SAROJ AGARWALLA (DEAD) THR. LR ABHISHEK AGRAWALLAversusYASHEEL JAIN

                            [2016] 5 S.C.R. 876



A         SAROJ AGARWALLA (DEAD) THR. LR ABHISHEK
                       AGRAWALLA
                                     v.
                              YASHEEL JAIN

B                      (Civil Appeal No. 473 of2009)
                            OCTOBER 24, 2016
           [DIPAK MISRA AND SHIVA KIRTI SINGH JJ.]
          Caveat - Original Side Rules of Calcutta High Court - Chapter
    XXXV- rr. 9,24,28,30 - Testamentary and intestate jurisdiction -
c
    Caveat against grant of probate - Caveatable interest - Application
    for discharge of caveatable interest - Maintainability of -
    Proceedings initiated by appellant for grant of probate on the basis
    of Will and testament of appellants brother - Appellant pleaded for
    rejection of the caveats of respondents - High Court turned down
D   appellants plea - On appeal, Held: 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 for probate - It is not
    necessary to establish caveatable interest by conclusive proof - rr.
    28 and 30 make it clear that before the proceedings are numbered
E
    as a suit by orders of a Judge for being tried as a suit as per
    provisions of the C.P.C, the Court may take up a preliminary issue,
    whether the caveator has a caveatable interest, if an application
    praying rejection for caveats is filed before the Court - Court to
    discharge the caveat where, upon trial of such issue, it appears
F   that caveator has no caveatable interest - On facts, claim of grant
    of probate prejudiced the rights of the respondents, hence they had
    a caveatable interest - Consequently, caveats filed by them could
    not be discharged.
         Dismissing the appeals, the Court
G
          HELD: 1. 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. [Para 5)
    (880-B)
H
                                   876
      SAROJ AGARWALLA (DEAD) THR. LR ABHISHEK                            877
             AGRAWALLA v. YASHEEL JAIN

         2. Rules 28 and 30 of the Original Side Rules of the Calcutta   A
High Court make it abundantly clear that before the proceedings
are numbered as a suit by orders of a Judge for being tried as a
suit as per provisions of the Code of Civil Procedure, the Court
may take up as a preliminary issue, whether the caveator has a
caveatable interst, if such an application is filed before the Court
                                                                          B
by the petitioner. The preliminary issues are triable before the
proceedings are treated as a full-fledged suit under order of the
Judge concerned. Whereas suit is required to be tried as per
provisions of the Code, the procedure for trial of preliminary issue
has been left to the discretion of the court. Rule 30 does not
require the court to come out with specific findings in respect          c
of preliminary issue because the language used in Rule 30
requires the court to discharge the caveat where, upon trial of
such issue, "it appears that the caveator has no interest
........ ". [Para 8] [881-F-H; 882-A]
      3. The case of the respondents in both the present appeals         D
is that they have a caveatable interest. The preliminary issue
does not relate to the validity or legality of the Will sought to be
probated but only to the issue whether the caveator has an
interest for which he can maintain the caveat. Although, one
respondent-caveator did not file the original Will but he has filed
                                                                          E
a photocopy of the prior Will allegedly executed by the testator
and has also produced the registered envelope through which
such copy was sent to him by the testator along with the forwarding
letter written by him. Based upon such materials, caveat filed by
him should not be discharged. Insofar as the other respondent-
caveator is concerned, issue whether the she was really a lawful          F
widow of the testator or not cannot be conclusively decided
in the piobate proceedings but once prima, facie materials
supported her claim, the application filed for discharge of her
caveat deserved dismissal. The test which may applied in the
present case is : Does the claim of grant of probate prejudice
                                                                          G
the respondent's right because. it defeats some other line of
succession in terms whereof the respondent as a caveator
asserted his/her right? Since the answer, in the facts of the case
would be in the affirmative, the respondents have a caveatable
interest. [Paras 8, 9, 11] [882-B-E, G; 883-A]
                                                                         H
878              SUPREME COURT REPORTS                        [2016) 5 S.C.R.


A             Krishna Kumar Bir/a v. Rajendra Singh Lodha (2008)
              4 SCC 300: 2008 (5) SCR 640; lshwardeo Narain
              Singh v. Kamta Devi AIR 1954 SC 280 - referred to.
                              Case Law Reference
              2~08 (5) SCR 640          referred to               Para9
B
              AIR 1954 SC 280           referred to              Para 10
              CIVIL APPELLATE JURISDICTION: Civil Appeal No. 473 of
      2009.
           From the Judgment and Order dated 04.05.2007 of the High Court
C     at Calcutta in G. A. No. I3 I of 2005 in A.P.O.T. No. I 80 of 2005
                                       WITH
              C. A. No. 474 of2009.
           Jaideep Gupta, Sr. Adv., Anil Agarwalla, Jagdeep Anand, Varun
D     Kapoor, Ms. Shakya Singha Sen, Ms. Anadita Mitra, K. V. Vijayakumar,
      Advs. for the Appellant.
           S. S. Ray, Amitabh Chaturvedi, Vaibhav Gulia, Ms. Rakhi Ray,
      Ms. Sucharita Biswas, Debapriya Gupta, Mrs. Sarla Chandra, Advs. for
      the Respondent.
 E            The Judgment of the Court was delivered by
            SIDVA KIRTI SINGH, J. I. 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
 F    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
G     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 of2009 - 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
H
     SAROJ AGARWALLA (DEAD) THR. LR ABHISHEK                                   879
   AGRAWALLA v. YASHEEL JAIN [SHIVA KIRT! SINGH, J.]

claim is founded on two grounds, firstly as a nephew of the testator and       A
secondly as the sole beneficiary under an alleged prior Wilrofthe 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 B
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
                                                                            c
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 D
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 Ttilshan. She claimed to be the E
second wife of the testator married on 28.02. I 986 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 rejectedthe application for discharge        F
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 rulei>rov.ided for citation    G
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           H
880             SUPREME COURT REPORTS                            [2016] 5 S.C.R.


