2008 Supreme(SC) 567

S.B. Sinha & Harjit Singh Bedi
Krishna Kumar Birla - PETITIONER
Versus
Rajendra Singh Lodha and others - RESPONDENT
CIVIL APPEAL NO. 2277 OF 2008
(Arising out of SLP (C) NO. 2089 OF 2007)
WITH
CIVIL APPEAL NOS. 2275,2279,2276,2278,2274 OF 2008
(Arising out of SLP (C) NOS. 10176, 10571, 19040, 2090
AND 2091 OF 2007)
Decided On: 31/03/2008

Importent Point:
The caveator must satisfy the test that there exists an interest in the estate of the testator and the same is not adverse thereto.
A reversioner has a caveatable interest, but 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.
Questioning the title or disposing power of the testator is impermissible in a probate proceeding.
A probate proceeding should not be permitted to be converted into a title suit.
A right to claim pre-emption creates an interest in the property and not in succession.

Headnote:(a) Indian Succession Act, 1925 - Sections 275 and 276 - The Act has nothing to do with the law of inheritance or succession - Jurisdiction of the Probate Court is limited, confined only to genuineness of the Will - Construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. (Para 59)

       (1990) 3 SCC 333; 2007 (12) SCALE 282; (1993) 2 SCC 507; 2007 (12) SCALE 542 - Relied upon

       ILR 17 Calcutta 48; 12 Bom LR 366; ILR 17 Madras 373 - Noticed with approval

       1996 (1) CHN 205; AIR 1964 Cal 34; AIR 2006 Cal 230; (1997) 3 LW 541 (Mad); AIR 2000 Bom 189; AIR 2003 Bom 242 - Noticed

       (b) Indian Succession Act, 1925 - Sections 284 and 295 - 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. (Para 60)

       (c) Indian Succession Act, 1925 - Section 242 - Caveatable interest - If any person can show that he was entitled to maintain a suit in respect of the property over which probate would have effect, he possesses a sufficient interest to enter a caveat and oppose the grant of probate - However, such a suit 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. (Paras 75 and 76)

       ILR 6 Calcutta 460 - Relied upon

       (d) Indian Succession Act, 1925 - Section 242 - Caveatable interest - A suit which would be maintainable must have something to do with the estate of the testator - Inheritance by Will itself may be a subject matter of contention - The caveator must satisfy the test that there exists an interest in the estate of the testator and the same is not adverse thereto. (Para 78)

       ILR 6 Calcutta 460 - Relied upon

       AIR 1972 Mad 212 - Noticed

       (e) Indian Succession Act, 1925 - Section 242 r/w section 15, Hindu Succession Act, 1956 - Caveatable interest - A reversioner has a caveatable interest, but 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. (Paras 80 and 133)

       10 Cal. LJ 263; AIR 1931 Calcutta 470 - Noticed

       (f) Indian Succession Act, 1925 - Section 242 - Caveatable interest - A caveator, if he denied the testator s title, was liable to be discharged. (Para 84)

       AIR 1975 Madras 330 - Noticed

       (g) Indian Succession Act, 1925 - Section 242 - Proposition of law with regard to caveatable interest stated. (Para 89)

       (h) Indian Succession Act, 1925 - Section 242 - Where the right of the caveator is definite and clear, there is no need to apply the bare possibility or common ancestor test - However when the subject matter of the Will is not the ancestral property, persons not having any interest in such property will not be entitled to enter a caveat - Ordinarily a caveatable interest would mean an interest in the estate of the deceased to which the caveator would otherwise be entitled to. (Paras 93 to 95)

       AIR 1920 Calcutta 459 - Noticed

       (i) Indian Succession Act, 1925 - Section 2(h) - 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. (Para 97)

       (j) Indian Succession Act, 1925 - Section 242 - A person ordinarily succeeding the testator would have a caveatable interest - Therefore any other person seeking to enter a caveat must show a special interest in the estate - Such a special interest may be a creditor of the deceased - But it 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 would merely have a contingent interest - Thus a transferee pendente lite without the leave of the court would not have a caveatable interest - 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 - What would be the cavetable interest would depend upon the fact situation obtaining in each case and no hard and fast rule can be laid down. (Paras 97 to 99 and 103)

       1988 RLR 678; AIR 2007 Calcutta 218 - Noticed

       (k) Interpretation of statute - A statute must be interpreted having regard to its purport and object - The doctrine of purposive construction must be resorted to when required.

