S.B. SINHA, J.
1. Leave granted.
INTRODUCTION
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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.
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.
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).
The executors nominated in MPB's Will were :-
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1. Smt. Priyamvada Devi Birla (PDB)
2. Krishna Kumar Birla (KKB)
3. Kashinath Tapuria and
4. Pradip Kumar Khaitan ;
Whereas the executors nominated in PDB's will were :-
1. Madhav Prasad Birla (MPB)
2. Ganga Prasad Birla (GPB)
3. Kashinath Tapuria
4. Pradip Kumar Khaitan
5. MPB died on 30th 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.
7. PDB died on 3rd July, 2004.
PROCEEDINGS BEFORE THE HIGH COURT
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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.
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.
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.
11. Smt. Radha Devi Mohatta also entered a caveat on 22nd July, 2004.
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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.
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.
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
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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.
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.
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.
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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.
PROCEEDINGS BEFORE US.
19. We may, at the 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.
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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.
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.
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.
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.
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).
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FAMILY OF BIRLAS
20. Before embarking on 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
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.
22. It is stated that 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.
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STATUTORY PROVISIONS
24. Provisions relating 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.
26. The form in which caveat is entered has been prescribed in Schedule
V appended to the Act, is to the following effect :-
"SCHEDULE
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[ 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 ___________"
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.
28. It is contained in 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 :-
"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
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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:--
"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."
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.
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31. Rule 29 provides for 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."
32. Rule 30 provides for "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."
33. We may also take note of Section 73 of the Indian Trusts Act, 1882,
which reads as under :-
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"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--
(a) the person nominated 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.
On an appointment of a 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.
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
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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
(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.
(ii) Appellant being an 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
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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.
(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.
(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.
(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
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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.
(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.
(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.
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(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.
35. Mr. K.K. Venugopal, 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.
(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.
(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.
(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.
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(iv) Appellants being 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.
(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.
36. Mr. Arun Jaitley, 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
20
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.
(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.
(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.
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(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.
(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.
37. Mr. Harish N. Salve, 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.
(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.
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(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.
(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.
(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.
(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.
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(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.
(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.
(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.
(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.
38. Mr. Anindya Kumar Mitra, learned senior counsel appearing in some
of the matters for RSL urged:
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(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.
(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.
(iii) Theory of mutual 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
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.
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
25
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.
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.
We shall advert to the 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.
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
26
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:
"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."
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.
46. It is of some significance that Shri P.L. Agarwal and Shri S.J. Khaitan
are attesting witnesses to the said Wills.
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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.
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.
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.
THE SUIT (CS NO. 221 OF 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
28
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.
Paragraph 15 of the 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."
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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.
53. The defendant's 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."
54. The reliefs prayed 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."
30
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.
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.
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
31
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.
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.
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
32
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.
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.
33
CAVEATABLE INTEREST
61. Appellants herein have raised a large number of contentions to show
that they have a caveatable interest.
We may categorize them as under:
(i) Mutual Will;
(ii) Family interest;
(iii) Spiritual well-being of the testatrix
(iv) Pre-emption : Future domain doctrine;
(v) Preferential right - being executors of 1982 Will;
(vi) 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.
Before dealing with each 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".
34
Legal Thesaurus Regular 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.
63. "Caveat" has been defined in Random House Webster's Dictionary
of the Law as under :-
"caveat, n. 1, a 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.
35
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
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.
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'.
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
36
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:
"...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
37
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."
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."
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.
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
38
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 :
"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."
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:
"... 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..."
39
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:
"...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."
73. Madras High Court 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".
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.
40
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.
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 :
41
"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."
77. It contains two 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."
78. Field, J., however, expanded the ambit of `caveatable interest'.
42
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.
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 :-
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:--
"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."
43
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].
As would appear from the 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:
"...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..."
As the caveator acquired 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.
44
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:
"...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...."
On that premise, a reversioner was held to have a caveatable interest.
