TMI Blog2008 (3) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. However, the said wills were revoked and another set of mutual wills were executed on 13th July, 1982 in terms whereof, four executors were appointed in each set of Will (1982 Will). The executors 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: 1. Madhav Prasad Birla (MPB) 2. Ganga Prasad Birla (GPB) 3. Kashinath Tapuria 4. Pradip Kumar Khaitan 5. MPB died on 30th July, 1990. 6. On or about 18th April, 1999, PDB executed her last Will (1999 Will) bequeathing her entire estate to the first respondent i.e. Rajendra Singh Lodha (RSL). He was also appointed as the sole executor. She executed a codicil on 15th April, 2003. 7. PDB died on 3rd July, 2004. PROCEEDINGS BEFORE THE HIGH COURT 8. KKB, BKB, and Yashovardhan Birla (YB), the appellants herein, having come to learn of the execution of the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appointing YB and BKB as surviving executors of the Wills of MPB and PDB (1982 Wills) in place of PDB and MPB respectively. Whereas appointment of YB was accepted; that of BKB was not. 16. An application (G.A. No. 2721 of 2004) was filed by the first respondent to discharge the caveators viz. KKB, BKB, GPB and YB before the Calcutta High Court. HIGH COURT JUDGMENTS 17. A learned Single Judge of the High Court allowed the said application of discharge of the caveats filed by KKB, BKB and YB. However, the caveat filed by GPB was retained. 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. 18. Appeals were filed under Clause 15 of the Letters Patent of the Calcutta High Court before the Division Bench of the Calcutta High Court there against. 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. The appeals as also the cross-objections have been dismissed by the Division Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conspicuous part of the court-house, and also the other spaces as specified therein. Section 284 of 1925 Act provides for the lodging of caveats against grant of Probate or Letter of Administration with a copy of the Will annexed with a District Judge or a District Delegate. 26. The form in which caveat is entered has been prescribed in Schedule V appended to the Act, is to the following effect: SCHEDULE [See Section 284(4) ] FORM OF CAVEAT Let nothing be done in the matter of the estate of A, B,, late of ________ deceased, who died on the day of ____ at _____ without notice to C.D. of ___________ 27. The Calcutta High Court framed rules laying down the procedure for dealing with the applications filed before it in its testamentary and intestate jurisdiction. 28. It is contained in Chapter XXXV thereof. Rule 4 provides for Application for probate or letters of administration, or a certificate . Rule 5(a) inserted in the year 1948 provides that in all applications for grant of Probate or Letters of Administration with the Will annexed, the names of the members of the family or other relatives upon whom the estate would have devolved in case of an intestacy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of opinion that there was no reasonable ground for opposing the will. 32. Rule 30 provides for Trial of preliminary issue as under: 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 the caveator's interest. Whereupon the trial of such issue, if it appears that the caveator has no interest, the Court shall order the caveat to be discharged, and may order the issue of probate or letters of administration, as the case may be. 33. We may also take note of Section 73 of the Indian Trusts Act, 1882, which reads as under: Section 73 - Appointment of new trustees on death, etc. Whenever any person appointed a trustee disclaims, of any trustee, either original or substituted, dies, or is for a continuous period of six months absent from India, or leaves India for the purpose of residing abroad, or is declared an insolvent, or desires to be discharged from the trust, or refuses or becomes, in the opinion of a principal civil court of original jurisdiction, unfit or personally incapable to act in the trust, or accepts an incons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at RSL, (1) in the event the probate is granted, applies the estate of the deceased subject to charitable disposition; and (2) that he will not take it as his absolute properties; the same thus gave rise to a right and interest under and through which a caveat could be maintained by them. (vi) 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. (vii) As the properties were to be applied for charitable disposition, Section 92 of the Code of Civil Procedure would be attracted in terms whereof interest must be shown to be exiting in relation to the trust and not the trust property. Our attention in this behalf has been drawn to the fact that the words direct interest occurring therein were substituted by the word interest only. (viii) Rule 30 of the Calcutta High Court Rules is ultra vires Section 295 of the 1925 Act in so far as it lays down a purported qualification for entering into a caveat, although no such requirement is provided thereunder. (ix) As the judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e right of a caveator. The interpretation of the word caveat , if given its natural meaning, the same would mean a right to oppose. 