REPORTABLE IN THE SUPRME COURT OF INDIA

CIVIL APPELALTE JURISIDCTION

CIVIL APPEAL NO. _2277  OF 2008 (Arising out of SLP (C) NO. 2089 OF 2007)

Krishna Kumar Birla      .... Appellant

Versus

Rajendra Singh Lodha and others      … Respondents

WITH

CIVIL APPEAL NOS. 2275,2279,2276,2274,2278 OF 2007 (Arising out of SLP (C) NOS. 10176, 10571, 19040, 2090

AND 2091 OF 2007)

S.B. SINHA, J.   

1. Leave granted.  

INTRODUCTION

2. What  is  a  caveatable  interest  within  the  meaning  of  the  Indian

Succession Act, 1925 (1925 Act) vis-a-vis the Rules framed by the Calcutta

High Court in the year 1940 is the question involved herein.   

BACKGROUND FACTS

3. Smt. Priyamvada Devi Birla (PDB) and her husband Madhav Prasad

Birla  (MPB)  were  admittedly  very  wealthy  persons.   They  owned  an

industrial empire known as the MP Birla Group of Industries.  They were

issueless  and  known  for  their  charitable  disposition.   They  used  to  run

several charitable institutions.   

4. Both  MPB  and  PDB  are  said  to  have  executed  mutual  wills  on

identical terms on or about 10th May, 1981 bequeathing his/her respective

estate(s) barring certain specific legacies to the other and on the death of the

survivor to the ‘charities’ to be nominated by the executors. However, the

said wills were revoked and another set of mutual wills were executed on

13th July, 1982 in terms whereof, four executors were appointed in each set

of Will (1982 Will).   

The executors nominated in MPB’s Will were :-

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1. Smt. Priyamvada Devi Birla (PDB)      

2. Krishna Kumar Birla (KKB)

3. Kashinath Tapuria and

4. Pradip Kumar Khaitan ;  

Whereas the executors nominated in PDB’s  will were :-

1. Madhav Prasad Birla (MPB)

2. Ganga Prasad Birla  (GPB)

3. Kashinath Tapuria

4. Pradip Kumar Khaitan

5. MPB died on 30th July, 1990.

6. On or about 18th April, 1999, PDB executed her last Will (1999 Will)

bequeathing  her  entire  estate  to  the first  respondent  i.e.   Rajendra  Singh

Lodha (RSL).  He was also appointed as the sole executor.  She executed a

codicil on 15th April, 2003.   

7. PDB died on 3rd July, 2004.   

PROCEEDINGS BEFORE THE HIGH COURT

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8. KKB,  BKB,  and  Yashovardhan  Birla  (YB),  the  appellants  herein,

having come to learn of the execution of the said Will filed caveats on 14th

July, 2004  to oppose the grant of probate of the 1999 Will.  Ganga Prasad

Birla (GPB) and Smt. Laxmi Devi Newar also entered caveats on 19th July,

2004.   

9. In his application for grant of probate, GPB accepted that Smt. Laxmi

Devi  Newar  and  Smt.  Radha  Devi  Mohatta were  the  heirs  and  legal

representatives of PDB.  In the said application, Pradip Kumar Khaitan and

Kashinath Tapuria were also parties.

10. On  or  about  19th July,  2004  the  first  respondent,  RSL  filed  an

application  for  grant  of  probate  of  1999  Will  (P.L.A.  No.  204  of  2004)

before the High Court  of Calcutta showing Smt. Laxmi Devi Newar and

Smt. Radha Devi Mohatta, the two sisters of MPB, as the only heirs and

legal representatives of the testatrix.    

11. Smt. Radha Devi Mohatta also entered a caveat on 22nd July, 2004.   

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12. First  respondent  took out  an application which was marked as GA

No.2721 of 2004 seeking discharge of caveats entered by or on behalf of

KKB, BKB, GPB and YB before the High Court of Calcutta.  Appellants as

also Smt. Laxmi Devi Newar filed their respective affidavits in support of

the respective caveats filed on 30th July, 2004.  An affidavit in support of

her caveat was also filed by Smt. Radha Devi Mohatta.         

13. The executors of the 1982 Wills filed two applications being P.L.A.

No. 241 of 2004 for grant of probate of the Will of MPB dated 13th July,

1982 and P.L.A. No. 242 of 2004 for grant of probate of the Will of PDB

dated 13th July, 1982 before the Calcutta High Court on 17th August, 2004

purported to  have been executed  by MPB and PDB, indisputably on  the

premise  that  even  if  the  probate  of  the  1999  Will  executed  by  PDB is

granted in favour of the first respondent, he would be under an obligation to

abide by the directions contained in the purported mutual Wills.

14.  A suit was filed by the surviving executors of the two 1982 Wills

before  the  Calcutta  High  Court  which  was  numbered  as  C.S.  No.221  of

2004 claiming inter  alia for a declaration that  the first  respondent  as  the

alleged  executor  and  sole  beneficiary  of  the  1999  Will  of  PDB  is  not

entitled  to  deal  with  the  assets  of  PDB in  any  manner  contrary  to  and

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inconsistent with the terms of the 1982 Will.  The cause of action for the

said suit was founded on the doctrine of mutual Wills.  

15. Two deeds of appointments dated 23rd August, 2004 and 24th August,

2004 were also executed appointing YB and BKB as surviving executors of

the  Wills  of  MPB  and  PDB  (1982  Wills)  in  place  of  PDB  and  MPB

respectively.  Whereas appointment of YB was accepted; that of BKB was

not.   

16. An  application  (G.A.  No.  2721  of  2004)  was  filed  by  the  first

respondent to discharge the caveators viz. KKB, BKB, GPB and YB before

the Calcutta High Court.    

HIGH COURT JUDGMENTS

17. A  learned  Single  Judge  of  the  High  Court  allowed  the  said

application  of  discharge  of  the  caveats  filed  by  KKB,  BKB  and  YB.

However, the caveat filed by GPB was retained.  It may be placed on record

that the first respondent, RSL, also entered into a caveat in the proceedings

arising out of an application for grant of probate of 1982 Wills.  Application

for discharge of caveat of RSL was also dismissed.   

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18. Appeals  were  filed  under  clause  15  of  the  Letters  Patent  of  the

Calcutta High Court before the Division Bench of the Calcutta High Court

thereagainst.  Cross-objections were filed by RSL in the said appeal against

retaining the caveat filed by KKB, BKB and YB as also the appointment of

YB as the executor of MPB.  The appeals as also the cross-objections have

been dismissed by the Division Bench of the Calcutta High Court by reason

of the judgment impugned herein.

PROCEEDINGS BEFORE US.  

19. We may, at  the  outset,  notice  the details  of  the  SLPs filed  by the

parties herein :-

1. SLP (Civil) No.2089 of 2007 has been filed by Krishna Kumar

Birla  (KKB) against  the  order  of  discharge  of  his  caveat  in

P.L.A. No.204 of 2004.

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2. SLP (Civil) No. 2090 of 2007 has been filed by Basant Kumar

Birla  (BKB)  against  the  order  of  discharge  of  his  caveat  in

P.L.A. No.204 of 2004.

3. SLP (Civil) No. 2091 of 2007 has been filed by Yashovardhan

Birla  (YB)  against  the  order  of  discharge  of  his  caveat  in

P.L.A. No. 204 of 2004.

4. SLP (Civil)  No.  10571  of  2007  has  been  filed  by  Rajendra

Singh Lodha (RSL) against the refusal of order of discharge of

caveat filed by Ganga Prasad Birla (GPB) in P.L.A. No. 204 of

2004.   

5. SLP  (Civil)  No.  19040  of  2007  has  been  filed  by  Krishna

Kumar  Birla   (KKB)  against  non-discharge  of  caveat  of

Rajendra Singh Lodha in the goods of MPB.

6. SLP (Civil)  No.  10176  of  2007  has  been  filed  by  Rajendra

Singh Lodha (RSL) challenging appointment of Yashovardhan

Birla (YB) as an executor of the Will of Madhav Prasad Birla

of 1982 in place of Priyamvada Devi Birla (PDB).

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FAMILY OF BIRLAS

20. Before embarking on the questions raised in these appeals we may

notice the genealogy of the family of the testatrix -

GENEALOGICAL TABLE

21. Krishna Kumar (KKB) and Basant Kumar (BKB) are the cousins of

Madhav Prasad (MPB);  whereas Yashovardhan (YB) is  the grand son of

sister of MPB.  

22. It is stated that PDB was also related to KKB through his wife.  

23. Relationship between the parties is not in dispute.  It is also not in

dispute that MPB left behind two sisters Smt. Laxmi Devi Newar and Smt.

Radha  Devi  Mohatta,  who  are  his  as  also  PDB’s  heirs  and  legal

representatives.

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Raja Baldeodas Birla  (D)

Jugalkishor (D) Rameshwardas (D) Ghanshyamdas (D) Brajmohan (D)

Gajanand (D) Madhav Prasad (D)

Ashok Vardhan (D)

Yashovardhan

Lakshmi Niwas (D) Krishna Kumar Basant Kumar Ganga Prasad

Chandra KantAditya Vikram (D)

Kumar Mangalam

Sudarshan

Sidharth Kumar

Vedant Nirvan Aryaman Vikram

STATUTORY PROVISIONS

24. Provisions relating to grant of ‘Probate’ is contained in Chapter IV of

the 1925 Act.  

25. Section 283 of the 1925 Act enumerates the powers of the District

Judge.  Section 283(1)(c) of the 1925 Act confers power upon the District

Judge  to  issue  citations  calling  upon  all  persons  claiming  to  have  any

interest in the estate of the deceased to come and see the proceedings before

the grant  of  ‘Probate’  or  ‘Letters  of Administration’.   Sub-section (2)  of

Section  283  postulates  that  the  citation  shall  be  fixed  up  in  some

conspicuous part of the court-house, and also the other spaces as specified

therein.  Section 284 of 1925 Act provides for the lodging of caveats against

grant of Probate or Letter of Administration with a copy of the Will annexed

with a District Judge or a District Delegate.   

26. The form in which caveat is entered has been prescribed in Schedule

V appended to the Act,  is to the following effect :-

“SCHEDULE  

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     [ See section 284 (4) ]  

       FORM OF CAVEAT

Let nothing be done in the matter of the estate of A, B,, late of ________ deceased, who died on the day of ____ at _____ without notice to C.D. of ___________”

27. The Calcutta High Court framed rules laying down the procedure for

dealing with the applications filed before it in its testamentary and intestate

jurisdiction.   

28. It  is  contained  in  Chapter  XXXV  thereof.   Rule  4  provides  for

“Application for probate or letters of administration, or a certificate”. Rule 5

(a) inserted in the year 1948 provides that in all applications for grant of

Probate or Letters of Administration with the Will annexed, the names of

the members of the family or other relatives upon whom the estate would

have devolved in case of an intestacy together with their present place of

residence shall be stated.  Rule 24 provides for filing of caveat on the same

terms as contained in Section 284 of the 1925 Act.  Rule 25 provides for

“Affidavit in support of the caveat” in the following terms :-

“25. Affidavit in support of caveat. – Where  a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the

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will annexed, the affidavit or affidavits in support shall be  filed  within  eight  days  of  the caveat  being  lodged, notwithstanding the long vacation.  Such affidavit shall state the right and interest of caveator, and the grounds of the objections to the application.”  (emphasis added).

29. Rule 26 provides for “Notice to caveator to file affidavit”.  It reads as

under:--  

“26. Notice  to  caveator  to  file  affidavit.  –  Where  an application  for  grant  of  probate  or  letters  of administration  with  or  without  the  will  annexed  is presented  after  a  caveat  has  been  filed,,  the  Registrar shall forthwith issue notice to the caveator, calling upon him to  file  his  affidavit  or  affidavits  in  support  of  his caveat within eight days from the service of such notice.”

30. Rule 27 provides for the “Consequence of not filing the affidavit”.

Rule 28 provides that upon the affidavit being filed in support of the caveat

(Notice  whereof  shall  immediately  be  given  by  the  caveator  to  the

petitioner), the proceedings shall, by order of the Judge upon application by

summons be numbered as a suit in which the petitioner for probate or letters

of  administration  shall  be  the  plaintiff  and  the  caveator  shall  be  the

defendant,  the  petition  for  probate  or  letters  of  administration  being

registered and deemed as a plaint filed against the caveator, and the affidavit

filed by the caveator being treated as his written statement in the suit.  

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31. Rule 29 provides for service of “Notice to prove will in solemn form”

in the following terms :-

“29. Notice to prove will in solemn form, - The party opposing a will may, with his affidavit, give notice to the party setting up the will that he merely insists upon the will  being  proved  in  solemn  form  of  law,  and  only intends  to  cross-examine  the  witnesses  produced  in support of the will, and he shall thereupon be at liberty to do so, and shall  not, in any event, be liable to pay the costs  of  the  other  side,  unless  the  Court  shall  be  of opinion  that  there  was  no  reasonable  ground  for opposing the will.”  

32. Rule 30 provides for “Trial of preliminary issue” as under :-

“30. Trial of preliminary issue. – The Court may, on the application of the petitioner by summons to the caveator before making the order mentioned in rule 28, direct the trial of an issue as to the caveator’s interest.  Whereupon the trial of such issue, if it appears that the caveator has no  interest,  the  Court  shall  order  the  caveat  to  be discharged, and may order the issue of probate or letters of administration, as the case may be.”

33. We may also take note of Section 73 of the Indian Trusts Act, 1882,

which reads as under :-  

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“Section 73 - Appointment of new trustees on death, etc. Whenever any person appointed a trustee disclaims,  of any trustee, either original or substituted, dies, or is for a continuous  period  of  six  months  absent  from India,  or leaves  India  for  the  purpose  of  residing  abroad,  or  is declared an insolvent,  or desires to be discharged from the  trust,  or  refuses  or  becomes,  in  the  opinion  of  a principal  civil  court  of  original  jurisdiction,  unfit  or personally  incapable  to  act  in  the  trust,  or  accepts  an inconsistent trust, a new trustee may be appointed in his place by--

(a)  the  person  nominated  for  that  purpose  by  the instrument of trust (if any), or

(b) if there be no such person, or no such person able and willing to act, the author of the trust if he be alive and  competent  to  contract,  or  the  surviving  or continuing trustees  or  trustee for  the time being,  or legal  representative  of  the  last  surviving  and continuing trustee, or (with the consent of the court) the retiring trustees, if they all retire simultaneously, or (with the like consent) the last retiring trustee.