A     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
B
      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
c     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 ifthe status ofMalati is questioned in any proceedings.
            6. On behalf of appellant, claim ofYasheel that he has a caveatable
      interest on the basis of a prior Will was seriously disputed and contested
D     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
E
      interest ofMalati 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
F     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
G     business of obtaining probate and letters ofadministration (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 oflodging 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
H
    SAROJ AGARWALLA (DEAD) THR. LR ABHISHEK                                     881
  AGRA WALLA v. YASHEEL JAIN [SHIVA KIRT! SINGH, J.]

hereinbelow :                                                                   A
      "24. Caveat. Any person intending to oppose the issuing of a
      grant of probate or letters of administration must either personally
      or by his ?ttorney 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 attorney. (Form No.13).                              B


      28. Procedure on affidavit being filed. Upon the affidavit in
      supportvfthe caveat being filed (notice whereof shall immediately
      be given by the caveator to the petitioner), the proceedings shall,
      by order of a Judge upon application by summons be numbered                c
       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 as and deemed a plaint filed against the caveator, and
       the affidavit filed by the caveator being treated as his written          D
     . statement in the suit. The procedure in such suit shall, as nearly
       as may be, be according to the provisions of the Code (Forms
       Nos.14 and 15).


      30. Trial of Preliminary issue. The Court may, on the application          E
      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. Where, upon the trial of such issue, 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
                                                                                 F
      administration, as the case may be."
       8. A careful reading of Rules 28 and 30 makes it abundantly clear
that before the proceedings are numbered as a suit by orders of a Judge
for being tried as a suit as per provisions of the Code of Civil Procedure
(for short, 'the Code'), the Court may take up as a preliminary issue,
                                                                                 G
whether the caveator has a caveatable interest, if such an application is
filed before the Court by the petitioner. Clearly the preliminary issues
are triable before the proceedings are treated as a full-fledged suit under
order of the Judge concerned. Whereas suit is required to be tried as
per provisions of the Code, the procedure for trial of preliminary issue
                                                                                 H
882                  SUPREME COURT REPORTS                       [2016] 5 S.C.R.


A     has been left to the discretion of the court. Rule 30 does not require the
      court to come out with specific findings in respect of preliminary issue
      because the language used in Rule 30 requires the court to discharge the
      caveat where, upon trial of such issue, "it appears that the caveator has
      no interest ........ " (Emphasis supplied). The preliminary issue does not
      relate to the validity or legality of the Will sought to be probated but only
B
      to the issue whether the caveator has an interest for which he can
      maintain the caveat.
            9. Learned counsel for both the parties have addressed us at some
      length as to the meaning of the words "caveatable interest". The matter
      is no longer res integra in view of a detailed discussion of this term in
c     the case of Krishna Kumar Birla v. Rajendra Singh Lodha 1 •
      Paragraphs 59 to 86 of this judgment refer to large number ofauthorities
      of this Court as well as various High Courts. The conclusions flowing
      from that judgment including the proposition oflaw in paragraph 86 clearly
      support the case of the respondents in both the appeals that they have a
D     caveatable interest. The test which may be applied in the present case
      is : Does the claim of grant of probate prejudice the respondent's right
      because it defeats some other line of succession in terms whereof the
      respondent as a caveator asserted his/her right? Since the answer, in
      the facts of the case would be in the affirmative, we are in agreement
      with the view taken by the Division Bench that respondents have a
E     caveatable interest.
             I0. A query arises as to why the Division Bench has recorded its
      views as "prima facie". The answer has been provided by learned
      counsel for the respondents by placing reliance upon paragraph 2 of the
      judgment of this Court in the case oflshwardeo Narain Singh v. Kam ta
 F    Devi". This Court pointed out that "the Court of Probate .is only
      concerned with the question as to whether the document put forward as
      the last will and testament of a deceased person was duly executed and
      attested in accordance with law and whether at the time of such execution
      the testator had sound disposing mind. The question whether a particular
G     bequest is good or bad is not within the purview of the Probate Court."
            11. Since we have noted the main submission on behalf of the
      appellant earlier, it is deemed proper to point out that although the caveator
      Yasheel Jain did not file the original Will, the Division Bench has noted
       1
           (2008) 4 sec 300
H     2    AIR 1954 SC 280
               ' .
     SAROJ AGARWALLA (DEAD) THR. LR ABHISHEK                                     883
   AGRAWALLA v. YASHEEL JAIN [SHIVA KIRT! SINGH, J.]

that he has filed a photocopy of the prior Will allegedly executed by the        A
testator and has also produced the registered envelope through which
such copy was sent to him by the testator along with the forwarding
letter written by him. Upon such materials, the Division Bench recorded
its prima facie satisfaction that the caveat should not be discharged. In
the case of caveat by respondent Malati, the Division Bench noted the
                                                                                 B
citations in the Will propounded by the appellant showing Malati to be
only a maid servant but on the basis of totality of facts and circumstances
it rightly came to the conclusion that a person by merely making a contrary
statement in the Will cannot change a real relationship if it actually existed
and hence at least arguable case in favour of claim ofMalati as regards
her relation with the testator has been established and hence she deserves        c
to be permitted to contest the probate proceeding. The Court, at the
same time made it clear that whether Malati 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.
                                                                                  D
     12. We find ourselves in agreement with the views taken by the
High Court in the impugned judgments. The appeals are, therefore,
dismissed but with no order as to costs.
'Ankit Gyan                                                 Appeals dismissed.
                                                                                  E