2008 (3) TMI 741 - SC - Indian Laws

Suit on Mutual Wills - Caveatable interest within the meaning of the Indian Succession Act 1925 - (1925 Act) vis-a-vis the Rules framed by the Calcutta High Court in the year 1940 - Whether RSL has a caveatable interest in the proceeding in respect of the probate of the Will of MPB dated 13th July 1982 - Application of sec. 92 CPC - Dictionary meaning of both the terms caveat and interest . Legal Thesaurus Regular Edition by Wlliam C. Burton defines interest as under Interest (Ownership) noun Assets belongings claim dominion droit holding lawful possession part participation percentage of ownership portion possession property proprietorship right right of ownership rightful possession seisin share stake title. Caveat has been defined in Random House Webster s Dictionary of the Law as under caveat n. 1 a warning or caution; admonition. In certain legal contexts a formal notice of interest in a matter or property; for example a notice to a court or public officer to suspend a certain proceeding until the notifier is given a hearing ; a caveat filed against the probate of a will. The Rules framed by the Calcutta High Court provide for determination of the issue of caveatable interest as a preliminary issue. We do not see any reason as to why the High Court in exercise of its powers conferred upon it under Section 122 of the Code of Civil Procedure could not frame such Rules. After coming into force of the Constitution such Rules can also be framed by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. The Court having regard to its general power as also the power under Order XIV Rule 1 of the Code of Civil Procedure can decide the matter by framing preliminary issues in regard to the maintainability or otherwise of the application. It is a rule of procedure and not of substance. A court is entitled to dismiss a lis at the threshold if it is found not maintainable. The Court even in absence of any rule must take the precaution of not indulging in wasteful expenditure of its time at the instance of the litigants who have no case at all. We do not therefore find any legal infirmity in the Rules. As Agnates KKB BKB YB and GPB also claimed caveatable interest as agnates. Entry 2 of Class II of the Schedule appended to the Hindu Succession Act in this case would not bring them into the picture as agnates will acquire an interest only when there is no heir of either Class I or Class II. When there exists Class II heirs the appellants would not have any real interest in the property. The property upon the death of Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta would pass on to their legal heirs. Appellants being not the heirs of MPB or PDB have no caveatable interest. We may notice the affidavit of Shri KKB in opposition to the grant of probate as a caveator. In the said affidavit apart from the genuineness of the 1999 Will the power of the testatrix to execute the same has also been questioned. The said affidavit also reiterates the contents of the plaint. No contention however has been raised that they have a caveatable interest keeping in view the spiritual life of MPB and the testatrix as a member of the family or otherwise. Similar affidavits have been filed by B.K. Birla Yashovardhan Birla Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta. The sisters are also supporting the Birla family. The claim of acquiring caveatable interest on the said basis thus is wholly unacceptable. PRE-EMPTION FUTURE DOMAIN DOCTRINE - KKB BKB and GPB claimed caveatable interest as co-owners of 1/5th share in Kumaon Orchards two other co-owners being PB and S.K. Birla. S.K. Birla does not claim any caveatable interest in the estate of PDB. Even a person claiming an interest in the property of the testator by reason of an agreement for sale would not have a caveatable interest on the premise that such an agreement would be binding both upon the executor as also upon the heirs of the deceased (in the event probate is not granted). The same principle would apply herein. Right of pre-emption if any is not affected by grant of probate. A right of pre-emption would arise only when a voluntary transfer is made for consideration in favour of a stranger and not prior thereto. Will has been defined in Section 2(h) to mean the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. Will takes effect after the death of testator. Rights and obligations of an executor of a Will arise only then. No right is created in the executor during the life time of the testator. Appointment of a testator and appointment of a trustee stand completely on different footings. Validity of 1982 Will - We may assume that the 1982 Will was valid. As MPB could never become an executor BKB s appointment does not confer on him a caveatable interest. An appointment of an executor ordinarily is the function of a court in terms of Section 301 of the 1925 Act. We however need not go into the question as to whether his appointment was legal or not. But we may only notice that even in the deed of appointment there is nothing to show that the necessary ingredients for appointment of B.K. Birla by the surviving executors had been made out as it was not stated that the original executor had seized to hold office. The office of executor under the 1982 Will does not carry any remuneration therewith. The power to appoint an executor was dependent upon any executor ceasing to be one. The condition precedent has not been fulfilled. In the instant case MPB had never become the executor hence the question of his ceasing to be an executor does not arise. Appellants are not the legatees of the said Will. They are not the beneficiaries thereunder. They being merely executors in our opinion 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 of PDB. APPOINTMENT OF YB AS AN EXECUTOR IN PLACE OF MPB - So far as the case of YB is concerned his appointment as an executor has been upheld by the High Court. It was however opined that by reason thereof he did not acquire any caveatable interest. RSL has filed an appeal against that part of the judgment whereby his appointment as an executor of the Will of MPB of 1992 in place of PDB has been upheld. We are furthermore of the opinion that only because YB has a right to maintain a suit for purported enforcement of the Mutual Wills the same by itself cannot confer upon him a caveatable interest. The affidavit of assets annexed by the Birlas to their petition for grant of probate in respect of 1982 Will of MPD and the affidavit of assets annexed by them to the petition for grant of probate of 1982 Will of PDB show that the assets held by the former mentioned in the petition for probate of his Will of 1982 are also shown as assets of PDB. APPLICATION OF SECTION 92 CPC - A suit contemplated under Section 92 of the Code of Civil Procedure cannot be equated with a probate. In a suit under Section 92 of the Code of Civil Procedure the title of the donor may be disputed. Such a question as of necessity must be gone into by the court which however is a forbidden domain for the Probate Court. Reliance has been placed on Sirajul Haq Khan and Ors. v. The Sunni Central Board of Waqf U.P. and Ors. 1958 (9) TMI 80 - SUPREME COURT wherein this Court was of the opinion that a person ascertaining that the property in dispute was not a wakf property was entitled to be heard. In a suit of that nature the title in the property or lack of it would be germane. We have already held that GPB has caveatable interests as executor of MPB in respect of his Will of 1982. We therefore see no reason as to why RSL would not have a caveatable interest being a beneficiary under the 1999 Will in the proceedings for grant of probate of the Will of MPB dated 13th July 1982. If the grounds taken in the appeal are to be upheld the same ex facie would destroy the case of the appellants in the other cases. We have noticed hereinbefore the averments made in the plaint of Civil Suit. Filing of the said suit in our opinion does not bar considering the caveatable interest and as we have not been called upon to decide the maintainability of the said suit at this stage we do not make any observation thereupon. We have noticed the averments made in the plaint at some length only for the purpose of arriving at a finding on the question as to whether the plaintiffs therein have acquired any caveatable interest by reason thereof or not. In our opinion the High Court was right in opining that a caveatable interest may arise only after suit for enforcement of mutual Will is decreed and not prior thereto. Before parting with this case we may notice some disturbing features. Each party for good or bad reasons has been opposing one or the other application filed by the other. It is stated that respondent No. 1 is opposing the application for substitution of heirs and legal representatives of Mrs. Laxmi Devi Newar sister of MPB. We do not know on what premise such a stand is being taken. Counsel for both the parties put the blame on the other side for causing delay in disposal of the matters. Therefore are of the opinion that the probate proceedings should be taken up for hearing by the High Court as expeditiously as possible. We would request the High Court to consider this aspect of the matter. Probate proceedings may also be taken up for hearing one after the other. Probate proceeding of RSL in respect of Will of PDB executed in the year 1999 should be taken up first. The hearing of the probate proceeding of Will of MPB of 1982 may be taken up immediately thereafter. Judgments may be delivered if possible at the same time. The suit filed by the executors of the two 1982 Wills being Civil Suit may be taken up for hearing only after the disposal of the probate proceedings if necessary. CONCLUSION - Thus Civil Appeal arising out of SLP filed by RSL challenging appointment of YB is allowed and all other appeals are dismissed with costs. Who would be the beneficiaries of the case? - We think that benefit should go to Legal Services Authority. We direct the appellants in the appeal filed by Birlas should deposit a sum of Rs. 2, 50, 000/- (Rupees Two lac fifty thousand only) with the Member Secretary of West Bengal Legal Services Authority.

