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2017 DIGILAW 569 (CAL)

In Re Shrutika Doshi v. .

2017-06-28

SOUMEN SEN

body2017
JUDGMENT : Soumen Sen, J. 1. In this application for discharge of caveat the question arises whether the son-in-law of the uncle of the testatrix would have a caveatable interest. 2. Shorn of details, Shrutika Doshi, the testatrix appears to have made and published two Wills during her lifetime. The first Will was made and published on 1st March, 2013 and was registered on 22nd May, 2013. In between, the testatrix appears to have made and published another Will on 22nd April, 2013 by which she revoked all earlier Wills. 3. In the first Will, the testatrix appointed her husband Shri Tejash Doshi as the sole executor and the trustee of the Will, failing which Shri Yash Vardhan Mall, son of Late Jagmohan Mall as the sole executor. The testatrix created a trust by the Will. The minor daughters are the beneficiaries. Under the first Will, Tejash Doshi and Yash Vardhan Mall were appointed as trustees who were to act jointly for the purpose of implementing the objects of the trust. It is provided that in case of vacancy, surviving trustee shall appoint a competent person selected by him to continue as trustee. 4. The second Will appears to be a detailed one as it gives particulars of both movable and immovable properties. The major difference appears to be that of Yash Vardhan Mall is replaced by Shri Dhirendra Doshi the father-in-law of the testatrix and Tejash was also allotted 102515 shares in Neelachal Minerals Limited. The witnesses in both the Will are same. 5. The testatrix died relatively at a young age of 35. 6. Yash Vardhan Mall on a plea that Tejash Doshi was not taking any steps for grant of probate of the Will dated 1st March, 2013, filed an application for grant of probate before the learned District Judge at Alipore being Act XXXIX Case No. 27 of 2015. Subsequently, Tejash Doshi has filed an application on 6th May, 2016 in this Court for grant of probate of the second Will dated 22nd April, 2013 being PLA No. 123 of 2016. In this proceeding, Yash Vardhan Mall filed a caveat and affidavit in respect of the caveat. Subsequently, Tejash Doshi has filed an application on 6th May, 2016 in this Court for grant of probate of the second Will dated 22nd April, 2013 being PLA No. 123 of 2016. In this proceeding, Yash Vardhan Mall filed a caveat and affidavit in respect of the caveat. In the said affidavit, Yash Vardhan Mall alleged that Tejash Doshi has intentionally kept in his custody the original Will and a certified copy of the said Will could be obtained only on 28th October, 2015 and, thereafter, the aforesaid application for grant of probate was filed before the learned District Judge, South 24 Paraganas at Alipore along with the affidavit of assets. It is further alleged that Tejash Doshi as one of the executors of the Will has failed to apply for the grant of probate of the first Will and in view of such failure Yash Vardhan Mall filed the said application for grant of probate before the District Judge at Alipore. In view of the fact that he was appointed as a trustee under the first Will along with Tejash Doshi in order to have checks and balances on the administration of the properties of which the minors are the beneficiaries and there could be no reason to execute a second Will Yash Vardhan Mall would be allowed to contest the Will as he has a caveatable interest. Moreover, it would be clear from the conduct of the testatrix that for all intents and purposes, the testatrix wanted to give effect to the Will dated 1st March, 2013 as she had registered the said Will on 22nd May, 2013 on commission at his residence which would be evident from the endorsement made on the said document at the time of registration. There could not have been any occasion for the testatrix to register the Will dated 1st March, 2013 on 22nd May, 2013 at her residence and put her signature and photograph on the said document unless she desired to have the dispositions made strictly in terms of the Will dated 1st March, 2013. It is alleged that testatrix left enormous wealth and Tejash Doshi is trying to siphon off such assets. On such considerations, it is urged that Yash Vardhan Mall is having a caveatable interest. 7. Mr. It is alleged that testatrix left enormous wealth and Tejash Doshi is trying to siphon off such assets. On such considerations, it is urged that Yash Vardhan Mall is having a caveatable interest. 7. Mr. Ratnanko Banerjee, the learned Senior Counsel appearing on behalf of Tejash Doshi has submitted that in order to claim a caveatable interest the applicant must satisfy that he is a person required to be served with a notice prior to the grant inasmuch as he has some interest in the property of the testatrix or he is one of the heirs apparent likely to succeed to the estate of the deceased testatrix had there been no Will. It is submitted that Yash Vardhan Mall is a complete stranger unconnected with the family of the testatrix and he cannot have any interest far less caveatable and, accordingly, the learned Counsel has prayed for discharge of the caveat. 