A probate applicant sought dismissal of a caveat alleging forgery and disputing the testator's title. The court dismissed the motion, upheld the legal heirs' entitlement to rely on the deceased caveator's affidavit, and left proof of execution and forgery for trial.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 166 OF 2012 IN
SUIT NO. 13 OF 2007 IN
PROBATE PETITION NO. 948 OF 2006
Daya Subhash Tiwari ) Hindu inhabitant of Bombay, ) residing at Room Nos. 7 and 8 ) Jagdish Niwas, 2nd Floor, Sayed ) Abdullah Brelvi Road, Opp.Fort ) Fire Brigade Station, Fort, ) Mumbai 400 028 ) ..... Plaintiff/Petitioner
VERSUS
1) Mr.Kashinath Lalta Tiwari ) Indian Inhabitant of Mumbai ) R/o. 2nd Floor, Building NO.30-B, ) Bomanji Lane, Fort, Mumbai ) 400 001 )
2) Mr.Dilip Lalta Tiwari ) Indian Inhabitant of Mumbai ) R/at 2nd Floor, Building NO.30-B, ) Bomanji Lane, Fort, Mumbai ) 400 001 )
3) Smt.Meera Sadashiv Tiwari ) Adult, Indian Inhabitant, and ) Married daughter of Laltaprasad ) Ram Nihor Tiwari, residing at ) 702, “E” Wing, Olympia, Royal ) Complex, Opp. Sector No.10, Near ) Poonam Sagar, Mira Road, ) District – Thane )
4) Smt.Maya Ramchandra Chaubey) Adult, Indian Inhabitant and married) daughter of Laltaprasad Ram Nihor) Tiwari, residing at Suresh Bhavan, )
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Gangasingh Chawl, Shantilal ) Compound, Khar (East), Mumbai ) 400 051 ) 5) Smt.Meenaxi Ashok Mishra, ) Adult, Indian Inhabitant and married) daughter of Laltaprasad Ram Nihor) Tiwari, residing at Mishra Sadan, ) 3/B-2, Old Nagardas Road, Andheri) (E), Mumbai – 400 069 ) ..... Defendants/ Respondents
Mr.Pradeep Sancheti, Senior Advocate, a/w. Mr.Simil Purohit, i/b. Mr.Yogesh K.Deshpande for the Plaintiff/Applicant.
Mr.D.D.Madon, Senior Advocate, a/w. Mr.K.T.Thomas, Mr.S.Joseph, i/b. M/s.Lawwell and Chartered for Respondents/Defendants.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 31st JULY, 2013
PRONOUNCED ON : 23rd AUGUST, 2013
JUDGMENT :
By this Notice of Motion, applicant who was original petitioner in probate petition seeks dismissal of caveat and affidavit in support dated 5th February, 2007 filed by Mr.Lalta Prasad Ram Nihor Tiwari, the original caveator and seeks grant of probate of the Will dated 24th July, 1995 of the Rajbali Ram Nihor Tiwari alias Rajbali R.N.Tiwari. Some of the relevant facts for the purpose of deciding this Notice of Motion are summarised as under :-
2(a) Mr.Rajbali Ram Nihor Tiwari (hereinafter referred to as the said 'deceased') was brother of Mr.Jarda Prasad Ram Nihor Tiwari and Mr.Lalta Prasad Ram Nihor Tiwari. The said deceased died on 21st September, 2006. The said deceased was bachelor at the time of his death. It is the case of the applicant that the said deceased left a Will on 24th July, 1995 and appointed the applicant as the sole executrix under the said Will of the deceased. On 15th
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November, 2006, the applicant filed a probate petition (948 of 2006) in this court inter alia praying for grant of probate having effect throughout the State of Maharashtra. Names of the next of keen are disclosed in paragraph 8 of the petition. The said deceased died leaving behind him Mr.Jarda Prasad Ram Nihor Tiwari and Mr.Lalta Prasad Ram Nihor Tiwari, both the brothers of the said deceased. The parents and wife predeceased the deceased. The said deceased died issueless and had no sister. In the said alleged Will, the said deceased bequeathed all his assets, properties, moveables and immoveables, right, title of whatsoever nature in all the assets to his nephew Mr.Subhash Tiwari, son of Mr.Jarda Prasad Ram Nihor Tiwari to the exclusion of all others. It is provided in the said alleged Will that the original caveator Mr.Lalta Prasad Ram Nihor Tiwari, his son Mr.Kashi Nath Tiwari, Mr.Dilip Tiwari, wife of Mr.Kashi Nath Tiwari and their son Mr.Bipin Tiwari had always held by him in contempt due to their abrasive and violent tempers and accordingly absolutely disinherited and disqualified each of them from inheriting or acquiring any property or any part thereof.
