reciprocal bequests and bequests to third persons
effective upon the death of the surviving testator is not to be had in a
contest of the probate of the will which constitutes the violation of which
complaint is made, since, in the absence of statute, the only issue on a
contested probate is whether the paper propounded is “the last will of the
decent.””
court; contest of revoking will. A probate court whose jurisdiction is limited to
the determination of the issue whether the instrument propounded is the last
will of the decent lacks power to enforce an agreement between two testators to
make wills which are mutual and reciprocal in their provisions. Generally
speaking, the remedy of a person injured by the violation of a contract for the
execution of wills containing reciprocal bequests and bequests to third persons
effective upon the death of the surviving testator is not to be had in a
contest of the probate of the will which constitutes the violation of which
complaint is made, since, in the absence of statute, the only issue on a
contested probate is whether the paper propounded is “the last will of the
decent.””
[See also Corpus Juris
Secundum, Vol. XCVII, pages 304 to 312]
Secundum, Vol. XCVII, pages 304 to 312]
125. Relying on a
decision in Branchflower et al v. Massey [208 P. 2d 341], it was contended by
Mr. Jethmalani that the Probate Court may also examine a witness of a mutual
Will. We have examined the said decision. The proposition of law laid down
therein was that the Probate Court will first revoke the Will and then
determine the rights under mutual Will either in equity or in specific
performance. It was held that a Probate Court cannot determine whether the
proponent having revoked her own Will is thereby estopped from claiming under
the Will executed by the deceased pursuant to a contract between the deceased
and proponent. It referred with approval the decision of Brazil v. Silva [181
Cal. 490] wherein it was observed:
decision in Branchflower et al v. Massey [208 P. 2d 341], it was contended by
Mr. Jethmalani that the Probate Court may also examine a witness of a mutual
Will. We have examined the said decision. The proposition of law laid down
therein was that the Probate Court will first revoke the Will and then
determine the rights under mutual Will either in equity or in specific
performance. It was held that a Probate Court cannot determine whether the
proponent having revoked her own Will is thereby estopped from claiming under
the Will executed by the deceased pursuant to a contract between the deceased
and proponent. It referred with approval the decision of Brazil v. Silva [181
Cal. 490] wherein it was observed:
“In support of
their contention that the complaint does not state a cause of action, counsel
for the defendant advance two propositions. The first is that the matter is
determined by the order admitting the will to probate. The soundness of this
position depends upon whether or not the issues presented by the present
complaint are questions going to the final question before the probate court;
that is, the question as to the instrument being the legal and valid will of
the decedent unrevoked at the time of his death. If the issues presented by the
complaint are not of this character, it is plain that they could not be passed
on in the probate proceedings, and are not concluded by the result of those
proceedings.’ (Italics supplied.)”
their contention that the complaint does not state a cause of action, counsel
for the defendant advance two propositions. The first is that the matter is
determined by the order admitting the will to probate. The soundness of this
position depends upon whether or not the issues presented by the present
complaint are questions going to the final question before the probate court;
that is, the question as to the instrument being the legal and valid will of
the decedent unrevoked at the time of his death. If the issues presented by the
complaint are not of this character, it is plain that they could not be passed
on in the probate proceedings, and are not concluded by the result of those
proceedings.’ (Italics supplied.)”
126. In Massey (supra),
it was observed:
it was observed:
“It was held that the
question whether the defendant was guilty of fraud, and therefore should be
declared trustee of the property received under the will, could not have been
determined in the probate proceeding, and consequently plaintiffs were not
concluded by the order admitting the will to probate.”
question whether the defendant was guilty of fraud, and therefore should be
declared trustee of the property received under the will, could not have been
determined in the probate proceeding, and consequently plaintiffs were not
concluded by the order admitting the will to probate.”
The said authority,
therefore, does not advance the case of the appellants.
therefore, does not advance the case of the appellants.
127. The law as
prevailing in Australia is also to the same effect, as would appear from the
decision in Birmingham and Others v. Renfrew and Others [57 C.L.R. 666].
prevailing in Australia is also to the same effect, as would appear from the
decision in Birmingham and Others v. Renfrew and Others [57 C.L.R. 666].
Latham, CJ therein
opined that a Will made in breach of an arrangement is nevertheless effective
as a Will. It upheld the dicta contained in Stone v. Hoskins [1905 P. 197]
wherein the following law was laid down:
opined that a Will made in breach of an arrangement is nevertheless effective
as a Will. It upheld the dicta contained in Stone v. Hoskins [1905 P. 197]
wherein the following law was laid down:
“Though a will is
always revocable, and the last must always be the testator’s will; yet a man
may so bind his assets by agreement that his will shall be a trustee for
performance of his agreement… These cases are common, and there is no
difference between promising to make a will in such a form and making his will
with a promise not to revoke it. This court does not set aside the will; but
makes the devisee heir or executor trustee to perform the contract.”
always revocable, and the last must always be the testator’s will; yet a man
may so bind his assets by agreement that his will shall be a trustee for
performance of his agreement… These cases are common, and there is no
difference between promising to make a will in such a form and making his will
with a promise not to revoke it. This court does not set aside the will; but
makes the devisee heir or executor trustee to perform the contract.”
128. The law laid down
in the aforementioned treatises and decisions rendered in different
jurisdictions clearly suggests that existence of a mutual Will or filing of a
suit, by themselves, are not sufficient to create a caveatable interest. In
fact the appellants have disentitled themselves from lodging a caveat as they are
questioning the title of the testatrix as also her right to execute a Will as
it had been contended that she merely had a life interest and no right of
dispossession of property by Will or otherwise.
in the aforementioned treatises and decisions rendered in different
jurisdictions clearly suggests that existence of a mutual Will or filing of a
suit, by themselves, are not sufficient to create a caveatable interest. In
fact the appellants have disentitled themselves from lodging a caveat as they are
questioning the title of the testatrix as also her right to execute a Will as
it had been contended that she merely had a life interest and no right of
dispossession of property by Will or otherwise.
They cannot fall back
upon the purported “Mutual Wills” only because they also challenge
the genuineness of the 1999 will.
upon the purported “Mutual Wills” only because they also challenge
the genuineness of the 1999 will.
129. Mr. Jethmalani,
furthermore, relied upon a decision in Re Dale (deceased) Proctor v. Dale
[(1993) 4 All ER 129] which, in our opinion, has no application in this case as
it was not a case dealing with “caveatable interest” arising out of
“mutual Wills”.
furthermore, relied upon a decision in Re Dale (deceased) Proctor v. Dale
[(1993) 4 All ER 129] which, in our opinion, has no application in this case as
it was not a case dealing with “caveatable interest” arising out of
“mutual Wills”.
Strong reliance has also
been placed on Dilharshankar C. Bhachech v. Controller of Estate Duty [(1986) 1
SCC 701] wherein again Halsbury’s Laws of England has been quoted, which we have
noticed heretobefore.
been placed on Dilharshankar C. Bhachech v. Controller of Estate Duty [(1986) 1
SCC 701] wherein again Halsbury’s Laws of England has been quoted, which we have
noticed heretobefore.
The said decision of
this Court, therefore, supports the contention of the first respondent and not
that of the appellants.
this Court, therefore, supports the contention of the first respondent and not
that of the appellants.
130. It is not much in
dispute that probate has to be granted to the latter Will even when made in
prejudice of the agreement not to revoke the mutual wills inasmuch as the court
of probate is only concerned with the last Will.
dispute that probate has to be granted to the latter Will even when made in
prejudice of the agreement not to revoke the mutual wills inasmuch as the court
of probate is only concerned with the last Will.
131. Mr. Jethmalani has
also placed strong reliance upon a decision rendered by this Court
inter-parties arising out of a criminal case in Shiva Nath Prasad v. State of
W.B. and Others [(2006) 2 SCC 757]. Therein, this Court was concerned with the
question as to whether a First Information Report lodged against the first
respondent herein and others under Sections 417 and 420 of the Indian Penal
Code should be quashed. This Court dealt at some details with the legal
principles behind the doctrine of mutual Will, ultimately to hold:
also placed strong reliance upon a decision rendered by this Court
inter-parties arising out of a criminal case in Shiva Nath Prasad v. State of
W.B. and Others [(2006) 2 SCC 757]. Therein, this Court was concerned with the
question as to whether a First Information Report lodged against the first
respondent herein and others under Sections 417 and 420 of the Indian Penal
Code should be quashed. This Court dealt at some details with the legal
principles behind the doctrine of mutual Will, ultimately to hold:
“48. We have
referred to the doctrine of mutual and reciprocal wills and trusts only to
understand the basis of the complaint…”
referred to the doctrine of mutual and reciprocal wills and trusts only to
understand the basis of the complaint…”
That far and no further.
Some observations have
been made in paragraph 49 of the said judgment but yet again it was opined:
been made in paragraph 49 of the said judgment but yet again it was opined:
“50. We have
entered into the above discussion, not to express any opinion, but to answer
the main plank of the argument advanced on behalf of the appellant that this
case basically involves a civil dispute. None of our observations be treated as
expression of our opinion on the rightfulness of the claim made in the
complaint.”
entered into the above discussion, not to express any opinion, but to answer
the main plank of the argument advanced on behalf of the appellant that this
case basically involves a civil dispute. None of our observations be treated as
expression of our opinion on the rightfulness of the claim made in the
complaint.”
