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Non-Reportable  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.19635-19636  of 2017 (Arising out of S.L.P. (Civil ) Nos.28643-28644 of 2017)

YASH VARDHAN MALL     .... Appellant

Versus

TEJASH DOSHI      ….Respondent

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.  

A  Will  was  executed  by  Smt.  Shrutika  Doshi  on

01.03.2013 by which she appointed her husband, the sole

Respondent herein, as the executor and trustee.  Her minor

daughters were made the beneficiaries.  It was mentioned in

the Will that in case the Respondent is unable to carry out or

act  as  the sole  executor  by giving effect  to  the Will  and

testament,  the  Appellant  shall  become the sole  executor.

The  Will  dated  01.03.2013  was  registered  with  the

Sub-Registrar  of  Assurance  at  Calcutta  on  25.05.2013.

Smt.  Shrutika  Doshi  died  on  26.05.2013.   Another  Will

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executed by  Smt.  Shrutika  Doshi  on 22.04.2013 surfaced

wherein the Respondent was appointed as the sole executor

and in  case he is  unable to  act  as the sole  executor  his

father would replace him. As the Respondent did not apply

for grant of probate of the Will dated 01.03.2013 for two and

half years, the Appellant applied for a probate of the Will.

Thereafter, the Respondent filed P.L.A. No.123 of 2016 for

grant of  probate of  the Will  dated 22.04.2013 before the

High  Court  at  Calcutta.   The  Appellant  filed  a  caveat  on

15.06.2016 and on receipt of a notice of the filing of the

P.L.A.  No.123  of  2016,  the  Appellant  filed  an  affidavit  in

support of the caveat on 10.01.2017.  The Respondent filed

an application G.A. No.888 of 2017 in P.L.A. No.123 of 2016

for discharge of the Appellant’s caveat.   

2. The petition filed by the Appellant for grant of probate

of the Will dated 01.03.2013 was dismissed by the District

Judge,  Alipore  on  17.04.2017.   An  appeal  has  been  filed

against the said order which is pending in the High Court at

Calcutta.

3. A learned Single Judge of the High Court at Calcutta

heard  G.A.  No.888  of  2017  in  P.L.A.  No.123  of  2016  for

discharge of  caveat.   By  an  order  dated 28.06.2017,  the

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learned  Single  Judge  allowed  the  application  filed  by  the

Respondent  and  discharged  the  caveat.  The  appeal  filed

against the said order dated 28.06.2017 was disposed of by

a Division Bench of the High Court holding that there was no

reason  to  interfere  with  the  order  of  the  learned  Single

Judge,  though  the  Appellant  had  a  caveatable  interest.

Aggrieved thereby the Appellant has approached this Court.

4. The learned Single Judge referred to Chapter XXXV of

the The Rules of The High Court At Calcutta (Original Side),

1914 (hereinafter referred to as the ‘Rules’) to hold that the

affidavit  filed in  accordance with  Rule  26 thereof  did  not

disclose legal grounds of objection to the grant of probate.

The learned Single Judge further held that the Appellant did

not  have  caveatable  interest  and  discharged  the  caveat.

The Division Bench held that an executor of a previous Will

cannot be denied a right to lodge a caveat in respect of a

subsequent Will of the same testator.   Even if the executor

is not a legatee under the Will, his obligation is to obtain a

probate  of  the  Will  and  to  administer  the  estate  in

accordance with the terms of the Will.   As the execution of

the  Will  dated  01.03.2013  was  not  disputed  by  the

Respondent, the Division Bench held that the Appellant has

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sufficient interest in the estate and was entitled to lodge a

caveat by virtue of his position as a trustee in respect of the

trust  created  by  the  first  Will.   Having  held  that  the

Appellant has a right to object to the grant of probate of the

Will  dated  22.04.2017,  the  Division  Bench  refused  to

interfere with the order of the learned Single Judge for the

reason that the affidavit filed in support of the caveat did

not disclose any ground to doubt the due execution of the

Will dated 22.04.2013.