2(b) Mr.Lalta Prasad Ram Nihor Tiwari, brother of the said deceased filed caveat on 29th January, 2007 and affidavit in support thereof on 5th February, 2007. In view of filing of such caveat and affidavit in support, the said probate petition was converted into suit (13 of 2007). on 2nd October, 2007, the said caveator Mr.Lalta Prasad Ram Nihor Tiwari expired leaving behind the present defendants as his only heirs and successors. The applicant took out Chamber Summons (19 of 2008) to bring the present defendants on record in the said suit. Applicant served the amended copy of the probate petition/plaint upon the defendants herein. The probate petition appeared before this Court on 25th August, 2011. Defendants made a statement that they would file affidavit objecting to the grant of probate. This court granted time to the defendants to file affidavit. Defendants however did not file any affidavit. By an order dated
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23rd September, 2011, this Court recorded that inspite of order dated 25th August, 2011 granting liberty to the defendants being heirs of the original defendant to file further affidavit objecting to the grant of the probate, affidavit was not tendered. It was however made clear that the suit shall proceed without any further affidavit.
2(c) On 19th April, 2011, this court framed issues in the suit. Plaintiff has not filed any affidavit in lieu of examination in chief and did not submit any list of documents which she seeks to rely so far.
2(d) On 4th July, 2012, the applicant filed this Notice of Motion inter alia applying for dismissal of caveat dated 29th January, 2007 and affidavit dated 5th February, 2007 filed by caveator. Defendants have filed affidavit in reply on 7th September, 2012 opposing the Notice of Motion. Applicant has filed rejoinder to the said affidavit.
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relationship between the said deceased and the original caveator. It is submitted that the original caveator raised vague plea of forgery in respect of the Will in question. Mr.Sancheti, learned senior counsel submits that unless particulars of fraud and forgery are given in affidavit in support of caveat, this court cannot look into such allegations. Mr.Sancheti placed reliance on the judgment of the Madras High Court in case of S.Kaliyammal and others vs. K.Palamiammal and others, AIR 1999 MADRAS 40 and in particular paragraphs 11, 12 and 15 in support of his submission that general allegation are insufficient even to amount to an averment of fraud of which any court ought to take notice, however strong the language in which they are couched may be. Learned counsel placed reliance upon Order 6 Rule 4 of the Code of Civil Procedure, 1908. paragraphs 11 and 12 of the said judgment read thus :-
(Vernacular matter omitted)
Even as per the evidence it is admitted that the will has been executed by Nanjammal but it was only under fraud and undue influence.
"We turn next to the question of undue influence and coercion. Now it is to he observed that these have not been separately pleaded. It is true they may overlap in part in
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some cases but they are separate and separable categories in law and must be separately pleaded.
It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any Ct. ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion. See Order 6, Rule 4, Civil P.C."
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that the testatrix did not exclude any of her sons and all of them were given specific allotment in the residential house at Behala. The grievance of the appellant is that his allotment was not up to the standard and in comparison to his allotment, other two brothers have been given more number of rooms.
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Order XXI Rule 67(1) "as nearly as may be in the manner prescribed by Rule 54, Sub-rule (2)". Rule 54 Sub-rule (2) provides for the method of publication of notice and reads as follows:
“ 54. (2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village.