36. Mr. Arun Jaitley, learned senior counsel appearing on behalf of YB urged: (i) YB being a grandson of the brother of MPB and his appointment as the executor in terms of the deed of appointment dated 24th August, 2004 having been accepted, the High Court must be held to have committed a manifest error in holding that he had not acquired a caveatable interest. (ii) YB being a party to the suit could oppose execution of the Will having regard to the fact that he has shown existence of an interest in all the three sets of proceedings, viz, grant of Probate of 1982 Wills, grant of Probate of 1999 Will and the suit filed by the members of the Birla family to enforce the agreement of MPB and PDB in terms of the 1982 Wills executed by them. (iii) Determination of validity of the Wills being interdependent, inasmuch as, in the event probates are granted in respect of the 1982 Wills, then the 1999 Will could not be implemented; and even in the event, probate in respect of 1999 Will is granted, the suit can still be decreed so as to give effect to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (g) An executor under a Will would not remain an executor upon his ceasing to hold the said office or by a renouncement or his removal or death, but, such contingencies having not taken place, no purported vacancy had arisen, and thus, the question of filling up the same does not arise. (h) As mutual Wills are not rival Wills, persons claiming as executors of the Will of MPB did not derive any caveatable interest, as they remained unaffected by subsequent Wills. (i) In regard to the SLP filed by R.K. Lodha, for refusing him to be impleaded as a party on the plea that he had no caveatable interest, it was submitted that having regard to the contention that MPB did not execute any Will, he should have been impleaded as a party as representative of PDB. (j) Reference to Section 263 of the 1925 Act and the decisions rendered thereupon are wholly irrelevant as considerations for applications thereof have nothing to do with the application under Sections 283 and 284 thereof. 38. Mr. Anindya Kumar Mitra, learned senior counsel appearing in some of the matters for RSL urged: (i) The 1925 Act having retained the phraseologies used in the earlier as well as the successor Acts, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inbefore. She also bequeathed her properties in favour of MPB. She, however, sought to bequeath all ornaments and jewelleries, gold coins and articles to the three daughters of K.K. Birla absolutely in equal proportion. Clause 4 of the said Will is on similar basis to Clause 3 of the Will of MPB. 46. It is of some significance that Shri P.L. Agarwal and Shri S.J. Khaitan are attesting witnesses to the said Wills. 47. PDB executed the disputed Will on 18th April, 1999, in terms whereof any Will made prior thereto stood cancelled. In the said Will, she categorically stated that she had been running several business concerns and also managing properties and institutions, bequeathed to her, in the true and sincere spirit of a trustee for the larger benefit of the country and of the interest of shareholders and workers. 48. She nominated the first respondent as her legatee. Except the fact that Shri P.L. Agarwal of Khaitan and Company is also an attesting witness, it is not necessary for us to notice the other stipulations made therein. 49. On or about 15th April, 2003, a Codicil was executed with a view to avoid any confusion or ambiguity in the 1999 Will. By reason thereof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to put any impediment to or interfere with the implementation of the said trust. 54. The reliefs prayed for in the said suit inter alia are: a) Declaration that the defendant as the alleged executor and sole beneficiary of the purported will dated 18th April 1999 and/ or purported Codicil dated 15th April 2003 allegedly made by Smt. Priyamvada Devi Birla is not entitled to deal with the estate of Smt. Priyamvada Devi Birla in a manner inconsistent with the provisions of the Will dated 13th July, 1982 executed by Smt. Priyamvada Devi Birla, save to the extent of making over the said estate to the Plaintiff for the purpose of implementing the provisions of the said Will dated 13th July, 1982 made by Smt. Priyamvada Devi Birla. 