Every such appointment  shall  be  by writing  under  the hand of the person making it.

On  an  appointment  of  a  new  trustee  the  number  of trustees may be increased.

The Official  Trustee may, with  his consent  and by the order of the court, be appointed under this section, in any case in  which  only one trustee is  to  be  appointed  and such trustee is to be the sole trustee.

The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will but dying before the testator, and those relative to a

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continuing trustee include a refusing or retiring trustee if willing to act in the execution of the power.”

SUBMISSION :

34. Mr. Ram Jethmalani, the learned senior counsel appearing on behalf

of the Appellant, KKB would submit  

(i) A  caveat  being  maintainable  at  the  instance  of  common

ancestors  and  near  relatives  of  the  testator,  the  impugned

judgment discharging the caveat is wholly unsustainable.

(ii) Appellant being an executor of the 1982 Will executed by the

husband of PDB namely MPB, has a caveatable interest.  

(iii) Both the learned Single Judge and the Division Bench of the

High Court although recognized such a right, but, committed a

serious  error  in  opining  that  the  same does  not  constitute  a

caveatable  interest  without  considering  the  legal  position,

namely, that the caveaters had  obligations to see that the will

of  MPB be made effective in letter  and spirit  so that  all  the

bequeathed  properties  are  applied  towards  charitable

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disposition,  particularly when a suit  for the said purpose has

been filed.

(iv) The  High  Court  committed  a  manifest  error  in  ignoring  the

effect  of  the suit  despite  holding  that  if  the suit  succeeds,  a

caveatable interest would accrue to them.  

(v) Appellants having a two fold duty to see that RSL,  (1) in the

event the probate is granted, applies the estate of the deceased

subject to charitable disposition; and (2) that he will not take it

as his absolute properties; the same thus gave rise to a right and

interest under and through which a caveat could be maintained

by them.   

(vi) The caveators,  being co-sharers  of  the  testatrix  in  respect  of

Kumaon  Orchards  wherefor  an  agreement  had  been  entered

into on 15th July, 1997 conferring a right of pre-emption against

any co-sharer,  must be held to have sufficient  interest  in  the

estate.

(vii) As the properties were to be applied for charitable disposition,

Section 92 of the Code of Civil Procedure would be attracted in

terms whereof interest must be shown to be exiting in relation

to the trust  and not  the trust  property.  Our attention in  this

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behalf  has  been  drawn  to  the  fact  that  the  words  “direct

interest”  occurring  therein  were  substituted  by  the  word

“interest” only.    

(viii) Rule 30 of the Calcutta High Court Rules is ultra vires Section

295  of  the  1925  Act  in  so  far  as  it  lays  down  a  purported

qualification  for  entering  into  a  caveat,  although  no  such

requirement is provided thereunder.   

(ix) As the judicial precedent prior to 1925 would apply even in the

post-1925 era, the High Court should have proceeded on the

basis that the qualifications which are necessary for the purpose

of  having  a  caveatable  interest  would  be  the  same even  for

revocation.

(x) The resultant trust involved in execution of mutual Wills must

be construed having regard to the surrounding circumstances,

as in  all  such cases the  person making the latter Will  was a

party to the earlier one.  As the testatrix in this case purportedly

has gone back on her agreement and the case of the appellant

being that she never changed her mind as she did not execute

the 1999 Will, the right of the appellants had a right to enter a

caveat in the probate proceedings.

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(xi) In the proceeding for grant of the Probate of the 1982 Will of

MPB, RSL  did not have any caveatable interest as he has no

interest in his property.   

35. Mr.  K.K.  Venugopal,  learned  senior  counsel  appearing  for  BKB,

supplementing the argument of Mr. Jethmalani submitted :

(i) The High Court has committed a serious error in holding that

the appointment of BKB in place of MPB in his Will could not

have been filled up as he expired during the life time of PDB.  

(ii) In view of the contention of the appellants that the 1999 Will is

a bogus one, the vacancy could be filled up in equity.   

(ii) BKB having a special interest in the charitable disposition of

the  properties  of  PDB has,  a  caveatable  interest  in  terms of

Section 232 of the 1925 Act.

(iii) As by reason of the agreement dated 15th July, 1997, the parties

agreed  that  a  stranger  to  the  family  should  not  enjoy  any

property, there being a clog on the right to sell the same, the

same must be held to be applicable also in a case of gift or will.

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(iv) Appellants being the cousins and, thus, being interested in the

spiritual  wellbeing  of  the  trustee,  were  also  entitled  to  enter

their respective caveats.

(v) Since the extent of right of a person for lodging a caveat had

not been laid down under a statute, the decisions rendered from

time immemorial holding that only a bare right (which would

also mean a bare contention, i.e., which would give rise to an

arguable point at the hearing constitutes a caveatable interest)

should be held to be still a good law.  

(vi) Section 283(1)(c) of the 1925 Act should not be treated to be

the sole repository for the purpose of determining the right of a

caveator.  The interpretation of the word “caveat”, if given its

natural meaning, the same would mean a right to oppose.

36. Mr. Arun Jaitley, learned senior counsel appearing on behalf of YB

urged :-  

(i) YB  being  a  grandson  of  the  brother  of  MPB  and  his

appointment  as  the  executor  in  terms  of  the  deed  of

appointment dated 24th August, 2004 having been accepted, the

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High Court must be held to have committed a manifest error in

holding that he had not acquired a caveatable interest.  

(ii) YB being a party to the suit could oppose execution of the Will

having regard  to  the fact  that  he  has  shown existence  of  an

interest  in  all  the  three  sets  of  proceedings,  viz,  grant  of

Probate of 1982 Wills, grant of Probate of 1999 Will and the

suit  filed  by the members  of  the Birla  family to  enforce the

agreement  of  MPB  and  PDB  in  terms  of  the  1982  Wills

executed by them.  

(iii) Determination of validity of the Wills being  interdependent,

inasmuch as, in the event probates are granted in respect of the

1982 Wills, then the 1999 Will could not be implemented; and

even in the event, probate in respect of  1999 Will is granted,

the suit can still be decreed so as to give effect to the mutual

wills.

(iv) YB had a  right  to  maintain  the  suit  on  the premise  that  the

properties  should  be  given  to  charity,  thus,  had  a  right  to

challenge the 1999 Will at the threshold.   

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(v) The  High  Court  committed  a  manifest  error  in  opining  that

caveatable interest would depend upon the decree to be passed

in the suit instead of a right to maintain the suit.   

(vi) In any view of the matter, when there exists two Wills, a person

who can challenge a rival will, will have a caveatable interest

in respect thereof.   

37. Mr. Harish N. Salve, learned senior counsel appearing on behalf of

RSL, on the other hand, would contend :

(a) A  caveatable  interest  having  regard  to  phraseology  used  in

Section 284 of the 1925 Act would mean a real interest which

the caveator could have derived in the estate of the deceased in

the event the grant of probate is refused.  

(b) In view of the provisions of Hindu Succession Act, 1956 that

there  being  no  possibility  of  any  person  other  than  heirs  to

derive  a  remote  interest  in  the  estate  of  the  deceased,  the

decisions  of  various  High  Courts  to  the  effect  that  the

reversioner  and/or  distant  relatives  would  have  a  caveatable

interest are no longer good law.  

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(c) A caveatable interest being different from the right of a person

to oppose grant of probate on the basis of title, the impugned

judgments should not be interfered with.   

(d) Consideration  in  regard  to  locus  standi  to  maintain  a  Public

Interest  Litigation or a suit  under Section 92 of the Code of

Civil Procedure is irrelevant for determination of issues arising

in a probate proceeding.  The said contention having not been

raised  in  the  affidavit  filed  by  any  of  the  appellants  herein

before the  High Court,  should  not  be permitted  to  be raised

before  this  Court  for  the first  time.   In  any event  by taking

recourse to the said provision,   the nature and character of a

probate proceeding cannot be changed.

(e) The claim of the appellants to have a caveatable interest in their

capacity  as  agnates  is  wholly  unsustainable  as  the  sisters  of

MPB are alive.  They do not have a caveatable interest even as

executors of the Will of MPB of 1982 or otherwise.  

(f) 1982  Will  of  MPB  is  not  affected  by  the  1999  Will,

particularly,  when  appellants  are  not  the  legatees  thereunder

and as such the question  of  surviving  executor  deriving any

interest in his place would not arise.  

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(g) An executor under a Will would not remain an executor upon

his ceasing to hold the said office or by a renouncement or his

removal  or  death,  but,  such  contingencies  having  not  taken

place, no purported vacancy had arisen, and thus, the question

of filling up the same does not arise.

(h) As  mutual  Wills  are  not  rival  Wills,  persons  claiming  as

executors  of the  Will  of MPB did not  derive any caveatable

interest, as they remained unaffected by subsequent Wills.

(i) In regard to the SLP filed by R.K. Lodha, for refusing him to

be impleaded as a party on the plea that he had no caveatable

interest, it was submitted that having regard to the contention

that  MPB  did  not  execute  any  Will,  he  should  have  been

impleaded as a party as representative of PDB.

(j) Reference to  Section 263 of  the 1925 Act  and the  decisions

rendered thereupon are wholly irrelevant as considerations for

applications  thereof  have  nothing  to  do  with  the  application

under Sections 283 and 284 thereof.     

38. Mr. Anindya Kumar Mitra, learned senior counsel appearing in some

of the matters for RSL urged:

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(i) The 1925 Act having retained the phraseologies used in

the  earlier  as  well  as  the  successor  Acts,  the  same

meaning to the words as was earlier operating, should be

assigned.

(ii) Rules of the Calcutta High Court, having been framed in

terms  of  Section  122  of  the  Code  of  Civil  Procedure,

1908, are valid in law.

(iii) Theory of mutual Wills do not stand in the way of grant

of probate of a later Will.

COMPARATIVE PROVISIONS OF THE 1881 ACT AND THE 1925 ACT

39. Grant of probate or Letters of Administration with a copy of the Will

annexed, used to be governed by the Probate and Administration Act, 1881

(for short “the 1881 Act”)  Rules were framed by the Calcutta High Court in

terms of the provisions thereof.   

40. We may briefly notice that Section 69 of the 1881 Act corresponds to

Section 283 of the 1925 Act.  Section 70 of the 1881 Act corresponds to

Sub-sections  (1),  (2)  and  (3)  of  Section  284  of  the  1925  Act,  whereas

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Section 71 of the 1881 Act corresponds to sub-section (4) of Section 284 of

1925 Act.   

41. The statement required to be made as envisaged in Schedule V of the

1925 Act was a part of Section 71 of the 1881 Act.  Section 72 of the 1881

Act corresponds to Section 285 and Sections 73 and 83 of the 1881 Act

correspond to Sections 286 and 295 of the 1925 Act.   

42. The validity of the Rules framed by the Calcutta High Court will have

to be considered having regard to the provisions of the 1881 Act.

We shall advert to the said question a little later.

THE WILLS

43. The Relevant terms of Will of MPB executed on 13th July, 1982 as

also those of the Will executed by PDB may be noticed at this juncture.

44. MPB by his Will  appointed four executors including his wife.  By

reason thereof, he bequeathed all his properties to his wife and only in the

event of his wife predeceasing him, the executors were to make over and/ or

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donate and/or settle for public charitable purposes the estate as they might

think fit and proper.

Clause 3 of the 1982 Will reads as under:

“3.  Subject  to the provisions  of Clause 2 above, the Executors will have power to donate the estate to one or more public charitable trusts, societies or institutions  and/  or  establish  one  or  more public charitable trusts, societies or institutions for public charitable objects as they may think fit.”

45. The Will purported to have been executed by PDB was on the same

terms except that one outsider executor named therein was different, which

we have noticed hereinbefore.   She also bequeathed her properties in favour

of MPB.  She, however, sought to bequeath all ornaments and jewelleries,

gold coins and articles to the three daughters of K.K. Birla absolutely in

equal proportion.  Clause 4 of the said Will is on similar basis to Clause 3 of

the Will of MPB.  

46. It is of some significance that Shri P.L. Agarwal and Shri S.J. Khaitan

are attesting witnesses to the said Wills.

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47. PDB executed the disputed Will on 18th April, 1999, in terms whereof

any  Will  made  prior  thereto  stood  cancelled.   In  the  said  Will,  she

categorically stated that she had been running several business concerns and

also managing  properties and institutions, bequeathed to her, in the true and

sincere spirit  of a trustee for the larger benefit  of the country and of the

interest of  shareholders and workers.   

48. She nominated the first  respondent as her legatee.  Except  the fact

that Shri P.L. Agarwal of Khaitan and Company is also an attesting witness,

it is not necessary for us to notice the other stipulations made therein.   

49. On or about 15th April, 2003, a Codicil was executed with a view to

avoid  any confusion  or  ambiguity  in  the  1999  Will.   By reason  thereof,

certain declarations were made and some directions were also issued to the

first respondent.

THE SUIT (CS NO. 221 OF 2004)

50. The suit was instituted by the purported three executors of both the

Wills.  Both the said Wills were said to have been made over to Kashinath

Tapuria;  one  of  the appointed  executors  thereunder.   He is  said  to  have

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produced the same only after the death of PDB.  It is stated that upon the

death of MPB on 30th July, 1990, PDB as a beneficiary of her husband’s

Will came to  possess, own and control his estate and, thus, had taken and

enjoyed the benefit under the said Will until her death on 3rd July, 2004.  

51. The averments in the plaint of the said suit proceeded on the basis

that the Will dated 18th April, 1999 and Codicil dated 15th April, 2003 were

not genuine.  It was contended that PDB had only a life interest in the estate

and, thus, she was incompetent to dispose of her own or the combined estate

by alienation  or  dissipation  in  a  manner  inconsistent  with  the  terms and

tenor of the mutual Wills.  The validity of the said Will was also questioned.

Paragraph 15 of the plaint reads as under:

“15.  Even on the footing that  the said  purported will dated 18th April 1999 is genuine and valid and had to  the  effect  of  revoking  the  earlier  will  of Smt. Priyamvada Devi Birla dated 13th July, 1982, the plaintiffs would contend that on her death, the defendant  as  alleged  executor  of  the  said purported  will  must  hold  the  estate  of  Smt. Priyamvada  Devi  Birla,  now  representing  the combined estates of Madhav Prasad Birla and Smt. Priyamvada  Devi  Birla,  in  trust  for  the  agreed ultimate  beneficiaries  of  the  mutual  wills  viz. charities which might be set up or nominated by the executors of the will  dated 13th July 1982 of Smt. Priyamvada Devi Birla.”

