IMPORTANT POINT
Rule 30 of the Original Side Rules of Calcutta High Court does not require the court to record specific findings in respect of preliminary issue.

JUDGMENT

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.

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 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 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