8. The attention of this Court is also drawn to the order passed by the District Judge at Alipore dismissing the application for grant of probate filed by Yash Vardhan Mall. It is submitted that in view of the dismissal of the said proceeding, Yash Vardhan Mall cannot oppose the grant of probate. Moreover the caveat was lodged on 15th June, 2016 and the affidavit in support of the caveat was filed on 10th January, 2017 without obtaining any leave as it was beyond time prescribed under Rule 25 of Chapter 35 of the Original Side Rules. In any event the caveat does not disclose legal grounds of objections to the grant of probate. 9. Mr. Surajit Nath Mitra, the learned Counsel appearing on behalf of the caveator submits that the first Will records the name of Yash Vardhan Mall as one of the executors as well as a co-trustee. Although he is not a beneficiary under the Will but as a trustee he would be required to administer the estate of the testatrix in the manner indicated in the Will. The second Will which appears to have been executed under suspicious circumstances removes him as a trustee. The second Will is a suspect document. The affectations of his right to discharge his functions as trustee give him the right to file a caveat and oppose the grant. The second Will which appears to have been executed under suspicious circumstances removes him as a trustee. The second Will is a suspect document. The affectations of his right to discharge his functions as trustee give him the right to file a caveat and oppose the grant. It is submitted that the order of the learned District Judge at Alipore protects the right of the caveator to raise all such objections in this proceeding. The caveator was constrained to file the said proceeding for grant of probate of the first Will since Tejash Doshi has refused to file the application for grant of probate for almost two years and by his conduct Tejash Doshi has renunciated his right to act as an executor of the Will. In fact, there is only one Will and the second Will is a fabricated document. It is submitted that in Krishna Kumar Birla vs. Rajendra Singh Lodha reported at 2008 (4) SCC 300 , the Hon'ble Supreme Court has expanded the scope of "caveatable interest" and in paragraphs 174 of the said report it was held that a named executor has a caveatable interest. Since Yash Vardhan Mall has been removed by the second Will to act as an executor he has a right to lodge a caveat. It is thus submitted that Yash Vardhan Mall should be allowed to contest the grant of probate. 10. The expression "caveatable interest" has not been defined in the Indian Succession Act. In order to sustain a caveat, a caveatable interest must be shown. Section 284 of the Indian Succession Act, 1925 does not lay down the qualification and disqualification of the caveator. Once a caveat is lodged and a challenge is thrown that the caveator is not entitled to lodge a caveat the court is required to determine the said question as to whether the caveator has any caveatable interest or not. 11. Although the application for grant of probate does not require that the applicant would be required to furnish the name of the persons who would have succeeded to the estate but for the Will before granting probate, the citations are required to be issued upon all persons claiming to have any interest in the estate of the deceased in order to enable such persons to come and see the proceedings before the grant of probate. 12. 12. Under Section 263 of the Succession Act, the grant of probate may be annulled or revoked for just cause. The explanation to the said section adumbrates the circumstances which would constitute just cause. In Illustration (ii) it is stated that if the grant was made without citing parties who ought to have been cited it shall be considered to be a just cause for revocation of the Will. Similarly, under Section 283 of the Indian Succession Act a District Judge before granting probate or letters of administration if he thinks proper would 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. 13. Under Rule 5A Chapter 35 of the Original Side Rules in all applications for probate the petition is required to state being means all the members of the family or other relatives upon whom the estate would have devolved in case of an intestacy together with the present place of residence. 