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52. According  to  the  plaintiffs,  they,  as  executors  of  the  said  Wills,

became entitled to take possession of the entire estate, make over, donate or

settle  the  same for  public  charitable  purposes  or  to  establish  any public

charitable trust at their absolute discretion.  A plea of constructive trust on

the basis of the said Wills was also raised.   

53. The defendant’s right of sole beneficiary of the said Will dated 18th

April, 1999 was questioned, stating:

“17.  The  defendant  as  alleged  executor  and  sole beneficiary of the said  purported will  dated 18th April, 1999 is not entitled to put any impediment to or interfere with the implementation of the said trust.”

54. The reliefs prayed for in the said suit inter alia are:

“a) Declaration  that  the  defendant  as  the  alleged executor and sole beneficiary of the purported will dated 18th April 1999 and/ or purported Codicil dated 15th April 2003 allegedly made by Smt. Priyamvada Devi Birla is not  entitled to deal with the estate of Smt. Priyamvada Devi Birla in  a manner inconsistent with the provisions of  the  Will  dated  13th July,  1982  executed  by  Smt. Priyamvada  Devi  Birla,  save  to  the  extent  of  making over  the  said estate  to  the  Plaintiff  for  the purpose  of implementing the provisions of the said Will dated 13th July, 1982 made by Smt. Priyamvada Devi Birla.”

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55. The plaint was drawn by Khaitan and Company.  One of its parties is

also a defendant  in the probate proceedings.   Pradip Kumar Khaitan is  a

party  in  the  suit.   He  is  an  executor.   Witnesses  to  the  said  Will  are

Khaitans.  They are also working as Advocates in the proceedings instituted

by or against Birlas.

ANALYSIS OF THE 1925 ACT

56. The 1925 Act is a self contained Code.  An application for grant of

probate is to be filed in terms of Sections 275 and 276 thereof.  Particulars

stated  in  the  said  provisions  are  to  be  furnished  by  the  applicant.   The

petition for grant of probate is to be signed and verified.  Citations in terms

of Section 283 (1)(c) are to be issued calling upon all  such persons who

claim to have any interest in the estate of the deceased.  Citations are issued

in order to enable such persons to see the proceedings before the grant of

probate and if necessary to oppose the same.   

57. Such persons to whom citations have been issued whether general or

special, may file a caveat.  All  proceedings are required to be taken only

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upon  service  of  notice  to  the  caveator(s).   Section  286  uses  the  word

“contention” to mean appearance of any one in person, or by his recognized

agent, or by a pleader duly appointed to act on his behalf, to oppose the

proceeding.   In the contentious cases the procedures which are required to

be adopted are specified in Section 295.

58. Only because neither in Section 284 nor Section 295 a caveator  is

required to show any interest in the estate of the deceased, whether the same

would  mean that anybody and everybody who intends to oppose the grant

of probate would be entitled to lodge caveat, is the question.  

59. The  1925  Act  in  this  case  has  nothing  to  do  with  the  law  of

inheritance or succession which is otherwise governed by statutory laws or

the custom, as the case may be.   

It  makes  detailed  provisions  as  to  how  and  in  what  manner  an

application for  grant  of probate  is  to  be filed,  considered and granted or

refused.   Rights  and obligations  of  the parties  as  also  the  executors  and

administrators appointed by the court are laid down therein.  Removal of the

existing  executors  and  administrators  and  appointment  of  subsequent

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executors are within the exclusive domain of the court.  The jurisdiction of

the Probate Court is limited being confined only to consider the genuineness

of the Will.   

A  question  of  title  arising  under  the  Act  cannot  be  gone  into  the

proceedings.  Construction of a Will relating to the right, title and interest of

any other person is beyond the domain of the Probate Court.   

60. A person to whom a citation is to be issued or a caveator, must have

some interest in the estate of the testator.  Any person claiming any interest

adverse to the testator or his estate cannot maintain any application before

the Probate  Court.   His  remedy would be elsewhere.   The question with

regard to the degree of interest or the right which a caveator must show to

establish his or her caveatable interest before the Probate Court should be

considered having regard to the aforementioned legal propositions.

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CAVEATABLE  INTEREST  

61. Appellants herein have raised a large number of contentions to show

that they have a caveatable interest.   

We may categorize them as under:

(i) Mutual Will;

(ii) Family interest;

(iii) Spiritual well-being of the testatrix

(iv) Pre-emption : Future domain doctrine;

(v) Preferential right - being executors of 1982 Will;   

(vi) Executor appointed in place of original Executor;

(vii) Executor appointed in place of MPB in purported conformity with

the 1982 Will of PDB, viz., YB.

Before dealing with each of the aforementioned contentions,  let  us

consider what is meant by the term “Caveatable interest”.  

62. It has not been defined under the Act.  We may, therefore, notice the

dictionary meaning of both the terms “caveat” and “interest”.  

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Legal  Thesaurus  Regular  Edition  by  Wlliam  C.  Burton  defines

“interest” as under :-   

“Interest (Ownership), noun

Assets,  belongings,  claim,  dominion,  droit,  holding lawful  possession,  part,  participation,  percentage  of ownership, portion, possession, property, proprietorship, right,  right  of  ownership,  rightful  possession  ,  seisin, share, stake, title

Associated  Concepts  :  accounts  bearing  interest, assignable interest, beneficial interest, common interest, contingent  interest,  continuity  of  interest,  controlling interest,  future  interest,  interest  in  hand,  joint  interest, legal interest, legal rate of interest, life interest, person interested in a will,  property interest,  qualified interest, remainder interest, remaining interest, transit of interest, undivided interest.   

63. “Caveat” has been defined in Random House Webster’s  Dictionary

of the Law as under :-

“caveat, n. 1, a warning or caution; admonition.

2.  In certain legal contexts, a formal notice of interest in a matter or property; for example, a notice to a court or public officer to suspend a certain proceeding until the notifier  is  given  a  hearing  ;  a  caveat  filed  against  the probate of a will.  

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64. Whereas the counsel for Birlas want us to take a liberal approach as

contrasted to real interest, submission of Mr. Salve is that all caveators must

have a real interest in the subject matter of the property.   

SOME PRECEDENTS

65. What would be a caveatable interest in the facts and circumstances of

the present case is the principal issue involved herein.  With a view to find

out an answer thereto, let us notice some precedents operating in the field.

66. A large number of decisions principally of the Calcutta, Bombay and

Madras High Courts have been cited by the appellants to show as to what

constitutes a ‘caveatable interest’.  

67. We may, however, at  the outset,  notice a decision of this Court in

Elizabeth Antony v.  Michel Charles John Chown Lengera [(1990) 3 SCC

333] which is binding on us.  Therein, the testatrix, viz., one Mary Aline

Browne, was the wife of one Herbet Evander Browne, the eldest son of John

Browne.  Mary died on 28th March, 1972.  She had executed a Will on 12th

March, 1962.  An application for grant of a Letter of Administration with a

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copy of the Will annexed was filed by Michel.  Petitioner Elizabeth Antony

and her husband Zoe Enid Browne filed caveats on the plea that the said

Will was a forged document.  The petitioner therein also claimed that her

daughter  Browne  had  executed  a  Will  on  23rd June,  1975  and  she  had

executed a deed of gift in favour of the petitioner.  She also claimed herself

to be a trustee of John Browne Trust.   

68. The  Probate  Court  held  that  they  had  no  caveatable  interest.

Caveatable interest, therefore, was claimed as an executor and legatee of the

Will executed by Ms Zoe Enid Borwne as also a deed of gift in respect of

one item of the estate executed in their favour.  Caveatable interest was also

claimed on the premise that the petitioner was appointed a trustee of John

Browne Trust.  This Court noticed a large number of High Court judgments.

It  was,  however,  opined  that  the  petitioner  therein  failed  to  establish  a

caveatable interest stating:

“…We have perused the entire order of the trial court in the context. Admittedly neither the original nor a copy of the will said to have been executed by Zoe Enid Browne, was filed. Now coming to the trust, it is in the evidence of PW 1 that John Browne Trust has come to an end in March 1972 and the same was not in existence. The trial court  has  considered  both  the  documentary  and  oral evidence  in  this  regard  and  has  rightly  held  that  the petitioner has no existing benefit from the trust. Likewise the registered gift deed or a copy of it has not been filed. Before the learned Single Judge of the High Court also

36

same contentions were put  forward. The learned Judge observed that from the objections filed by the caveator she  desires  the  court  in  the  probate  proceedings  to uphold her  title  on the strength  of a gift  deed and the trust deed. It is observed:  

“Equally, the petitioner has not placed before the court the  will  dated  June  23,  1975  stated  to  have  been executed by Zoe Enid Browne to establish that under the will dated March 12, 1962 stated to have been executed by  Mary  Aline  Browne  some  interest  given  to  the petitioner under the will dated June 23, 1975 of Zoe Enid Browne,  is  liable  to  be  in  any  manner  affected  or otherwise  displaced,  by  the  grant  of  letters  of administration  in  respect  of  the  will  dated  March  12, 1962  stated  to  have  been  executed  by  Mary  Aline Browne.”  

Accordingly the  learned  Judge  held  that  the  petitioner has  not  established  that  she  has  a  caveatable  interest justifying her opposition to the probate proceedings for grant of letters of administration. In this state of affairs, we are unable to agree with the learned counsel that the petitioner has caveatable interest.”  

69. This Court, thus, categorically opined that while granting a probate,

the court would not decide any dispute with regard to title.  A separate suit

would be maintainable therefor.  If probate is granted, they have a remedy in

terms of Section 263 of the 1925 Act also.   

70. In  the  recent  judgment  of  Kanwarjit  Singh  Dhillon  v.   Hardayal

Singh  Dhillon  and  others [2007  (12)  SCALE 282],  this  court  inter  alia

relying upon  Chiranjilal Shrilal Goenka v.  Jasjit Singh and Ors. [(1993) 2

37

SCC 507] and upon referring to a catena of decisions of the High Court and

this Court, held that Probate court does not decide any question of title or of

the existence of the property itself.

In  Basanti  Devi v.  Raviprakash  Ramprasad  Jaiswal [(2007)  12

SCALE 542], it is stated :

“21. The Probate Court, indisputably, exercises a limited  jurisdiction.  It  is  not  concerned  with  the question  of  title.  But  if  the  probate  has  been granted subject to compliance of the provisions of the Act, an application for revocation would also lie.”

71. Abhiram Dass v. Gopal Dass [ILR 17 Calcutta 48] is a decision of the

Division Bench of the Calcutta High Court.  In that case, the District Judge

admitted the objection.  It was held that rival titles set up by the caveator

can be gone into.  Setting aside the said judgment of the District Judge, the

Division Bench of the High Court held:

“… A person disputing the right of a deceased testator to deal with certain property as his own cannot be properly regarded  as  having  an  interest  in  the  estate  of  the deceased.   His  action is  rather  that  of one claiming to have an adverse interest...”

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72. Abhiram  Dass (supra)  was  followed  by  a  Division  Bench  of  the

Bombay High Court in Prijoshah Bhikaji v. Pestonji Merwanji [12 Bom LR

366] stating:

“…the interest which entitles a person to put in a caveat  must  be  an  interest  in  the  estate  of  the deceased  person,  that  is,  there  should  be  no dispute whatever as to the title of the deceased to the estate, but that the person who wishes to come in  as  caveator  must  show  some  interest  in  that estate derived from the deceased by inheritance or otherwise.”

73. Madras High Court also took the same view in Rahamtullah Sahib v.

Rama Rau & Anr. [ILR 17 Madras 373] opining:

“this possibility should rest on existing facts and not on mere conjecture”.

74. It is also of some significance to note that Abhiram Dass (supra) has

been noticed by the Calcutta High Court in Nikunj Kumar Lohia v. Narayan

Prasad Garodia & Others [1996 (1) CHN 205], In the Goods of Mohammad

Bashir (deceased) [AIR 1964 Cal 34] and  Smt. Namita Singha v.  Joydeb

Chandra  Paul [AIR  2006  Cal  230];  by  the  Madras  High  Court  in  M.S.

39

Saraswathi v. M.S. Selvadurai & Anr. [(1997) 3 LW 541 (Mad)]; and by the

Bombay High Court in Mrs. Perviz Sarosh Batliwalla & Anr. v. Mrs. Viloo

Plumber  &  Anr. [AIR  2000  Bom  189]  and  Rajiv  Ramprasad  Gupta v.

Rustom Sam Boyee [AIR 2003 Bom 242].

75. Strong  reliance  has  been  placed  by  Mr.  Jethmalani  on  Nobeen

Chander  Sil  and  others v.  Bhobosoondari  Debee [ILR  6  Calcutta  460].

Therein, Field, J. interpreting Section 242 of the 1925 Act opined that if any

person  can  show  that  he  was  entitled  to  maintain  a  suit  in  respect  of

property over which probate would have effect,  he possesses a sufficient

interest to enter a caveat and oppose the grant of probate.   

76. Such a suit, however, in our opinion must have a direct nexus with

the  estate  of  the  testator  and  not  to  enforce  a  right  in  respect  of  the

application of the estate of the testator under another will.  Right to maintain

a suit must be independent of the wills sought to be probated.  No legal right

accrues under an unprobated Will except in case where taking of probate is

not mandatory.  In Nobeen Chander Sil (supra) the appellants therein had a

direct interest in disputing the Will. He had obtained a money decree against

the testator.  His share was under attachment.  In the aforementioned factual

backdrop, it was held :

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“What  is  the  meaning  of  the  expression  “persons claiming to have any interest ?”  It appears to me that the persons  claiming to  have any interest  must  be persons having such an interest as would entitle them to maintain a suit  in respect  of the subject  matter  of such estate – persons  having,  for  example,  such  an  interest  as, according  to  the  practice  of  the  Court  of  Chancery, would entitle them to file a bill in a Court of Equity.”

77. It contains two competing passages.  One rendered by White, J. and

another by Field, J.

White, J. stated:

“It is not necessary to consider whether the case cited by the District Judge is good law, for it does not determine the question with which we have to deal.  In that case the parties opposing the probate were simple creditors of a person who was the heir of the deceased, supposing the testator had died without a will, and supposing also that he  had  not  adopted  a  son.   In  the  present  case  the appellants have a claim upon the immoveable property left by the testator – two of them as mortgagees of the persons who, if the testator left  no will,  are entitled to create  the  mortgage,  and  one  of  the  appellants  as  the attaching creditor of one of these persons.”