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Komalangiammal vs. M.K.Sowbhagiammal and another reported in AIR 1931 Madras 37 and in particular paragraph at page 38 in support of his plea that if a person is claiming that properties in question does not form part of the estate of the deceased, such person has no interest in the estate of the deceased. It is submitted that the person who lodges the caveat must have an interest in the estate of the deceased and there must be no dispute as to the title of the deceased to the estate. Relevant part of the said judgment of the Madras High Court at page 38 reads thus :-
“ I agree that the appeal should be dismissed. The interest which entitles a person to lodge a caveat must be an interest in the estate of the deceased, that is to say, there must be no dispute as to the title of the deceased to the estate [see Pirojshah Bikhaji v. Pest omji Merwanji and Kalajit Singh v. Parmesher Singh . But here the caveator is alleging that the jewels which the testator has disposed of by his will are her own property. In other words, she is setting up a title adverse to the testator's title to the property. It is impossible to say that she has an interest in the deceased's estate when she is claiming that the property in question does not form part of the deceased's estate. It has long been settled that it is not the province of a Court of Probate to determine questions of title to a property which a testator purports to dispose of by his, will, the reason being that the grant of probate does no more than establish the factum of the will and the appointment of the executors (if any) named in the will. The grant of probate will not, therefore, prevent the appellant from bringing a suit, if she should be so advised, to recover from the executors, or any other persons in possession, the jewels which she claims as her own property. ”
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portion :-
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= MANU/TN/0029/1930 : AIR 1931 Mad 37 who had occasion to consider MANU/TN/0222/1926 : AIR1926Mad1193 . That being so, Maharajan J. in MANU/TN/0278/1972 : AIR1972Mad212 was bound by = MANU/TN/0029/1930 : AIR 1931 Mad 37 and was not free to follow MANU/TN/0222/1926 : AIR1926Mad1193 , Though the question was not directly posed and answered in Iswardeo Narain Singh v. Kamla Devi. MANU/SC/0125/1953 : AIR1954SC280 , the observation below is of some utility in the present context-
"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 bequest is good or bad is not within the purview of the Probate Court."
The practice on the probate side of the Original Side of this Court was really based on that of the English Probate Court. There is a clear cut distinction between the various types of the Probate Court and as pointed out in 16 Halsbury's Laws of England, 3rd Edn, Lord Simonds Edition, page 160 "the person cited to see proceedings is neither a plaintiff nor a defendant in the action, but he is brought before the Court in order that his interests may be bound." A caveator is in no better position and by mere entry of caveat, a proceeding for probate cannot be and should not be allowed to be converted into a suit for resolving disputed title.
On the merits of this appeal, we think that the order of the District Judge must be set aside. Admittedly the caveator has no interest in the estate of the deceased testator, but it is contended on his behalf that, inasmuch as he lays claim to the properties dealt with
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by the will, he is entitled to come in and oppose the grant of probate or letters of administration. The District Judge relies on the case of Kamona Soondury Dassee v. Hurra Lall Shah as authority for holding that the caveator has an interest in the estate of the deceased, because he disputes the title of the deceased to dispose of the particular property which he says is his. He lays no claim to succeed to any part of the estate of the testator, but claims some of the property said to form portion of that estate. We cannot agree in the rule laid down in that case which is that expressed by Mr. Justice Field in the case of Nobeen Chunder Sil v. Bhobosoondun Dabee , but not adopted by Mr Justice White. A person disputing the right of a deceased testator to deal with certain property as his own cannot be properly regarded as having an interest in the estate of the deceased. His action is rather that of one claiming to have an adverse interest. The cases of Behary Lall Sandijal v. Juggo Mohun Gosmin : and Nanhu Koer v. Somirun Thakur proceed on the principle which we think should be adopted. If' any further argument he necessary, we would refer to the terms of Section 69 which require the District Judge to issue citations calling upon all persons claiming to have any interest in the estate of the deceased." The term used does not necessarily refer to any particular property, but to the claim of any person to succeed by inheritance or otherwise to any portion of the estate of the deceased by reason of an interest, not on an adverse title to the testator to any particular property, but in the estate itself whatever that may consist of. The form of the caveat too, would seem to show that the person who enters a caveat admits that the particular property forms a portion of the estate of the testator but objects either to the execution of the will or to the proposed manner of dealing with any portion of the estate. We therefore set aside the order of the District Judge admitting the respondent as caveator in these proceedings. The appellant will be entitled to his costs.
