A person can lodge a caveat on the basis of an alleged claim of an earlier Will without applying for Probate of the earlier Will, if he can show prima facie existence of the Will.

BHASKAR BHATTACHARYA, J. :- This appeal was heard along with a cross-objection filed by the respondent and those arise out of an application for grant of Probate in which the learned Single Judge by the order impugned has refused to discharge the caveat lodged by the respondent.

2. It appears from the record that the appellant, the propounder of the Will, allegedly executed by one Jagdish Prasad Tulshan, happens 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 alleged to have been executed by Jagdish. In such proceedings, the respondent, namely, Yasheel Jain, who is the son of a predeceased sister of the testator, lodged a caveat claiming that he had interest in the estate of the deceased on twofold grounds. First, he was the nephew of the testator and secondly, he was the sole beneficiary under an alleged prior Will executed by the testator in respect of the selfsame estate.

3. The learned single Judge by the order impugned in this appeal has turned down the objection raised by the propounder on the ground that the caveat filed by the respondent could not be discarded, as he was also an heir. According to the learned single Judge, the respondent had undisputedly no right as an heir so long the propounder was alive but that did not mean that Yasheel had no right at all. According to the learned single Judge, the object of the provision incorporating the right to file a caveat is that the person who wanted to lodge caveat should not be a rank-outsider and Yasheel being not an outsider but an heir, the caveat filed by him cannot be discharged. The learned single Judge further observed that the span of life was uncertain, God forbade, if anything happened to the propounder even subsequently, the objection taken by her would cease to exist.

4. The learned single Judge, however, did not discuss anything about the alleged claim of Yasheel by virtue of an earlier Will.

5. Yasheel has filed a cross-objection against the aforesaid order complaining that apart from the reason assigned by the learned single Judge, His Lordship ought to have also held that being armed with an earlier Will conferring absolute benefit in the estate, he was entitled to lodge a caveat.

6. We have heard the appeal and the cross-objection together.

7. Mr. Mitra, the learned advocate appearing on behalf of the appellant, has vehemently contended before us that the learned single Judge erred in law in holding that Yasheel is an heir. According to Mr. Mitra, his client being he sole sister alive at the time of death of the testator, was the sole heir according to the Hindu Succession Act. According to Mr. Mitra, the testator being a childless divorcee, his client is the natural heir and the mother of Yasheel, another sister, being dead at the time of death of the testator, he cannot, by any stretch of imagination, contend that he was also an heir; moreover, even if the propounder dies today, Mr. Mitra proceeds, the estate left by the testator in case of intestacy will devolve upon the heirs of the propounder and not on the respondent.

8. As regards the claim of the respondent that the testator executed an earlier Will in his favour, Mr. Mitra contends that so long any application for Probate is not filed by the respondent asserting the right under the said earlier Will, on the ground of existence of such a Will, the respondent cannot acquire any caveatable interest. Mr. Mitra contends that if a person wants to lodge a caveat on the basis of right accrued in his favour through an earlier Will, he must be prepared to apply for Probate or Letters of Administration of such Will and in that case, both the proceedings should be decided together. Mr. Mitra, therefore, prays for setting aside the order passed by the learned single Judge.

9. Mr. Sarkar, the learned senior advocate appearing on behalf of the respondent, on the other hand, supports the order impugned herein not only on the ground assig