Shiva Nath Prasad
(supra), therefore, is not an authority on the legal principles of mutual Will.
(supra), therefore, is not an authority on the legal principles of mutual Will.
132. The principles
which can be deduced from the discussions made heretobefore are :-
which can be deduced from the discussions made heretobefore are :-
(i) A Will made in
prejudice of an agreement will nevertheless be effective as a Will as it is by
its very nature and by its very essence a revocable instrument.
prejudice of an agreement will nevertheless be effective as a Will as it is by
its very nature and by its very essence a revocable instrument.
(ii) A subsequent
infringing Will would be valid even if it revokes an earlier Mutual Will.
infringing Will would be valid even if it revokes an earlier Mutual Will.
(iii) Similarity of the
terms would not be enough to establish the necessary agreement.
terms would not be enough to establish the necessary agreement.
(iv) Whether a legatee
has taken any benefit under the alleged Wills of 1982 would, however, be
relevant.
has taken any benefit under the alleged Wills of 1982 would, however, be
relevant.
FAMILY INTEREST
133. It is too far
fetched a submission that a person having a remote family connection or as an
agnate is entitled to file a caveat. A reversioner or an agnate or a family
member can maintain a caveat only when there is a possibility of his
inheritance of the property in the event the probate of the Will is not
granted. If there are heirs intestate who are alive, entertaining of a caveat
on the part of another family member or a reversioner or an agnate or cognate
would never arise.
fetched a submission that a person having a remote family connection or as an
agnate is entitled to file a caveat. A reversioner or an agnate or a family
member can maintain a caveat only when there is a possibility of his
inheritance of the property in the event the probate of the Will is not
granted. If there are heirs intestate who are alive, entertaining of a caveat
on the part of another family member or a reversioner or an agnate or cognate
would never arise.
134. The Hindu
Succession Act, 1956 has brought about a sea change in the matter of
inheritance and succession. “Agante” has been defined in the Hindu
Succession Act to mean:
Succession Act, 1956 has brought about a sea change in the matter of
inheritance and succession. “Agante” has been defined in the Hindu
Succession Act to mean:
“agnate”– one
person is said to be an “agnate” of another if the two are related by
blood or adoption wholly through males;”
person is said to be an “agnate” of another if the two are related by
blood or adoption wholly through males;”
135. Agnate or cognates
are, thus, recognized as heirs. They may be the erstwhile members of a nuclear
family. So far as heirs and legal representatives of the family are concerned,
the Hindu Succession Act clearly lays down five classes of heirs, Sisters of
husband belong to Class II heir. They succeeded to the interest of MPB in 2004
on the death of PDB. Appellants accepted the said fact but contended that as
the life of the said heirs was uncertain they, thus, have a caveatable
interest. It has been accepted that there would be no difficulty in
ascertaining the successors of PDB. It is an indisputable case of intestacy having
regard to Section 15 of the Hindu Succession Act.
are, thus, recognized as heirs. They may be the erstwhile members of a nuclear
family. So far as heirs and legal representatives of the family are concerned,
the Hindu Succession Act clearly lays down five classes of heirs, Sisters of
husband belong to Class II heir. They succeeded to the interest of MPB in 2004
on the death of PDB. Appellants accepted the said fact but contended that as
the life of the said heirs was uncertain they, thus, have a caveatable
interest. It has been accepted that there would be no difficulty in
ascertaining the successors of PDB. It is an indisputable case of intestacy having
regard to Section 15 of the Hindu Succession Act.
136. It was contended
that having regard to the testate succession created by reason of the Will and
the matter remaining pending for last three years, the claim of the appellants
and family members is required to be decided on the happening of certain
contingencies in the intervening period between the death of PDB and the
ultimate decision of the probate application, as one of the heirs of PDB has
died.
that having regard to the testate succession created by reason of the Will and
the matter remaining pending for last three years, the claim of the appellants
and family members is required to be decided on the happening of certain
contingencies in the intervening period between the death of PDB and the
ultimate decision of the probate application, as one of the heirs of PDB has
died.
137. The submission, to
say the least, is fallacious. The heirs of the deceased have already been
impleaded as parties. Inheritance to an estate never remains in abeyance. In
the event of death of the sisters of MPB, their heirs and legal representatives
would inherit the property in their own right and not as the heirs of MPB. The
dispute regarding intestacy does not change the law of succession and
inheritance.
say the least, is fallacious. The heirs of the deceased have already been
impleaded as parties. Inheritance to an estate never remains in abeyance. In
the event of death of the sisters of MPB, their heirs and legal representatives
would inherit the property in their own right and not as the heirs of MPB. The
dispute regarding intestacy does not change the law of succession and
inheritance.
138. As Agnates KKB,
BKB, YB and GPB also claimed caveatable interest as agnates. Entry 2 of Class
II of the Schedule appended to the Hindu Succession Act in this case would not
bring them into the picture, as agnates will acquire an interest only when
there is no heir of either Class I or Class II. When there exists Class II
heirs, the appellants would not have any real interest in the property. The
property upon the death of Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta
would pass on to their legal heirs. Appellants being not the heirs of MPB or
PDB have no caveatable interest.
BKB, YB and GPB also claimed caveatable interest as agnates. Entry 2 of Class
II of the Schedule appended to the Hindu Succession Act in this case would not
bring them into the picture, as agnates will acquire an interest only when
there is no heir of either Class I or Class II. When there exists Class II
heirs, the appellants would not have any real interest in the property. The
property upon the death of Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta
would pass on to their legal heirs. Appellants being not the heirs of MPB or
PDB have no caveatable interest.
SPIRITUAL WELL-BEING
139. The theory of
looking after the spiritual well-being of the deceased soul by the near
relatives has no application for the purpose of judging the validity or
otherwise of a Will; more so, after coming into force of the Hindu Succession
Act, 1956 as in terms thereof the concept of succession to the estate of a
deceased on the said consideration has lost its relevance. Such a contention,
therefore, must be rejected out right, being a wholly misconceived one.
looking after the spiritual well-being of the deceased soul by the near
relatives has no application for the purpose of judging the validity or
otherwise of a Will; more so, after coming into force of the Hindu Succession
Act, 1956 as in terms thereof the concept of succession to the estate of a
deceased on the said consideration has lost its relevance. Such a contention,
therefore, must be rejected out right, being a wholly misconceived one.
140. The doctrine of
`larger circle of the caveators as being members of the Birla family’ and to
protect the spiritual interest does not convert a non- existent interest into a
caveatable interest. Such a question had not been raised even in the affidavits
of the appellants. We do not find any force therein.
`larger circle of the caveators as being members of the Birla family’ and to
protect the spiritual interest does not convert a non- existent interest into a
caveatable interest. Such a question had not been raised even in the affidavits
of the appellants. We do not find any force therein.
QUALITY OF TITLE
141. We may notice the
affidavit of Shri KKB in opposition to the grant of probate, as a caveator. In
the said affidavit, apart from the genuineness of the 1999 Will, the power of
the testatrix to execute the same has also been questioned.
affidavit of Shri KKB in opposition to the grant of probate, as a caveator. In
the said affidavit, apart from the genuineness of the 1999 Will, the power of
the testatrix to execute the same has also been questioned.
In paragraph 7, it is
contended:
contended:
“7. It will be
evident from the same that the deceased, Late Priyamvada Devi Birla was very
closely connected to me. She was related to my wife (being her aunt) and was
the wife of my paternal first cousin Late Madhav Prasad Birla.”
evident from the same that the deceased, Late Priyamvada Devi Birla was very
closely connected to me. She was related to my wife (being her aunt) and was
the wife of my paternal first cousin Late Madhav Prasad Birla.”
The merit of the Will
has been discussed in the following terms: “(a) In 1981, the deceased and
her husband Madhav Prasad Birla, who is also deceased, agreed as to the
disposal of their property in favour of charities and had executed mutual Will
in pursuance of the agreement both date May 10, 1981. In 1982, by consent they
revoked the said mutual Will but agreed once again with each other as to the
disposition of their respective estates on their deaths in favour of charities
as ultimate beneficiaries, and that Wills made pursuant to such agreement would
be irrevocable and would remain unaltered.
has been discussed in the following terms: “(a) In 1981, the deceased and
her husband Madhav Prasad Birla, who is also deceased, agreed as to the
disposal of their property in favour of charities and had executed mutual Will
in pursuance of the agreement both date May 10, 1981. In 1982, by consent they
revoked the said mutual Will but agreed once again with each other as to the
disposition of their respective estates on their deaths in favour of charities
as ultimate beneficiaries, and that Wills made pursuant to such agreement would
be irrevocable and would remain unaltered.
(b) In pursuance of the
said agreement and in consideration of it, the deceased and her husband made
their respective Will both dated July 13, 1982 virtually reiterating the provisions
of their earlier wills but increasing the number of Executors from three to
four in each will. Each of them, by his or her Will devised and bequeathed his
or her entire estate to the other absolutely and in the event of the other
predeceasing him or her as case may be, the Executors appointed in their
respective Wills were directed to make over, donate or settle the entire
estate, barring certain specific legacies for charitable purposes at their
absolute discretion.
said agreement and in consideration of it, the deceased and her husband made
their respective Will both dated July 13, 1982 virtually reiterating the provisions
of their earlier wills but increasing the number of Executors from three to
four in each will. Each of them, by his or her Will devised and bequeathed his
or her entire estate to the other absolutely and in the event of the other
predeceasing him or her as case may be, the Executors appointed in their
respective Wills were directed to make over, donate or settle the entire
estate, barring certain specific legacies for charitable purposes at their
absolute discretion.
