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C.A.No. 473 of 2009 etc.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.473 of 2009

Saroj Agarwalla (Dead) Thr. LR  Abhishek Agrawalla …..Appellant

Versus

Yasheel Jain …..Respondent

W I T H  

CIVIL APPEAL NO.474 OF 2009

J U D G M E N T

SHIVA KIRTI SINGH, J.

1. Both the appeals arise out of same proceedings initiated by the

appellant for grant of probate on the basis of a Will claimed to

be the last Will and testament of appellant’s brother Jagdish

Prasad Tulshan.   Appellant’s  prayer to  reject  the caveats of

respondents in the above proceedings was turned down by a

Division Bench of High Court at Calcutta by impugned orders,

both  dated  04.05.2007.   Both  the  appeals,  therefore,  have

been heard together and shall  be governed by this common

judgment.

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C.A.No. 473 of 2009 etc.

2. The  appellant  Saroj  Agarwalla  is  the  propounder  of  a  Will,

alleged to have been executed by one Jagdish Prasad Tulshan.

She claims to be the only surviving sister of the testator at the

time of his death.  She prayed for grant of the Probate of the

Will allegedly executed by Jagdish.  The respondent in the first

appeal, i.e., C.A.No.473 of 2009 - Yasheel Jain lodged a caveat

claiming to be the son of a pre-deceased sister of the testator

and thus having interest in the estate of the deceased.  His

claim is founded on two grounds, firstly as a nephew of the

testator and secondly as the sole beneficiary under an alleged

prior Will of the testator in respect of the same estate. 3. A learned Single Judge considered the objection raised by the

propounder to the caveat filed by Yasheel Jain and rejected the

objection.  The Single Judge was of the view that the provision

creating the right to file a caveat could be availed by a person

who is not a rank outsider and could claim to be an heir after

the propounder was no longer alive.  In that view of the matter

it  was  held  that  the  caveat  filed  by  Yasheel  could  not  be

discharged.  Since the Single Judge did not discuss the claim

of  Yasheel  based  on  an  earlier  Will,  Yasheel  filed  a

cross-objection before the Division Bench.  The appeal and the

cross  objection  were  heard  together.   The  Division  Bench

dismissed  the  appeal  of  the  appellant  and  allowed  the

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C.A.No. 473 of 2009 etc.

cross-objection by recording its prima facie satisfaction about

existence  of  an  earlier  Will  creating  caveatable  interest  in

favour of  Yasheel.   The Division Bench did not approve the

view of the learned Single Judge that Yasheel had a caveatable

interest as an heir of the testator but the conclusion of the

learned Single Judge was approved, albeit for different reasons

as noted above. 4. In the connected civil  appeal the prayer of the appellant for

grant of probate of the afore-discussed Will of Jagdish Prasad

Tulshan was opposed by the respondent Malati Tulshan.  She

claimed  to  be  the  second  wife  of  the  testator  married  on

28.02.1986 and lodged a separate caveat on that basis.  The

propounder later filed an application for discharge of the said

caveat  on the ground that  Malati  was never married to  the

testator  and,  therefore,  had  no  caveatable  interest  in  the

matter. 5. The learned Single Judge rejected the application for discharge

of the caveat on the ground that the Will propounded by the

appellant  itself  conferred  some  benefits  upon  Malati  and

therefore she had acquired caveatable interest.  Single Judge

also relied upon Rule 9 of Chapter XXXV of the Original Side

Rules (hereinafter referred to as ‘the Rules’) of Calcutta High

Court  to  hold  that  in  case  any benefit  is  conferred  upon a

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C.A.No. 473 of 2009 etc.

person by virtue of the alleged Will, the said rule provided for

citation and was attracted.  The Division Bench did not agree

with  the  reasonings given  by  the  learned  Single  Judge and

held that mere receipt of some benefits under the Will cannot

confer a caveatable interest in a third party unless he claims

interest in the estate of the deceased otherwise than by way of

Will sought to be probated.  But the conclusions of the Single

Judge were upheld on the basis of claim of Malati that she was

widow of the testator.  The Division Bench came to hold that

the issue whether Malati is really a lawful widow of the testator

or  not  cannot  be  conclusively  decided  in  the  probate

proceedings but once prima facie materials support her claim,

the  application  filed  for  discharge  of  her  caveat  deserves

dismissal.  This view is founded on the reason furnished by

Division Bench by pointing out that a judgment in the probate

proceedings  is  a  judgment  in  rem and,  therefore,  a  person

establishing prima facie interest in the estate of the testator

should be permitted to maintain a caveat and contest a claim

for  probate.   At  this  stage,  it  is  not  necessary  to  establish

caveatable interest by conclusive proof.   The Division Bench

finally made it clear that all its observations were tentative and

such observations will not be binding upon the parties or upon

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C.A.No. 473 of 2009 etc.

any other court if  the status of  Malati  is questioned in any

proceedings. 6. On  behalf  of  appellant,  claim  of  Yasheel  that  he  has  a

caveatable interest on the basis of a prior Will was seriously

disputed and contested by learned senior advocate Mr. Jaideep

Gupta.  He submitted that Yasheel admittedly does not have

the original Will with him as noted by the Division Bench itself

and, therefore, once it has been held that he has no caveatable

interest  as  a  nephew  of  the  testator  being  son  of  a

pre-deceased sister, the Division Bench erred in holding that

he has an interest to maintain his caveat on the basis of an

alleged prior Will in his favour.  So far as interest of Malati is

concerned, the submission on behalf of appellant is that she

has made conflicting claims, one, as a widow of the testator

and the other based upon benefits under the Will sought to be

probated.  Since the recitals in the Will described Malati only

as a maid servant, according to appellant she could not have

claimed to be a widow of the testator. 7. The  preliminary  issue  that  has  arisen  in  the  probate  case

which is still pending, relates to “caveatable interest”.  Chapter

XXXV  of  the  Rules  incorporate  provisions  relating  to

testamentary  and  intestate  jurisdiction.  Rule  1  defines

‘non-contentious  business’  to  include  the   business  of

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C.A.No. 473 of 2009 etc.