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Patna 475 in support of his plea that the persons who claims outside and independently of a will or claims adversely to the testator and the disputes his right to the deal with the properties can in no sense be deemed to claim an interest in the estate of the deceased within the meaning of section 283 of the Succession Act. Relevant portion of said judgment at page 477, 478 relied upon by the learned senior counsel for the plaintiffs reads thus :-
“ It was pointed out that a person who claims outside and independently of a will or claims adversely to the testator and disputes his right to deal with the property, can in no sense be deemed to claim an interest in the estate of the deceased within the meaning of Section 283, Succession Act. That was a ease in which the daughter of a Hindu had executed a will disposing of property which she claimed to have inherited from her father and the contention put forward on behalf of the objector was that she had really taken no more than a life interest in the estate and was, therefore, not competent to dispose of it by will. The reasoning, it is obvious, applies a fortiori to the present case.
The properties mentioned in schedule A never belonged to Mt. Barta Kuar nor did she ever get possession over them rather the properties belonged to Chariter Singh and they have all along been in his possession.
It has been contended that where an application for probate of a will is contested and it is alleged that
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the property dealt with by the will was not of the testator or was not property over which the testator had a power of testamentary disposal, it is the duty of the Court to try an issue raising this question. All we can say is that it would be exceedingly inconvenient if Courts in this country had to try such issues. A Court could never be quite sure that it had got the proper parties before it. It would be difficult always to be sure that there was no collusion in the case. It is much safer in the interests of the public that issues as to the title to property should be decided when the issues are raised in a regular suit, and not on an application for a grant of probate.
55. The 1925 Act is a self contained Code. An application for grant of probate is to be filed in terms of Sections 275 and 276 thereof. Particulars stated in the said provisions are to be furnished by the applicant. The petition for grant of probate is to be signed and verified. Citations in terms of Section 283(1)(c) are to be issued calling upon all such persons who claim to have any interest in the estate of the deceased. 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.
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56. 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). Section 286 uses the word "contention" to mean appearance of any one in person, or by his recognized agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding. In the contentious cases the procedures which are required to be adopted are specified in Section 295. Only because neither in Section 284 nor Section 295 a caveator is required to show any interest in the estate of the deceased, whether the same would mean that anybody and everybody who intends to oppose the grant of probate would be entitled to lodge caveat, is the question.
57. The 1925 Act in this case has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or the custom, as the case may be. It makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the Will.
A question of title arising under the Act cannot be gone into the proceedings. Construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court.
60. Before dealing with each of the aforementioned contentions, let us consider what is meant by the term "Caveatable interest". It has not been defined under the Act. We may, therefore, notice the dictionary meaning of both the terms "caveat" and "interest".
69. Abhiram Dass v. Gopal Dass ILR 17 Calcutta 48 is a decision of the Division Bench of the Calcutta High Court. In that case, the District Judge admitted the objection. It was held that rival titles set up by the caveator can be gone into. Setting aside the said judgment of the District Judge, the Division Bench of the High Court held:
...A person disputing the right of a deceased testator to deal with certain property as his own cannot be properly regarded as
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having an interest in the estate of the deceased. His action is rather that of one claiming to have an adverse interest...
70. Abhiram Dass (supra) was followed by a Division Bench of the Bombay High Court in Prijoshah Bhikaji v. Pestonji Merwanji 12 Bom LR 366 stating:
...the interest which entitles a person to put in a caveat must be an interest in the estate of the deceased person, that is, there should be no dispute whatever as to the title of the deceased to the estate, but that the person who wishes to come in as caveator must show some interest in that estate derived from the deceased by inheritance or otherwise.
71. Madras High Court also took the same view in Rahamtullah Sahib v. Rama Rau and Anr. ILR 17 Madras 373 opining: this possibility should rest on existing facts and not on mere conjecture.
82. The Madras High Court, we may notice, in a recent judgment in M.S. Saraswathi (supra) had a snapshot of a large number of decisions of various High Courts operating in the field including the decisions of Calcutta, Bombay, Madras and Kerala High Courts. It followed a Division Bench Decision In re Narasimha [MANU/TN/0229/1975 : AIR1975Mad330 ] wherein it was held that Section 8 of the Hindu Succession Act would apply and the caveator being an heir alone could claim a share and his son and, thus, the applicant therein could not claim any share as he had no present interest in the property. It was emphasized that a caveator if he denied the testator's title was liable to be discharged.
84. Section 283 of the 1925 Act confers a discretion upon the court to invite some persons to watch the proceedings. Who are they? They must have an interest in the estate of the deceased. Those who pray for joining the proceeding cannot do so despite saying that they had no interest in the estate of the deceased. They must be persons who have an interest in the estate left by the deceased. An interest may be a wide one but such an interest must not be one which would not have the effect of destroying the estate of the testator itself. Filing of a suit is contemplated inter alia in a case where a question relating to the succession of an estate arises.