(c) The husband of the
deceased died on July 30, 1990 and the deceased as beneficiary of her husband’s
Will came to possess, own and control his estate in terms thereof and thus had
taken and enjoyed the benefit under the said Will until her death.
deceased died on July 30, 1990 and the deceased as beneficiary of her husband’s
Will came to possess, own and control his estate in terms thereof and thus had
taken and enjoyed the benefit under the said Will until her death.
(d) The purported Will
dated April 18, 1999 has thus been allegedly executed by the deceased in clear
breach and total disregard of the subject matter of the agreement and the
mutual Will of the deceased and her husband. It is inconceivable that the
deceased consciously would so conduct herself which would amount to fraud on
her husband. The said purported Will is not her Will.
dated April 18, 1999 has thus been allegedly executed by the deceased in clear
breach and total disregard of the subject matter of the agreement and the
mutual Will of the deceased and her husband. It is inconceivable that the
deceased consciously would so conduct herself which would amount to fraud on
her husband. The said purported Will is not her Will.
(e) On a true
construction of the terms and tenor of the aforesaid Wills and in the events
which had happened, the deceased had only a life interest in the estate of her
husband without being competent to dispose of on her own, the combined estate
by alienation or dissipation in a manner inconsistent with the terms and tenor
of the mutual Wills. The disposition made in favour of Rajendra S. Lodha under
the purported Will dated April 18, 1999 is, therefore, unlawful, unauthorized
and cannot be binding, as the entire estate of the deceased stood impressed
with the trust in terms of the mutual Wills.
construction of the terms and tenor of the aforesaid Wills and in the events
which had happened, the deceased had only a life interest in the estate of her
husband without being competent to dispose of on her own, the combined estate
by alienation or dissipation in a manner inconsistent with the terms and tenor
of the mutual Wills. The disposition made in favour of Rajendra S. Lodha under
the purported Will dated April 18, 1999 is, therefore, unlawful, unauthorized
and cannot be binding, as the entire estate of the deceased stood impressed
with the trust in terms of the mutual Wills.
(f) Accordingly on her
death, the surviving executors of the Will of the deceased and her husband are
entitled to take possession of her entire estate and make over, donate or
settle the same for the purposes of charitable trust at their absolute
discretion. The surviving executors as trustees of the constructive trust which
came into being on the basis of the mutual Wills are entitled to execute and
implement the said trust and do all things necessary for the said purposes.
death, the surviving executors of the Will of the deceased and her husband are
entitled to take possession of her entire estate and make over, donate or
settle the same for the purposes of charitable trust at their absolute
discretion. The surviving executors as trustees of the constructive trust which
came into being on the basis of the mutual Wills are entitled to execute and
implement the said trust and do all things necessary for the said purposes.
(g) The petitioner is
not entitled to put any impediment in the implementation of the said trust.
not entitled to put any impediment in the implementation of the said trust.
(h) I am one of the
surviving executors of the said mutual will of Late Madhav Prasad Birla
executed on July 13, 1982.”
surviving executors of the said mutual will of Late Madhav Prasad Birla
executed on July 13, 1982.”
The said affidavit also
reiterates the contents of the plaint. No contention, however, has been raised
that they have a caveatable interest keeping in view the spiritual life of MPB
and the testatrix as a member of the family or otherwise. Similar affidavits
have been filed by B.K. Birla, Yashovardhan Birla, Smt. Laxmi Devi Newar and
Smt. Radha Devi Mohatta. The sisters are also supporting the Birla family.
reiterates the contents of the plaint. No contention, however, has been raised
that they have a caveatable interest keeping in view the spiritual life of MPB
and the testatrix as a member of the family or otherwise. Similar affidavits
have been filed by B.K. Birla, Yashovardhan Birla, Smt. Laxmi Devi Newar and
Smt. Radha Devi Mohatta. The sisters are also supporting the Birla family.
The claim of acquiring
cavetable interest on the said basis, thus, is wholly unacceptable.
cavetable interest on the said basis, thus, is wholly unacceptable.
PRE-EMPTION : FUTURE
DOMAIN DOCTRINE
DOMAIN DOCTRINE
142. A right to claim
pre-emption is not a right in the estate. It creates an interest in the
property. It does not create an interest in succession. If such a right has
been created by an agreement, the same can be enforced only in the event any
contingency in that behalf takes place. A Will is not a transfer for
enforcement of a right of pre-emption under a contract. It must be enforced by
a suit. On the right of pre-emption based on consanguinity being
unconstitutional, we may notice the decision of this court in Atam Prakash v.
State of Haryana & Ors. [(1986) 2 SCC 249], wherein while striking down
Section 15(1)(a) of the Punjab Pre-emption Act, 1913 as being ultravires of
Article 14 of the Constitution it was opined at Paragraph 2:
pre-emption is not a right in the estate. It creates an interest in the
property. It does not create an interest in succession. If such a right has
been created by an agreement, the same can be enforced only in the event any
contingency in that behalf takes place. A Will is not a transfer for
enforcement of a right of pre-emption under a contract. It must be enforced by
a suit. On the right of pre-emption based on consanguinity being
unconstitutional, we may notice the decision of this court in Atam Prakash v.
State of Haryana & Ors. [(1986) 2 SCC 249], wherein while striking down
Section 15(1)(a) of the Punjab Pre-emption Act, 1913 as being ultravires of
Article 14 of the Constitution it was opined at Paragraph 2:
“The right of
pre-emption based on consanguinity has been variously described by learned
judges as ‘feudal’, ‘piratical’, ‘tribal’, ‘weak’, ‘easily defeated’, etc.
[Kalwa v. Vasakha Singh A.I.R. 1983 Punjab & Haryana 480 (F.B.) at 490 and
Bishan Singh v. Khazan Singh [1959] S.C.R. 878.] Fusing as it does the ties of
blood and soil, it cannot be doubted that the right is antiquated and feudal in
origin and in character.”
pre-emption based on consanguinity has been variously described by learned
judges as ‘feudal’, ‘piratical’, ‘tribal’, ‘weak’, ‘easily defeated’, etc.
[Kalwa v. Vasakha Singh A.I.R. 1983 Punjab & Haryana 480 (F.B.) at 490 and
Bishan Singh v. Khazan Singh [1959] S.C.R. 878.] Fusing as it does the ties of
blood and soil, it cannot be doubted that the right is antiquated and feudal in
origin and in character.”
It was thus held:
“We are thus unable
to find any justification for the classification contained in Section 15 of the
Punjab Pre-emption Act of the kinsfolk entitled to pre-emption. The right of
pre-emption based on consanguinity is a relied of the feudal past. It is
totally inconsistent with the Constitutional scheme. It is inconsistent with
modern ideas. The reasons which justified its recognition quarter of a century
ago, namely, the preservation of the integrity of rural society, the unity of
family life and the agnatic theory of succession are today irrelevant. The list
of kinsfolk mentioned as entitled to pre-emption is intrinsically defective and
self-contradictory. There is, therefore, no reasonable classification and
clauses ‘First’, ‘Secondly’, and ‘Thirdly’ of Section 15(1)(a), ‘First’,
‘Secondly’ and ‘Thirdly’, of Section 15(1)(b), Clauses ‘First’, ‘Secondly’ and
‘thirdly’ of Section 15(1)(C) and the whole of Section 15(2) are, therefore,
declared ultra vires the Constitution.”
to find any justification for the classification contained in Section 15 of the
Punjab Pre-emption Act of the kinsfolk entitled to pre-emption. The right of
pre-emption based on consanguinity is a relied of the feudal past. It is
totally inconsistent with the Constitutional scheme. It is inconsistent with
modern ideas. The reasons which justified its recognition quarter of a century
ago, namely, the preservation of the integrity of rural society, the unity of
family life and the agnatic theory of succession are today irrelevant. The list
of kinsfolk mentioned as entitled to pre-emption is intrinsically defective and
self-contradictory. There is, therefore, no reasonable classification and
clauses ‘First’, ‘Secondly’, and ‘Thirdly’ of Section 15(1)(a), ‘First’,
‘Secondly’ and ‘Thirdly’, of Section 15(1)(b), Clauses ‘First’, ‘Secondly’ and
‘thirdly’ of Section 15(1)(C) and the whole of Section 15(2) are, therefore,
declared ultra vires the Constitution.”
143. KKB, BKB and GPB
claimed caveatable interest as co-owners of 1/5th share in Kumaon Orchards, two
other co-owners being PB and S.K. Birla. S.K. Birla does
not claim any caveatable interest in the estate of PDB. Even a person claiming
an interest in the property of the testator by reason of an agreement for sale
would not have a caveatable interest on the premise that such an agreement
would be binding both upon the executor as also upon the heirs of the deceased
(in the event, probate is not granted). The same principle would apply herein.