14. In terms of Section 283(1)(c) citations are to be issued calling upon all such persons who claim to have any interest in the estate of the deceased. They must be persons who have an interest in the estate left by the deceased. Only because neither in Section 284 nor in Section 295 is a caveator required to show any interest in the estate of the deceased the same would not mean that anybody and everybody who intends to oppose the grant of probate would be entitled to lodge caveat. 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. Such persons to whom citations have been issued whether general or special, may file a caveat. All proceedings are required to be taken only upon service of notice to the caveator(s). 15. It was for this purpose in the application for grant of probate the name of apparent heirs likely to succeed to the estate are mentioned and citations are issued to such persons. 16. The question arises whether the petitioners would be required to be cited before the grant. 17. 15. It was for this purpose in the application for grant of probate the name of apparent heirs likely to succeed to the estate are mentioned and citations are issued to such persons. 16. The question arises whether the petitioners would be required to be cited before the grant. 17. The matter would be simple where a legal heir comes up and say that he has a right to succeed to the estate but for the Will and no probate can be granted without issuance of citation upon him as he has a right to object to the grant of probate. In the affidavit in support of caveat he has to demonstrate that he has an interest in the estate and state the grounds on which he objects to grant. The matter is complex when any person other than a legal heir comes up and tries to oppose a grant or files a caveat claiming that he has a right to contest the probate proceeding. In such circumstances, the Court is required to ascertain if the person opposing the grant is having a caveatable interest. The expression "caveatable interest" has come up for considering before various High Courts including the Hon'ble Supreme Court. 18. The expression "caveatable interest" plain and simple would mean a person having an interest in the estate of the deceased and is entitled to oppose the said grant as his interest is affected by the disposition made under the Will. 19. A caveatable interest is an interest in the estate of the deceased testator which may be affected by grant of probate of the Will of the deceased. What would be the caveatable interest would depend upon the fact situation obtaining in each case. No hard and fast rule, as such, can be laid down. The test required to be applied is: Does the claim of grant of probate prejudice the right of the caveator because it defeats some other line of succession in terms whereof the caveator asserted his right. 20. 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. 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. Such a special interest may be a creditor of the deceased. But 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. 21. An interest may be a wide one but such an interest must not be one which would have the effect of destroying the estate of the testator itself. 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. A caveator if he denied the testator's title is liable to be discharged. 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 existence of title in respect of estate or capacity of the testator to dispose of the property by will on grounds outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein. 22. While determining the issue of caveatable interest, the law governing the intestate succession must also be kept in mind. 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. [Krishna Kumar Birla vs. Rajendra Singh Lodha and Others reported at (2008) 4 SCC 300 ]. 23. 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. [Krishna Kumar Birla vs. Rajendra Singh Lodha and Others reported at (2008) 4 SCC 300 ]. 23. Although in G. Gopal vs. C. Vaskar reported at 2008 Vol 10 SCC 489 a bench of same strength observed that person having even a slight interest in the estate of the testator entitled to file a caveat and contest a grant of probate in the instant case the caveator does not have even slightest interest in the estate. Moreover, G. Gopal (supra) has not noticed Krishna Kumar Birla (supra) no ratio could be culled out from the said decision for the conclusion arrived at by the subsequent bench. Krishna Kumar Birla (supra), however, has discussed the issue in great detail. 24. In Sunil Gupta Vs. Kiran Girhotra reported at 2007 (8) SCC 506 in deciding the issue as to whether a transferee pendent lite is a necessary party in a probate proceeding it was held that citations are necessary to be made to only those persons who, inter alia, claim through or under the Will or deny or dispute execution thereof. 