78. Field, J., however, expanded the ambit of ‘caveatable interest’.   

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A suit which would be maintainable must have something to do with

the estate of the testator.  Inheritance by Will itself may be a subject matter

of  contention.   Whether  the  interest  claimed  by  the  caveator  is  an

established  one or  a bare  claim must  satisfy the test  that  there  exists  an

interest in the estate of the testator and the same is not adverse thereto.

The  said  decision  has  been  followed  by other  High  Courts  as  for

example G. Jayakumar  v. R. Ramaratnam [AIR 1972 Mad 212] wherein it

was held :-

14.  In support of this view, their  Lordships quoted the observations of Field J., in the matter of the petition of Bhobosoonduri  Dabee,  ILR  (1881)  6  Cal  460  to  the following effect:--

"As  to  the  test  of  what  constitutes  a  sufficient interest to entitle any particular person to be made a  party,  according  to  the  view  which  I  have already  stated,  I  think  it  comes  to  this  that  any person has a sufficient interest who can show that he is a entitled to maintain a suit in respect of the property over which the probate would have effect under the provisions of Section 242 of the Indian Succession Act."

42

To the same effect  is  a decision  of  Calcutta  High Court  in  Nabin

Chandra Guha v.  Nibaran Chandra Biswas and others [AIR 1932 Calcutta

734].

As  would  appear  from the  discussions  made  hereinafter,  the  said

view, to our mind, is not entirely correct.

A caveatable interest was claimed therein on the basis of acquisition

of  a  subsequent  interest  from the  daughter  of  the  testator.   The  District

Judge held that he did not have a caveatable interest.  The Calcutta High

Court, interpreting Section 283 (1)(c) of the 1925 Act, held:

“…And  possibility  of  an  interest  does  not  apply  to possibility of a party filling a character which would give him an interest  but  to  the  possibility  of  his  having  an interest in the result of setting aside the will…”

As the caveator acquired an interest from the daughter, he was said to

have a caveatable interest.   

79. Although we may not be very much concerned with the caveatable

interest of the reversioners, a large number of decisions of the Calcutta and

Madras  High Courts  were  cited by Mr.  Jethmalani  to  show that  such an

interest was held to be a caveatable interest.  

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80. One of the judgments relied upon was  Brindaban Chandra Shaha v.

Sureshwar Shaha Parmanick and others [10 Cal. LJ 263].  In that case, the

caveator  was  found  to  have  been  entitled  to  inherit  the  property  of  the

testatrix, if the court refused to grant probate.  Noticing the statement of law

that the interest of a Hindu reversioner expectant upon the death of a Hindu

female cannot be validly alienated, it was held that a Hindu widow not only

cannot  dispose  off  the  estate,  but  also  cannot  bind  the  reversioner’s

expectant rights. Having said so, a question was posed.  Does it necessarily

mean that such a person has not such an interest in the estate under Section

69 of the Probate and Administration Act so as to entitle him to oppose the

grant  of  probate  of  a  Will  which  if  probated  is  likely  to  prejudice  him?

Answering the said question, this Court held:

“…Although a reversioner under the Hindu Law has no present interest in the property left by deceased, yet it is manifest  that  he  is  substantially  interested  in  the protection or devolution of the estate.  It is well-settled that a reversioner can sue to restrain waste Hurry Doss v. Rangunmoney [(1851) Sev.657].  The reversioner can, if he  makes  out  a  proper  case  obtain  an  order  for  the appointment of the receiver….”

On that premise, a reversioner was held to have a caveatable interest.

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81. Nobeen  Chander  Sil (supra)  and  Abhiram Dass (supra)  were  also

noticed therein.  It was, however, held that it was not necessary to express

any opinion on the other questions raised  having regard to the fact situation

obtaining therein.

82. In Gourishankar Chattoraj v. Smt. Satyabati Debi [AIR 1931 Calcutta

470] the High Court held that the applicant Gourishankar would not have

inherited  the  estate  of  testatrix  Charumati  (wife  of  Shyamsunder)  and

furthermore  held  that  he  was  neither  a  ‘sapinda’  nor  a  ‘sakulya’  nor  a

‘samanodaka’ under the Dyabhaga School of Hindu law.  Despite the fact

that no opinion was expressed upon the rights of the competing heirs in the

peculiar facts of that case, Gourishankar was allowed to appear and oppose

the application for the grant of Letters of Administration.   

83. No principle of law was laid down therein.  It does not have even a

persuasive value.  It, in our opinion, does not lay down any law.

84. The Madras High Court, we may notice, in a recent judgment in M.S.

Saraswathi (supra) had a snapshot of a large number of decisions of various

High  Courts  operating  in  the  field  including  the  decisions  of  Calcutta,

Bombay, Madras and Kerala High Courts.   It  followed a Division Bench

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Decision In re Narasimha [AIR 1975 Madras 330] wherein it was held that

Section 8 of the Hindu Succession Act would apply and the caveator being

an heir alone could claim a share and his son and, thus, the applicant therein

could not claim any share as he had no present interest in the property.  It

was emphasized that a caveator if he denied the testator’s title was liable to

be discharged.

85. Real  vs. Bare Interest test was considered in each of the cases having

regard to the fact situation obtaining therein.   

PROPOSITIONS OF LAW

86. Section 283 of the 1925 Act confers a discretion upon the court to

invite some persons to watch the proceedings.   

Who  are  they?   They  must  have  an  interest  in  the  estate  of  the

deceased.  Those who pray for joining the proceeding cannot do so despite

saying that they had no interest in the estate of the deceased.  They must be

persons who have an interest in the estate left by the deceased.  An interest

may be a wide one but such an interest must not be one which would not

have the effect of destroying the estate of the testator itself.

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87. Filing of a suit is contemplated inter alia in a case where a question

relating to the succession of an estate arises.   

88. We may, by way of example notice that a testator might have entered

into  an  agreement  of  sale  entitling  the  vendee  to  file  a  suit  for  specific

performance  of  contract.   On  the  basis  thereof,  however,  a  caveatable

interest is not created, as such an agreement would be binding both on the

executor, if the probate is granted, and on the heirs and legal representatives

of the deceased, if the same is refused.  

89. The propositions of law which in our considered view may be applied

in a case of this nature are:

(i) To sustain a caveat, a caveatable interest must be shown;

(ii) The  test  required  to  be  applied  is:  does  the  claim of  grant  of

probate prejudice his right because it  defeats some other line of

succession in terms  whereof the caveator asserted his right.

(iii) It is a fundamental nature of a probate proceeding that whatever

would be the interest of the testator,  the same must be accepted

and the rules  laid  down therein must  be followed.   The logical

corollary  whereof  would  be  that  any  person  questioning  the

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existence of title in respect of the estate or capacity of the testator

to dispose of the property by Will on ground outside the law of

succession  would  be  a  stranger  to  the  probate  proceeding

inasmuch  as  none  of  such  rights  can  effectively  be  adjudicated

therein.

APPLICATION OF THE RULES:

90. The bare possibility test  as  advanced in  Brindaban Chandra  Shaha

(supra) as adopted in Gourishankar Chattoraj  v.  Smt. Satyabati Debi  [AIR

1931 Cal 470], in our opinion would have no application in the instant case.

However, we may also notice that the Calcutta High Court itself in some of

the  decisions  have  applied  the  real  interest  test  as  for  example  Nabin

Chander Guha (supra) and Dinabandhu Roy Brajaraj Saha v. Sarala Sundari

Dassya w/o Haralal Saha [AIR 1940 Calcutta 296].   

91. We  may  furthermore  notice  another  line  of  decisions,  where  an

interest in the estate of the deceased-testator which may be affected by grant

of probate of the will of the deceased had been applied for determination of

the issue of caveatable interest, which, inter alia, are :-

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1. Abhiram Dass (supra)  

2. Nikunj Kumar Lohia (supra)

3. M.S. Saraswathi  (supra)

4. Perviz Sarosh Batliwalla  (supra)

5. Rajiv Ramprasad Gupta    (supra)

6. In the Goods of Mahammad Bashir (deceased)   (supra)   7. Namita Singha    (supra)  

92. While determining the said question, the law governing the intestate

succession must also be kept in mind.  The right of the reversioner or even

the doctrine of ‘spes successonis’ will have no application for determining

the issue in a case of this nature.     

93. Two sisters  of  MPB being  alive  (one  of  them is  since  deceased),

indisputably in the event  the application for grant  of probate of  RSL in

respect of the 1999 Will is refused they will have an interest in the estate of

the testatrix.  The right of the said sisters of MPB being definite and clear, it

is  not  a  case  where  it  is  necessary  to  apply  the  bare  possibility  or  the

common ancestor test.   

94. Both MPB and PDB claimed their interest in certain companies.  The

subject  matter  of  the  Will  is  not  the  ancestral  property  over  which  the

49

caveators claim any interest.  It is one thing to say that the subject matter of

the will is ‘coparcenary’ or a ‘joint family property’ in which case the larger

concept of interest in the agnates would apply, but it is another thing to say

that if people are available who would otherwise represent the interest of the

estate  and against  whom citations  have been issued,  others  who have no

interest would also be entitled to enter a caveat.

95. In the context of the laws governing inheritance and succession, as

they then stood, the widest possible meaning to the term “interest” might

have been given in a series of decisions to which the learned counsel for the

appellants  rely  upon  ranging  from  Nobeen  Chunder  Sil (supra)  to

Radharaman Chowdhuri and others vs.  Gopal Chandra Chakravarty [AIR

1920 Calcutta 459] so as to hold that a caveat would be maintainable even

at the instance of a person who had been able to establish “some sort of

relationship” and howsoever distant he may be from the deceased which per

se  cannot  have  any  application  after  coming  into  force  of  the  Hindu

Succession Act.  Ordinarily, therefore, a caveatable interest would mean an

interest in the estate of the deceased to which the caveator would otherwise

be entitled to, subject of course, of having a special interest therein.

96. Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta were heirs

and legal representatives of PDB.  Even in the event application of RSL for

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the grant of probate is dismissed, they and/ or their respective heirs would

continue to represent the estate of PDB.  

97. A Will is executed when the owner of a property forms an opinion

that his/ her estate should not devolve upon the existing heirs according to

the law governing intestate succession.  When, thus, a person who would

have otherwise succeeded to the estate of the testator, would ordinarily have

a  caveatable  interest,  any  other  person  must  ordinarily  show  a  special

interest in the estate.

98. Such a special interest may be a creditor of the deceased as was the

case  in  Sarala  Sundari  Dassya v.  Dinabandhu  Roy Brajaraf  Saha  (Firm)

[AIR 1944 PC 11].  But, in our opinion, the same would not mean that even

if the estate of the deceased is being represented by the legal heirs, caveat

can  be  entertained  at  the  instance  of  a  person  who  has  no  real  interest

therein or in other words would merely have a contingent interest.   

99. A transferee pendente lite without the leave of the court would not

have a caveatable interest and as such cannot be impleaded as a party.  A

person cannot also be impleaded as a party even on an apprehension that

those who have a caveatable interest and to whom citations have been made

would not take any interest in the litigation.

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100. A tenant occupying the premises belonging to a testator was held not

to have any caveatable interest in the property of the testator.  [See  Jagdish

Chander v. State & Anr. 1988 RLR 678]

In Sunil Gupta v. Kiran Girhotra & Ors. [2007 (12) SCALE 59], this

Court held:

“17. Citation,  as  is  well-known,  should  be conspicuously  displayed  on  a  notice  board.   Before purchasing the properties, Amit Pahwa and consequently the appellant had taken a calculated risk.  In a situation of this nature, he is not a necessary party.  He took the risk  of  the  result  of  the  probate  proceedings.   His apprehension that Raj Kumar may not take any interest in the litigation cannot by itself a ground for interfering with  the  impugned  judgment.    It  is  speculative  in nature.”

101. Reliance was placed by Mr. Venugopal on an unreported decision of

the  Calcutta  High  Court  in  the  case  of  Goods  of  Santi  Bhusan  Bose,

Application No. 85 of 1991 where caveat was not discharged on the premise

that the caveator would succeed in the event  of death of the heirs of the

deceased. Apart from that fact, the said decision, in our opinion, did not lay

down  the  correct  law,  even  the  principles  enunciated  will  have  no

application in this case as the heirs  of Smt. Laxmi Devi Newar and Smt.

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Radha Devi Mohatta would succeed to their interest in the property and not

the appellants, as classified heirs succeed absolutely and upon death of any

such heir,  the  estate  devolves  upon the heirs  of  such absolute successor.

There could not, therefore, be any question of reversion of the property.     

102. We are not oblivious of the fact that a judgment rendered in a probate

proceeding  is  a  judgment  in  rem.   But,  its  application  is  limited.   A

judgment rendered in a probate proceeding would not be determinative of

the question of title.  If a probate has been obtained by fraud or suppression

of material  fact,  the  same can be the subject  matter  of  revocation of  the

grant  in  terms  of  Section  263  of  the  1925  Act.  [See  Elizabeth  Antony

(supra)].

In Basanti Devi (supra), it was held :

“23. It is now well settled that an application for grant of probate is a proceeding in rem. A probate when granted not only binds all the parties before the Court  but  also binds  all  other  persons  in  all proceedings arising out of the Will or claims under or connected therewith. Being a judgment in rem, a person, who is aggrieved thereby and having had no  knowledge about  the  proceedings  and proper citations having not been made, is entitled to file an application for revocation of probate on such grounds  as  may  be  available  to  him.  We  are, therefore,  of  the  opinion  that  the  application  for revocation  of  the  grant  of  probate  should  have been entertained.”

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[See also Sunil Gupta (supra)].

These decisions relied upon by Mr. Jethmalani relating to revocation

of  grant,  as  for  example  Brindaban  Chandra  Shah (supra)  are,  thus,  not

applicable to the facts of the present case.    

103. We may notice that in Jagdish Prasad Tulshian vs. Yasheen Jain [AIR

2007 Calcutta 218], the Calcutta High Court held:

“20. In the case of Elizabeth Antony v. Michel Charles John  Crown Lengera  reported  in  1990  (3)  SCC 333  : (AIR 1990 SC 1576),  the  Supreme Court  was  dealing with an application for revocation of grant of a Probate and  in  the  said  case  a  party  sought  to  establish  a caveatable interest on the basis of a Will though the said Will or the copy thereof was not filed before the Court. In such a case, the Supreme Court was of the view that it was not expedient to reopen the matter.  In the said case, the Supreme Court, however, held that for the purpose of revocation of a grant within the scope of Section 263 of the  Indian  Succession  Act,  the  absence  of  caveatable interest does not stand in the way.  In the case before us, we are not concerned with a case of revocation of grant. Therefore, the principle laid down in the said decision, cannot  have  any  application  to  the  case  before  us. Moreover, in that case, even the copy of the purported Will was not produced.”

