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2012 DIGILAW 615 (JHR)

Sheo Narain Jaiswal v. Savitri Devi Jaiswal

2012-04-23

POONAM SRIVASTAV

body2012
ORDER Heard Shri A.K. Sinha, Sr. Advocate assisted by Mr. A.K. Srivastava, Mr. Badal Vishal, Ms. Suman Srivastava, Advocates, on behalf of the petitioner and Shri P.K. Prasad, Sr. Advocate, assisted by Mr. Ayush Aditya, appearing on behalf of the contesting respondents. 2. The order under challenge is dated 18th November, 2011 in L.A. Case No. 150 of 2010 passed by the Additional Judicial CommissionerXII, Ranchi (Annexure 3 to the writ petition). The court below has rejected the application filed on behalf of the petitioner under Order I Rule 10 (2) read with Section 151 of the Code of Civil Procedure. 3. The respondents are Class I heirs of Late Uma Shankar Jaiswal who executed a will in their favour bequeathing his 1/6th share of the property. The will is dated 13th February, 2002. The respondents preferred Letters of Administration Case on 9th September, 2010 under the Indian Succession Act, 1925 (hereinafter referred to as “the Act”) for grant of probate. The petitioner filed the aforesaid application to be arrayed as party since he has interest in the subject matter of the will. The ground for being arrayed as a party is that Rai Saheb Lakshmi Narain Jaiswal and Ram Narain Jaiswal were two brothers and were running their business of distillery in the name and style of M/s Lakshmi Narain Ramnarain at different places in different States. Lakshmi Narain Jaiswal died leaving behind six sons, namely, the petitioner Sheo Narain Jaiswal, testator of the willUma Shankar Jaiswal and four other brothersPrabhu Shankar Jaiswal, Kuldeep Narain Jaiswal, Jagat Narain Jaiswal and Ranjit Singh Jaiswal. Partnership firm was dissolved in 1970 and prior to dissolution of the firm, another firm M/s Lakshmi Narain and Sons was constituted between the six brothers and a deed of rectification of partnership was made. Subsequently it was resolved that the business of partnership shall be at Ranchi and at such other places or under such other name and style as mutually agreed upon from time to time. 4. The contention of the petitioner was that he was not aware about the will executed by Late Uma Shankar Jaiswal and that the will was false and fabricated with a view to deprive claim of the petitioner and other brothers. 4. The contention of the petitioner was that he was not aware about the will executed by Late Uma Shankar Jaiswal and that the will was false and fabricated with a view to deprive claim of the petitioner and other brothers. The respondents challenged the said application stating therein that the subject matter of the will had absolutely no connection with the partnership properties and two were completely different and distinct. The property bequeathed by virtue of the will was the exclusive property of Late Uma Shankar Jaiswal. The application under Order I Rule 10 (2) read with Section 151 of the Code of Civil Procedure was in fact held by the court below not maintainable and the petitioner conceded that instead of reading this petition under the provision of Code of Civil Procedure, it should be read as an application under section 283 of the Act. The submission on behalf of the petitioner that he has a “caveatable interest” in the property within the meaning of Section 283 (c) of the Act. 5. The claim of the petitioner that he had 'caveatable interest' within the meaning of Section 283(1)(c) was opposed. The court below was of the view that interpretation of the term 'caveatable interest' is pending final decision before the Apex Court. Since the matter has been referred to a larger bench, two conflicting views were expressed by coordinate benches and, therefore, reference was made for a legal and correct interpretation of the term, 'caveatable interest'. 6. The Additional Judicial Commissioner, Ranchi rejected the application on behalf of the petitioner treating it to be an application under the provisions of Section 283 (1)(c) of the Indian Succession Act by means of the impugned order. 7. On perusal of the impugned order, it transpires that late Uma Shankar Jaiswal executed a will in respect of 1/6th share of his exclusive property in favour of ClassI heirs only. Finding of the court below is that the petitioner stakes his claim in the property relating to the partnership firm constituting six brothers but the subject matter of the will had no connection with the petitioner. Finding of the court below is that the petitioner stakes his claim in the property relating to the partnership firm constituting six brothers but the subject matter of the will had no connection with the petitioner. The court below was of the view that the application under Section 283(1)(c) of the Act was nothing short of a delaying tactics, since the court below was required to examine the question of grant of probate in a very narrow compass regarding genuineness of the will. 8. After hearing the respective counsel at length