Whether a particular person is really a lawful widow of the testator or not cannot be conclusively adjudicated in the probate proceedings and therefore, only a prima facie view was possible to decide whether her caveat should be discharged or not.
CIVIL APPELLATE JURISDICTION
[DIPAK MISRA] AND [SHIVA KIRTI SINGH] JJ.
October 24, 2016
CIVIL APPEAL NO.473 of 2009
Saroj Agarwalla (Dead) Thr. LR Abhishek Agrawalla …..Appellant
Yasheel Jain …..Respondent
W I T H
CIVIL APPEAL NO.474 OF 2009
J U D G M E N T
SHIVA KIRTI SINGH, J.
1. Both the appeals arise out of same proceedings initiated by the appellant for grant of probate on the basis of a Will claimed to be the last Will and testament of appellant’s brother Jagdish Prasad Tulshan. Appellant’s prayer to reject the caveats of respondents in the above proceedings was turned down by a Division Bench of High Court at Calcutta by impugned orders, both dated 04.05.2007. Both the appeals, therefore, have been heard together and shall be governed by this common judgment.
2. The appellant Saroj Agarwalla is the propounder of a Will, alleged to have been executed by one Jagdish Prasad Tulshan. She claims to be the only surviving sister of the testator at the time of his death. She prayed for grant of the Probate of the Will allegedly executed by Jagdish. The respondent in the first appeal, i.e., C.A.No.473 of 2009 – Yasheel Jain lodged a caveat claiming to be the son of a pre-deceased sister of the testator and thus having interest in the estate of the deceased. His claim is founded on two grounds, firstly as a nephew of the testator and secondly as the sole beneficiary under an alleged prior Will of the testator in respect of the same estate.
3. A learned Single Judge considered the objection raised by the propounder to the caveat filed by Yasheel Jain and rejected the objection. The Single Judge was of the view that the provision creating the right to file a caveat could be availed by a person who is not a rank outsider and could claim to be an heir after the propounder was no longer alive. In that view of the matter it was held that the caveat filed by Yasheel could not be discharged. Since the Single Judge did not discuss the claim of Yasheel based on an earlier Will, Yasheel filed a cross-objection before the Division Bench. The appeal and the cross objection were heard together. The Division Bench dismissed the appeal of the appellant and allowed the cross-objection by recording its prima facie satisfaction about existence of an earlier Will creating caveatable interest in favour of Yasheel. The Division Bench did not approve the view of the learned Single Judge that Yasheel had a caveatable interest as an heir of the testator but the conclusion of the learned Single Judge was approved, albeit for different reasons as noted above.
4. In the connected civil appeal the prayer of the appellant for grant of probate of the afore-discussed Will of Jagdish Prasad Tulshan was opposed by the respondent Malati Tulshan. She claimed to be the second wife of the testator married on 28.02.1986 and lodged a separate caveat on that basis. The propounder later filed an application for discharge of the said caveat on the ground that Malati was never married to the testator and, therefore, had no caveatable interest in the matter.
5. The learned Single Judge rejected the application for discharge of the caveat on the ground that the Will propounded by the appellant itself conferred some benefits upon Malati and therefore she had acquired caveatable interest. Single Judge also relied upon
Rule 9 of Chapter XXXV of the Original Side Rules
(hereinafter referred to as ‘the Rules’) of Calcutta High Court to hold that in case any benefit is conferred upon a person by virtue of the alleged Will, the said rule provided for citation and was attracted. The Division Bench did not agree with the reasonings given by the learned Single Judge and held that mere receipt of some benefits under the Will cannot confer a caveatable interest in a third party unless he claims interest in the estate of the deceased otherwise than by way of Will sought to be probated. But the conclusions of the Single Judge were upheld on the basis of claim of Malati that she was widow of the testator. The Division Bench came to hold that the issue whether Malati is really a lawful widow of the testator or not cannot be conclusively decided in the probate proceedings but once prima facie materials support her claim, the application filed for discharge of her caveat deserves dismissal. This view is founded on the reason furnished by Division Bench by pointing out that a judgment in the probate proceedings is a judgment in rem and, therefore, a person establishing prima facie interest in the estate of the testator should be permitted to maintain a caveat and contest a claim for probate. At this stage, it is not necessary to establish caveatable interest by conclusive proof. The Division Bench finally made it clear that all its observations were tentative and such observations will not be binding upon the parties or upon any other court if the status of Malati is questioned in any proceedings.
6. On behalf of appellant, claim of Yasheel that he has a caveatable interest on the basis of a prior Will was seriously disputed and contested by learned senior advocate Mr. Jaideep Gupta. He submitted that Yasheel admittedly does not have the original Will with him as noted by the Division Bench itself and, therefore, once it has been held that he has no caveatable interest as a nephew of the testator being son of a pre-deceased sister, the Division Bench erred in holding that he has an interest to maintain his caveat on the basis of an alleged prior Will in his favour. So far as interest of Malati is concerned, the submission on behalf of appellant is that she has made conflicting claims, one, as a widow of the testator and the other based upon benefits under the Will sought to be probated. Since the recitals in the Will described Malati only as a maid servant, according to appellant she could not have claimed to be a widow of the testator.
7. The preliminary issue that has arisen in the probate case which is still pending, relates to “caveatable interest”. Chapter XXXV of the Rules incorporate provisions relating to testamentary and intestate jurisdiction. Rule 1 defines ‘non-contentious business’ to include the business of obtaining probate and letters of administration (with or without the will annexed, and whether general, special or limited) where there is no contention as to the right thereto, as also in contentious cases where the contest is terminated and also includes the business of lodging caveats against the grant of probate or letters of administration. Rules 24, 28 and 30 are relevant to the issues at hand and are hence extracted hereinbelow :