Right of pre-emption, if any, is not affected by grant of probate. A right of
pre-emption would arise only when a voluntary transfer is made for
consideration in favour of a stranger and not prior thereto.
claimed caveatable interest as co-owners of 1/5th share in Kumaon Orchards, two
other co-owners being PB and S.K. Birla. S.K. Birla does
not claim any caveatable interest in the estate of PDB. Even a person claiming
an interest in the property of the testator by reason of an agreement for sale
would not have a caveatable interest on the premise that such an agreement
would be binding both upon the executor as also upon the heirs of the deceased
(in the event, probate is not granted). The same principle would apply herein.
Right of pre-emption, if any, is not affected by grant of probate. A right of
pre-emption would arise only when a voluntary transfer is made for
consideration in favour of a stranger and not prior thereto.
144. Reliance has been
placed by Mr. Venugopal on Bhoop v. Matadin Bhardwaj [(1991) 2 SCC 128]. We may
notice that therein a decree for pre- emption had already been granted.
placed by Mr. Venugopal on Bhoop v. Matadin Bhardwaj [(1991) 2 SCC 128]. We may
notice that therein a decree for pre- emption had already been granted.
145. Right of a co-owner
is not affected by testamentary disposition. Indisputably, the object of
conferring the right on a co-sharer or owner of an adjacent immovable property
is to exclude strangers from acquiring interest in an immovable property as a
co-sharer or to keep objectionable strangers away from the neighbourhood. The
same by itself, in our considered opinion, does not constitute a caveatable
interest. A right of pre-emption as was submitted by Mr. Venugopal may run with
the land as has been held in Sri Audh Behari Singh v. Gajadhar Jaipuria &
Ors. [AIR 1954 SC 417], but, the same would not, it is bear repetition to
state, constitute any caveatable interest.
is not affected by testamentary disposition. Indisputably, the object of
conferring the right on a co-sharer or owner of an adjacent immovable property
is to exclude strangers from acquiring interest in an immovable property as a
co-sharer or to keep objectionable strangers away from the neighbourhood. The
same by itself, in our considered opinion, does not constitute a caveatable
interest. A right of pre-emption as was submitted by Mr. Venugopal may run with
the land as has been held in Sri Audh Behari Singh v. Gajadhar Jaipuria &
Ors. [AIR 1954 SC 417], but, the same would not, it is bear repetition to
state, constitute any caveatable interest.
AS EXECUTORS OF 1982
WILL
WILL
146. BKB claims to have
a ceveatable interest as an executor of the 1982 Will of PDB. A deed of
appointment was executed on 25th August, 2004 to fill up a purported vacancy
caused by the death of MPB. So far as the claim of BKB and GPB are concerned,
the same are required to be dealt with separately.
a ceveatable interest as an executor of the 1982 Will of PDB. A deed of
appointment was executed on 25th August, 2004 to fill up a purported vacancy
caused by the death of MPB. So far as the claim of BKB and GPB are concerned,
the same are required to be dealt with separately.
147. MPB was an executor
under the 1982 Will of PDB. He expired in 1990. The deed of appointment was
executed on 25th August, 2004. Both the learned Single Judge as also the
Division Bench of the High Court opined that MPB never ceased to be the
executor. The High Court noticed a term of purported 1982 Will, which reads as
under :-
under the 1982 Will of PDB. He expired in 1990. The deed of appointment was
executed on 25th August, 2004. Both the learned Single Judge as also the
Division Bench of the High Court opined that MPB never ceased to be the
executor. The High Court noticed a term of purported 1982 Will, which reads as
under :-
“If any of them
ceases to be executor for any reason, survivor or survivors might, if he or
they so desire, fill up such vacancy or vacancies with a person of their
choice.”
ceases to be executor for any reason, survivor or survivors might, if he or
they so desire, fill up such vacancy or vacancies with a person of their
choice.”
148. It was furthermore
held that on the death of PDB, the three executors were alive. It was
furthermore noticed that he did not claim any caveatable interest as an
executor to the 1982 Will. Such a claim was made for the first time in a
supplementary affidavit in opposition filed on 25th August, 2004 after the
commencement of the hearing of the application for discharge. It was not
averred that MPB had ever become an executor or ceased to be an executor under
the said Deed of Appointment.
held that on the death of PDB, the three executors were alive. It was
furthermore noticed that he did not claim any caveatable interest as an
executor to the 1982 Will. Such a claim was made for the first time in a
supplementary affidavit in opposition filed on 25th August, 2004 after the
commencement of the hearing of the application for discharge. It was not
averred that MPB had ever become an executor or ceased to be an executor under
the said Deed of Appointment.
149. Section 2(c) of the
1925 Act defines `executor’ to mean “a person to whom the execution of the
last will of a deceased person is, by the testator’s appointment,
confided.”
1925 Act defines `executor’ to mean “a person to whom the execution of the
last will of a deceased person is, by the testator’s appointment,
confided.”
150. `Will’ has been
defined in Section 2(h) to mean “the legal declaration of the intention of
a testator with respect to his property which he desires to be carried into
effect after his death.”.
defined in Section 2(h) to mean “the legal declaration of the intention of
a testator with respect to his property which he desires to be carried into
effect after his death.”.
Will takes effect after
the death of testator. Rights and obligations of an executor of a Will arise
only then. No right is created in the executor during the life time of the
testator. Appointment of a testator and appointment of a trustee stand
completely on different footings.
the death of testator. Rights and obligations of an executor of a Will arise
only then. No right is created in the executor during the life time of the
testator. Appointment of a testator and appointment of a trustee stand
completely on different footings.
151. A person named as
an executor under a Will cannot claim any right to act as an executor until the
death of the testator. He has to survive him. He has to accept the office as an
executor expressly or by conduct. The term “ceasing to be” thus
necessarily means assumption of office of executor and thereafter ceasing to
hold such office, by renouncement or removal or death, etc.
an executor under a Will cannot claim any right to act as an executor until the
death of the testator. He has to survive him. He has to accept the office as an
executor expressly or by conduct. The term “ceasing to be” thus
necessarily means assumption of office of executor and thereafter ceasing to
hold such office, by renouncement or removal or death, etc.
In Salton v. New Beeston
Cycle Company [(1899) 1 LR.Ch.D. 775] interpretation of the words “cease
to hold” was held to mean that a director could not `cease’ to hold a
qualification which he never possessed. Thus, if a Director is named in the
articles, and never had a qualification, he cannot be said to cease to hold it,
stating:
Cycle Company [(1899) 1 LR.Ch.D. 775] interpretation of the words “cease
to hold” was held to mean that a director could not `cease’ to hold a
qualification which he never possessed. Thus, if a Director is named in the
articles, and never had a qualification, he cannot be said to cease to hold it,
stating:
“If Lord Norreys
had been only a de facto director and never a de jure director, I think there
might have been force in this contention ; but it seems to follow from what I
have held on the first point that Lord Norryes, not having ceased to be a
director, must be regarded as still a member of the board, and as such entitled
to remuneration.”.
had been only a de facto director and never a de jure director, I think there
might have been force in this contention ; but it seems to follow from what I
have held on the first point that Lord Norryes, not having ceased to be a
director, must be regarded as still a member of the board, and as such entitled
to remuneration.”.
152. The genuineness of
the Will executed by MPB and PDB in 1982 is not admitted by the first
respondent. Their genuineness therefore is in question.
the Will executed by MPB and PDB in 1982 is not admitted by the first
respondent. Their genuineness therefore is in question.
We have noticed hereinbefore
in brief the stipulations made in the said Will. We have also noticed that Shri
P.L. Agarwal is an attesting witness in all the three documents. It may,
however, be placed on record that the 1999 Will is a registered one. The 1982
Wills are not.
in brief the stipulations made in the said Will. We have also noticed that Shri
P.L. Agarwal is an attesting witness in all the three documents. It may,
however, be placed on record that the 1999 Will is a registered one. The 1982
Wills are not.
153. Mr. K.K. Venugopal
has relied upon two decisions of the English Courts being In Re Lighton [ER (1
HAGG. ECC) 569] and In RE Henrietta Johnson [ER (1 SW&TR-18) 609] In Re
Lighton (supra), a Will was executed on 17th March, 1827, The executors were appointed
in the following terms:
has relied upon two decisions of the English Courts being In Re Lighton [ER (1
HAGG. ECC) 569] and In RE Henrietta Johnson [ER (1 SW&TR-18) 609] In Re
Lighton (supra), a Will was executed on 17th March, 1827, The executors were appointed
in the following terms:
“And of this my
will I nominate, constitute and appoint Sir Samuel Hayes, and the Reverend
Steward Hamilton, executors and trustees; and, in case of the death of either
of them, I nominate and appoint Edmund Hayes, and my brother Henry Lighton, to
act and be executors and trustees in their stead”.
will I nominate, constitute and appoint Sir Samuel Hayes, and the Reverend
Steward Hamilton, executors and trustees; and, in case of the death of either
of them, I nominate and appoint Edmund Hayes, and my brother Henry Lighton, to
act and be executors and trustees in their stead”.