86. The propositions of law which in our considered view may be applied in a case of this nature are:
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(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.
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also invited my attention to various paragraphs of the affidavit in support of caveat and also affidavit in reply filed by these defendants in this notice of motion. It is submitted that it is the case of the caveator as well as the defendants that the properties which are claimed to be estate of the said deceased were not self acquired property of the said deceased but were Hindu undivided family properties in which caveator also had interest in the property. Learned senior counsel submits that if case of the defendants as well as original caveator is accepted, the caveator would have 50% share in the said properties. It is thus submitted that neither the caveator nor these defendants have disputed the 100% ownership of the said deceased in such properties. Learned senior counsel submits that affidavit in support of caveat only can be considered as pleadings and not other affidavits and even affidavit in support of caveat was filed by Mr Kashinath Tiwari as constituted attorney of his father who was original caveator. It is submitted that merely because on demise of original caveator, additional affidavit is not filed by the legal heirs of the original caveator on service of citation, they would still be entitled to raise objection for grant of probate and can seek reliance on affidavit in support of caveat already filed by the caveator. Mr Madon invited my attention to the order passed by this Court making this position clear.
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attestation of Will itself is disputed by the caveator, onus is on the executor or propounder of the Will to prove execution and attestation of the alleged Will. Once the caveator is found to have caveatable interest, such caveat and affidavit in support cannot be dismissed at the threshold. Execution and attestation of the Will has to be proved by the executor.
8. Submission of Mr. Madon that the caveat is liable to be dismissed as the defendant has not specifically denied in his affidavit the existence, legality and validity of the Will dated 4th April, 2005 cannot be accepted. It may be noted that even before the plaintiff filed the testamentary petition for grant of the probate of the alleged Will of the deceased, the defendant has filed the Suit bearing No. 302 of 2006 for letters of administration to the estate of the deceased on the ground and allegation that the deceased had died intestate. The defendant in his suit has specifically stated: "he believes that the deceased died intestate". The defendant has thus impliedly, if not expressly, denied the existence of any valid Will. In my view, since the defendant has a caveatable interest and since he has denied the existence of any legal and valid Will left by the deceased, his caveat cannot be dismissed and he cannot be prevented from contesting the Will.
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propounder of such Will has to show satisfactory evidence that the Will was signed by the testator and that the testator at the relevant time was in sound position of mind. Paragraphs 11, 12 and 13 of the said Judgment read thus :
11. As per provisions of Section 63 of the Succession Act, for the due execution of a Will :
(4) each of the said witnesses must have seen the testator signing or affixing his mark to the Will and each of them should sign the Will in presence of the testator.
12. The attestation of the Will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested witness should put his signature on the Will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document.
13. Therefore, having regards to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a Will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.
Court Court Cases 157 in support of his submission that in view of the conflicting view of the Supreme Court on interpretation of “caveatable interest” in K.K Birla vs. Rajendra Singh Lodha reported in (2008) (4) SCC
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300 and in case of G. Gopal V/s C. Baskar reported in (2008) 10 SCC 489 , Supreme Court has referred the issue to be decided by larger Bench. Paragraphs 11, 21 and 22 of the said Judgment in case of Jagjit Singh (supra) read thus :
11. The term "caveatable interest" has not been defined in the Act, but the same has been used and interpreted in some of the judicial decisions. In Nobeen Chunder Sil and Ors. v. Bhobosoonduri Dabee , a two-Judge Bench of Calcutta High Court considered whether the persons who had obtained moneydecree and got attached share of one of the heirs of the deceased and mortgagees of the immovable property left by the testator were entitled to oppose the grant of probate on the basis of Will executed by the owner in favour of his wife purporting to grant his entire property for her life and after her death to his sons. The respondent applied for grant of probate of the Will of Nobo Coomar Ganguli, who had died on 21.10.1877 leaving behind his widow and two sons. The appellant Nobeen Chunder Sil, who had obtained moneydecree against one of the sons and Brojo Mohun Ghose and Obhoy Churn Sen in whose favour mortgage was executed by two sons filed caveat against the grant of probate. The District Judge refused to allow them to take part in the proceedings or oppose the grant. The appeal preferred against the order of the District Judge was allowed by the High Court of Calcutta.