What would be the cavetable interest would, thus, depend upon the

fact situation obtaining in each case.  No hard and fast rule, as such, can be

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laid down.  We have merely made attempts to lay down certain broad legal

principles.  

INTERPRETATION

104. A statute must be interpreted having regard to the purport and object

of the Act.  The doctrine of purposive construction must be resorted to in a

case of this nature.  The court must place itself in the chair of a reasonable

legislator.  In  New Indian Assurance Co. v.  Nusli Neville Wadia and Anr.

[2007 (14) SCALE 556], it was held :

“50. Except in the first category of cases, as has been noticed by us hereinbefore, Sections 4 and 5 of the Act, in our opinion, may have to be construed differently in view of  the  decisions  rendered  by  this  Court.   If  the landlord being a State within the meaning of Article 12 of the Constitution of India is required to prove fairness and reasonableness on its part in initiating a proceeding, it is for it to show how its prayer meets the constitutional requirements of Article 14 of the Constitution of India. For proper interpretation not only the basic principles of natural  justice  have  to  be  borne  in  mind,  but  also principles of constitutionalism involved therein.  With a view to read the provisions of the Act in a proper and effective  manner,  we  are  of  the  opinion  that  literal interpretation, if given, may give rise to an anomaly or absurdity  which  must  be  avoided.   So  as  to  enable  a superior  court  to  interpret  a  statute  in  a  reasonable manner,  the  court  must  place  itself  in  the  chair  of  a reasonable  legislator/  author.   So  done,  the  rules  of purposive  construction  have  to  be  resorted  to  which would  require  the  construction  of  the  Act  in  such  a

55

manner so as to see that the object of the Act fulfilled; which  in  turn  would  lead  the  beneficiary  under  the statutory scheme to fulfill  its  constitutional  obligations as held by the court inter alia in  Ashoka Marketing Ltd (supra).   

51. Barak  in  his  exhaustive  work  on  ‘Purposive Construction’ explains various meanings attributed to the term “purpose”. It would be in the fitness of discussion to refer to Purposive Construction in Barak’s words:

“Hart and Sachs also appear to treat “purpose” as a subjective  concept.   I  say  “appear”   because, although Hart and Sachs claim that the interpreter should  imagine  himself  or  herself  in  the legislator’s shoes, they introduce two elements of objectivity:  First,  the  interpreter  should  assume that  the  legislature  is  composed  of  reasonable people  seeking  to  achieve  reasonable  goals  in  a reasonable  manner;  and  second,  the  interpreter should accept the non-rebuttable presumption that members of the  legislative body sought to fulfill their  constitutional  duties  in  good  faith.  This formulation  allows  the  interpreter  to  inquire  not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably.”

(See also Bharat Petroleum Corporation Ltd. v. Maddula Ratnavalli &

Ors. [(2007) 6 SCC 81, para 22]

In so doing, it would not be permissible for the court to construe the

provisions  in  such  a  manner  which  would  destroy  the  very  purpose  for

which the same was enacted.  The principles in regard to the approach of the

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Court  in  interpreting  the  provisions  of  a  statute  with  the  change  in  the

societal condition must also be borne in mind.   

105. In Anuj Garg & Ors. v. Hotel Association of India & Ors. [(2007) 13

SCALE 762], this Court held :

“8. Changed social psyche and expectations are important factors to be considered in the upkeep of law. Decision on relevance will  be more often a function of time we are operating in.  Primacy to such  transformation  in  constitutional  rights analysis would not  be out  of place.  It  will  be in fitness of the discussion to refer to the following text from “Habits of the Heart: Individualism and Commitment in American Life” by R. Bellah, R. Madsen,  W. Sullivan,  A. Swidler  and S.  Tipton, 1985,  page  286  which  suggests  factoring  in  of such social changes.  

“The transformation of our culture and our society would have to happen at a number of levels. If it occurred only in the minds of individuals (as to some degree it already has) it would be powerless. If it came only from the initiative of the state, it would be tyrannical. Personal transformation among large numbers is essential, and it must not only be a transformation of consciousness but  must  also  involve  individual  action. But individuals need the nurture of crops that  carry  a  moral  tradition  reinforcing their own aspirations.

These are commitments that require a  new  social  ecology  and  a  social movement dedicated to the idea of such a transformation.”

57

106. The decisions which were rendered prior to coming into force of the

Hindu Succession Act, thus, may not be of much relevance.  Now, if on the

interpretation of law, as then stood, a reversioner or a distant relative who

could have succeeded to the interest  of the testator was entitled to file  a

caveat, they would not be now, as the law of inheritance and succession is

governed by a Parliamentary Act.   

107. Directly  or  indirectly  the  appellants  and  in  particular  KKB  is

questioning  the  title  or  disposing  power  of  the  testator,  which  is

impermissible  in  a  probate  proceeding.   Appellants,  in  fact,  have  been

prevaricating their stand from proceeding to proceeding.  They have been

raising various contentions which are wholly impermissible in law.

108. Be that as it may, even the decisions relied upon by Mr. Jethmalani

were rendered in the factual situation obtaining therein.   

109. It is in that backdrop the question which is required to be posed is:

Did the Calcutta High Court or the other High Court opine that even a busy

body or an interloper having no legitimate concern in the outcome of the

probate  proceedings  would  be  entitled  to  lodge a caveat  and oppose the

probate?   The  answer  thereto,  in  our  opinion,  must  be  rendered  in  the

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negative.  If anybody and everybody including a busy body or an interloper

is found to be entitled to enter a caveat and oppose, grant of a probate, then

Sections  283(1)(c) and 284 of the 1925 Act  would have been differently

worded.  Such an interpretation would lead to an anomalous situation.  It is,

therefore,  not  possible  for  us to  accede to  the submission of  the learned

counsel that caveatable interest should be construed very widely.   

110. A caveatable interest is not synonymous with the word ‘contention’.

A ‘contention’ can be raised only by a person who has a caveatable interest.

The  dictionary meaning of  ‘contention’,  therefore,  in  the aforementioned

context cannot have any application in a proceeding under the 1925 Act.

111. While interpreting the provisions of a statute, we must also bear in

mind the admitted legal  position that a probate proceeding should not be

permitted to  be converted into a title  suit.   It  should not  be permitted to

become an unchartered field to be trespassed into by persons even if he is

not affected by testamentary disposition.   

SECTION 284 OF THE ACT

112. Section 284 of the 1925 Act may have to be construed keeping in

view  the  aforementioned  legal  principles.   It  does  not  lay  down  the

qualifications or disqualifications of the caveator.  Once a caveat is filed, it

59

is for the court to determine the question as to whether the caveator has any

caveatable interest or not.   

113. Section 284 of the 1925 Act only provides for a forum and nothing

more.  It has nothing to do with qualification.  Drawing our attention to the

decisions prevailing prior to coming into force of the 1925 Act, some of

which  have been noticed  by us hereinbefore,  as  also  the  decision  of  the

Bombay High Court  in  Pirajshah Bikhaji  & Others v.  Pestonji  Merwanji

[(1910) ILR 34 Bombay 459], the learned senior counsel contended that the

legislature having not  changed the wordings of the earlier statute despite

judicial interpretation of the terminologies thereof, must be held to have not

intended to rectify the same.   

114. In our opinion, it is not necessary to go into the said question as we

have held that the decisions upon which reliance has been placed are either

not good law or not relevant for our purpose.

RULES OF THE CALCUTTA HIGH COURT

115. The  Rules  framed  by  the  Calcutta  High  Court  provide  for

determination of the issue of caveatable interest as a preliminary issue.  We

do not see any reason as to why the High Court, in exercise of its powers

conferred upon it under Section 122 of the Code of Civil Procedure, could

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not  frame such Rules.   After  coming into  force of  the Constitution  such

Rules can also be framed by the High Court in exercise of its supervisory

jurisdiction under Article 227 of the Constitution of India.   

If the contention of Mr. Jethmalani is to be accepted that there being

no  such  provision  in  the  Act  for  determination  of  such  an  issue  as

preliminary issue, the High Court chould not have framed the Rules, we are

of the opinion that  in a similar  situation this Court  also could not  direct

listing of the writ petitions under Article 32 of the Constitution of India for

preliminary hearing in terms of the Supreme Court Rules.  The Court having

regard to its general power as also the power under Order XIV Rule 1 of the

Code  of  Civil  Procedure  can  decide  the  matter  by  framing  preliminary

issues in regard to the maintainability or otherwise of the application.  It is a

rule of procedure and not of substance.  A court is entitled to dismiss a lis at

the threshold if it is found not maintainable.  The Court even in absence of

any rule must take the precaution of not indulging in wasteful expenditure

of its time at the instance of the litigants who have no case at all.  We do

not, therefore, find any legal infirmity in the Rules.  

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MUTUAL WILLS

116. We have noticed the recitals of the 1982 Wills purported to have been

executed by MPB and PDB.  Whether the same constitutes a mutual Will in

the sense that thereby an agreement had been entered into by and between

the husband and the wife in regard to the application of the property is in

question.  We although may not be directly concerned therewith, the law

operating  in  the  field  should  be  considered  only  on  the  premise  as  to

whether the said doctrine creates any caveatable interest in the executors of

the will.   A Will  by its  nature  is  revocable.   It  is  the  last  desire  of  the

testator.  Till he breathes his last, he will have a final say.  In short, the latter

Will revoking the earlier Will would be probated.  It is one thing to say that

the agreement between the parties to the purported mutual Will would not

affect any agreement or arrangement on the application of the latter Will or

the estate of the testator must be administered in terms of such agreement.   

The proposition of law as such is not much in dispute.  Despite the

existence of a mutual Will, the representative under the latter Will will take

the property.  He, however, takes the property subject to the terms of the

Mutual Will.  Whether there exists any such agreement enforceable either in

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equity  or  by  way  of  a  suit  for  specific  performance,  will  have  to  be

considered only in the event the probate is granted and not prior thereto.

117. In Halsbury’s  Laws of  England,  Fourth  Edition,  Volume 50,  page

108, it is stated:

“221…Even when there is  such an agreement  and one party  has  died  after  departing  from it  by  revoking  or altering the will, the survivor having notice of the breach cannot  claim to have the later  will  set  aside, since the notice  gives  him  the  chance  of  altering  the  will  as regards his own property; and the death of the deceased party  is  itself  sufficient  notice  for  this  purpose.  If, however, the deceased has stood by the agreement and not revoked or altered his will, the survivor is bound by it,  and although probate will  be granted of a later will, the survivor is bound by it, and although probate will be granted  of  a  later  Will  made by him in  breach of  the agreement,  since  a  court  of  probate  is  only  concerned with  the  last  will,  the  personal  representatives  of  the survivor  nevertheless  hold  his  estate  in  trust  to  give effect to the provisions of the joint will or mutual wills.

Where mutual will, whether constrained in a joint will or in separate documents, relate to joint property, the agreement to make the mutual wills and the making of the dispositions in pursuance of the agreement, sever the joint tenancy and convert it into a tenancy in common.”

[Emphasis supplied]

118. In Lewin on Trusts, Seventeenth Edition, pages 270-271, it is stated:

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“10-27 …If the survivor, whether or not after taking an actual benefit under the arrangement, alters his will, his personal  representative  takes  the  property  which  is subject  to  the  agreement  upon  trust  to  perform  the contract.   Equity  cannot  prevent  the  survivor  from revoking his  will,  for  instance,  by marriage or another will,  but  it  causes  his  personal  representatives  to  give effect to his revoked will in so far as his contract bound him not to revoke it…”

[See also Theobald on Wills, Sixteenth edition, pages 26, 27 (Paras

2.09 & 2.11) ].

119. Similar  statement  of  law can be found In  Williams, Mortimer  and

Sunnucks  on  Executors,  Administrators  and  Probate,  18th edition,  pages

131-132.

While  dealing  with  the  probate  issue,  therefore,  the  authors

categorically state that only the latter Will would have to be probated.   

120. We may notice a decision rendered in our country in this regard.   

In  Kuppuswami Raja and another v.  Perumal Raja and Others [AIR

1964 Madras 291], the Madras High Court stated the law, thus:

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“We confess that the matter is not free from difficulty. But after a careful consideration of all the aspects of the matter,  we  are  inclined  to  take  the  view  that  a  joint mutual Will becomes irrevocable on the death of one of the  testators if the survivor had received benefits under the mutual  Will,  and  that  there  need not  be a  specific contract  prohibiting  revocation  when  the  arrangement takes the form of not two simultaneous mutual Wills but one  single  document.   In  fact  in  some  of  the  cases referred to above this aspect that if the two testators had executed one single document as one single mutual Will the position may be different is actually adverted to.  In our opinion, if one single document is executed by both the brothers  using  the expressions  “our property” “our present wishes” “our Will” and such similar expressions, it is strong cogent evidence of the intention that there is no power to revoke except by mutual consent.”

Such is not the case here.

121. Mr. Jethmalani has relied upon a decision in Walker and Another  v.

Gaskill and Others   [1914] P. 192. Therein, Wills were made between the

wife and husband in October, 1907.  A Codicil and subsequent Will were

made in breach of a definite arrangement.  Plaintiffs thereof were appointed

as executors under the Will of 22nd January, 1913.  The husband died on 20th

October,  1911    Terming  the  two  Wills  of  1907  as  mutual  Wills,  a

contention  was  raised  that  the  stipulations  made  therein  remained

irrevocable despite the death of the husband.  It was held “the function of

this Court as a Court of Probate is to ascertain and pronounce that is the last

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Will, or what are the testamentary documents constituting the last Will, of a

testator, which is or are entitled to be admitted to probate”.   

122. The  contention  that  such  a  Will  was  irrevocable  was  held  to  be

lacking any foundation.   The court  refused to go into the question as  to

whether  the  court  having  the  jurisdiction  to  decide  both  the  contentions

independently should go thereinto by holding that it being a court of probate

and  not  a  court  of  construction,  it  could  only  construe  testamentary

documents to the extent of determining those testamentary documents that

should be admitted for probate.

123. What could be done and has not been done by a court of equity does

not create a precedent.  It does not even have a persuasive value.  In this

country, we are bound to follow the law laid down under the statute or the

decision which create binding precedents.  An observation made by a Court

of Probate would not persuade us to hold that the High Court should have

taken recourse to “advance from the region of testamentary disposition into

that of contracts and trusts and to declare certain trusts upon the footing of

contract” which could be done by the Chancery Division.