Having regard to the
phraseology used therein, it was held that the appointment of Edmund Hayes was
complete stating:
phraseology used therein, it was held that the appointment of Edmund Hayes was
complete stating:
“The deceased died
possessed of a policy of insurance on his own life in the Equitable Assurance
Office, in England, of the value of about 63001; and for the purpose of
obtaining payment of it the present application was made for a grant of
probate, in this country, of the same will to Sir Edmund Hayes. It was founded on
the affidavits of Sir Edmund Hayes, of Mr. Shaw of Dublin (who prepared the
will), and of Dr. Abraham Colles (the physician who attended the deceased);
that he, the deceased, at the time of executing his will, was in a very
dangerous state of health, and contemplated the near approach of his death; and
that it was intended by the deceased that the substitution of executors should
take effect in the event of the death of either of the first named executors at
any time. A proxy also was exhibited under the hand and seal of the Reverend
Steward Hamilton, by which he waived his title to probate, and consented that
it should pass to the substituted executors, jointly or severally.”
possessed of a policy of insurance on his own life in the Equitable Assurance
Office, in England, of the value of about 63001; and for the purpose of
obtaining payment of it the present application was made for a grant of
probate, in this country, of the same will to Sir Edmund Hayes. It was founded on
the affidavits of Sir Edmund Hayes, of Mr. Shaw of Dublin (who prepared the
will), and of Dr. Abraham Colles (the physician who attended the deceased);
that he, the deceased, at the time of executing his will, was in a very
dangerous state of health, and contemplated the near approach of his death; and
that it was intended by the deceased that the substitution of executors should
take effect in the event of the death of either of the first named executors at
any time. A proxy also was exhibited under the hand and seal of the Reverend
Steward Hamilton, by which he waived his title to probate, and consented that
it should pass to the substituted executors, jointly or severally.”
The said decision,
therefore, was rendered in the fact of that case.
therefore, was rendered in the fact of that case.
154. In RE Henrietta
Johnson (supra) in the Will made by A, B,C,D and E were appointed executors and
in case of the death of B, F to become executor in his place. B,C,D and E
proved the Will. B and C died. F applied to have a double probate granted to
him. D and E opposed such grant. It was held that F was entitled to the grant
and that the casualty was not restricted to the death of B in A’s life time
holding:
Johnson (supra) in the Will made by A, B,C,D and E were appointed executors and
in case of the death of B, F to become executor in his place. B,C,D and E
proved the Will. B and C died. F applied to have a double probate granted to
him. D and E opposed such grant. It was held that F was entitled to the grant
and that the casualty was not restricted to the death of B in A’s life time
holding:
“I should be very
loath to take any presumed policy of the Court of Probate as my guide. In the
Goods of Lighton there were in fact two decisions for there was a grant of the
Irish Court in the first instance and that was acted upon by the Judge of the
Prerogative Court in this country. Here there are ample grounds to satisfy me
as to the intention of the testatrix. Blake, the father, was trustee and
executor of the person from whom she received a considerable amount of property
in a complicated state, and John Joseph Balko, as his father’s partner, was
conversant with the whole business. These are very good reasons why the
testatrix should have desired him to succeed his father as her executor, and I
cannot consider such substitution as limited to the casualty of the father’s
decease in the lifetime of the testatrix.”
loath to take any presumed policy of the Court of Probate as my guide. In the
Goods of Lighton there were in fact two decisions for there was a grant of the
Irish Court in the first instance and that was acted upon by the Judge of the
Prerogative Court in this country. Here there are ample grounds to satisfy me
as to the intention of the testatrix. Blake, the father, was trustee and
executor of the person from whom she received a considerable amount of property
in a complicated state, and John Joseph Balko, as his father’s partner, was
conversant with the whole business. These are very good reasons why the
testatrix should have desired him to succeed his father as her executor, and I
cannot consider such substitution as limited to the casualty of the father’s
decease in the lifetime of the testatrix.”
155. Reliance has also
been placed upon Williams on Executors, 15th Edition at page 34 by Mr.
Venugopal, wherein it is stated :-
been placed upon Williams on Executors, 15th Edition at page 34 by Mr.
Venugopal, wherein it is stated :-
“The office of
Executor being a private one of trust, and, as a rule, named by the testator,
not by the law, the person nominated may refuse, so long as he had not intermeddled,
though he cannot assign the office; and even if in the lifetime of the testator
he has agreed to accept the office, it is still in his power to
recede….”
Executor being a private one of trust, and, as a rule, named by the testator,
not by the law, the person nominated may refuse, so long as he had not intermeddled,
though he cannot assign the office; and even if in the lifetime of the testator
he has agreed to accept the office, it is still in his power to
recede….”
There is nothing to show
that BKB or any other executor accepted the office of the executor during the
life time of MPB or PDB. In the absence of any such statement having been made,
the said authority cannot be said to have any application.
that BKB or any other executor accepted the office of the executor during the
life time of MPB or PDB. In the absence of any such statement having been made,
the said authority cannot be said to have any application.
156. In Jnanadndra Nath
Mukherjee and another v. Jitendra Nath Mukherjee and others [AIR 1928 Cal. 275]
it was held :-
Mukherjee and another v. Jitendra Nath Mukherjee and others [AIR 1928 Cal. 275]
it was held :-
“Now the office of
executor being a private office of trust named by the testator and not by the
law, one named executor may refuse the office or renounce. It is, however, too
late to refuse or renounce when one has once elected to act as executor; and he
may determine such election by acts which amount to an administration.”
executor being a private office of trust named by the testator and not by the
law, one named executor may refuse the office or renounce. It is, however, too
late to refuse or renounce when one has once elected to act as executor; and he
may determine such election by acts which amount to an administration.”
(See also Sri Raja
Kakadapudi Venkata Sudarshana Narasayyamma and others v. Andhra Bank Ltd.,
Vijayawada and others, AIR 1960 AP 273; Ramautar Singh v. Ramsundari Kur., AIR
1959 Pat 585 and Leo Sequiera v. Magdalene Sequiers Bai and others, AIR 1971
Mysore 143).
Kakadapudi Venkata Sudarshana Narasayyamma and others v. Andhra Bank Ltd.,
Vijayawada and others, AIR 1960 AP 273; Ramautar Singh v. Ramsundari Kur., AIR
1959 Pat 585 and Leo Sequiera v. Magdalene Sequiers Bai and others, AIR 1971
Mysore 143).
157. We may notice that
in Sri Raja Kakadapudi Venkata Sudarshana Narasayyamma (supra), it has been
held :
in Sri Raja Kakadapudi Venkata Sudarshana Narasayyamma (supra), it has been
held :
“57. In
Parlhasarathy Aiyar v. Subbaraya Gramany, AIR 1924 Mad 07 at p. 70, it was
observed by Schwabe C. J., that “It is not right, as has been suggested in
some cases, to treat a will of which probate has not been granted as non-
existent and the property passing y intestacy.”
Parlhasarathy Aiyar v. Subbaraya Gramany, AIR 1924 Mad 07 at p. 70, it was
observed by Schwabe C. J., that “It is not right, as has been suggested in
some cases, to treat a will of which probate has not been granted as non-
existent and the property passing y intestacy.”
This will of course
depend upon the fact whether the plaintiff has accepted the office as an
executrix. The learned counsel for the appellant has placed strong reliance on
certain observations in the judgment of the Madras Higb Court in Parthasarathy
Appa Rao v. Venkatadri Appa Rao, 43 Mad LJ 486 at p. 515 : (AIR 1922 Mad 457 at
pp. 469-470). But that case obviously has no application, because on the facts
of that case it was found that the executor died without accepting the office
or showing any indication that he took upon himself the duties of executor.
depend upon the fact whether the plaintiff has accepted the office as an
executrix. The learned counsel for the appellant has placed strong reliance on
certain observations in the judgment of the Madras Higb Court in Parthasarathy
Appa Rao v. Venkatadri Appa Rao, 43 Mad LJ 486 at p. 515 : (AIR 1922 Mad 457 at
pp. 469-470). But that case obviously has no application, because on the facts
of that case it was found that the executor died without accepting the office
or showing any indication that he took upon himself the duties of executor.
Whether the executor has
accepted the office or not will depend upon the facts of each case. In this
case the plaintiff has not given evidence and no oral evidence was at all
tendered by her. We can only, therefore, deduce the fact of her acceptance from
the record available. In Ex. B-2, the counsel of the plaintiff stated that his
client was appointed as an executrix under the will of her husband and that he
was instructed to take adequate legal steps to have the estate duly represented.
We are of opinion that this letter written obviously on behalf of the plaintiff
is enough to constitute acknowledgment or the acceptance of the plaintiff of
her office as an executrix.”
accepted the office or not will depend upon the facts of each case. In this
case the plaintiff has not given evidence and no oral evidence was at all
tendered by her. We can only, therefore, deduce the fact of her acceptance from
the record available. In Ex. B-2, the counsel of the plaintiff stated that his
client was appointed as an executrix under the will of her husband and that he
was instructed to take adequate legal steps to have the estate duly represented.
We are of opinion that this letter written obviously on behalf of the plaintiff
is enough to constitute acknowledgment or the acceptance of the plaintiff of
her office as an executrix.”