       (Para 104)

       2007 (14) SCALE 556; (2007) 13 SCALE 762 - Relied upon

       (2007) 6 SCC 81 - Referred

       (l) Indian Succession Act, 1925 - Sections 275 and 276 - Questioning the title or disposing power of the testator is impermissible in a probate proceeding. (Para 107)

       (m) Indian Succession Act, 1925 - Section 284 - Anybody and everybody including a busy body or an interloper cannot be entitled to oppose grant of probate - A caveatable interest is not synonymous with the word contention - A contention can be raised only by a person who has a caveatable interest - A probate proceeding should not be permitted to be converted into a title suit. (Paras 109 to 111)

       (1910) ILR 34 Bombay 459 - Noticed

       (n) Code of Civil Procedure, 1908 - Section 122 and Article 227, Constitution of India - There is no legal infirmity in the Rules framed by Calcutta High Court in exercise of powers conferred upon it by section 122. (Para 115)

       (o) Mutual Will - Where there is a mutual Will and a subsequent Will by one of the parties, despite the existence of a mutual Will, the representative under the latter Will will take the property subject to the terms of the Mutual Will. (Para 116)

       (p) Indian Succession Act, 1925 - Sections 275 and 276 - Only the latter Will would have to be probated.

       [1914] P. 192 - Relied upon

       AIR 1964 Madras 291; 208 P. 2d 341 - Distinguished

       (q) Indian Succession Act, 1925 - Section 242 - Existence of a mutual Will or filing of a suit, by themselves, are not sufficient to create a caveatable interest - The appellants have disentitled themselves from lodging a caveat by questioning the title of the testatrix as also her right to execute a Will - Now they cannot fall back upon the purported "Mutual Wills" only because they also challenge the genuineness of the 1999 will - Principles stated. (Paras 128 and 132)

       57 C.L.R. 666; (1986) 1 SCC 701 - Relied upon

       (1993) 4 All ER 129; (2006) 2 SCC 757 - Distinguished

       

       (r) Hindu Succession Act, 1956 - Section 15 - Inheritance to an estate never remains in abeyance - The dispute regarding intestacy does not change the law of succession and inheritance. (Para 137)

       (s) Right of Pre-emption - A right to claim pre-emption is not a right in the estate - It creates an interest in the property and not in succession - A Will is not a transfer for enforcement of a right of pre-emption under a contract - 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. (Paras 142 and 143)

       (1986) 2 SCC 249; AIR 1954 SC 417 - Relied upon

       (1991) 2 SCC 128 - Distinguished

       (t) Indian Succession Act, 1925 - Section 2(c) - BKB s claim of having caveatable interest as an executor appointed to fill up vacancy created by death of MPB - An executor has to survive the testator and has to accept the office as an executor expressly or by conduct - MPB predeceased PDB so he never became an executor, therefore the question of filling up of any vacancy would not arise. (Paras 151 and 160)

       (1899)1 LR.Ch.D. 775; ER (1 HAGG. ECC) 569; (1 SW&TR-18) 609 - Relied upon

       AIR 1928 Cal. 275; AIR 1960 AP 273; AIR 1959 Pat 585; AIR 1971 Mysore 143; AIR 1946 Cal. 40 - Noticed

       (u) Indian Succession Act, 1925 - Section 242 - Appellants neither being legatees nor beneficiaries under the Will but only executors, are not entitled to lodge a caveat. (Para 163)

       (v) Section 213(1) - 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. (Para 170)

       AIR 1962 SC 1471 - Relied upon

       (w) Code of Civil Procedure, 1908 - Section 92 - A suit contemplated under Section 92 cannot be equated with a probate - In a suit u/s 92 the title of the donor may be disputed but is a forbidden domain for the Probate Court. (Para 173)

       1959 SCR 1287 - Distinguished

       (x) Will - Why an owner of the property executes a Will in favour of anybody 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 only concerned with the genuineness of the Will - If it is found to be valid, all further question as to why did she do so would be completely out of its domain. (Para 176)

       Facts of the case:

       1. 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.

       2. 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).

       3. 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.

       4. PDB died on 3rd July, 2004.

       5. 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.

       6. 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.

       7. On or about 19th July, 2004 the first respondent, RSL filed an application for grant of probate of 1999 Will 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.

       8. Smt. Radha Devi Mohatta also entered a caveat on 22nd July, 2004.

       9. First respondent took out an application 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.

       10. The executors of the 1982 Wills filed two applications 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.

       11. 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.

       12. A learned Single Judge of the High Court allowed the application of discharge of the caveats filed by KKB, BKB and YB. However, the caveat filed by GPB was retained. Application for discharge of caveat of RSL was also dismissed.

       13. Appeals were filed 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.

       Findings of the Court:

        Appellants neither being legatees nor beneficiaries under the Will but only executors, are not entitled to lodge a caveat.

       Result:

        Civil Appeal arising out of SLP (C) No. 10176 of 2007 filed by RSL challenging appointment of YB allowed and all other appeals dismissed with costs.