IMPORTANT POINT
Affidavit though not doubting execution of another Will but doubting it to be the last Will fulfills the requirement of caveat.

JUDGMENT

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 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 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 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