25. A person, who has certainly acquired an interest in the testator's estate, though after his death, by reason of a mortgage transfer by the testator's son and is undoubtedly also a creditor of the testator's said son whom the Will purports to disinherit, has held to have locus standi in Promode Kumar Roy Vs. Sephalika Dutta reported at AIR 1957 Cal 631 to apply for the revocation of the grant, particularly when his allegation is that the grant was obtained in fraud of the creditors. This however, is not the case here. 26. Chapter 35 of the High Court Original Side Rules deals with testamentary and intestate jurisdiction. Under Rule 24 of Chapter 35, any person intending to oppose a grant must file a caveat in the registry in Form No. 12 and notice of the filing of the caveat has to be given by the registry to the petitioner or his advocate acting on the Original Side. Under Rule 24 of Chapter 35, any person intending to oppose a grant must file a caveat in the registry in Form No. 12 and notice of the filing of the caveat has to be given by the registry to the petitioner or his advocate acting on the Original Side. Where a caveat is entered after an application has been made for grant of probate or letters of administration with or without the Will annexed, the affidavit or affidavits in support thereof shall be filed within eight days of the caveat being lodged notwithstanding any long vacation. However, in case where an application for grant of probate 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 service of such notice. In the affidavit, the caveator or the caveatrix as the case may be is required to state the right and interest of the caveator/caveatrix and the grounds of objections to the application. 27. The aforesaid rules are referred to in view of the submissions made on behalf of the executor that the caveator has not filed an affidavit within the prescribed period of eight days after lodging of caveat. I have called for the original record. It appears that caveat was lodged after the application for grant of probate has been filed and accordingly, Rule 26 of Chapter 35 would apply in the instant case. In view thereof, objection raised by the executor that such affidavit would not be accepted as no prior leave was obtained or the same is beyond time is not accepted. 28. However, it leads us to a more fundamental issue i.e. with regard to the caveatable interest of the applicant. The applicant is not a near relationship of the testatrix nor a natural guardian of the two minor daughters of the testatrix who are the beneficiaries under the Will. 29. There are two Wills. Both the Wills created a trust. In both the Wills, the husband of the testatrix was the named executor. He has the first right to apply for grant of probate and only after he renounced executorship, the applicant under the first Will and the father in law under the second Will would have the right to apply for grant of probate. In both the Wills, the husband of the testatrix was the named executor. He has the first right to apply for grant of probate and only after he renounced executorship, the applicant under the first Will and the father in law under the second Will would have the right to apply for grant of probate. Unless the person appointed as executor has renounced the executorship, probate cannot be granted to any other person until a citation has been issued calling upon the executor to accept or renounce his executorship. 30. Before the Alipore Court, the applicant applied without seeking renunciation of Tejash Doshi who is the named executor. There has been no renunciation of executorship as contemplated under Section 230 of the Indian Succession Act, 1925. The probate proceeding initiated by the applicant before the Alipore Court in any event has to fail, due to the aforesaid defects. 31. The applicant has urged that he has been appointed as one of the trustees to look after and administer the estate of the deceased for the benefit of the minor daughters and the changes made in the second Will by which he was removed as one of the trustees and in his place and stead the father in law of the testatrix was made one of the trustees give him a right to lodge a caveat and contest this proceeding. 32. I have perused the affidavit filed in support of the caveat. In the said affidavit, it is only alleged that the testatrix has registered the first Will after execution of the second Will and such registration of the first Will after execution of the second Will clearly demonstrate that the testatrix wanted probate of the first Will and not of the subsequent Will. Apart from that there is no ground objecting to the said grant. The same is reflected from paragraph 7 of the affidavit in support of the caveat which reads: 33. Unlike the Indian Succession Act, Rule 25 of Chapter 35 of the Original Side Rules requires such an affidavit to state the right and interest of the caveator and the grounds of objections to the application. If both the conditions are not fulfilled, then a caveator is not entitled to oppose the grant. The said