158. In Smt. Usharani
Roy v. Smt. Hemlata Roy [AIR 1946 Cal. 40] it was held :-
Roy v. Smt. Hemlata Roy [AIR 1946 Cal. 40] it was held :-
“If the caveator is
not the executor under the later will, a citation would be necessary as is
provided for by S. 229, Succession Act, calling upon the executor to accept or
renounce his executorship and if the executor renounces or fails to accept the
executorship within the time limited for acceptance or refusal thereof, the
will may be proved and letters of administration with a copy of the will
annexed may be granted to the person who would be entitled to administration
cases of intestacy. (Section 231, Succession Act.)”.
not the executor under the later will, a citation would be necessary as is
provided for by S. 229, Succession Act, calling upon the executor to accept or
renounce his executorship and if the executor renounces or fails to accept the
executorship within the time limited for acceptance or refusal thereof, the
will may be proved and letters of administration with a copy of the will
annexed may be granted to the person who would be entitled to administration
cases of intestacy. (Section 231, Succession Act.)”.
The said decisions,
therefore, were rendered having regard to the doctrine of renouncing the office
of an executor by implication in view of Section 229 of the 1925 Act and
clearly show that an executor can act only upon the death of the testator and
not during his life time.
therefore, were rendered having regard to the doctrine of renouncing the office
of an executor by implication in view of Section 229 of the 1925 Act and
clearly show that an executor can act only upon the death of the testator and
not during his life time.
159. If the submission
of the learned counsel that the executors had interest even during the life
time of MPB is accepted the same would give rise to an absurdity.
of the learned counsel that the executors had interest even during the life
time of MPB is accepted the same would give rise to an absurdity.
160. An executor must
first become an executor. As MPB predeceased PDB, he never became an executor.
If he did not become an executor, the question of filling up of any vacancy
would not arise.
first become an executor. As MPB predeceased PDB, he never became an executor.
If he did not become an executor, the question of filling up of any vacancy
would not arise.
161. For the
aforementioned purpose, we may assume that the 1982 Will was valid. As MPB
could never become an executor, BKB’s appointment does not confer on him a
caveatable interest. An appointment of an executor ordinarily is the function
of a court in terms of Section 301 of the 1925 Act. We, however, need not go
into the question as to whether his appointment was legal or not. But, we may
only notice that even in the deed of appointment, there is nothing to show that
the necessary ingredients for appointment of B.K. Birla by the surviving
executors had been made out as it was not stated that the original executor had
seized to hold office.
aforementioned purpose, we may assume that the 1982 Will was valid. As MPB
could never become an executor, BKB’s appointment does not confer on him a
caveatable interest. An appointment of an executor ordinarily is the function
of a court in terms of Section 301 of the 1925 Act. We, however, need not go
into the question as to whether his appointment was legal or not. But, we may
only notice that even in the deed of appointment, there is nothing to show that
the necessary ingredients for appointment of B.K. Birla by the surviving
executors had been made out as it was not stated that the original executor had
seized to hold office.
162. The office of
executor under the 1982 Will does not carry any remuneration therewith. The
power to appoint an executor was dependent upon any executor ceasing to be one.
The condition precedent has not been fulfilled. In the instant case, MPB had
never become the executor, hence, the question of his “ceasing to be an
executor” does not arise.
executor under the 1982 Will does not carry any remuneration therewith. The
power to appoint an executor was dependent upon any executor ceasing to be one.
The condition precedent has not been fulfilled. In the instant case, MPB had
never become the executor, hence, the question of his “ceasing to be an
executor” does not arise.
163. Appellants are not
the legatees of the said Will. They are not the beneficiaries thereunder. They
being merely executors, in our opinion, would not clothe them with a right to
lodge a caveat as by reason thereof they did not derive any caveatable interest
in the estate of PDB. CAVEATABLE INTEREST OF GPB AS A NAMED EXECUTOR
the legatees of the said Will. They are not the beneficiaries thereunder. They
being merely executors, in our opinion, would not clothe them with a right to
lodge a caveat as by reason thereof they did not derive any caveatable interest
in the estate of PDB. CAVEATABLE INTEREST OF GPB AS A NAMED EXECUTOR
164. GPB was held to
have caveatable interest on the premise that he was named as an executor. He,
therefore, in our opinion, has rightly been held to have a caveatable interest.
have caveatable interest on the premise that he was named as an executor. He,
therefore, in our opinion, has rightly been held to have a caveatable interest.
165. An application for
grant of probate of 1982 Will is also pending. Therein a contention has been
raised by the first respondent that the said Will was not genuine. If
respondent No.1 has a caveatable interest in respect of 1982 Will, we do not
see any reason as to why GPB would not have any right in respect of 1999 Will.
grant of probate of 1982 Will is also pending. Therein a contention has been
raised by the first respondent that the said Will was not genuine. If
respondent No.1 has a caveatable interest in respect of 1982 Will, we do not
see any reason as to why GPB would not have any right in respect of 1999 Will.
APPOINTMENT OF YB AS AN
EXECUTOR IN PLACE OF MPB
EXECUTOR IN PLACE OF MPB
166. So far as the case
of YB is concerned, his appointment as an executor has been upheld by the High
Court. It was, however, opined that by reason thereof, he did not acquire any
caveatable interest. RSL has filed an appeal against that part of the judgment
whereby his appointment as an executor of the Will of MPB of 1992 in place of
PDB has been upheld.
of YB is concerned, his appointment as an executor has been upheld by the High
Court. It was, however, opined that by reason thereof, he did not acquire any
caveatable interest. RSL has filed an appeal against that part of the judgment
whereby his appointment as an executor of the Will of MPB of 1992 in place of
PDB has been upheld.
167. For the reasons
stated in regard to the legal position governing the filling up of vacancy of
one of the named executors by the others, we are of the opinion that the
appointment of YB as an executor of the Will of MPB in place of PDB cannot be
sustained. It is not a case of YB that PDB had assumed office or the purported
Will of MPB had been given effect to. Genuineness of the said Will is in question.
KKB has already filed an application for grant of probate in respect of the
said Will. As there is nothing to show that any vacancy has been created by
reason of death of PDB, YB could not have been appointed in her place at this
stage.
stated in regard to the legal position governing the filling up of vacancy of
one of the named executors by the others, we are of the opinion that the
appointment of YB as an executor of the Will of MPB in place of PDB cannot be
sustained. It is not a case of YB that PDB had assumed office or the purported
Will of MPB had been given effect to. Genuineness of the said Will is in question.
KKB has already filed an application for grant of probate in respect of the
said Will. As there is nothing to show that any vacancy has been created by
reason of death of PDB, YB could not have been appointed in her place at this
stage.
176. The vacancy has to
be filled up in terms of the instrument or in accordance with law. It cannot be
directed to be filled in equity by a Court of Law as was submitted by Mr.
Venugopal.
be filled up in terms of the instrument or in accordance with law. It cannot be
directed to be filled in equity by a Court of Law as was submitted by Mr.
Venugopal.
168. We are furthermore
of the opinion that only because YB has a right to maintain a suit for
purported enforcement of the Mutual Wills, the same by itself cannot confer
upon him a caveatable interest.
of the opinion that only because YB has a right to maintain a suit for
purported enforcement of the Mutual Wills, the same by itself cannot confer
upon him a caveatable interest.
169. There exists a
distinction between an executor named by the testator in the Will and an
executor who is appointed on a purported vacancy arising out of death of
another executor. In the latter case such an appointment may not be valid. In a
case of this nature YB could not be held to have caveatable interest only by
reason of such an appointment as here is nothing on record to show that PDB had
enjoyed the benefit under the said Will and not as an heir of MPB. If the Will
had not been given effect to for such a long time, there is no reason as to why
the terms thereof should be directed to be acted upon at this juncture and/or
in terms thereof dispute between the parties in this behalf cannot be
adjudicated upon at an interlocutory stage.
distinction between an executor named by the testator in the Will and an
executor who is appointed on a purported vacancy arising out of death of
another executor. In the latter case such an appointment may not be valid. In a
case of this nature YB could not be held to have caveatable interest only by
reason of such an appointment as here is nothing on record to show that PDB had
enjoyed the benefit under the said Will and not as an heir of MPB. If the Will
had not been given effect to for such a long time, there is no reason as to why
the terms thereof should be directed to be acted upon at this juncture and/or
in terms thereof dispute between the parties in this behalf cannot be
adjudicated upon at an interlocutory stage.
170. In Mrs. Hem Nolini
Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson
v. Isolyne Sarojbashini Bose and others [AIR 1962 SC 1471], it was held :-.
Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson
v. Isolyne Sarojbashini Bose and others [AIR 1962 SC 1471], it was held :-.
“(7) Re. (1).
We have already pointed
out that though it was said that Dr. Miss Mitter had executed a will in favour
of her mother Mrs. Mitter in June 1925 bequeathing the house in dispute to her,
no probate or letters of administration were ever obtained by Mrs. Mitter. It
is true that Mrs. Mitter in her turn made a will in favour of the appellant and
she obtained letters of administration of that will. In that will the house in
dispute was mentioned as the property of Mrs. Mitter was bequeathed to the
appellant and in the letters of administration granted to her this property was
mentioned as one of the properties coming to her by the will of her mother. The
question therefore that arises is whether it was necessary before the appellant
could take advantage of the bequest in favour of Mrs. Mitter that letters of
administration of the will of Dr. Miss Mitter should have been obtained by Mrs.