21. It is thus evident that apparently conflicting views have been expressed by coordinate Benches of this Court on the interpretation of the expression "caveatable interest". In Krishna Kumar Birla's case, the Bench did not approve the judgments of Calcutta High Court in Bhobosoonduri Dabee's case and Madras High Court in G. Jayakumar's case wherein it was held that any person having some interest in the estate of the deceased can come forward and oppose the grant of probate. As against this, in G. Gopal's case, the dictum that a person who is having a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate has been reiterated. This being the position, we feel that the issue deserves to be considered and decided by a larger Bench.
22. The Registry is directed to place the matter before Hon'ble the Chief Justice for appropriate order.
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5 The only question that was agitated before us by Mr Thiagarajan, learned Counsel appearing for the appellant challenging the judgment of the High Court revoking the probate granted in respect of the will executed by the testator, was that the respondents having no caveatable interest in the estate of the deceased, the application for revocation filed by them could not be allowed. We are unable to accept these submissions made by Mr Thiagarajan, learned Counsel appearing on behalf of the appellant only for the simple reason that admittedly the respondents were grandchildren of the testator and they have claimed the estate of the deceased on the basis of a settlement deed executed by the testator himself which admittedly was revoked by the testator. That being the position, we must hold that the respondents had caveatable interest in the estate of the testator and, therefore, they are entitled to be served before the final order is passed. It is well settled that if a person who has even a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate of the will of the testator.
(emphasis supplied)
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execution of Will is denied by a party, the burden is on the party who relies upon the Will to prove the execution of the said Will.
Section 180 : Circumstances in which election takes place .Where a person, by his will, professes to dispose of some thing which he has no right to dispose of, the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it, and, in the latter case, he shall give up any benefits which may have been provided for him by the will.
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of learned counsel of both the parties to the Judgment of this Court (R.D.Dhanuka,J) delivered on 16th July 2013 in Notice of Motion No.151 of 2012 in Testamentary Suit No.11 of 2011 in case of Dhirendra @ Bitu Ranjit Thakkar Vs. Mahendra Balbhadra Thakkar . Both the learned counsel made their submissions on the said Judgment. Paragraphs 7 to 10 of the said Judgment read thus :
7. Mr. Jain also placed reliance upon an unreported judgment of this court delivered on 15th December, 2006 in Notice of Motion No. 122 of 2006 in Testamentary Suit No. 33 of 2006 in the case of Kaikhosrow Aspendiar Oshtori Vs. Dr. Meherji Aspendiar Oshtori and anr. and another in support of his plea that the affidavit filed in support of the caveat must give rise to the issue between the parties. It is submitted that except making some vague allegations of fraud and collusion, no particulars in support of such vague allegations are given by the caveator in the affidavit in support. Reliance is placed on paragraph 3 of the said judgment in the case of Kaikhosrow (supra) which reads thus :
“3. I have heard the learned counsel appearing for both sides. The purpose of filing the caveat in a probate petition is to challenge the validity of the Will. The consequence of filing of a caveat is that the caveator is added as a defendant and the probate petition is converted into testamentary suit. The affidavit filed in support of the caveats is treated as a written statement filed by the Defendant-caveator. Obviously, therefore, the affidavit filed in support of the caveat must give rise to an issue between the parties. In a probate petition the only issue that can be raised and that can be decided by the court is whether the Will of which the probate is sought is legal and valid Will. Therefore, it is absolutely necessary for maintaining the caveat in a probate petition to dispute the validity and legality of the Will in the affidavit filed in support of the caveat. In paragraph 4 of the affidavit filed in support of the caveat, the caveator says that the Will of which the probate is sought is invalid, illegal and fraudulently prepared and is not forcible in law. No where in the affidavit filed in support of the caveat, the caveator says that when the Will supposed to have been signed by the deceased testator, he was not in right frame of mind to
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dispose of his property, that the testator has not signed the Will, that it is not attested as per law. Merely making a vague statement that the Will is invalid and illegal will not amount to challenging the validity of the Will. Perusal of paragraph (5) of the affidavit filed in support of the caveat, on the contrary, shows that both the caveators have acted pursuant to the Will. In paragraph (6), they have stated that after the Will was disclosed a meeting of the members of the family was held on 22-2-2005 and the memorandum of understanding was arrived at between the members of the family for implementation of the Will on 23-12-2005. Paragraph (6) of the affidavit read as under:-
6. I say that after due deliberation on the Will between the beneficiaries and executors/beneficiaries, the memorandum of understanding was arrived at and duly signed by all the present in presence of each other. A copy of which was given to each other of the above present.”
