Justice S B Sinha in a judgment also on behalf of Justice Harjit J Singh Bedi a case asked what is a covetable interest within the meaning of the Indian Succession Act, 1925 (1925 Act) vis-àvis the Rules framed by the Calcutta High Court in the year 1940 is the question involved herein? He added that Smt. Priyamvada Devi Birla (PDB) and her husband Madhav Prasad Birla (MPB) were admittedly very wealthy persons and they owned an industrial empire known as the MPBirla Group of Industries, but they were issueless and known for their charitable disposition and they used to run several charitable institutions.
Justice Sinha said that both MPB and PDB were stated to have executed mutual wills on identical terms on or about May 10, 1981 bequeathing his/her 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. He added that however, the said wills were revoked and another set of mutual wills were executed on July 13, 1982 in terms whereof, four executors were appointed in each set of Will (1982 Will).
Justice Sinha said that the Executor nominated in MPB’S Will were; (1) Smt. Priyamvada Devi Birla (PDB, (2) Krishna Kumar Birla (KKB), (3) Kashinath Tapuria and (4) Pradip Kumar Khaitan; whereas the executors nominated in PDB’s will were:- Madhav Prasad Birla (MPB), (2) Ganga Prasad Birla (GPB), (3) Kashinath Tapuria, (4) Pradip Kumar Khaitan, (5) MPB died on July 30, 1990. He added that on or about April 18, 1999, PDB executed her last Will (1999 Will) bequeathing her entire estate to the first respondent i.e. Rajendra Singh Lodha (RSL) and he was also appointed as the sole executor and he also executed a codicil on April 15, 2003.
Justice Sinha said that PDB died on July 3, 2004 KKB, BKB, and Yashovardhan Birla (YB), the appellants herein, having come to learn of the execution of the said Will filed caveats on July 14, 2004 to oppose the grant of probate of the 1999 Will and Ganga Prasad Birla (GPB) and Smt. Laxmi Devi Newar also entered caveats on July 19, 2004.
Justice Sinha said that in his application for grant of probate, GPB accepted that Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta were the heirs and legal representatives of PDB and in the said application, Pradip Kumar Khaitan and Kashinath Tapuria were also parties. He added that on or about July 19, 2004 the first respondent, RSL filed an application which was seeking discharge of caveats entered by or on behalf of KKB, BKB, GPB and YB before the High Court of Calcutta.
Justice Sinha said that appellants as also Smt. Laxmi Devi Newar filed their respective affidavits in support of the respective caveats filed on July 30, 2004 and an affidavit in support of her caveat was also filed by Smt. Radha Devi Mohatta.
Justice Sinha said that the executors of the 1982 Wills filed two applications for grant of probate of the Will of MPB dated July 13, 1982 and for grant of probate of the Will of PDB dated July 13, 1982 before the Calcutta High Court on August 17, 2004 purported to have been executed by MPB and PDB, indisputably of the premises that even if the probate of the 1999 Will executed by PDB 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. He added that a suit was filed by the executors of the two 1982 Wills before the Calcutta High Court claiming interalia for a declaration that the first respondent as the alleged executor and sole beneficiary of the 1999 Will of PDB is not entitled to deal with the assets of PDB in any manner contrary to and inconsistent with the terms of the 1982 Will.
Justice Sinha said that the cause of action for the said suit was founded on the Doctrine of Mutual Wills. He added that two deeds of appointment dated August 23, 1994 and August 24, 2004 were also executed appointing YB and BKB as surviving executors of the Wills of MPB and PDB (1982 Wills) in place of PDB and MPB, respectively.
Justice Sinha said the appointment of YB was accepted; that of BKB was not.
Justice Sinha said that an application was filed by the first respondent to discharge the caveators viz. KKB, BKB, GPB and YB before the Calcutta High Court. He added that a single Judge of the High Court allowed the said application of discharge.
Justice Sinha said that it may be placed on record that the first respondent RSL also entered into a caveat in the proceedings arising out of an application for grant of probate of 1982 Wills. Application for discharge of caveat of RSL was also dismissed.
Justice Sinha said that an appeal was filed at the Calcutta High Court before the Division Bench. He added cross-objections were filed by RSL in the said appeal against retaining the caveat filed by KKB, BKB and YB as also the appointment of YB as the executor of MPB. He added the appeals as also the appointment of YB as the executor of MPB. He added the appeals as also the cross-objections have been dismissed by the Division Bench of the Calcutta High Court.
Justice Sinha said that Krishan Kumar (KKB) and Basant Kumar (BKB) are the cousins of Madhav Prasad (MPB); whereas Yashovardhan (YB) is the grand son of sister of MPB and added that it was also stated that PDB was also related to KKB through his wife. He added that relationship between the parties is not in dispute and also not in dispute that MPB left behind two sisters Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta, who are his and also PDB’s heirs and legal representatives.
Justice Sinha said that the propositions of law which in his considered view may be applied in a case of this nature are; (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 caveat 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. He added that 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 grounds outside the law of succession would be a stranger to the probate proceeding in as much as none of such rights can effectively be adjudicated therein.
Justice Sinha said that two sisters of MPB being alive (one of them is since deceased), indisputably in the event the application for grant of probate of RSL in respect of the 1999 Will is refused they will have an interest in the estate of the testatrix. He added that the right of the said sisters of MPB being definite and clear, it is not a case where it is necessary to apply the bare possibility or the common ancestor test.
Justice Sinha said that both MPB and PDB claimed their interest in certain companies that the subject matter of the Will is not the ancestral property over which the caveators claim any interest, it is one thing to say that the subject matter of the will is ‘coparcenary’ or a ‘joint family property’ in which case the larger concept of interest in the agnates would apply, but it is another thing to say that if people are available who would otherwise represent the interest of the estate and against whom citations have been issued, others who have no interest would also be entitled to enter a caveat.
Justice Sinha said that when, thus, a person who would have otherwise succeeded to the estate of the testator, would ordinarily have a caveatable interest, any other person must ordinarily show a special interest in the estate. He added that transferee pendente lite without the leave of the court would not have a caveatable interest and as such cannot be impleaded as a party and also a person cannot also be impleaded as a party even on an apprehension that those who have a caveatable interest and to whom citations have been made would not take any interest in the litigation.
Justice Sinha said at he had already held that GPB had caveatable interests as executor of MPB in respect of this Will of 1982 and he therefore, saw 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 July 13, 1982. He added that 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.
Justice Sinha said that in his 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.
--- PTI_Economic_Service
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