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124. The  American  law  operating  in  the  field  may  be  noticed  from

American  Jurisprudence,  Second  Edition,  Vol.  79,  page  850  in  the

following terms:

“The  breach  of  a contract  for  the joint  execution  of  a will,  or  the  execution  of  separate  wills,  containing reciprocal  bequests,  gives rise to the same remedies in favor of the injured party as are employed in other cases of breach of contract to make a will, namely, an action at law for  damages  and  a  suit  in  equity,  but  it  is  to  be observed  that  the  latter  is  the  type  of  relief  usually invoked.   In  fact,  according  to  some authority,  only a court of equity can take cognizance of an allegation that the revocation of a joint and mutual will by the surviving testator was in violation of his contract with the deceased testator.

In any case, the enforceability of a contract to make wills containing mutual and reciprocal provisions depends, of course, upon the establishment of the contract by good and sufficient evidence.

§ 794. Remedy in probate court; contest of revoking will.

A  probate  court  whose  jurisdiction  is  limited  to  the determination  of  the  issue  whether  the  instrument propounded is the last will of the decent lacks power to enforce  an  agreement  between  two  testators  to  make wills which are mutual and reciprocal in their provisions. Generally speaking,  the  remedy of a person injured by the  violation  of  a  contract  for  the  execution  of  wills containing  reciprocal  bequests  and  bequests  to  third persons effective upon the death of the surviving testator is not to be had in a contest of the probate of the will which  constitutes  the  violation  of  which  complaint  is made, since, in the absence of statute, the only issue on a contested  probate  is  whether  the  paper  propounded  is “the last will of the decent.””

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[See also Corpus Juris Secundum, Vol. XCVII, pages 304 to 312]

125. Relying on a decision in  Branchflower et al v.  Massey [208 P. 2d

341], it was contended by Mr. Jethmalani that the Probate Court may also

examine a witness of a mutual Will.  We have examined the said decision.

The proposition of law laid down therein was that the Probate Court will

first revoke the Will and then determine the rights under mutual Will either

in equity or in specific performance. It was held that a Probate Court cannot

determine whether the proponent having revoked her own Will is thereby

estopped from claiming under the Will executed by the deceased pursuant to

a contract between the deceased and proponent.  It referred with approval

the decision of Brazil v. Silva [181 Cal. 490] wherein it was observed:  

“In support  of their  contention that the complaint does not  state  a  cause  of  action,  counsel  for  the  defendant advance two propositions. The first is that the matter is determined  by the  order  admitting the will  to  probate. The soundness of this position depends upon whether or not  the  issues  presented  by  the  present  complaint  are questions going to the final question before the probate court; that is, the question as to the instrument being the legal  and  valid  will  of  the  decedent  unrevoked  at  the time  of  his  death.  If  the  issues  presented  by  the complaint are not of this character, it  is plain that they could not be passed on in the probate proceedings, and are  not  concluded by the  result  of  those  proceedings.’ (Italics supplied.)”

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126. In Massey (supra), it was observed:

“It was held that the question whether the defendant was guilty of fraud, and therefore should be declared trustee of the property received under the will, could not have been  determined  in  the  probate  proceeding,  and consequently plaintiffs were not concluded by the order admitting the will to probate.”

The  said  authority,  therefore,  does  not  advance  the  case  of  the

appellants.

127. The law as prevailing in Australia is also to the same effect, as would

appear from the decision in Birmingham and Others  v. Renfrew and Others

[57 C.L.R. 666].

Latham,  CJ  therein  opined  that  a  Will  made  in  breach  of  an

arrangement  is  nevertheless  effective  as  a  Will.   It  upheld  the  dicta

contained in  Stone   v.  Hoskins   [1905 P. 197] wherein the following law

was laid down:

“Though a will  is  always revocable,  and the  last  must always be the testator’s will; yet a man may so bind his assets  by agreement that  his  will  shall  be a trustee for performance  of  his  agreement…  These  cases  are common, and there is no difference between promising to make a will in such a form and making his will with a promise not to revoke it.  This court does not set aside

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the will; but makes the devisee heir or executor trustee to perform the contract.”

128. The  law  laid  down  in  the  aforementioned  treatises  and  decisions

rendered in different jurisdictions clearly suggests that existence of a mutual

Will  or  filing  of  a  suit,  by  themselves,  are  not  sufficient  to  create  a

caveatable interest.  In fact the appellants have disentitled themselves from

lodging a caveat as they are questioning the title of the testatrix as also her

right to execute a Will as it had been contended that she merely had a life

interest and no right of dispossession of property by Will or otherwise.

They  cannot  fall  back  upon  the  purported  “Mutual  Wills”  only

because they also challenge the genuineness of the 1999 will.

129. Mr.  Jethmalani,  furthermore,  relied  upon  a  decision  in  Re  Dale

(deceased) Proctor v. Dale [(1993) 4 All ER 129] which, in our opinion, has

no application  in this  case as it  was not  a case dealing with “caveatable

interest” arising out of “mutual Wills”.   

Strong reliance has also been placed on Dilharshankar C. Bhachech v.

Controller  of  Estate  Duty [(1986)  1 SCC 701] wherein again  Halsbury’s

Laws of England has been quoted, which we have noticed heretobefore.  

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The said decision of this Court, therefore, supports the contention of

the first respondent and not that of the appellants.   

130. It is not much in dispute that probate has to be granted to the latter

Will  even  when  made  in  prejudice  of  the  agreement  not  to  revoke  the

mutual wills inasmuch as the court of probate is only concerned with the

last Will.   

131. Mr.  Jethmalani  has  also  placed  strong  reliance  upon  a  decision

rendered by this Court inter-parties arising out of a criminal case in  Shiva

Nath Prasad v. State of W.B. and Others [(2006) 2 SCC 757].  Therein, this

Court was concerned with the question as to whether a First  Information

Report lodged against the first respondent herein and others under Sections

417 and 420 of the Indian Penal Code should be quashed.  This Court dealt

at some details with the legal principles behind the doctrine of mutual Will,

ultimately to hold:

“48.  We have  referred  to  the  doctrine  of  mutual  and reciprocal wills and trusts only to understand the basis of the complaint...”

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That far and no further.

Some  observations  have  been  made  in  paragraph  49  of  the  said

judgment but yet again it was opined:

“50.  We have entered into the above discussion, not to express any opinion, but to answer the main plank of the argument advanced on behalf of the appellant  that  this  case basically involves a civil dispute.  None  of  our  observations  be  treated  as expression  of  our  opinion  on the rightfulness  of the claim made in the complaint.”

Shiva Nath Prasad (supra), therefore, is not an authority on the legal

principles of mutual Will.   

132. The  principles  which  can  be  deduced  from the  discussions  made

heretobefore are :-

(i) A  Will  made  in  prejudice  of  an  agreement  will

nevertheless  be effective  as  a  Will  as  it  is  by its  very

nature and by its very essence a revocable instrument.

(ii) A subsequent infringing Will would be valid even if it

revokes an earlier Mutual Will.   

(iii) Similarity of the terms would not be enough to establish

the necessary agreement.   

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(iv) Whether  a  legatee  has  taken  any  benefit  under  the

alleged Wills of 1982 would, however, be relevant.

FAMILY INTEREST

133. It is too far fetched a submission that a person having a remote family

connection or as an agnate is entitled to file a caveat.  A reversioner or an

agnate  or  a  family  member  can  maintain  a  caveat  only  when  there  is  a

possibility of his inheritance of the property in the event the probate of the

Will is not granted.  If there are heirs intestate who are alive,  entertaining of

a caveat on the part of another family member or a reversioner or an agnate

or cognate would never arise.

134. The Hindu Succession Act, 1956 has brought about a sea change in

the matter of inheritance and succession.  “Agante” has been defined in the

Hindu Succession Act to mean:

"agnate"--  one  person  is  said  to  be  an  "agnate"  of another  if  the  two  are  related  by  blood  or  adoption wholly through males;”

135. Agnate or cognates are, thus, recognized as heirs.  They may be the

erstwhile  members  of  a  nuclear  family.   So  far  as  heirs  and  legal

representatives  of  the  family  are  concerned,  the  Hindu  Succession  Act

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clearly lays down five classes of heirs, Sisters of husband belong to Class II

heir.  They succeeded to the interest of MPB in 2004 on the death of PDB.

Appellants accepted the said fact but contended that as the life of the said

heirs  was  uncertain  they,  thus,  have  a  caveatable  interest.   It  has  been

accepted that there would be no difficulty in ascertaining the successors of

PDB.  It is an indisputable case of intestacy having regard to Section 15 of

the Hindu Succession Act.

136. It was contended that having regard to the testate succession created

by reason of the Will and the matter remaining pending for last three years,

the claim of the appellants and family members is required to be decided on

the happening of  certain contingencies in the intervening period between

the death of PDB and the ultimate decision of the probate application, as

one of the heirs of PDB has died.   

137. The  submission,  to  say  the  least,  is  fallacious.   The  heirs  of  the

deceased have already been impleaded as parties.  Inheritance to an estate

never remains in abeyance.  In the event of death of the sisters of MPB, their

heirs and legal representatives would inherit the property in their own right

and not  as  the  heirs  of  MPB.   The  dispute  regarding intestacy does  not

change the law of succession and inheritance.

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138. As  Agnates  KKB,  BKB,  YB  and  GPB  also  claimed  caveatable

interest  as agnates.  Entry 2 of Class II  of the Schedule appended to the

Hindu Succession Act in this case would not bring them into the picture, as

agnates will acquire an interest only when there is no heir of either Class I

or Class II.  When there exists Class II heirs, the appellants would not have

any real interest in the property.  The property upon the death of Smt. Laxmi

Devi  Newar and Smt.  Radha Devi  Mohatta  would  pass  on to  their  legal

heirs.  Appellants being not the heirs of MPB or PDB have no caveatable

interest.   

SPIRITUAL WELL-BEING

139. The theory of looking after the spiritual well-being of the deceased

soul by the near relatives has no application for the purpose of judging the

validity  or  otherwise  of  a  Will;  more  so,  after  coming into  force  of  the

Hindu Succession Act, 1956 as in terms thereof the concept of succession to

the estate  of  a  deceased on the said  consideration  has  lost  its  relevance.

Such a  contention,  therefore,  must  be rejected  out  right,  being  a  wholly

misconceived one.

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140. The doctrine of ‘larger circle of the caveators as being members of

the Birla family’ and to protect the spiritual interest does not convert a non-

existent interest into a caveatable interest.   Such a question had not been

raised even in the affidavits of the appellants.  We do not find any force

therein.

QUALITY OF TITLE

141. We may notice the affidavit of Shri KKB in opposition to the grant of

probate, as a caveator.  In the said affidavit, apart from the genuineness of

the 1999 Will, the power of the testatrix to execute the same has also been

questioned.   

In paragraph 7, it is contended:

“7. It  will  be evident  from the same that the deceased, Late Priyamvada Devi Birla was very closely connected to me.  She was related to my wife (being her aunt) and was the wife  of  my paternal  first  cousin Late  Madhav Prasad Birla.”

The merit of the Will has been discussed in the following terms:

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“(a) In 1981,  the  deceased  and  her  husband  Madhav Prasad  Birla,  who  is  also  deceased,  agreed  as  to  the disposal of their property in favour of charities and had executed mutual Will in pursuance of the agreement both date May 10, 1981.  In 1982, by consent they revoked the said  mutual  Will  but  agreed once  again  with  each other as to the disposition of their respective estates on their  deaths  in  favour  of  charities  as  ultimate beneficiaries,  and  that  Wills  made  pursuant  to  such agreement  would  be  irrevocable  and  would  remain unaltered.

(b) In  pursuance  of  the  said  agreement  and  in consideration of it, the deceased and her husband made their respective Will both dated July 13, 1982 virtually reiterating  the  provisions  of  their  earlier  wills  but increasing the number of Executors from three to four in each will.  Each of them, by his or her Will devised and bequeathed his or her entire estate to the other absolutely and in the event of the other predeceasing him or her as case may be, the Executors appointed in their respective Wills  were directed to  make over,  donate  or  settle  the entire  estate,  barring  certain  specific  legacies  for charitable purposes at their absolute discretion.

(c) The  husband  of  the  deceased  died  on  July  30, 1990 and the deceased as beneficiary of her husband’s Will came to possess, own and control his estate in terms thereof and thus had taken and enjoyed the benefit under the said Will until her death.

(d) The purported Will dated April 18, 1999 has thus been allegedly executed by the deceased in clear breach and total disregard of the subject matter of the agreement and the mutual Will of the deceased and her husband.  It is inconceivable that the deceased consciously would so conduct  herself  which  would  amount  to  fraud  on  her husband.  The said purported Will is not her Will.

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(e) On a true construction of the terms and tenor of the  aforesaid  Wills  and  in  the  events  which  had happened,  the  deceased  had  only  a  life  interest  in  the estate of her husband without being competent to dispose of  on  her  own,  the  combined  estate  by  alienation  or dissipation in a manner inconsistent with the terms and tenor  of  the  mutual  Wills.   The  disposition  made  in favour  of  Rajendra S. Lodha under the purported  Will dated  April  18,  1999  is,  therefore,  unlawful, unauthorized and cannot be binding, as the entire estate of the deceased stood impressed with the trust in terms of the mutual Wills.

(f) Accordingly on her death, the surviving executors of the Will of the deceased and her husband are entitled to  take  possession  of  her  entire  estate  and  make over, donate or settle the same for the purposes of charitable trust  at  their  absolute  discretion.   The  surviving executors  as  trustees  of  the  constructive  trust  which came into  being  on  the  basis  of  the  mutual  Wills  are entitled to execute and implement the said trust and do all things necessary for the said purposes.

(g) The  petitioner  is  not  entitled  to  put  any impediment in the implementation of the said trust.

(h) I  am one  of  the  surviving  executors  of  the  said mutual  will  of  Late  Madhav Prasad  Birla  executed  on July 13, 1982.”

The  said  affidavit  also  reiterates  the  contents  of  the  plaint.   No

contention,  however,  has been raised that  they have a caveatable  interest

keeping in view the spiritual life of MPB and the testatrix as a member of

the family or otherwise.  Similar affidavits have been filed by B.K. Birla,

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Yashovardhan  Birla,  Smt.  Laxmi  Devi  Newar  and  Smt.  Radha  Devi

Mohatta.  The sisters are also supporting the Birla family.

The claim of acquiring cavetable interest on the said basis,  thus, is

wholly unacceptable.  

