TMI Blog2016 (10) TMI 1342X X X X Extracts X X X X X X X X Extracts X X X X ..... s are triable before the proceedings are treated as a full-fledged suit under order of the Judge concerned. It is deemed proper to point out that although the caveator Yasheel Jain did not file the original Will, the Division Bench has noted that he has filed a photocopy of the prior Will allegedly executed by the testator and has also produced the registered envelope through which such copy was sent to him by the testator along with the forwarding letter written by him. Upon such materials, the Division Bench recorded its prima facie satisfaction that the caveat should not be discharged. In 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. Appeal dismissed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion about existence of an earlier Will creating caveatable interest in favour of Yasheel. The Division Bench did not approve the view of the learned Single Judge that Yasheel had a caveatable interest as an heir of the testator but the conclusion of the learned Single Judge was approved, albeit for different reasons as noted above. 4. In the connected civil appeal the prayer of the Appellant for grant of probate of the afore-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 Rules') of Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he could not have claimed to be a widow of the testator. 7. The preliminary issue that has arisen in the probate case which is still pending, relates to caveatable interest . Chapter XXXV of the Rules incorporate provisions relating to testamentary and intestate jurisdiction. Rule 1 defines 'non-contentious business' to include the business of obtaining probate and letters of administration (with or without the will annexed, and whether general, special or limited) where there is no contention as to the right thereto, as also in contentious cases where the contest is terminated and also includes the business of lodging caveats against the grant of probate or letters of administration. Rules 24, 28 and 30 are relevant to the issues at hand and are hence extracted hereinbelow: 24. Caveat. Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his attorney file a caveat in the Registry in Form No. 12. Notice of the filing of the caveat shall be given by the Registrar to the Petitioner or his attorney. (Form No. 13). ... ... ... ... ... 28. Procedure on affidavit being filed. Upon the affidavit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 as a caveator asserted his/her right? Since the answer, in the facts of the case would be in the affirmative, we are in agreement with the view taken by the Division Bench that Respondents have a caveatable interest. 10. A query arises as to why the Division Bench has recorded its views as prima facie . The answer has been provided by learned Counsel for the Respondents by placing reliance upon paragraph 2 of the judgment of this Court in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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