45
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.
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.
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.
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
46
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
86. Section 283 of the 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.
47
87. Filing of a suit is 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.
89. The propositions of 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;
(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.
(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
48
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:
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].
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 :-
49
1. Abhiram Dass (supra)
2. Nikunj Kumar Lohia (supra)
3. M.S. Saraswathi (supra)
4. Perviz Sarosh Batliwalla (supra)
5. Rajiv Ramprasad Gupta (supra)
6. In the Goods of 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.
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.
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
50
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.
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
51
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.
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.
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.
52
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:
"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."
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.
53
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)].
In Basanti Devi (supra), 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."
54
[See also Sunil Gupta (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.
103. We may notice that 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."
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
55
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 :
"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
56
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:
"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."
(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
57
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 :
"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.
"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.
These are commitments that require
a new social ecology and a social
movement dedicated to the idea of such a
transformation."
58
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.
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.
108. Be that as it may, 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
59
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.
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.
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
60
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.
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.
RULES OF THE CALCUTTA 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
61
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.
62
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.
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
63
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:
"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.
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."
[Emphasis supplied]
118. In Lewin on Trusts, Seventeenth Edition, pages 270-271, it is stated:
64
"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..."
[See also Theobald on 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.
While dealing with the 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.
In Kuppuswami Raja and another v. Perumal Raja and Others [AIR
1964 Madras 291], the Madras High Court stated the law, thus:
65
"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."
Such is not the case 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
66
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.
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.
67
124. The American law 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.
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.
' 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.""
68
[See also Corpus Juris 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:
"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.)"
69
126. In Massey (supra), 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."
The said authority, 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].
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:
"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
70
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.
They cannot fall back 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".
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.
71
The said decision of 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.
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:
"48. We have referred to the doctrine of mutual and
reciprocal wills and trusts only to understand the basis of
the complaint..."
72
That far and no further.
Some observations have 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."
Shiva Nath Prasad (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 :-
(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.
(ii) A subsequent 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.
73
(iv) Whether a legatee 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.
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:
"agnate"-- one 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
74
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.
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.
75
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.
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.
76
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.
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.
In paragraph 7, it is 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."
The merit of the Will has been discussed in the following terms:
77
"(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.
(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.
(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.
78
(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.
(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.
(g) The petitioner is 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."
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,
79
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.
PRE-EMPTION : FUTURE 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:
"The right of pre-emption based on consanguinity
has been variously described by learned judges as
'feudal', 'piratical', 'tribal', 'weak', 'easily defeated',
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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."
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
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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.
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,
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the same would not, it is bear repetition to state, constitute any caveatable
interest.
AS EXECUTORS OF 1982 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.
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 :-
"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."
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
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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."
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.".
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.
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
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"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:
"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."
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.
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
85
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:
"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".
Having regard to the 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
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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.
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:
"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
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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 :-
"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...."
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.
156. In Jnanadndra Nath 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
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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).
157. We may notice that 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."
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.
Whether the executor has accepted the office or not will
depend upon the facts of each case. In this case the
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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 :-
"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.)"
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.
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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.
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.
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.
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
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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
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.
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.
APPOINTMENT OF YB AS AN EXECUTOR IN PLACE OF MPB
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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.
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.
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.
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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.
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.
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 :-.
"(7) Re. (1).
94
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 :-
"(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."
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.
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
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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.
171. We may notice the 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."
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.
96
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.
SECTION 73 OF THE INDIAN 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.
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
97
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
98
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.
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 :-
"(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.
(g) After the death of late Madhav Prasad Birla in or
about July, 1990 the deceased who has had no formal
99
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."
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.
APPEAL ARISING OUT OF 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.
100
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
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.
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.
EPILOGUE
101
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.
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.
186. Probate proceedings 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
102
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.
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.
...............................J.
103
[S.B. Sinha]
................................J.
[Harjit Singh Bedi]
New Delhi;
March 31, 2008
