FACTS: 1. The facts of the case involve the controversial will of Late Priyamvada Birla executed in the year 1999 making R.S. Lodha the sole beneficiary. 2. Both M.P. Birla and Priyamvada Birla executed a mutual will on 10th May, in the year 1981, bequeathing their respective estate(s), barring certain specific legacies to the other and on the death of the survivor to the 'charities' to be nominated by the executors. 3. The said wills were revoked and another set of mutual wills were executed on 13th July, 1982. 4. Four executors were appointed for each of the wills, who are listed as under:
Executors for Madhav Prasad Birla’s will were Smt. Priyamvada Devi Birla, Krishna Kumar Birla, Kashinath Tapuria and Pradip Kumar Khaitan
Executors nominated in Priyamvada Birla’s will were Madhav Prasad Birla, Ganga Prasad Birla, Kashinath Tapuria, Pradip Kumar Khaitan. 5. 14th July, 2004: K.K. Birla, B.K. Birla and Yashovardhan Birla filed caveats in the Calcutta High Court, to oppose the grant of probate to the Will created by Mrs. Priyamvada Birla in 1999 (hereinafter referred to as the 1999 will) 6. 19th July, 2004: Caveats entered by Ganga Prasad Birla and Laxmi Devi Newar. 7. 19th July, 2004: The first respondent, R.S. Lodha filed an application for grant of probate of 1999 Will (P.L.A. No. 204 of 2004) before the High Court of Calcutta showing Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta, the two sisters of M.P. Birla, as the only heirs and legal representatives of the testatrix. 8. 22nd July, 2004: Caveat entered by Smt. Radha Devi Mohatta. 9. R. S. Lodha (first respondent) filed an application (titled GA No. 2721 of 2004) seeking discharge of caveats entered by or on behalf of K.K. Birla, B.K. Birla, G.P. Birla and Yashvardhan Birla before the High Court of Calcutta. 10. 30th July, 2004: The appellants filed their affidavits in support of the Caveats filed by them. Affidavits were also filed by Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta in support of the caveats. 11. 17th August, 2004: Two applications were filed by the executors of the mutual wills of M.P. Birla and Priyamvada Birla, as drawn on 13th July 1982, for grant of probate. It was based on the premise that even if the probate of the 1999 Will executed by Priyamvada Birla, is granted in favour of the first respondent, he would be under an obligation to abide by the directions contained in the purported mutual Wills. 12. A suit was filed in the High Court by the executors of the 1982 Will, claiming inter alia for a declaration that the first respondent as the alleged sole executor and beneficiary of the 1999 Will be prohibited from dealing with the assets of Priyamvada Birla in any manner which is inconsistent and contrary to the 1982 Will. 13. Two deeds of appointments dated 23rd August, 2004 and 24th August, 2004 were also executed appointing Yashvardhan Birla and B.K. Birla as surviving executors of the 1982 wills, in place of Priyamvada Birla and M.P. Birla respectively. The appointment of Yashvardhan Birla was accepted but that of B.K. Birla was not. 14. An application (G.A. No. 2721 of 2004) was filed by the first respondent to discharge the caveators before the Calcutta High Court.
Proceedings before the Calcutta High Court:
A learned Single Judge of the High Court allowed the application of discharge of the caveats filed by K.K. Birla, B.K. Birla and Yashvardhan Birla. However, the caveat filed by G.P. Birla was retained. R.S. Lodha also entered a caveat against grant of probate to the 1982 mutual wills. An application was filed for the discharge of caveat of R.S. Lodha, which was dismissed. Cross-objections were filed by RSL in the said appeal against retaining the caveat filed by G.P. Birla as also the appointment of Yashvardhan Birla as the executor of M.P. Birla. The appeals as also the cross-objections have been dismissed by the Division Bench of the Calcutta High Court.
