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

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.473 of 2009
Saroj Agarwalla (Dead) Thr. LR
Abhishek Agrawalla …..Appellant

Versus

Yasheel Jain …..Respondent

W I T H

CIVIL APPEAL NO.474 OF 2009
J U D G M E N T
SHIVA KIRTI SINGH, J.

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

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

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

… … … … …

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

… … … … …

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

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

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

……………………………………..J.
[DIPAK MISRA]
.…………………………………….J.
[SHIVA KIRTI SINGH]
New Delhi.
October 24, 2016

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

———————–
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