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TMI Blog2016 (10) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... nd testament of Appellant's brother Jagdish Prasad Tulshan. Appellant's prayer to reject the caveats of 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 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 of 2009 - Yasheel Jain lodged a caveat claiming to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore-discussed Will of Jagdish Prasad Tulshan was opposed by the Respondent Malati Tulshan. She claimed to be the second wife of the testator married on 28.02.1986 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 rejected the application for discharge 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y proceedings. 6. On behalf of Appellant, claim of Yasheel that he has a caveatable interest on the basis of a prior Will was seriously disputed and contested 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 interest of Malati is concerned, the submission on behalf of Appellant is that she has made conflicting claims, one, as a widow of the testator a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of a Judge upon application by summons be numbered 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 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 of the Petitioner by summons to the caveator before making the order mentioned in Rule 28, direct the trial of an issue as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the case of Krishna Kumar Birla v. Rajendra Singh Lodha (2008) 4 SCC 300. Paragraphs 59 to 86 of this judgment refer to large number of authorities of this Court as well as various High Courts. The conclusions flowing from that judgment including the proposition of law in paragraph 86 clearly support the case of the Respondents in both the appeals that they have a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of caveat by Respondent Malati, the Division Bench noted the 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 of Malati as regards her relation with the testator has been established and hence she deserves 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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