8. Mr. Damle, learned counsel for defendant/caveator submits that on the death of the father of the caveator who was legal heir of the said deceased and had interest in the estate of the deceased, caveator will also have interest in the estate of the deceased. It is submitted that on the date of death of the father, the caveator would be entitled to make claim in the estate of the said deceased testator and accordingly would have interest in the estate of the said deceased testator. It is submitted that merely because father of the caveator did not challenge the Will, it would not affect the rights of the caveator. The caveator is entitled to claim share in the estate of the deceased independently after demise of his father. It is submitted by Mr. Damle that in affidavit in support of the caveat petitioner has though taken a plea that the property of the deceased was ancestral property, it would not mean that the other objections raised by the caveator in the affidavit in support has to be ignored. Attention of this court is invited to paragraph no.7 of the affidavit in support of the caveat to demonstrate that the caveator has disputed execution of Will itself on the ground that the testator was blind on the date of execution of the said Will.
9. It is not in dispute that the father of the caveator was attesting witness to the Will and has filed affidavit which was annexed to the petition in which affidavit the attesting witness has deposed that he was one of the attesting witness and was present at
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the time of execution of the Will. He has also deposed that the deceased was of sound mind at the time of execution of the said will. It is not in dispute that after demise of the father of the caveator, citation came to be served upon the caveator in response to which affidavit in support has been filed by the caveator claiming rights independently. It is not in dispute that the probate has not been issued by this court and the testamentary petition filed by the petitioner has been converted into suit. In my view, merely because the father of the caveator who was also legal heir of the said deceased had filed affidavit confirming attestation of Will, it would not put an end to the caveatable interest of the son of attesting witness/beneficiary on his demise. The present caveator is entitled to independently contest the Will by raising objections permissible in law. If during the life time of the father of the caveator, if any evidence would have been led, the situation would have been different. In my view, if the executor of the Will is unable to prove the execution of Will of the testator for any reasons, the caveator will have right in the estate of the deceased testator. In my view, thus ceveator has caveatable interest and is entitled to challenge the said Will.
10. In so far as the issue raised by Mr. Jain that in the affidavit in support of the caveat, the caveator has set up title adverse to the title of the deceased and thus not entitled to maintain his caveat is concerned, on perusal of the affidavit in support of the caveat, it is apparent that the caveator has set up title contrary to the interest of the deceased. However, on perusal of the affidavit, it is also clear that the caveator has also disputed the Will on various other grounds including the ground that the deceased was blind at the time of execution of the Will. If this court comes to the conclusion that at the time of the trial that some of the objections raised bythe caveator in affidavit in support which has to be treated as written statement are not tenable, obviously court will reject such objections made in the affidavit in support of the caveat. In my view merely because one of the objections raised in the affidavit in support of the caveat is untenable and contrary to law, this court cannot discard the entire affidavit at this stage. In my view, the matter will have to be proceeded with for trial and thus caveat filed by the caveator cannot be dismissed at this stage. There is no dispute in the proposition of law enunciated in the judgments relied upon by Mr. Jain, learned counsel for the plaintiff.
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already filed by the caveator. Merely because, the defendants have not filed any additional affidavit, upon service of citation, the defendants are still entitled to rely upon the affidavit filed by the caveator. In my view there is thus no substance in the submission of Mr. Sancheti, learned senior counsel that in view of the defendants not having filed any additional affidavit, defendants cannot be allowed to raise any objection.
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always on the propounder of the Will and or executor to prove due execution of such propounded Will. At the same time, the caveator who has alleged forgery, the onus to prove such forgery would be on the caveator or the person claiming through him. All these facts are matter of evidence and thus cannot be decided conclusively at the stage of Notice of Motion.