PRE-EMPTION : FUTURE DOMAIN DOCTRINE

142. A right to claim pre-emption is not a right in the estate.  It creates an

interest in the property.  It does not create an interest in succession.  If such

a right has been created by an agreement, the same can be enforced only in

the event any contingency in that behalf takes place.  A Will is not a transfer

for  enforcement  of  a  right  of  pre-emption  under  a  contract.   It  must  be

enforced  by a  suit.  On the  right  of  pre-emption  based  on  consanguinity

being unconstitutional,  we may notice the decision of this  court  in  Atam

Prakash v.  State  of  Haryana & Ors. [(1986)  2  SCC 249],  wherein  while

striking  down  Section  15(1)(a)  of  the  Punjab  Pre-emption  Act,  1913  as

being ultravires of Article 14 of the Constitution it was opined at Paragraph

2:

“The right of pre-emption based on consanguinity has been variously described by learned judges as 'feudal', 'piratical', 'tribal', 'weak', 'easily defeated',

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etc. [Kalwa v. Vasakha Singh A.I.R. 1983 Punjab & Haryana 480 (F.B.) at 490 and Bishan Singh v. Khazan  Singh  [1959]  S.C.R.  878.]  Fusing  as  it does  the  ties  of  blood  and  soil,  it  cannot  be doubted that the right is antiquated and feudal in origin and in character.”

It was thus held:

“We are thus unable to find any justification for the  classification  contained  in  Section  15  of  the Punjab Pre-emption Act of the kinsfolk entitled to pre-emption.  The  right  of  pre-emption  based  on consanguinity is  a relied of the feudal  past.  It  is totally  inconsistent  with  the  Constitutional scheme. It is inconsistent with modern ideas. The reasons which justified its recognition quarter of a century  ago,  namely,  the  preservation  of  the integrity of rural society, the unity of family life and  the  agnatic  theory  of  succession  are  today irrelevant.  The  list  of  kinsfolk  mentioned  as entitled  to  pre-emption  is  intrinsically  defective and  self-contradictory.  There  is,  therefore,  no reasonable  classification  and  clauses  'First', 'Secondly', and 'Thirdly' of Section 15(1)(a), 'First', 'Secondly'  and  'Thirdly',  of  Section  15(1)(b), Clauses 'First',  'Secondly'  and 'thirdly'  of  Section 15(1)(C)  and  the  whole  of  Section  15(2)  are, therefore, declared ultra vires the Constitution.”

143. KKB,  BKB and  GPB claimed caveatable  interest  as  co-owners  of

1/5th share in Kumaon Orchards, two other co-owners being PB and S.K.

Birla.   S.K. Birla does not  claim any caveatable  interest  in  the  estate  of

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PDB.  Even a person claiming an interest in the property of the testator by

reason of an agreement for sale would not have a caveatable interest on the

premise that such an agreement would be binding both upon the executor as

also upon the heirs of the deceased (in the event, probate is not granted).

The same principle would apply herein.  Right of pre-emption, if any, is not

affected by grant of probate.  A right of pre-emption would arise only when

a voluntary transfer is made for consideration in favour of a stranger and not

prior thereto.   

144. Reliance has  been placed by Mr. Venugopal  on  Bhoop v.  Matadin

Bhardwaj [(1991) 2 SCC 128].  We may notice that therein a decree for pre-

emption had already been granted.   

145. Right  of  a  co-owner  is  not  affected  by  testamentary  disposition.

Indisputably, the object of conferring the right on a co-sharer or owner of an

adjacent immovable property is to exclude strangers from acquiring interest

in an immovable property as a co-sharer or to keep objectionable strangers

away  from  the  neighbourhood.   The  same  by  itself,  in  our  considered

opinion, does not constitute a caveatable interest.  A right of pre-emption as

was submitted by Mr. Venugopal may run with the land as has been held in

Sri Audh Behari Singh v. Gajadhar Jaipuria & Ors. [AIR 1954 SC 417], but,

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the same would not, it is bear repetition to state, constitute any caveatable

interest.   

AS EXECUTORS OF 1982 WILL

146. BKB claims to have a ceveatable interest as an executor of the 1982

Will of PDB.  A deed of appointment was executed on 25th August, 2004 to

fill up a purported vacancy caused by the death of MPB.  So far as the claim

of  BKB and GPB are  concerned,  the  same are  required to  be dealt  with

separately.   

147. MPB was an executor under the 1982 Will of PDB.  He expired in

1990.  The deed of appointment was executed on 25th August, 2004.  Both

the  learned  Single  Judge  as  also  the  Division  Bench  of  the  High  Court

opined that MPB never ceased to be the executor.  The High Court noticed a

term of  purported 1982 Will, which reads as under :-

“If any of  them ceases  to  be  executor  for  any reason, survivor or survivors might, if he or they so desire, fill up  such  vacancy  or  vacancies  with  a  person  of  their choice.”       

148. It was furthermore held that on the death of PDB, the three executors

were alive.  It was furthermore noticed that he did not claim any caveatable

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interest as an executor to the 1982 Will.  Such a claim was made for the first

time in a supplementary affidavit in opposition filed on 25th August, 2004

after the commencement of the hearing of the application for discharge.  It

was not averred that MPB had ever become an executor or ceased to be an

executor under the said Deed of Appointment.  

149. Section 2(c) of the 1925 Act defines ‘executor’ to mean “a person to

whom the execution of the last will of a deceased person is, by the testator’s

appointment, confided.”

150. ‘Will’ has been defined in Section 2(h) to mean “the legal declaration

of the intention of a testator with respect to his property which he desires to

be carried into effect after his death.”.

Will takes effect after the death of testator.  Rights and obligations of

an executor of a Will arise only then.  No right is created in the executor

during  the  life  time  of  the  testator.   Appointment  of  a  testator  and

appointment of a trustee stand completely on different footings.  

151. A person named as an executor under a Will cannot claim any right to

act as an executor until the death of the testator.  He has to survive him.  He

has to accept the office as an executor expressly or by conduct.  The term

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“ceasing to be” thus necessarily means assumption of office of executor and

thereafter ceasing to hold such office, by renouncement or removal or death,

etc.  

In Salton v.  New Beeston Cycle Company [(1899) 1 LR.Ch.D. 775]

interpretation of the words “cease to hold” was held to mean that a director

could not ‘cease’ to hold a qualification which he never possessed. Thus, if

a Director is named in the articles, and never had a qualification, he cannot

be said to cease to hold it, stating:

“If Lord Norreys had been only a de facto director and never a de jure director,  I think there might have been force  in  this  contention  ;  but  it  seems to  follow from what I have held on the first point that Lord Norryes, not having ceased to be a director, must be regarded as still a member  of  the  board,  and  as  such  entitled  to remuneration.”  

152. The genuineness of the Will executed by MPB and PDB in 1982 is

not  admitted  by  the  first  respondent.   Their  genuineness  therefore  is  in

question.   

We have noticed hereinbefore in brief the stipulations  made in the

said  Will.   We have  also  noticed  that  Shri  P.L.  Agarwal  is  an  attesting

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witness in all the three documents.  It may, however, be placed on record

that the 1999 Will is a registered one.  The 1982 Wills are not.

153. Mr.  K.K. Venugopal  has  relied  upon two decisions  of  the  English

Courts being In Re Lighton [ER (1 HAGG. ECC) 569] and In RE Henrietta

Johnson [ER (1 SW&TR-18) 609]

In Re Lighton (supra), a Will was executed on 17th March, 1827,  The

executors were appointed in the following terms:

“And of this my will I nominate, constitute and appoint Sir Samuel Hayes, and the Reverend Steward Hamilton, executors and trustees; and, in case of the death of either of them, I nominate and appoint Edmund Hayes, and my brother  Henry  Lighton,  to  act  and  be  executors  and trustees in their stead”.

Having regard to the phraseology used therein, it  was held that the

appointment of Edmund Hayes was complete stating:

“The deceased died possessed of a policy of insurance on his  own  life  in  the  Equitable  Assurance  Office,  in England,  of  the  value  of  about  63001;  and  for  the purpose  of  obtaining  payment  of  it  the  present application  was  made  for  a  grant  of  probate,  in  this country, of the same will to Sir Edmund Hayes.  It was founded on the affidavits of Sir Edmund Hayes, of Mr. Shaw  of  Dublin  (who  prepared  the  will),  and  of  Dr. Abraham  Colles  (the  physician  who  attended  the

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deceased); that he, the deceased, at the time of executing his  will,  was  in  a  very  dangerous  state  of  health,  and contemplated the near approach of his death; and that it was  intended  by  the  deceased  that  the  substitution  of executors should take effect in the event of the death of either of the first named executors at any time.

A proxy also was exhibited under the hand and seal of the Reverend Steward Hamilton, by which he waived his title to probate, and consented that it should pass to the substituted executors, jointly or severally.”

The said decision, therefore, was rendered in the fact of that case.

154. In RE Henrietta Johnson (supra) in the Will made by A, B,C,D and E

were  appointed  executors  and  in  case  of  the  death  of  B,  F  to  become

executor  in his place.  B,C,D and E proved the Will.   B and C died.   F

applied to have a double probate granted to him.  D and E opposed such

grant.  It was held that F was entitled to the grant and that the casualty was

not restricted to the death of B in A’s life time holding:

“I should be very loath to take any presumed policy of the  Court  of  Probate  as  my guide.   In  the  Goods  of Lighton there were in fact two decisions for there was a grant of the Irish Court in the first instance and that was acted upon by the Judge of the Prerogative Court in this country.  Here there are ample grounds to satisfy me as to the intention of the testatrix.  Blake, the father, was trustee  and  executor  of  the  person  from  whom  she received  a  considerable  amount  of  property  in  a complicated state, and John Joseph Balko, as his father’s partner, was conversant with the whole business.  These

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are  very  good  reasons  why  the  testatrix  should  have desired him to succeed his father as her executor, and I cannot  consider  such  substitution  as  limited  to  the casualty  of  the  father’s  decease  in  the  lifetime  of  the testatrix.”

155. Reliance  has  also  been  placed  upon  Williams  on  Executors,  15th

Edition at page 34 by Mr. Venugopal, wherein it is stated :-

“The office of Executor being a private one of trust, and, as  a  rule,  named  by  the  testator,  not  by  the  law,  the person  nominated  may  refuse,  so  long  as  he  had  not intermeddled,  though  he  cannot  assign  the  office;  and even if  in  the  lifetime of  the testator  he has agreed to accept the office, it is still in his power to recede….”

There is nothing to show that BKB or any other executor accepted the

office of the executor during the life time of MPB or PDB.  In the absence

of any such statement having been made, the said authority cannot be said to

have any application.   

156. In  Jnanadndra  Nath  Mukherjee  and  another  v.  Jitendra  Nath

Mukherjee and others [AIR 1928 Cal. 275] it was held :-

“Now the  office  of  executor  being  a  private  office  of trust  named  by  the  testator  and  not  by  the  law,  one named executor may refuse the office or renounce.  It is, however,  too  late  to  refuse  or  renounce  when one has once elected to act  as  executor;  and he may determine

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such  election  by  acts  which  amount  to  an administration.”

(See also  Sri Raja Kakadapudi Venkata Sudarshana Narasayyamma

and others  v.  Andhra Bank Ltd., Vijayawada and  others, AIR 1960 AP

273;  Ramautar  Singh  v.  Ramsundari  Kur.,  AIR 1959  Pat  585  and  Leo

Sequiera  v.  Magdalene Sequiers Bai and others, AIR 1971 Mysore 143).   

157. We  may  notice  that  in  Sri  Raja  Kakadapudi  Venkata  Sudarshana

Narasayyamma (supra), it has been held :

“57. In Parlhasarathy Aiyar v. Subbaraya Gramany, AIR 1924 Mad 07 at p. 70, it was observed by Schwabe C. J., that

"It is not right, as has been suggested in some cases, to treat a will of which probate has not been granted as non- existent and the property passing y intestacy."

This  will  of  course  depend  upon  the  fact  whether  the plaintiff  has  accepted  the  office  as  an  executrix.  The learned  counsel  for  the  appellant  has  placed  strong reliance on certain observations in the judgment of the Madras  Higb  Court  in  Parthasarathy  Appa  Rao  v. Venkatadri Appa Rao, 43 Mad LJ 486 at p. 515 : (AIR 1922 Mad 457 at pp. 469-470). But that case obviously has no application,  because on the facts of that case it was found that the executor died without accepting the office  or  showing  any  indication  that  he  took  upon himself the duties of executor.

Whether the executor has accepted the office or not will depend  upon  the  facts  of  each  case.  In  this  case  the

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plaintiff  has  not  given  evidence  and  no  oral  evidence was  at  all  tendered  by  her.  We  can  only,  therefore, deduce  the  fact  of  her  acceptance  from  the  record available. In Ex. B-2, the counsel of the plaintiff stated that his client was appointed as an executrix under the will  of her husband and that  he was instructed to take adequate legal steps to have the estate duly represented. We are of opinion that  this  letter  written obviously on behalf  of  the  plaintiff  is  enough  to  constitute acknowledgment or the acceptance of the plaintiff of her office as an executrix.”

158. In Smt. Usharani Roy  v.  Smt. Hemlata Roy [AIR 1946 Cal. 40] it

was held :-

“If the caveator is not the executor under the later will, a citation would be necessary as is provided for by S. 229, Succession Act, calling upon the executor to accept  or renounce his executorship and if the executor renounces or fails to accept the executorship within the time limited for acceptance or refusal thereof, the will may be proved and  letters  of  administration  with  a  copy  of  the  will annexed  may be  granted  to  the  person  who  would  be entitled  to  administration  cases  of  intestacy.   (Section 231, Succession Act.)”    

The  said  decisions,  therefore,  were  rendered  having  regard  to  the

doctrine of renouncing the office of an executor by implication in view of

Section 229 of the 1925 Act and clearly show that an executor can act only

upon the death of the testator and not during his life time.   

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159. If  the  submission  of  the  learned  counsel  that  the  executors  had

interest even during the life time of MPB is accepted the same would give

rise to an absurdity.   

160. An executor must first  become an executor.   As MPB predeceased

PDB, he never became an executor.  If he did not become an executor, the

question of filling up of any vacancy would not arise.   

161. For the aforementioned purpose, we may assume that the 1982 Will

was valid.  As MPB could never become an executor, BKB’s appointment

does  not  confer  on  him  a  caveatable  interest.   An  appointment  of  an

executor ordinarily is the function of a court in terms of Section 301 of the

1925 Act.  We, however, need not go into the question as to whether his

appointment was legal or not.  But, we may only notice that even in the deed

of appointment, there is nothing to show that the necessary ingredients for

appointment of B.K. Birla by the surviving executors had been made out as

it was not stated that the original executor had seized to hold office.

