Yash Vardhan Mall vs Tejash Doshi

Supreme Court23 November 2017L. Nageswara Rao · Arun Mishra

SCC(2018) 11 SCC 792
Neutral2017 INSC 1138

Ratio decidendi

The rule this decision rests on

1. An executor of an earlier will who is named to take over as executor if the first-named executor is unable or unwilling to act possesses caveatable interest in proceedings concerning a subsequent will of the same testator, even though that executor is not a legatee under either will, because the executor's obligation is to obtain probate and administer the estate according to the terms of the will, and the dispute between wills directly affects that duty. 2. An affidavit filed in support of a caveat under Rule 25 of The Rules of The High Court At Calcutta (Original Side), 1914 satisfies the requirement to state "the grounds of objections to the application" where it identifies a rival will and asserts that the rival will, being registered earlier in time, represents the testator's final testamentary intention, thereby providing grounds to contest the grant of probate of the later-dated will, even if the affidavit does not explicitly doubt or dispute the execution of the will in respect of which probate is sought. 3. Where a caveator is found to possess caveatable interest and the affidavit filed in support of the caveat states both the caveator's right and interest and grounds for objection in compliance with Rule 25, the caveat cannot be discharged merely because the affidavit does not contain an averment specifically doubting the due execution of the will.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

Non-Reportable

IN THE SUPREME COURT OF INDIACIVIL APPELLATE JURISDICTIONCIVIL APPEAL Nos.19635-19636 of 2017(Arising out of S.L.P. (Civil ) Nos.28643-28644 of 2017)

YASH VARDHAN MALL.... AppellantVersus

TEJASH DOSHI….Respondent

JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

A Will was executed by Smt. Shrutika Doshi on

01.03.2013 by which she appointed her husband, the sole

Respondent herein, as the executor and trustee. Her minor

daughters were made the beneficiaries. It was mentioned in

the Will that in case the Respondent is unable to carry out or

act as the sole executor by giving effect to the Will and

testament, the Appellant shall become the sole executor.

The Will dated 01.03.2013 was registered with the

Sub-Registrar of Assurance at Calcutta on 25.05.2013.

Smt. Shrutika Doshi died on 26.05.2013. Another Will2

executed by Smt. Shrutika Doshi on 22.04.2013 surfaced

wherein the Respondent was appointed as the sole executor

and in case he is unable to act as the sole executor his

father would replace him. As the Respondent did not apply

for grant of probate of the Will dated 01.03.2013 for two and

half years, the Appellant applied for a probate of the Will.

Thereafter, the Respondent filed P.L.A. No.123 of 2016 for

grant of probate of the Will dated 22.04.2013 before the

High Court at Calcutta. The Appellant filed a caveat on

15.06.2016 and on receipt of a notice of the filing of the

P.L.A. No.123 of 2016, the Appellant filed an affidavit in

support of the caveat on 10.01.2017. The Respondent filed

an application G.A. No.888 of 2017 in P.L.A. No.123 of 2016

for discharge of the Appellant’s caveat.

2. The petition filed by the Appellant for grant of probate

of the Will dated 01.03.2013 was dismissed by the District

Judge, Alipore on 17.04.2017. An appeal has been filed

against the said order which is pending in the High Court at

Calcutta.

3. A learned Single Judge of the High Court at Calcutta

heard G.A. No.888 of 2017 in P.L.A. No.123 of 2016 for

discharge of caveat. By an order dated 28.06.2017, the3

learned Single Judge allowed the application filed by the

Respondent and discharged the caveat. The appeal filed

against the said order dated 28.06.2017 was disposed of by

a Division Bench of the High Court holding that there was no

reason to interfere with the order of the learned Single

Judge, though the Appellant had a caveatable interest.

Aggrieved thereby the Appellant has approached this Court.

4. The learned Single Judge referred to Chapter XXXV of

the The Rules of The High Court At Calcutta (Original Side),

1914 (hereinafter referred to as the ‘Rules’) to hold that the

affidavit filed in accordance with Rule 26 thereof did not

disclose legal grounds of objection to the grant of probate.

The learned Single Judge further held that the Appellant did

not have caveatable interest and discharged the caveat.