Mitter Section 213(1) which governs this matter is in these terms :-
out that though it was said that Dr. Miss Mitter had executed a will in favour
of her mother Mrs. Mitter in June 1925 bequeathing the house in dispute to her,
no probate or letters of administration were ever obtained by Mrs. Mitter. It
is true that Mrs. Mitter in her turn made a will in favour of the appellant and
she obtained letters of administration of that will. In that will the house in
dispute was mentioned as the property of Mrs. Mitter was bequeathed to the
appellant and in the letters of administration granted to her this property was
mentioned as one of the properties coming to her by the will of her mother. The
question therefore that arises is whether it was necessary before the appellant
could take advantage of the bequest in favour of Mrs. Mitter that letters of
administration of the will of Dr. Miss Mitter should have been obtained by Mrs.
Mitter Section 213(1) which governs this matter is in these terms :-
“(1) No right as
executor or legatee can be established in any Court of Justice, unless a Court
of competent jurisdiction in India has granted probate of the will under which
the right is claimed, or has granted letters of administration with the will or
with a copy of an authenticated copy of will annexed.”
executor or legatee can be established in any Court of Justice, unless a Court
of competent jurisdiction in India has granted probate of the will under which
the right is claimed, or has granted letters of administration with the will or
with a copy of an authenticated copy of will annexed.”
This section clearly
creates a bar to the establishment of any right under a will by an executor or
a legatee unless probate or letters of administration of the will have been
obtained. It is now well-settled that it is immaterial whether the right under
the will is claimed as a plaintiff or a defendant; In either case s. 213 will
be a bar to any right being claimed by a person under a will whether as a
plaintiff or as a defendant unless probate or letters of administration of the
will have been obtained : (see Ghanshamdoss v. Gulab Bi Bai) ((1927) I.L.R. 50
Mad.
creates a bar to the establishment of any right under a will by an executor or
a legatee unless probate or letters of administration of the will have been
obtained. It is now well-settled that it is immaterial whether the right under
the will is claimed as a plaintiff or a defendant; In either case s. 213 will
be a bar to any right being claimed by a person under a will whether as a
plaintiff or as a defendant unless probate or letters of administration of the
will have been obtained : (see Ghanshamdoss v. Gulab Bi Bai) ((1927) I.L.R. 50
Mad.
927). But it is urged on
behalf of the appellant that this section will not bar her because she obtained
letters of administration of the will of her mother Mrs. Mitter under which she
is claiming and that it was not necessary for Mrs. Mitter to have obtained
probate of the will of Dr. Miss Mitter in her favour.
behalf of the appellant that this section will not bar her because she obtained
letters of administration of the will of her mother Mrs. Mitter under which she
is claiming and that it was not necessary for Mrs. Mitter to have obtained
probate of the will of Dr. Miss Mitter in her favour.
It was further observed
:
:
Whosoever wishes to
establish that right, whether it be a legatee or an executor himself or
somebody else who might find it necessary in order to establish his right to
establish the right of some legatee or executor from whom he might derived
title, he cannot do so unless the will under which the right as a legatee or
executor is claimed has resulted in the grant of a probate or letters of
administration.
establish that right, whether it be a legatee or an executor himself or
somebody else who might find it necessary in order to establish his right to
establish the right of some legatee or executor from whom he might derived
title, he cannot do so unless the will under which the right as a legatee or
executor is claimed has resulted in the grant of a probate or letters of
administration.
171. We may notice the
findings of the learned Single Judge which reads :-
findings of the learned Single Judge which reads :-
“In any event going
by the submission of Mr. P.K. Roy learned Senior Counsel (now deceased) assent
to legacy having been given in favour of the said deceased Lady in relation to
the 1982 will of M.P. Birla. Nothing is left by the executors so their interest
if at all is no longer subsisting.”
by the submission of Mr. P.K. Roy learned Senior Counsel (now deceased) assent
to legacy having been given in favour of the said deceased Lady in relation to
the 1982 will of M.P. Birla. Nothing is left by the executors so their interest
if at all is no longer subsisting.”
172. The affidavit of
assets annexed by the Birlas to their petition for grant of probate in respect
of 1982 Will of MPD and the affidavit of assets annexed by them to the petition
for grant of probate of 1982 Will of PDB show that the assets held by the
former mentioned in the petition for probate of his Will of 1982 are also shown
as assets of PDB. APPLICATION OF SECTION 92 CPC
assets annexed by the Birlas to their petition for grant of probate in respect
of 1982 Will of MPD and the affidavit of assets annexed by them to the petition
for grant of probate of 1982 Will of PDB show that the assets held by the
former mentioned in the petition for probate of his Will of 1982 are also shown
as assets of PDB. APPLICATION OF SECTION 92 CPC
173. A suit contemplated
under Section 92 of the Code of Civil Procedure cannot be equated with a
probate. In a suit under Section 92 of the Code of Civil Procedure, the title
of the donor may be disputed. Such a question as of necessity must be gone into
by the court which, however, is a forbidden domain for the Probate Court.
Reliance has been placed on Sirajul Haq Khan & Others v. The Sunni Central
Board of Waqf, U.P. and Others [1959 SCR 1287] wherein this Court was of the
opinion that a person ascertaining that the property in dispute was not a wakf
property was entitled to be heard. In a suit of that nature the title in the
property or lack of it would be germane.
under Section 92 of the Code of Civil Procedure cannot be equated with a
probate. In a suit under Section 92 of the Code of Civil Procedure, the title
of the donor may be disputed. Such a question as of necessity must be gone into
by the court which, however, is a forbidden domain for the Probate Court.
Reliance has been placed on Sirajul Haq Khan & Others v. The Sunni Central
Board of Waqf, U.P. and Others [1959 SCR 1287] wherein this Court was of the
opinion that a person ascertaining that the property in dispute was not a wakf
property was entitled to be heard. In a suit of that nature the title in the
property or lack of it would be germane.
SECTION 73 OF THE INDIAN
TRUST ACT.
TRUST ACT.
174. Provisions of
Section 73 of the Indian Trust Act have limited application. Applicability
thereof would arise when a trustee disclaims, dies or is absent from India for
a period of more than six months or leaves India for the purpose of residing
abroad or is declared an insolvent etc.
Section 73 of the Indian Trust Act have limited application. Applicability
thereof would arise when a trustee disclaims, dies or is absent from India for
a period of more than six months or leaves India for the purpose of residing
abroad or is declared an insolvent etc.
175. Prima facie BKB or
YB were not appointed as trustee. They were only appointed as executors. An
executor becomes a trustee only upon completion of administration of trust.
This proposition does not appear to be in dispute. Administration of trust
being incomplete, MPB did not become an executor. He, therefore, was not a
trustee. Provisions of Section 73 of the Indian Trusts Act will, therefore,
have no application. In the Will of PDB executed in the year 1982 he was merely
named as an executor. It is also difficult, at this stage, to construe the Will
of 1982 of PDB as an instrument of trust. The question in regard to the
administration of the estate of PDB only arose after her death which took place
in 2004. MPB died in 1990. The said provisions, therefore, have no application.
YB were not appointed as trustee. They were only appointed as executors. An
executor becomes a trustee only upon completion of administration of trust.
This proposition does not appear to be in dispute. Administration of trust
being incomplete, MPB did not become an executor. He, therefore, was not a
trustee. Provisions of Section 73 of the Indian Trusts Act will, therefore,
have no application. In the Will of PDB executed in the year 1982 he was merely
named as an executor. It is also difficult, at this stage, to construe the Will
of 1982 of PDB as an instrument of trust. The question in regard to the
administration of the estate of PDB only arose after her death which took place
in 2004. MPB died in 1990. The said provisions, therefore, have no application.
PREJUDICE ARGUMENTS
176. Submission that RSL
is an outsider and the bequest is un-natural does not appeal to us. Such a
question cannot be determined at this stage. Why an owner of the property
executes a Will in favour of another is a matter of his/her choice. One may by
a Will deprive his close family members including his sons and daughters. She
had a right to do so. The court is concerned with the genuineness of the Will.
If it is found to be valid, no further question as to why did she do so would
be completely out of its domain. A Will may be executed even for the benefit of
others including animals. Various documents have been placed before us by the
learned counsel appearing on behalf of the first respondent to show that MPB
was not happy in regard to management of Birlas’ Group of Companies and by the
division thereof which took place after the demise of G.D. Birla in 1983.
is an outsider and the bequest is un-natural does not appeal to us. Such a
question cannot be determined at this stage. Why an owner of the property
executes a Will in favour of another is a matter of his/her choice. One may by
a Will deprive his close family members including his sons and daughters. She
had a right to do so. The court is concerned with the genuineness of the Will.
If it is found to be valid, no further question as to why did she do so would
be completely out of its domain. A Will may be executed even for the benefit of
others including animals. Various documents have been placed before us by the
learned counsel appearing on behalf of the first respondent to show that MPB
was not happy in regard to management of Birlas’ Group of Companies and by the
division thereof which took place after the demise of G.D. Birla in 1983.
177. Indisputably,
however, they were separate. They were in the control and management of their
respective companies. The group of companies managed by MPB and PDB were known
as M.P. Birla Group of Companies. There are other companies, named separately,
in the name of individual group of Birlas.
however, they were separate. They were in the control and management of their
respective companies. The group of companies managed by MPB and PDB were known
as M.P. Birla Group of Companies. There are other companies, named separately,
in the name of individual group of Birlas.