162. The  office  of  executor  under  the  1982  Will  does  not  carry  any

remuneration therewith.  The power to appoint an executor was dependent

upon any executor ceasing to be one.  The condition precedent has not been

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fulfilled.  In the instant case, MPB had never become the executor, hence,

the question of his “ceasing to be an executor” does not arise.  

163. Appellants  are not  the legatees of the said Will.   They are not  the

beneficiaries  thereunder.   They  being  merely  executors,  in  our  opinion,

would not clothe them with a right to lodge a caveat as by reason thereof

they did not derive any caveatable interest in the estate of PDB.

CAVEATABLE INTEREST OF GPB AS A NAMED EXECUTOR

164. GPB was held to have caveatable interest on the premise that he was

named as an executor.  He, therefore, in our opinion, has rightly been held

to have a caveatable interest.  

165. An application  for  grant  of  probate  of  1982  Will  is  also  pending.

Therein a contention has been raised by the first respondent that the said

Will  was  not  genuine.   If  respondent  No.1  has  a  caveatable  interest  in

respect of 1982 Will, we do not see any reason as to why GPB would not

have any right in respect of 1999 Will.   

APPOINTMENT OF YB AS AN EXECUTOR IN PLACE OF MPB

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166. So far as the case of YB is concerned, his appointment as an executor

has been upheld by the High Court.  It was, however, opined that by reason

thereof, he did not acquire any caveatable interest.  RSL has filed an appeal

against that part of the judgment whereby his appointment as an executor of

the Will of MPB of 1992 in place of PDB has been upheld.   

167. For the reasons stated in regard to the legal position governing the

filling up of vacancy of one of the named executors by the others, we are of

the opinion that the appointment of YB as an executor of the Will of MPB

in place of PDB cannot be sustained.  It is not a case of YB that PDB had

assumed office  or  the  purported  Will  of  MPB had been given  effect  to.

Genuineness  of  the  said  Will  is  in  question.   KKB has  already filed  an

application  for  grant  of  probate  in  respect  of  the  said  Will.  As  there  is

nothing to show that any vacancy has been created by reason of death of

PDB,  YB could not have been appointed in her place at this stage.   

176. The  vacancy  has  to  be  filled  up  in  terms  of  the  instrument  or  in

accordance with law.  It cannot be directed to be filled in equity by a Court

of Law as was submitted by Mr. Venugopal.  

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168. We are furthermore of the opinion that only because YB has a right to

maintain a suit for purported enforcement of the Mutual Wills, the same by

itself cannot confer upon him a caveatable interest.

169. There exists a distinction between an executor named by the testator

in the Will and an executor who is appointed on a purported vacancy arising

out of death of another executor.  In the latter case such an appointment may

not  be  valid.    In  a  case  of  this  nature  YB could  not  be  held  to  have

caveatable interest only by reason of such an appointment as here is nothing

on record to show that PDB had enjoyed the benefit under the said Will and

not as an heir of MPB.  If the Will had not been given effect to for such a

long time, there is no reason as to why the terms thereof should be directed

to be acted upon at this juncture and/or in terms thereof dispute between the

parties in this behalf cannot be adjudicated upon at an interlocutory stage.  

170. In  Mrs.  Hem  Nolini  Judah  (since  deceased)  and  after  her  Legal

Representative Mr. Marlean Wilkinson  v.   Isolyne Sarojbashini Bose and

others [AIR 1962 SC 1471], it was held :-.

“(7)    Re. (1).

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We have  already pointed  out  that  though it  was said that Dr. Miss Mitter had executed a will in favour of her  mother  Mrs.  Mitter  in  June  1925  bequeathing  the house  in  dispute  to  her,  no  probate  or  letters  of administration were ever obtained by Mrs.  Mitter.  It is true that Mrs. Mitter in her turn made a will in favour of the appellant  and she obtained letters of administration of  that  will.  In  that  will  the  house  in  dispute  was mentioned as the property of Mrs. Mitter was bequeathed to  the  appellant  and  in  the  letters  of  administration granted to her this property was mentioned as one of the properties coming to her by the will of her mother. The question therefore that arises is whether it was necessary before the appellant could take advantage of the bequest in favour of Mrs. Mitter that letters of administration of the will of Dr. Miss Mitter should have been obtained by Mrs. Mitter Section 213(1) which governs this matter is in these terms :-  

"(1)  No  right  as  executor  or  legatee  can  be established in any Court of Justice, unless a Court of  competent  jurisdiction  in  India  has  granted probate  of  the  will  under  which  the  right  is claimed,  or  has  granted  letters  of  administration with the will  or with  a copy of an authenticated copy of will annexed."  

This section clearly creates a bar to the establishment of any right under a will by an executor or a legatee unless probate or letters of administration of the will have been obtained.  It  is  now  well-settled  that  it  is  immaterial whether the right under the will is claimed as a plaintiff or a defendant; In either case s. 213 will be a bar to any right being claimed by a person under a will whether as a plaintiff  or  as  a  defendant  unless  probate  or  letters  of administration  of  the  will  have  been  obtained  :  (see Ghanshamdoss v. Gulab Bi Bai) ((1927) I.L.R. 50 Mad. 927). But it is urged on behalf of the appellant that this section will not bar her because she obtained letters of administration  of  the  will  of  her  mother  Mrs.  Mitter under which she is claiming and that it was not necessary

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for Mrs. Mitter to have obtained probate of the will of Dr. Miss Mitter in her favour.

It was further observed :

Whosoever wishes to establish that right, whether it be a legatee  or  an  executor  himself  or  somebody else  who might find it necessary in order to establish his right to establish  the  right  of  some  legatee  or  executor  from whom he might derived title, he cannot do so unless the will  under  which  the  right  as  a  legatee  or  executor  is claimed has resulted in the grant of a probate or letters of administration.  

171. We may notice the findings of the learned Single Judge which reads :-

“In any event going by the submission of Mr. P.K. Roy learned Senior Counsel (now deceased) assent to legacy having been given in favour of the said deceased Lady in relation to the 1982 will of M.P. Birla.  Nothing is left by the  executors  so  their  interest  if  at  all  is  no  longer subsisting.”

172. The affidavit of assets annexed by the Birlas to their petition for grant

of  probate  in  respect  of  1982  Will  of  MPD  and  the  affidavit  of  assets

annexed by them to the petition for grant of probate of 1982 Will of PDB

show that the assets held by the former mentioned in the petition for probate

of his Will of 1982 are also shown as assets of PDB.   

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APPLICATION OF SECTION 92 CPC  

173. A suit contemplated under Section 92 of the Code of Civil Procedure

cannot be equated with a probate.  In a suit under Section 92 of the Code of

Civil Procedure, the title of the donor may be disputed.  Such a question as

of necessity must be gone into by the court which, however, is a forbidden

domain for the  Probate Court.   Reliance has been placed on  Sirajul  Haq

Khan & Others v. The Sunni Central Board of Waqf, U.P. and Others [1959

SCR 1287] wherein this Court was of the opinion that a person ascertaining

that  the  property  in  dispute  was  not  a  wakf  property  was  entitled  to  be

heard.  In a suit of that nature the title in the property or lack of it would be

germane.

SECTION 73 OF THE INDIAN TRUST ACT.  

174. Provisions  of  Section  73  of  the  Indian  Trust  Act  have  limited

application.  Applicability thereof would arise when a trustee disclaims, dies

or is absent from India for a period of more than six months or leaves India

for the purpose of residing abroad or is declared an insolvent etc.   

175. Prima facie BKB or YB were not appointed as trustee.  They were

only  appointed  as  executors.   An executor  becomes  a  trustee  only upon

completion of administration of trust.  This proposition does not appear to

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be  in  dispute.   Administration  of  trust  being  incomplete,  MPB  did  not

become an executor.  He, therefore, was not a trustee.  Provisions of Section

73 of the Indian Trusts Act will, therefore, have no application.  In the Will

of PDB executed in the year 1982 he was merely named as an executor.  It is

also  difficult,  at  this  stage,  to  construe  the  Will  of  1982  of  PDB as  an

instrument  of  trust.   The question  in  regard  to  the  administration  of  the

estate of PDB only arose after her death which took place in 2004.  MPB

died in 1990.  The said provisions, therefore, have no application.   

PREJUDICE ARGUMENTS

176. Submission that RSL is an outsider and the bequest is un-natural does

not appeal to us.  Such a question cannot be determined at this stage.  Why

an owner of the property executes a Will in favour of another is a matter of

his/her  choice.   One  may  by  a  Will  deprive  his  close  family  members

including his sons and daughters.  She had a right to do so.  The court is

concerned with the genuineness of the Will.  If it is found to be valid, no

further question as  to why did she do so would be completely out  of its

domain.  A Will may be executed even for the benefit of others including

animals.   Various  documents  have  been placed  before  us  by the learned

counsel appearing on behalf of the first respondent to show that MPB was

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not happy in regard to management of Birlas’ Group of Companies and by

the division thereof which took place after the demise of G.D. Birla in 1983.

177. Indisputably, however, they were separate.  They were in the control

and management of their respective companies.  The group of companies

managed by MPB and PDB were known as M.P. Birla Group of Companies.

There  are  other  companies,  named  separately,  in  the  name of  individual

group of Birlas.  

178. According to the first respondent he had closely been involved in the

M.P.  Birla  Group  of  Companies  and  had  been  inducted  as  Director/Co-

Chairman/Chairman of various M.P. Birla Group of Companies during the

lifetime  of  PDB.   Other  persons  belonging  to  Birla  family  were  not  so

involved.    In  fact  according  to  the  appellants  themselves,  the  first

respondent was a man of trust so far PDB is concerned as it was stated :-

“(f) The Petitioner through Lodha & Co. and/or other firms under his control, ostensibly or otherwise, came to be appointed as statutory auditors and/or to be otherwise involved in matters concerning the finance and accounts of several companies and organizations where the Birla family  has  substantial  stakes  in  management  and/or shareholding.  By reason of the same, the petitioner came to enjoy the trust and confidence of most of the members of the Birla family.

(g) After the death of late Madhav Prasad Birla in or about  July,  1990 the deceased who has had no formal

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education relied and continued to rely on the petitioner and reposed and continued to repose complete trust and confidence in the petitioner in the matters pertaining to all her financial affairs by reason whereof, the petitioner was  at  all  material  times,  privy  to  all  information concerning  the  personal  and  financial  affairs  of  the deceased.  The deceased also sought and obtained advice from the petitioner with regard to her assets, savings and investments and with regard to and in the management and affairs of several companies and institutions where the  deceased  had  a  stake  in  the  shareholding  and/or management and the deceased was at all material times accustomed to act as per the wishes and dictates of the petitioner.  The petitioner is and was at all material times aware of the same.   

(h) By reason of the aforesaid, the petitioner was, at all  material  times,  in  a  fiduciary  relationship  with  the deceased.”

179. The said arguments, therefore, do not appeal to us to determine the

issues in favour of Birlas.  We wish that these contentions were not raised

before us.

APPEAL ARISING OUT OF SLP (C) NO. 19040 OF 2007

180. Whether RSL has a cavetable interest in the proceeding in respect of

the probate of the Will of MPB dated 13th July, 1982 is also in question in

this appeal.  

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181. We have already held that GPB has caveatable interests as executor

of MPB in respect of his Will of 1982.  We, therefore, see no reason as to

why RSL would not have a caveatable interest being a beneficiary under the

1999 Will in the proceedings for grant of probate of the Will of MPB dated

13th July, 1982.  If the grounds taken in the appeal  are to be upheld, the

same ex facie would destroy the case of the appellants in the other cases.  

SUIT ON MUTUAL WILLS

182. We have noticed hereinbefore the averments  made in  the  plaint  of

Civil Suit No.221 of 2004.  Filing of the said suit, in our opinion, does not

bar considering the caveatable interest and as we have not been called upon

to decide the maintainability of the said suit at this stage, we do not make

any observation thereupon.   We have noticed the  averments  made in the

plaint at some length only for the purpose of arriving at a finding on the

question as to whether the plaintiffs therein have acquired any caveatable

interest by reason thereof or not.  

183. In our opinion, the High Court was right in opining that a caveatable

interest may arise only after suit for enforcement of mutual Will is decreed

and not prior thereto.

EPILOGUE

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184. Before parting with this case we may notice some disturbing features.

Each party for  good  or  bad  reasons  has  been opposing one  or  the  other

application filed by the other.  It is stated that respondent No.1 is opposing

the application  for  substitution  of  heirs  and legal  representatives  of Mrs.

Laxmi Devi Newar, sister of MPB.  We do not know on what premise such

a stand is being taken.  Counsel for both the parties put the blame on the

other side for causing delay in disposal of the matters.   

185. We, keeping in view the facts and circumstances of the case, are of

the opinion that the probate proceedings should be taken up for hearing by

the High Court as expeditiously as possible.  We would request the High

Court to consider this aspect of the matter.   

186. Probate proceedings may also be taken up for hearing one after the

other.   

187. Probate proceeding of RSL in respect of Will of PDB executed in the

year 1990 should be taken up first.  The hearing of the probate proceeding

of  Will  of  MPB  of  1982  may  be  taken  up  immediately  thereafter.

Judgments may be delivered, if possible, at the same time.  The suit filed by

the executors of the two 1982 Wills being Civil Suit No. 221 of 2004 may

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be taken up for hearing only after the disposal of the probate proceedings, if

necessary.  

CONCLUSION

188. For the reasons aforementioned, Civil Appeal arising out of SLP (C)

No. 10176 of 2007 filed by RSL challenging appointment of YB is allowed

and all other appeals are dismissed with costs.

189. Who would be the beneficiaries of the case?  We think that benefit

should  go  to  Legal  Services  Authority.   We direct  the  appellants  in  the

appeal filed by Birlas should deposit a sum of Rs.2,50,000/- (Rupees Two

lac fifty thousand only) with the Member Secretary of West Bengal Legal

Services Authority.  Such deposit should be made within four weeks from

today, failing which the West Bengal  Legal  Services Authority would be

entitled to realize the amount by filing application for execution wherefor

cost would be borne by the appellant herein.  Let a copy of this order be sent

by  the  Registry  to  Member-Secretary,  West  Bengal  Legal  Services

Authority.

………………………….J.

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[S.B. Sinha]

..…………………………J.     [Harjit Singh Bedi]

New Delhi; March 31, 2008

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