obtaining  probate  and  letters  of  administration  (with  or

without  the  will  annexed,  and  whether  general,  special  or

limited) where there is no contention as to the right thereto, as

also in contentious cases where the contest is terminated and

also includes the business of lodging caveats against the grant

of probate or letters of administration.  Rules 24, 28 and 30

are relevant to the issues at  hand and are hence extracted

hereinbelow :

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

… … … … …

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

… … … … …

30. Trial of Preliminary issue. The Court may, on the application of the petitioner by summons to the caveator

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C.A.No. 473 of 2009 etc.

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

8. A careful  reading  of  Rules  28 and 30 makes it  abundantly

clear that before the proceedings are numbered as a suit by

orders of a Judge for being tried as a suit as per provisions of

the Code of Civil Procedure (for short, ‘the Code’), the Court

may take up as a preliminary issue, whether the caveator has

a caveatable interest, if such an application is filed before the

Court  by  the  petitioner.   Clearly  the  preliminary  issues are

triable before the proceedings are treated as a full-fledged suit

under order of the Judge concerned.  Whereas suit is required

to be tried as per provisions of the Code, the procedure for trial

of preliminary issue has been left to the discretion of the court.

Rule 30 does not require the court to come out with specific

findings in respect of preliminary issue because the language

used in  Rule  30 requires  the  court  to  discharge  the  caveat

where, upon trial of such issue, “it  appears that the caveator

has no interest ........” (Emphasis supplied).  The preliminary

issue  does  not  relate  to  the  validity  or  legality  of  the  Will

sought  to  be  probated  but  only  to  the  issue  whether  the

caveator has an interest for which he can maintain the caveat.

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C.A.No. 473 of 2009 etc.

9. Learned  counsel  for  both  the  parties  have  addressed  us  at

some  length  as  to  the  meaning  of  the  words  “caveatable

interest”.   The  matter  is  no longer  res  integra in  view of  a

detailed discussion of this term in the case of Krishna Kumar

Birla v. Rajendra Singh Lodha1.  Paragraphs 59 to 86 of this

judgment refer to large number of authorities of this Court as

well  as various High Courts.   The conclusions flowing from

that judgment including the proposition of law in paragraph

86 clearly  support  the  case  of  the  respondents  in  both the

appeals that they have a caveatable interest.  The test which

may be applied in the present case is : Does the claim of grant

of probate prejudice the respondent’s right because it defeats

some other line of succession in terms whereof the respondent

as a caveator asserted his/her right?  Since the answer, in the

facts  of  the  case  would  be  in  the  affirmative,  we  are  in

agreement  with  the  view taken  by  the  Division  Bench  that

respondents have a caveatable interest. 10. A query arises as to why the Division Bench has recorded its

views  as  “prima  facie”.   The  answer  has  been  provided  by

learned counsel for the respondents by placing reliance upon

paragraph  2  of  the  judgment  of  this  Court  in  the  case  of

1

(2008) 4 SCC 300

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C.A.No. 473 of 2009 etc.

Ishwardeo Narain Singh v. Kamta Devi2.  This Court pointed

out  that  “the  Court  of  Probate  is  only  concerned  with  the

question as to whether the document put forward as the last

will  and testament of  a deceased person was duly  executed

and attested in accordance with law and whether at the time of

such execution the testator had sound disposing mind.  The

question whether a particular bequest is good or bad is not

within the purview of the Probate Court.”  11. Since we have noted the main submission on behalf  of  the

appellant  earlier,  it  is  deemed  proper  to  point  out  that

although the caveator  Yasheel  Jain  did  not  file  the  original

Will,  the  Division  Bench  has  noted  that  he  has  filed  a

photocopy of the prior Will allegedly executed by the testator

and has also produced the registered envelope through which

such  copy  was  sent  to  him by  the  testator  along  with  the

forwarding letter  written by him.  Upon such materials,  the

Division Bench recorded its prima facie satisfaction that the

caveat  should not  be  discharged.   In the  case  of  caveat  by

respondent Malati, the Division Bench noted the citations in

the Will  propounded by the  appellant  showing Malati  to  be

only a maid servant but on the basis of totality of facts and

2

AIR 1954 SC 280

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C.A.No. 473 of 2009 etc.

circumstances it rightly came to the conclusion that a person

by  merely  making  a  contrary  statement  in  the  Will  cannot

change a real relationship if it actually existed and hence at

least arguable case in favour of claim of Malati as regards her

relation with the testator has been established and hence she

deserves to  be permitted  to  contest  the probate  proceeding.

The Court, at the same time made it clear that whether Malati

is  really  a  lawful  widow  of  the  testator  or  not  cannot  be

conclusively  adjudicated  in  the  probate  proceedings  and

therefore,  only  a  prima  facie  view  was  possible  to  decide

whether her caveat should be discharged or not.

12. We find ourselves in agreement with the views taken by the

High  Court  in  the  impugned  judgments.   The  appeals  are,

therefore, dismissed but with no order as to costs.

         ……………………………………..J.                  [DIPAK MISRA]

.…………………………………….J.       [SHIVA KIRTI SINGH]

 New Delhi. October 24, 2016