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on the plaintiff to prove the due execution and attestation of the Will. At the same time, onus would be on the defendants to prove whether the said will has been forged. This court has already framed issues in that regard as far back as on 19th April, 2011. In my view on the ground of gross delay in filing notice of motion also, Plaintiff is not entitled to any relief in this notice of motion.
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counsel is right in his submission that the plaintiff did not raise any such issue in the affidavit in support of his notice of motion for dismissal of caveat alongwith affidavit in support of the ground that caveator had set up title adverse to the title of the deceased in the property. In my view the plaintiff not having raised such plea in the affidavit in support of notice of motion, the caveat and affidavit in support cannot be dismissed on that ground raised across the bar.
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discarded at the stage of notice of motion. The matter will have to be proceeded with for trial. In my view, the judgments thus relied upon by Mr. Sancheti, the learned senior counsel for the plaintiff are distinguishable in the facts of this case.
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execution of will is denied by the parties, then the burden is on the party who relies upon the will to prove the execution of the same. Similarly the judgment of the Calcutta High Court in the case of Taritkumar Chatterjee (supra) and Saheb Khan (supra) are rightly distinguished by Mr. Madon on the ground that the said judgment in the case of Saheb Khan, there were no allegations of fraud or material irregularity in execution of the will and in case of Abhiram Das , decided by Calcutta High Court, caveator in the said matter was not related to the deceased but was servant and outsider whereas in this case, the caveator was real brother of the deceased and had admittedly caveatable interest and was served with citation.
3 issues framed by the court
Could the deceased caveator's legal heirs contest probate by adopting his affidavit without filing an additional affidavit?
Could the caveat be dismissed at the threshold for insufficient particulars of forgery despite an express denial of execution?
Did objections to the testator's title defeat caveatable interest where the caveator could inherit on intestacy and also disputed execution?
Colour shows how this judgement treated each authority
S.Kaliyammal and others vs. K.Palamiammal and othersDistinguished¶234
S.Kaliyammal and others vs. K.Palamiammal and others, AIR 1999 MADRAS 40 · Who else cites this
Tarit Kumar Chatterjee vs. Tapan Kumar ChatterjeeDistinguished¶238
Tarit Kumar Chatterjee vs. Tapan Kumar Chatterjee, CDJ 2009 Cal HC 494
Saheb Khan vs. Mohd.Yousufuddin and othersDistinguished¶238
(2006) 4 SCC 476 · Who else cites this
Komalangiammal vs. M.K.Sowbhagiammal and anotherDistinguished¶232
AIR 1931 Madras 37 · Who else cites this
In re N.Narasimhan and anotherDistinguished¶232
AIR 1975 Madras 330 · Who else cites this
Abhiram Dass vs. Gopal DassDistinguished¶238
Abhiram Dass vs. Gopal Dass 17 Indian Decisions 48
Kashi Nath Singh vs. Dulhin Gulzari KuerDistinguished¶232
Kashi Nath Singh vs. Dulhin Gulzari Kuer
Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors.Distinguished¶233
(2008) 4 Supreme Court Cases 300
Mrs Sarla Kapur & anr. v. Sanjay Sudesh KapurReferred¶142
AIR 2009 Bombay 117 · Who else cites this
Yumnam Ongbi Tampha Ibema Devi vs. Yumnam Joykumar Singh & OthersReferred¶144
(2009) 4 Supreme Court Cases 780
Jagjit Singh & Ors. vs. Pamela Manmohan SinghReferred¶156
Jagjit Singh & Ors. vs. Pamela Manmohan Singh
G. Gopal V/s C. BaskarReferred¶168
G. Gopal V/s C. Baskar reported in (2008) 10 SCC 489 · Who else cites this
Bhagwan Kaur v. Kartar KaurRelied on¶234
Bhagwan Kaur v. Kartar Kaur (1994) 5 SCC 135 · Who else cites this
Dhirendra @ Bitu Ranjit Thakkar Vs. Mahendra Balbhadra ThakkarFollowed¶228
Dhirendra @ Bitu Ranjit Thakkar Vs. Mahendra Balbhadra Thakkar
3 provisions across 3 enactments
Daya Subhash Tiwari
Kashinath Lalta Tiwari
Dilip Lalta Tiwari
Meera Sadashiv Tiwari
Maya Ramchandra Chaubey
Meenaxi Ashok Mishra
R.D. DHANUKA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