Summary

Issues Involved
1. Definition and scope of "caveatable interest" under the Indian Succession Act, 1925.
2. Validity and implications of mutual Wills executed by MPB and PDB.
3. Rights of executors and legatees under the Wills of 1982 and 1999.
4. Legal standing of various parties to file caveats.
5. Interpretation of statutory provisions and rules framed by the Calcutta High Court.
6. Applicability of Section 92 of the Code of Civil Procedure and Section 73 of the Indian Trusts Act.

Issue-wise Detailed Analysis

1. Definition and Scope of "Caveatable Interest"
The primary question was what constitutes a "caveatable interest" under the Indian Succession Act, 1925. The court noted that a caveatable interest must be a real interest in the estate of the deceased, not merely a speculative or contingent interest. The court emphasized that a caveatable interest must be derived from the deceased by inheritance or otherwise, and not merely an adverse claim to the estate.

2. Validity and Implications of Mutual Wills Executed by MPB and PDB
The court examined the mutual Wills executed by MPB and PDB in 1982 and the subsequent Will executed by PDB in 1999. It was argued that the mutual Wills created a binding agreement that could not be revoked unilaterally. However, the court held that a Will is inherently revocable and that the subsequent Will of 1999 would be valid, subject to the terms of the mutual Wills being enforced through a separate suit.

3. Rights of Executors and Legatees under the Wills of 1982 and 1999
The court analyzed the rights of the executors and legatees under the Wills of 1982 and 1999. It was held that the executors under the 1982 Wills did not have a caveatable interest merely by virtue of being named executors. The court also noted that the appointment of new executors in place of deceased executors must comply with the terms of the Wills and relevant statutory provisions.

4. Legal Standing of Various Parties to File Caveats
The court scrutinized the legal standing of various parties, including KKB, BKB, YB, and GPB, to file caveats. It was held that GPB had a caveatable interest as a named executor, while the other parties did not have a sufficient interest to maintain their caveats. The court emphasized that a caveatable interest must be a direct and substantial interest in the estate of the deceased.

5. Interpretation of Statutory Provisions and Rules Framed by the Calcutta High Court
The court examined the statutory provisions under the Indian Succession Act, 1925, and the rules framed by the Calcutta High Court. It was held that the rules providing for the determination of caveatable interest as a preliminary issue were valid and within the powers conferred upon the High Court. The court also noted that the rules must be interpreted in a manner that aligns with the purpose and object of the Act.

6. Applicability of Section 92 of the Code of Civil Procedure and Section 73 of the Indian Trusts Act
The court considered the applicability of Section 92 of the Code of Civil Procedure and Section 73 of the Indian Trusts Act. It was held that these provisions did not create a caveatable interest in the context of probate proceedings. The court emphasized that the jurisdiction of the Probate Court is limited to determining the genuineness of the Will and does not extend to adjudicating disputes related to the title or trust properties.

Conclusion
The court concluded that the appeals filed by KKB, BKB, and YB challenging the discharge of their caveats were dismissed, while the appeal filed by RSL challenging the appointment of YB as an executor was allowed. The court directed that the probate proceedings should be expedited, and the costs were to be deposited with the West Bengal Legal Services Authority.