provision came up for consideration in The Goods of Nanda Lal reported at AIR 1955 Calcutta 88. If both the conditions are not fulfilled, then a caveator is not entitled to oppose the grant. The said provision came up for consideration in The Goods of Nanda Lal reported at AIR 1955 Calcutta 88. In paragraphs 7 and 8 this aspect was discussed which reads:- "7. There is no procedure under the Indian Succession Act requiring an affidavit in support of the caveat to disclose the grounds of objection to the grant. This is where the procedure relating to grant of probate in this High Court is different from that under the Indian Succession Act. Under the Rules of the Original Side of the High Court the caveator has to file an affidavit which must not only disclose his right and interest in the estate of the deceased testator, but also the grounds of objection. The penalty for not making the requisite affidavit within the time specified by the rules is discharge of the caveat itself. If a proper affidavit disclosing the right and interest of the caveator as well as the grounds of objection to the grant is made in support of the caveat within the time laid down, then the next stage is reached by marking the matter as a "contentious cause" when the petition for probate is regarded as a plaint and the affidavit of the caveator as written statement and the "contentious cause" is therefore heard as a suit. The matter comes up before me before the stage of being a contentious cause. It is said that before it is marked as a contentious cause, the caveat should be discharged on the grounds, that I have already stated. 8. What is attempted to be done in this case is not to say that the testator had no testamentary capacity to make the Will or that in fact it was not duly executed, but only that a particular provision in the Will of Nandalal Sett cannot be given effect to as being in breach of trust created by Prosanna. That is the only ground disclosed in the affidavit in support of the caveat. It is not, in my view, a ground of objection at all to the grant of probate of the Will of the testator Nandalal Sett. It is at best an objection about the construction of that provision in the Will of the testator Nandalal Sett and its effect. It is not, in my view, a ground of objection at all to the grant of probate of the Will of the testator Nandalal Sett. It is at best an objection about the construction of that provision in the Will of the testator Nandalal Sett and its effect. That is not a ground on which the probate of this Will can be refused." 34. In Krishna Kumar Birla vs. Rajendra Singh Lodha reported at 2008 (4) SCC 300 , questions arose whether a caveator is required to show any interest in the estate of the deceased and whether the same would mean that anybody or everybody who intends to oppose the grant of probate would be entitled to lodge caveat. Ordinarily the person likely to succeed to the estate of the deceased has a caveatable interest and any other person would be required to demonstrate a special interest in the estate of the deceased to claim caveatable interest. It was observed that a special interest may be a creditor of the deceased as was the case in Sarala Sundar Dassya vs. Dinobandhu Rai Brajaraf Saha (Firm) reported at AIR 44 PC 11, the apex court further held that the caveatable interest would mean that even if the estate of the deceased was 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. A probate proceeding should not be permitted to become an unchartered field to be trespassed into by persons even if he is not affected by testamentary disposition. A caveatable interest would essentially be his claim that the estate belonged to the deceased rightfully but he would be entitled to succeed to that estate. A probate proceeding should not be permitted to become an unchartered field to be trespassed into by persons even if he is not affected by testamentary disposition. A caveatable interest would essentially be his claim that the estate belonged to the deceased rightfully but he would be entitled to succeed to that estate. The Supreme Court laid down the broad proposition in paragraph 89 of the judgment:- "(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 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." 35. Even if it is assumed for the sake of argument that the applicant may have a caveatable interest but the affidavit in support of the caveat does not disclose legal grounds of objections to the grant of probate which is a sine quo non under Rule 25 of Chapter 35 of Original Side Rules. This view also finds support in Nanda Lal Sett (supra). 36. Under such circumstances the caveat lodged by Yash Vardhan Mall stands discharged. 37. There shall be an order in terms of prayer (a) and (b) of the Master's Summons. G.A. No. 888 of 2017 is allowed, however, there shall be no order as to costs.