178. According to the
first respondent he had closely been involved in the M.P. Birla Group of
Companies and had been inducted as Director/Co- Chairman/Chairman of various
M.P. Birla Group of Companies during the lifetime of PDB. Other persons belonging
to Birla family were not so involved. In fact according to the appellants
themselves, the first respondent was a man of trust so far PDB is concerned as
it was stated :-
first respondent he had closely been involved in the M.P. Birla Group of
Companies and had been inducted as Director/Co- Chairman/Chairman of various
M.P. Birla Group of Companies during the lifetime of PDB. Other persons belonging
to Birla family were not so involved. In fact according to the appellants
themselves, the first respondent was a man of trust so far PDB is concerned as
it was stated :-
“(f) The Petitioner
through Lodha & Co. and/or other firms under his control, ostensibly or
otherwise, came to be appointed as statutory auditors and/or to be otherwise
involved in matters concerning the finance and accounts of several companies
and organizations where the Birla family has substantial stakes in management
and/or shareholding. By reason of the same, the petitioner came to enjoy the
trust and confidence of most of the members of the Birla family.
through Lodha & Co. and/or other firms under his control, ostensibly or
otherwise, came to be appointed as statutory auditors and/or to be otherwise
involved in matters concerning the finance and accounts of several companies
and organizations where the Birla family has substantial stakes in management
and/or shareholding. By reason of the same, the petitioner came to enjoy the
trust and confidence of most of the members of the Birla family.
(g) After the death of
late Madhav Prasad Birla in or about July, 1990 the deceased who has had no
formal education relied and continued to rely on the petitioner and reposed and
continued to repose complete trust and confidence in the petitioner in the
matters pertaining to all her financial affairs by reason whereof, the
petitioner was at all material times, privy to all information concerning the
personal and financial affairs of the deceased. The deceased also sought and
obtained advice from the petitioner with regard to her assets, savings and
investments and with regard to and in the management and affairs of several
companies and institutions where the deceased had a stake in the shareholding
and/or management and the deceased was at all material times accustomed to act
as per the wishes and dictates of the petitioner. The petitioner is and was at
all material times aware of the same.
late Madhav Prasad Birla in or about July, 1990 the deceased who has had no
formal education relied and continued to rely on the petitioner and reposed and
continued to repose complete trust and confidence in the petitioner in the
matters pertaining to all her financial affairs by reason whereof, the
petitioner was at all material times, privy to all information concerning the
personal and financial affairs of the deceased. The deceased also sought and
obtained advice from the petitioner with regard to her assets, savings and
investments and with regard to and in the management and affairs of several
companies and institutions where the deceased had a stake in the shareholding
and/or management and the deceased was at all material times accustomed to act
as per the wishes and dictates of the petitioner. The petitioner is and was at
all material times aware of the same.
(h) By reason of the
aforesaid, the petitioner was, at all material times, in a fiduciary
relationship with the deceased.”
aforesaid, the petitioner was, at all material times, in a fiduciary
relationship with the deceased.”
179. The said arguments,
therefore, do not appeal to us to determine the issues in favour of Birlas. We
wish that these contentions were not raised before us.
therefore, do not appeal to us to determine the issues in favour of Birlas. We
wish that these contentions were not raised before us.
APPEAL ARISING OUT OF
SLP (C) NO. 19040 OF 2007
SLP (C) NO. 19040 OF 2007
180. Whether RSL has a
cavetable interest in the proceeding in respect of the probate of the Will of
MPB dated 13th July, 1982 is also in question in this appeal.
cavetable interest in the proceeding in respect of the probate of the Will of
MPB dated 13th July, 1982 is also in question in this appeal.
181. We have already
held that GPB has caveatable interests as executor of MPB in respect of his
Will of 1982. We, therefore, see no reason as to why RSL would not have a
caveatable interest being a beneficiary under the 1999 Will in the proceedings
for grant of probate of the Will of MPB dated 13th July, 1982. If the grounds
taken in the appeal are to be upheld, the same ex facie would destroy the case
of the appellants in the other cases. SUIT ON MUTUAL WILLS
held that GPB has caveatable interests as executor of MPB in respect of his
Will of 1982. We, therefore, see no reason as to why RSL would not have a
caveatable interest being a beneficiary under the 1999 Will in the proceedings
for grant of probate of the Will of MPB dated 13th July, 1982. If the grounds
taken in the appeal are to be upheld, the same ex facie would destroy the case
of the appellants in the other cases. SUIT ON MUTUAL WILLS
182. We have noticed
hereinbefore the averments made in the plaint of Civil Suit No.221 of 2004.
Filing of the said suit, in our opinion, does not bar considering the
caveatable interest and as we have not been called upon to decide the
maintainability of the said suit at this stage, we do not make any observation
thereupon. We have noticed the averments made in the plaint at some length only
for the purpose of arriving at a finding on the question as to whether the
plaintiffs therein have acquired any caveatable interest by reason thereof or
not.
hereinbefore the averments made in the plaint of Civil Suit No.221 of 2004.
Filing of the said suit, in our opinion, does not bar considering the
caveatable interest and as we have not been called upon to decide the
maintainability of the said suit at this stage, we do not make any observation
thereupon. We have noticed the averments made in the plaint at some length only
for the purpose of arriving at a finding on the question as to whether the
plaintiffs therein have acquired any caveatable interest by reason thereof or
not.
183. In our opinion, the
High Court was right in opining that a caveatable interest may arise only after
suit for enforcement of mutual Will is decreed and not prior thereto.
High Court was right in opining that a caveatable interest may arise only after
suit for enforcement of mutual Will is decreed and not prior thereto.
EPILOGUE
184. Before parting with
this case we may notice some disturbing features. Each party for good or bad
reasons has been opposing one or the other application filed by the other. It
is stated that respondent No.1 is opposing the application for substitution of
heirs and legal representatives of Mrs. Laxmi Devi Newar, sister of MPB. We do
not know on what premise such a stand is being taken. Counsel for both the
parties put the blame on the other side for causing delay in disposal of the
matters.
this case we may notice some disturbing features. Each party for good or bad
reasons has been opposing one or the other application filed by the other. It
is stated that respondent No.1 is opposing the application for substitution of
heirs and legal representatives of Mrs. Laxmi Devi Newar, sister of MPB. We do
not know on what premise such a stand is being taken. Counsel for both the
parties put the blame on the other side for causing delay in disposal of the
matters.
185. We, keeping in view
the facts and circumstances of the case, are of the opinion that the probate
proceedings should be taken up for hearing by the High Court as expeditiously
as possible. We would request the High Court to consider this aspect of the
matter.
the facts and circumstances of the case, are of the opinion that the probate
proceedings should be taken up for hearing by the High Court as expeditiously
as possible. We would request the High Court to consider this aspect of the
matter.
186. Probate proceedings
may also be taken up for hearing one after the other.
may also be taken up for hearing one after the other.
187. Probate proceeding
of RSL in respect of Will of PDB executed in the year 1990 should be taken up
first. The hearing of the probate proceeding of Will of MPB of 1982 may be
taken up immediately thereafter. Judgments may be delivered, if possible, at the
same time. The suit filed by the executors of the two 1982 Wills being Civil
Suit No. 221 of 2004 may be taken up for hearing only after the disposal of the
probate proceedings, if necessary.
of RSL in respect of Will of PDB executed in the year 1990 should be taken up
first. The hearing of the probate proceeding of Will of MPB of 1982 may be
taken up immediately thereafter. Judgments may be delivered, if possible, at the
same time. The suit filed by the executors of the two 1982 Wills being Civil
Suit No. 221 of 2004 may be taken up for hearing only after the disposal of the
probate proceedings, if necessary.
CONCLUSION
188. For the reasons
aforementioned, Civil Appeal arising out of SLP (C) No. 10176 of 2007 filed by
RSL challenging appointment of YB is allowed and all other appeals are
dismissed with costs.
aforementioned, Civil Appeal arising out of SLP (C) No. 10176 of 2007 filed by
RSL challenging appointment of YB is allowed and all other appeals are
dismissed with costs.
189. Who would be the
beneficiaries of the case? We think that benefit should go to Legal Services
Authority. We direct the appellants in the appeal filed by Birlas should
deposit a sum of Rs.2,50,000/- (Rupees Two lac fifty thousand only) with the
Member Secretary of West Bengal Legal Services Authority. Such deposit should
be made within four weeks from today, failing which the West Bengal Legal
Services Authority would be entitled to realize the amount by filing
application for execution wherefor cost would be borne by the appellant herein.
Let a copy of this order be sent by the Registry to Member-Secretary, West Bengal
Legal Services Authority.
beneficiaries of the case? We think that benefit should go to Legal Services
Authority. We direct the appellants in the appeal filed by Birlas should
deposit a sum of Rs.2,50,000/- (Rupees Two lac fifty thousand only) with the
Member Secretary of West Bengal Legal Services Authority. Such deposit should
be made within four weeks from today, failing which the West Bengal Legal
Services Authority would be entitled to realize the amount by filing
application for execution wherefor cost would be borne by the appellant herein.
Let a copy of this order be sent by the Registry to Member-Secretary, West Bengal
Legal Services Authority.
………………………….J.
[S.B. Sinha]
…………………………..J.
…………………………..J.
[Harjit Singh Bedi] New
Delhi;
Delhi;
March 31, 2008
——————————————-
AS – 23122019