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IN THE HIGH COURT AT CALCUTTA
Kalyan Jyoti Sengupta, J.
In the Good of Priyyanvada Devi Birla (Since Deceased) R. S. Lodha
vs.
Laxmi Devi Newar
G. A. No. 1960 of 2005; P.L.A. No. 204 of 2004; T. S. No.6 of 2004
Decided On: February 12, 2010
TESTAMENTARY SUIT - ADDITION OF PARTY - CAVEAT - CAVEATABLE INTEREST - EXECUTOR - RIGHT TO CONTEST GRANT - INCHOATE RIGHT - SECTION 311, 312 OF INDIAN SUCCESSION ACT, 1925 - RULES 24, 25, 26, 27 AND 28 OF CHAPTER XXXV OF THE ORIGINAL SIDE RULES OF THE CALCUTTA HIGH COURT.
Fact of the Case:
Kashinath Tapuriah, one of the co-executors of a rival prior will executed by the deceased lady Priyamvada Devi Birla, sought to be added as a party defendant in a testamentary suit challenging the grant of probate to a subsequent will. The applicant claimed that he had a caveatable interest and should be allowed to contest the grant.
Finding of the Court:
The court held that the applicant's application for addition of party should not be allowed as he had failed to lodge a caveat or file an affidavit in support of caveat within the time stipulated in the Original Side Rules. The court further held that the applicant's right to join in the proceeding was an inchoate one and that he could only come in if the co-executor, Ganga Prasad Birla, who was already contesting the grant, was no longer willing or able to do so.
Issues: 1. Whether the applicant had a caveatable interest to contest the grant of probate. 2. Whether the applicant had lost his chance to establish his right to contest the grant by failing to lodge a caveat or file an affidavit in support of caveat. 3. Whether the applicant's right to join in the proceeding was an inchoate one.
Ratio Decidendi: 1. A person has to lodge a caveat disclosing his interest which is commonly known as caveatable interest and if the caveat is not discharged caveator is allowed to file affidavit in support of caveat. 2. The applicant had lost his chance to establish his right to contest the grant as he neither lodged caveat nor filed affidavit in support of caveat. 3. The applicant's right to join in the proceeding was an inchoate one as long as the co-executor, Ganga Prasad Birla, was contesting the grant.
Final Decision: The court refused the applicant's prayer for addition of party at that stage, but allowed him to watch the proceedings and make a fresh application if Ganga Prasad Birla was no longer willing or able to contest the grant.
K. J. Sengupta, J.: The above application was originally taken out by one Kashinath Tapuriah and one Pradip Kumar Khaitan for adding themselves as party defendants to the aforesaid testamentary suit. Subsequently by an order dated 20th February, 2009 on the prayer of Pradip Kumar Khaitan his name was deleted, as he did not wish to proceed with this application. Hence the present application was pressed by Kashinath Tapuriah alone on the ground that he is one of the co-executors to a rival prior will dated 13th July, 1982 said to have been executed by the aforesaid lady Priyamvada Devi Birla, since deceased (hereinafter referred to as the deceased lady). It is the contention that one Ganga Prasad Birla who was also appointed co-executor by the deceased lady in the said instrument dated 13th July, 1982 lodged caveat to contest the grant of the last testamentary instrument said to have been executed by the said deceased lady dated 18th April, 1999 and the caveat lodged by Ganga Prasad Birla sustained by the learned Single Judge of this Court, thereafter by the Division Bench of this Court and ultimately by the Hon'ble Supreme Court. In the judgment of the learned Single Judge as affirmed by both the aforesaid Courts, it was held that Ganga Prasad Birla who is one of the co-executors has caveat able interest and as such he was allowed to file affidavit in support of caveat. Thereafter the aforesaid suit was set down as contentious cause and marked as the testamentary suit as above. It is the claim of the applicant that his right, title and interest is exactly the same as that of the said Ganga Prasad Birla, under such circumstances he went to department to lodge caveat, however the same was refused to be accepted by the department in view of said application for grant of probate having been set down for contentious hearing.
2. This application is opposed by filing affidavit by the plaintiff namely Rajendra Singh Lodha (since deceased) contending that this application is misconceived and harassing. He cannot come forward at this stage to join as a party defendant as he did not lodge caveat in spite of citation being issued within the time stipulated in the Chapter XXXV of Original Side Rules. According to him that once, the suit is set down for contentious cause caveat cannot be allowed to be lodged. Moreover it is also said that he is claiming adverse interest to the estate of the said deceased lady. He could have come to lodge caveat at early stage and he has chosen not to seize this opportunity.
3. Mrs. Nalini Chidamvaram learned Senior Counsel appearing in support of this application submits that when Ganga Prasad Birla who is one of the co-executors and is in the same footing with that of the present applicant has been treated to be defendant in the present suit, he is also having caveatable interest to contest the grant hence he should be allowed to be added as a party as a matter of course. He is one of the co-executors and his right is emanating from the earlier mutual Will of the said deceased lady. She further submits that apart from his testamentary right and title in the estate of the said deceased lady her client is also the heirs from the side of the parents of the said deceased lady as her assets namely ornaments, jewelleries and other estate which she had acquired from her parents would revert back to her parents' heirs and legal representatives and he being one of the heirs and legal representatives of her parents is also entitled to contest the grant. This intestacy right was not claimed in the present petition and it is brought for the first time in written additional argument. Therefore, at the outset I reject this contention as it is essentially fact which was not pleaded and the plaintiff did not have the chance to counter the same. Consequently, I would consider what is stated in the petition earlier namely his testamentary right and interest.
4. Mr. Anindya Kumar Mitra learned Senior Counsel submits tha
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