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2017 Supreme(Cal) 406
IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
NISHITA MHATRE, TAPABRATA CHAKRABORTY, JJ.
Priyamvada Devi Birla, deceased & Others – Appellant
Versus
Ajay Kumar Newar & Others – Respondent
A.P.O. Nos. 242, 243, 244 of 2011 & T.S. No. 6 of 2004 (Original Side)
Decided On :28-04-2017
For the Appearing Parties:Anindya Kumar Mitra, Pratap Chatterjee, Malay Kumar Ghosh, Abhrajit Mitra, Samaraditya Pal, Hirak Mitra, S. P. Sarkar, Senior Advocates, Debanjan Mandal, Sanjiv Kumar Trivedi, Jishnu Chowdhury, Soumya Ray Chowdhury, Sarvapriya Mukherjee, Satadeep Bhattacharya, Aritra Basu, Vineeta Meharia, Suchismita Ghosh, Malay Seal, Pradip Kr. Khaitan, D.N. Sharma, Krisnananda Mukherjee, Advocates.
The main legal point established in the judgment is the recognition of the rights of executors to contest the will and the dismissal of frivolous appeals aimed at delaying the proceedings.
Headnote:
Wills - Testamentary Proceedings - [MUTUAL WILLS, EXECUTORS, PROBATE, CAVEATS, TESTAMENTARY SUIT] - The court discussed the validity of mutual wills, the rights of executors, probate proceedings, and the admissibility of caveats in testamentary suits. The court recognized the rights of the executors to contest the will and dismissed frivolous appeals aimed at delaying the proceedings.
Fact of the Case:
The case involved the execution of mutual wills, probate proceedings, and the admissibility of caveats in testamentary suits. The appellants contested the right of certain parties to participate in the testamentary proceedings.
Finding of the Court:
The court found that the appellants' appeals were frivolous and aimed at delaying the proceedings. It recognized the rights of the executors to contest the will and dismissed the appeals and cross-objections.
Issues: The main issues included the admissibility of caveats, the rights of executors in testamentary suits, and the abuse of the legal process by the appellants.
Ratio Decidendi: The court held that the rights of the executors to contest the will were recognized and that the appeals were frivolous and aimed at delaying the proceedings.
Final Decision: The appeals and cross-objections were dismissed, and the court recognized the rights of the executors to contest the will.
NISHITA MHATRE, J.
1. These appeals are directed against the judgment and Order passed on 21st April, 2011 in G.A. No. 2444 of 2010, G.A. No. 2525 of 2010, G.A. No. 2909 of 2010 and G.A. No. 2911 of 2011. Since common questions of fact and law are involved in these appeals, they have been heard together.
2. The facts relating to these appeals are as follows:
Mutual Wills were executed on 13th July, 1982 by Madhav Prasad Birla (hereinafter referred to as the MPB) and his wife, Priyamvada Devi Birla (hereinafter referred to as the PDB). Each of them nominated four executors of their respective Wills, one of whom was the spouse. Two executors, Kashinath Tapuria and Pradip Khaitan, were common in both the Wills. MPB nominated Krishna Kumar Birla as the fourth executor while PDB nominated Ganga Prasad Birla.
3. MPB died on 30th July, 1990.
4. The appellants contend that on 18th April, 1999 PDB executed another Will which was registered. The executor and beneficiary of that Will was one Rajendra Singh Lodha. A Codicil was executed by PDB on 15th April, 2003. A year later, on 3rd July, 2004 PDB expired. On 12th July, 2004, the heirs of PDB learnt about the new Will executed by her on 18th April, 1999. Caveats were filed by Laxmi Devi Newar and Radha Devi Mohatta, the sisters of MPB. Caveats were also filed by Ganga Prasad Birla (GPB), Yashovardhan Birla, Krishna Kumar Birla (KKB) and Basant Kumar Birla. A probate petition was filed by Lodha on 19th July, 2004 being P.L.A. No. 204 of 2004 for grant of probate of the last Will and testament of PDB i.e. 18th April, 1999.
5. It appears that probate petitions were filed on 17th August 2004 in respect of the mutual Wills of 1982 of MPB as well as of PDB being P.L.A. No. 241 of 2004 and P.L.A. No. 242 and 2004, respectively, by the executors, Kashi Nath Tapuriah and Pradip Kumar Khaitan. On 18th August, 2004 Tapuriah affirmed two petitions on behalf of, Krishna Kumar Birla, Ganga Prasad Birla and Pradip Kumar Khaitan in the probate proceedings of the mutual Wills of 18th July, 1982 for leave to accept the petitions with a notarised copy of the Wills. By an order passed on 11th March, 2005 reported in AIR 2006 Cal 6 the caveats filed by Basant Kumar Birla, Krishna Kumar Birla and Yashovardhan Birla were discharged. The caveat of Ganga Prasad Birla was retained as he was one of the executors of the Will of PDB dated 13th July, 1982. Appeals were preferred by Krishna Kumar Birla, Basant Kumar Birla and Yashovardhan Birla against the judgment and Order dated 11th March, 2005. The appeals against this judgment and Order were dismissed by the Division Bench of this Court on 21st September, 2006 and the order discharging the caveats was affirmed. Appeals preferred by the aggrieved persons before the Supreme Court met with the same fate. However the Civil Appeal filed by Lodha challenging the appointment of Yashovardhan Birla as an executor of the Will of MPB of 1982 in place of PDB after her death was allowed. The decision of the Supreme Court dated 31st March, 2008 is reported in Krishna Kumar Birla Vs. Rajendra Singh Lodha and Ors. [(2008) 4 SCC 300].
6. By an Order dated 9th September, 2004, P.L.A. No. 204 of 2004 filed by Lodha being a contentious cause was converted into a Testamentary Suit (TS No. 6 of 2004).
7. Tapuriah and Khaitan jointly filed an application for being added as parties to the Testamentary Suit being G.A. No. 1960 of 2005. This application was opposed by Lodha.
8. Lodha expired on 3rd October, 2008. His heirs filed an application for converting the probate petition in respect of the Will of 1999 executed by PDB into one for a petition for grant of Letters of Administration with Will annexed being G.A. No. 3434 of 2008.
9. Tapuriah filed G.A. No. 3867 of 2008 in the Testamentary Suit for leave to intervene and for appointment of Administrator pendente lite. The application filed by Tapuriah and Khaitan for being added as a party to the Testamentary Suit being G.A. No. 1960 o