and going through the citations placed before me, the only question to be decided in the instant writ petition is whether the order of the court below is valid in disallowing the petitioner to raise his objections regarding grant of probate. The Apex Court in the case of G. Gopal Vs. C. Baskar & Ors., (2008) 10 SCC 489 ruled that a person even having a slightest interest in the estate of testator is entitled to file caveat and contest grant of probate, but the Apex Court at a subsequent stage in the case of Jagjit Singh & Ors. Vs. Pamela Manmohan Singh, (2010) 5 SCC 157 , did not approve the view in the case of Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors., (2008) 4 SCC 300 or G. Gopal (supra). The matter has been referred to a larger bench. The court was of the view that though “caveatable interest” has not been defined in the Act, but the term has been interpreted in a number of decisions and generally the court's interference was only in case the testator's estate was connected with the person raising objection and one could establish and substantiate that he has a share and he has been deprived of the same. In the case of Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon & Ors., (2007) 11 SCC 357 ,the court ruled that in a probate case, it is to be determined that the property purported to be bequeathed, if it is in favour of the actual direct heirs, then the matter to be examined is whether the caveator is permitted to object grant of probate. 9. Shri P.K. Prasad, Sr. Advocate, has placed reliance on another decision, Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors., (1993) 2 SCC 507 . 10. 9. Shri P.K. Prasad, Sr. Advocate, has placed reliance on another decision, Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors., (1993) 2 SCC 507 . 10. In the instant case, the petitioner has raised his objection on the ground that he wants to watch his interest created through deed of partnership and deed of rectification executed amongst the brothers of the testator. The partnership agreement was entered into between Lakshmi Narain Jaiswal and Ram Narain Jaiswal and the business was running in the name and style of M/s Lakshmi Narain Ramnarain, engaged in manufacturing of liquor and the petitioner is not being deprived of his share, if the will is probated for the reason that the testator has only bequeathed his 1/6th share. Whatever share comes his way, his direct heirs will be benefited. The petitioner cannot dispute that the will is with any ulterior purpose or forged. The beneficiaries are none others but his heirs belonging to ClassI as provided in the Succession Act. In the event the petitioner feels that there is any dispute regarding his share, it can evidently be decided in a separate proceeding, such as, a civil suit which has obviously got nothing to do with the probate case. In the case of Kanwarjit Singh Dhillon (Supra), the Apex Court held that the question whether the properties which are subject matter of the will were joint ancestral properties or acquired properties or relates to title. These questions do not fall within the four corners of the probate case. The title of the testator in the properties bequeathed can be decided only in a Civil court on the basis of evidence. The probate could only be as a piece of evidence which a competent Civil court would examine its evidenciary value. 11. The will dated 13.02.2002 executed by late Uma Shankar Jaiswal in favour of his immediate heirs specified in ClassI, the petitioner cannot have any objection whatsoever in grant of Letter of Administration. The interference by the petitioner is uncalled for. I do not find any substance in the arguments on behalf of the petitioner. Section 283 (1)(c) is only to safeguard the interest of all those who have a caveatable interest specially, if the objector is being deprived of his share and claim in the property which is the subject matter of the will. I do not find any substance in the arguments on behalf of the petitioner. Section 283 (1)(c) is only to safeguard the interest of all those who have a caveatable interest specially, if the objector is being deprived of his share and claim in the property which is the subject matter of the will. The court below has recorded a categorical finding to the effect that there is no dispute that the testator executed the will in respect of his exclusive 1/6th share. Besides, a bare perusal of the specific assertion in the will that the testator's wife, sons and other heirs will be getting only 1/6th share in land and orchard in the district of Shivni. Thus, the distillery business which is expanded in a number of states and other cities is not affected. 12. I am of the considered opinion that the deceasedtestator only with a view to safeguard the interest and dispute between his immediate heirs, executed the will and, therefore, the petitioner's interference is uncalled for. There is no error in the impugned order. I do not find any merit in the instant writ petition and is accordingly dismissed.