The Division Bench held that an executor of a previous Will

cannot be denied a right to lodge a caveat in respect of a

subsequent Will of the same testator. Even if the executor

is not a legatee under the Will, his obligation is to obtain a

probate of the Will and to administer the estate in

accordance with the terms of the Will. As the execution of

the Will dated 01.03.2013 was not disputed by the

Respondent, the Division Bench held that the Appellant has 4

sufficient interest in the estate and was entitled to lodge a

caveat by virtue of his position as a trustee in respect of the

trust created by the first Will. Having held that the

Appellant has a right to object to the grant of probate of the

Will dated 22.04.2017, the Division Bench refused to

interfere with the order of the learned Single Judge for the

reason that the affidavit filed in support of the caveat did

not disclose any ground to doubt the due execution of the

Will dated 22.04.2013.

5. The Rules relevant for the purpose of adjudication of

the dispute in this case are as follows:

“24. Caveat. – Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his Advocate acting on the Original Side file a caveat in the Registry in Form No.12. Notice of the filing of the caveat shall be given by the Registrar to the petitioner or his Advocate acting on the Original Side. (Form No.13).

“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 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.”

“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.”

6. An affidavit filed in support of the caveat according to

Rule 25 shall state the right and interest of the caveator and 5

the grounds of the objections to the application. The

affidavit filed in support of the caveat by the Appellant

mentions that Smt.Shrutika Doshi executed her last Will and

testament on 01.03.2013 which was registered on

22.05.2013. There is a reference to the Will dated

22.04.2013 alleged to have been executed by Smt.Shrutika

Doshi as her last Will and testament. It was further

mentioned in the affidavit that the Will dated 01.03.2013

being registered on 22.05.2013 has to be treated as the last

Will and testament of Smt.Shrutika Doshi. The Appellant did

not doubt the execution of the Will dated 22.04.2013, but

asserted that the Will dated 01.03.2013 which was

registered on 22.05.2013 was her last Will.

7. After holding that the Appellant has a caveatable

interest to object to the grant of probate of the Will dated

22.04.2013, the High Court refused to interfere with the

order of the learned Single Judge on the basis that the

affidavit filed in support of the caveat did not doubt the

execution of the Will. As per Rule 25, the right and interest

of the caveator and the grounds for objection to the

application have to be mentioned in the affidavit filed in

support of the caveat. The right and interest of the 6

caveator as the executor of rival Will dated 01.03.2013 have

been mentioned in the affidavit filed in support of the

caveat and the High Court rightly upheld the contention on

behalf of the Appellant that he has caveatable interest. The

grounds for objection to the application for grant of probate

have also been mentioned in the affidavit. On a detailed

scrutiny of the affidavit filed in support of the caveat, we are

satisfied that the Division Bench went wrong in not

permitting the Appellant to contest the proceeding of

probate of the Will dated 22.04.2013, especially after

holding that he has a caveatable interest. It is relevant to

mention that the petition filed by the Appellant for grant of

probate of the Will dated 01.03.2013 was rejected by the

District Judge, Alipore on the ground that the application for

probate of the Will dated 22.04.2013 was pending and that

the Appellant had lodged a caveat in that proceeding. It

was further held in the said order passed by the District

Judge on 17.04.2017 that the Appellant will have sufficient

opportunity to prove his allegations against the Respondent

in the said proceeding.

8. This Court in Krishna Kumar Birla v. Rajendra

Singh Lodha and Ors. (2008) 4 SCC p.300 considered 7

the point of caveatable interest in a detailed manner and

held that no hard and fast rule can be laid down. The

existence of a caveatable interest would depend upon the

fact situation of each case. In the instant case, the High

Court found that the Appellant has caveatable interest, but

the caveat filed by the Appellant was discharged on the

ground that the affidavit filed in support thereof was bereft

of an averment doubting the due execution of the Will dated

22.04.2013. For the reasons stated supra, we are satisfied

that the affidavit filed in support of the caveat fulfils the

condition of Rule 25.

9. The appeals are allowed and the judgment passed by

the Division Bench of the High Court is set aside. No order

as to costs.

......................................J. [ARUN MISHRA]

……................................J. [L. NAGESWARA RAO] New Delhi, November 23, 2017.

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