PROCEEDINGS BEFORE THE SUPREME COURT
Submissions of the appellants: * The appellants contended that the will of late M.P. Birla ought to be executed in tenor so that all the bequeathed properties are applied towards charitable disposition and that the Calcutta High Court committed an error in ignoring the effect of the suit. Had the suit succeeded, caveatable interest would have accrued to the appellant, as the appellant was an executor of the 1982 will of the testatrix. As relatives, of the husband of the Appellants had a twofold duty: a. That R. S. Lodha applies the estate of the deceased subject to charitable disposition, in the event the probate is granted. b. That he will not take it as his absolute properties * Rule 30 of the Calcutta High Court Rules lays down a purported qualification for entering into a caveat. Since no such requirement is mentioned in section 295 of the Indian Succession Act, 1925, therefore the rule is ultra vires to the same. * The caveators, being co-sharers of the testatrix in respect of Kumaon Orchards wherefore an agreement had been entered into on 15th July, 1997 conferring a right of pre-emption against any co-sharer, must be held to have sufficient interest in the estate. * Section 92 of the Code of Civil Procedure, would be attracted in case of charitable disposition of properties, which requires that interest must be shown to exist in relation to the trust and not the trust property. * Since the extent of right of a person for lodging a caveat had not been laid down under a statute, the decisions rendered from time immemorial holding that only a bare right (which would also mean a bare contention, i.e., which would give rise to an arguable point at the hearing constitutes a caveatable interest) should be held to be still a good law. * Mr Yashvardhan Birla, the grand nephew of M.P. Birla, the executor in accordance with the deed dated 24th, July, 2004 and thus had sufficient caveatable interest. he had has adequately shown his interest in the three proceedings in connection with the dispute : a. Grant of probate of 1982 wills b. Grant of probate of 1999 will c. Suit filed by the Birla family to enforce the agreement of M.P. Birla and Priyamavada Birla regarding the 1982 will.
Submissions of the respondents: * According to the Hindu Succession Act, 1956 there is The 1982 Will of M.P. Birla is not affected by the 1999 Will, particularly, when appellants are not the legatees of the will and as such the question of surviving executor deriving any interest in his place would not arise. For the same reason, persons claiming to be executors of the 1982 Will have no caveatable interest as mutual Wills are not rival Wills. * No possibility of any person other than heirs to derive a remote interest in the estate of the deceased, the decisions of various High Courts to the effect that the reversioner and/or distant relatives would have a caveatable interest are no longer good law. * In answer to the submission of the counsel for appellants that Rule 30 of the Calcutta High Court is ultra vires to the Indian Succession Act 1925, the counsel for respondents stated that the rule was framed in accordance with section 122 of the Code of Civil Procedure, 1908, and was therefore valid in law.
QUESTION OF CAVEATABLE INTEREST * Responding to the question of rule 30 of the Calcutta High Court rules being ultra vires to the Act, the Supreme Court opined that High Court, in exercise of its powers conferred upon it under Section 122 of the Code of Civil Procedure and under Article 227 of the Constitution of India in exercise of its supervisory jurisdiction, could frame such Rules. * Elizabeth Antony v. Micheal Charles John Chown Lengara
The petitioner had claimed a caveatable interest, against the grant of probate of the testatrix’s Will, on the plea that the said Will was forged. Caveatable interest, therefore, was claimed as an executor and legatee of the Will. The court opined that while granting a probate, the court would not decide any dispute with regard to title. A separate suit would be maintainable for the same or if probate is granted, the plaintiffs would have a remedy under Section 263 of the 1925 Act. This opinion of the court was backed by a plethora of judgments such as Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors and Basanti Devi v. Raviprakash Ramprasad Jaiswal * Mutual will
Since a Will represents the last wish of the maker, it is revocable till the death of the testator. In case a Will is modified during the lifetime of the testator, the latter Will will be probated. Despite the existence of a mutual Will, the representative under the latter Will will take the property. He, however, takes the property subject to the terms of the Mutual Will. In resolving the question, the learned judges referred to Halsbury's Laws of England:
“...Even when there is such an agreement and one party has died after departing from it by revoking or altering the will, the survivor having notice of the breach cannot claim to have the later will set aside, since the notice gives him the chance of altering the will as regards his own property; and the death of the deceased party is itself sufficient notice for this purpose. If, however, the deceased has stood by the agreement and not revoked or altered his will, the survivor is bound by it, and although probate will be granted of a later will, the survivor is bound by it, and although probate will be granted of a later Will made by him in breach of the agreement, since a court of probate is only concerned with the last will, the personal representatives of the survivor nevertheless hold his estate in trust to give effect to the provisions of the joint will or mutual wills. * The Supreme Court came to the conclusion that the mere event of existence of mutual wills or a suit filed, are not enough to create a caveatable interest. In fact, the court opined, the appellants had disentitled themselves from holding a caveatable interest, by challenging the title of the testatrix herself. Finally, the Supreme Court zeroed down on the following principles in relation to mutual wills: * A Will made in prejudice of an agreement will nevertheless be effective as a Will as it is by its very nature and by its very essence a revocable instrument. * A subsequent infringing Will would be valid even if it revokes an earlier Mutual Will. * Similarity of the terms would not be enough to establish the necessary agreement. * Whether a legatee has taken any benefit under the alleged Wills of 1982 would, however, be relevant. * FAMILY INTEREST
The court accepted that the sisters of M.P. Birla were the rightful legal heirs of the Priyamvada Birla. The court stated that upon the death of M.P. Birla’s sisters, the property would devolve to their legal heirs, not by virtue of being M.P. Birla’s legal heirs, but in their own right. The sisters belong to Class II of the Schedule of the Indian Succession Act, 1925. The Agnate appellants, not being the legal heirs of the deceased couple, do not hold any valid caveatable interest, in the presence of Class II heirs of the testatrix. * SPIRITUAL WELL BEING
In response to the appellant’s plea that they had an interest in the spiritual well being of the testatrix, by virtue of cousins, was rejected by the court without much ado. Such a contention was found to be frivolous. It was emphasized that after the enactment of the Hindu Succession Act 1956, such a consideration has lost its relevance. The doctrine of ‘larger circle of the caveators being the Birla family members’ and the plea to protect the spiritual well being of the family members does not hold good. * QUALITY OF TITLE
The affidavit filed by Mr, K.K. Birla, raised two basic points of contention, firstly, the genuineness of the 1999 Will and also the power of the testatrix to execute the same. No contention, however, has been raised that they have a caveatable interest keeping in view the spiritual life of M.P. Birla and the testatrix as a member of the family or otherwise. The Court found the claim of the caveatable interest on this basis to be “unacceptable”. * EXECUTORS OF THE WILL
B.K. Birla had claimed caveatable interest in the capacity of the executor of the 1982 Wills. However, the Supreme Court stated that an executor can act only upon the death of the testator and not during his life time. The submission of the Counsel for appellants that the executors had interest even during the life time of M.P. Birla is accepted the same would not hold good in law. As M.P. Birla predeceased Priyamvada Birla, he never became an executor therefore the question of filling up of any vacancy did not arise. By this reason, the appointment of B.K. Birla does not create a caveatable interest.
On the other hand, G.P. Birla did possess caveatable interest, by virtue of being the executor of the Will.
Although the High Court had confirmed the appointment of Yashvardhan Birla as executor in place of M.P. Birla, the Supreme Court disagreed to the same. They reasoned that since there is nothing to show that any vacancy has been created by reason of death of Priyamvada Birla, Yashvardhan Birla could not have been appointed in her place. * The Supreme Court also refused to accept the argument of the appellants that the respondent was an outsider. The court observed, that testamentary devolution of property was the right of the owner and she had every right to bequeath her property to anyone she so wished, even depriving her family members in the process if she so desired.
Hence, Supreme Court recognized the caveatable interest of the respondent (R.S. Lodha) as the beneficiary of the 1999 Will.
RATIO DECIDENDI
A caveatable interest would mean an interest in the estate of the deceased to which the caveator would otherwise be entitled to, subject of course, of having a special interest therein.
Appellants being merely executors would not clothe them with a right to lodge a caveat as by reason thereof they did not derive any caveatable interest in the estate.
PRESENT SITUATION
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 others v. Bhobosoonduri Dabee, a two-Judge Bench of Calcutta High Court considered whether the persons who had obtained money-decree 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.
In the case of G. Jayakumar v. R. Ramaratanam the phraseology in section 283 of the Indian Succession Act indicates that "all persons claiming to have any interest in the estate of the deceased" may be issued citations. The provision of Section 283 is intended to give the widest possible publicity to the probate proceedings and to give an opportunity to any person having the slightest and even the bare possibility of an interest in the proceedings to challenge the genuineness of the will and place before the court all the relevant circumstances before a grant in rem is made in favour of the person claiming probate.
In the present case, the Supreme Court did not accept the above argument. However, in a another case of 2008 itself, the Supreme Court presented a conflicting view on the subject stating 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. The Supreme Court in fact, in its most recent judgment of Jagjit Singh & Ors. vs Pamela Manmohan Singh left the question unresolved and the matter is still sub judice.