5. The Rules relevant for the purpose of adjudication of

the dispute in this case are as follows:

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

“25. Affidavit in support of caveat.—Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will  annexed, the affidavit or affidavits in support shall be filed within eight days of the  caveat  being  lodged,  notwithstanding  the  long vacation. Such  affidavit  shall  state  the  right  and  interest  of caveator, and the grounds of the objections to the application.”

“30. Trial  of  preliminary  issue.—The  Court  may,  on  the application of the petitioner by summons to the caveator before making the order mentioned in Rule 28, direct the trial  of  an issue as to the caveator's interest. Whereupon the trial of such issue, if it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be.”

6. An affidavit filed in support of the caveat according to

Rule 25 shall state the right and interest of the caveator and

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the  grounds  of  the  objections  to  the  application.   The

affidavit  filed  in  support  of  the  caveat  by  the  Appellant

mentions that Smt.Shrutika Doshi executed her last Will and

testament  on  01.03.2013  which  was  registered  on

22.05.2013.   There  is  a  reference  to  the  Will  dated

22.04.2013 alleged to have been executed by Smt.Shrutika

Doshi  as  her  last  Will  and  testament.   It  was  further

mentioned in the affidavit  that the Will  dated 01.03.2013

being registered on 22.05.2013 has to be treated as the last

Will and testament of Smt.Shrutika Doshi.  The Appellant did

not doubt the execution of the Will dated 22.04.2013, but

asserted  that  the  Will  dated  01.03.2013  which  was

registered on 22.05.2013 was her last Will.

7. After  holding  that  the  Appellant  has  a  caveatable

interest to object to the grant of probate of the Will dated

22.04.2013,  the  High  Court  refused  to  interfere  with  the

order  of  the  learned  Single  Judge  on  the  basis  that  the

affidavit  filed in  support  of  the caveat  did  not  doubt  the

execution of the Will.   As per Rule 25, the right and interest

of  the  caveator  and  the  grounds  for  objection  to  the

application have to  be mentioned in  the affidavit  filed in

support  of  the  caveat.   The  right  and  interest  of  the

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caveator as the executor of rival Will dated 01.03.2013 have

been  mentioned  in  the  affidavit  filed  in  support  of  the

caveat and the High Court rightly upheld the contention on

behalf of the Appellant that he has caveatable interest. The

grounds for objection to the application for grant of probate

have also been mentioned in  the affidavit.  On a detailed

scrutiny of the affidavit filed in support of the caveat, we are

satisfied  that  the  Division  Bench  went  wrong  in  not

permitting  the  Appellant  to  contest  the  proceeding  of

probate  of  the  Will  dated  22.04.2013,  especially  after

holding that he has a caveatable interest.  It is relevant to

mention that the petition filed by the Appellant for grant of

probate of the Will  dated 01.03.2013 was rejected by the

District Judge, Alipore on the ground that the application for

probate of the Will dated 22.04.2013 was pending and that

the Appellant had lodged a caveat in that proceeding.  It

was further  held in  the said order  passed by the District

Judge on 17.04.2017 that the Appellant will have sufficient

opportunity to prove his allegations against the Respondent

in the said proceeding.  

8. This  Court  in  Krishna  Kumar  Birla  v.  Rajendra

Singh Lodha and Ors. (2008) 4 SCC p.300 considered

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the point of caveatable interest in a detailed manner and

held  that  no  hard  and  fast  rule  can  be  laid  down.  The

existence of a caveatable interest would depend upon the

fact situation of each case.  In the instant case, the High

Court found that the Appellant has caveatable interest, but

the  caveat  filed  by  the  Appellant  was  discharged on  the

ground that the affidavit filed in support thereof  was bereft

of an averment doubting the due execution of the Will dated

22.04.2013.  For the reasons stated supra, we are satisfied

that the affidavit  filed in support of the caveat fulfils the

condition of Rule 25.    9.  The appeals are allowed and the judgment passed by

the Division Bench of the High Court is set aside.  No order

as to costs.                               

              ......................................J.                 [ARUN MISHRA]

                ……................................J.                                                           [L. NAGESWARA RAO] New Delhi, November 23,  2017.