55. The plaint was drawn by Khaitan and Company. One of its parties is also a defendant in the probate proceedings. Pradip Kumar Khaitan is a party in the suit. He is an executor. Witnesses to the said Will are Khaitans. They are also working as Advocates in the proceedings instituted by or against Birlas. ANALYSIS OF THE 1925 ACT 56. The 1925 Act is a self contained Code. An application for grant of probate is to be filed in terms of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sewhere. The question with regard to the degree of interest or the right which a caveator must show to establish his or her caveatable interest before the Probate Court should be considered having regard to the aforementioned legal propositions. CAVEATABLE INTEREST 61. Appellants herein have raised a large number of contentions to show that they have a caveatable interest. We may categorize them as under: (i) Mutual Will; (ii) Family interest; (iii) Spiritual well-being of the testatrix (iv) Pre-emption : Future domain doctrine; (v) Preferential right - being executors of 1982 Will; (vi) Executor appointed in place of original Executor; (vii) Executor appointed in place of MPB in purported conformity with the 1982 Will of PDB, viz., YB. Before dealing with each of the aforementioned contentions, let us consider what is meant by the term Caveatable interest . 62. It has not been defined under the Act. We may, therefore, notice the 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, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... une, 1975 and she had executed a deed of gift in favour of the petitioner. She also claimed herself to be a trustee of John Browne Trust. 68. The Probate Court held that they had no caveatable interest. Caveatable interest, therefore, was claimed as an executor and legatee of the Will executed by Ms Zoe Enid Borwne as also a deed of gift in respect of one item of the estate executed in their favour. Caveatable interest was also claimed on the premise that the petitioner was appointed a trustee of John Browne Trust. This Court noticed a large number of High Court judgments. It was, however, opined that the petitioner therein failed to establish a caveatable interest stating: ...We have perused the entire order of the trial court in the context. Admittedly neither the original nor a copy of the will said to have been executed by Zoe Enid Browne, was filed. Now coming to the trust, it is in the evidence of PW 1 that John Browne Trust has come to an end in March 1972 and the same was not in existence. The trial court has considered both the documentary and oral evidence in this regard and has rightly held that the petitioner has no existing benefit from the trust. Likewise the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titles set up by the caveator can be gone into. Setting aside the said judgment of the District Judge, the Division Bench of the High Court held: ...A person disputing the right of a deceased testator to deal with certain property as his own cannot be properly regarded as having an interest in the estate of the deceased. His action is rather that of one claiming to have an adverse interest... 72. Abhiram Dass (supra) was followed by a Division Bench of the Bombay High Court in Prijoshah Bhikaji v. Pestonji Merwanji 12 Bom LR 366 stating: ...the interest which entitles a person to put in a caveat must be an interest in the estate of the deceased person, that is, there should be no dispute whatever as to the title of the deceased to the estate, but that the person who wishes to come in as caveator must show some interest in that estate derived from the deceased by inheritance or otherwise. 73. Madras High Court also took the same view in Rahamtullah Sahib v. Rama Rau and Anr. ILR 17 Madras 373 opining: this possibility should rest on existing facts and not on mere conjecture. 74. It is also of some significance to note that Abhiram Dass (supra) has been notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout a will, and supposing also that he had not adopted a son. In the present case the appellants have a claim upon the Immovable property left by the testator - two of them as mortgagees of the persons who, if the testator left no will, are entitled to create the mortgage, and one of the appellants as the attaching creditor of one of these persons. 78. Field, J., however, expanded the ambit of 'caveatable interest'. A suit which would be maintainable must have something to do with the estate of the testator. Inheritance by Will itself may be a subject matter of contention. Whether the interest claimed by the caveator is an established one or a bare claim must satisfy the test that there exists an interest in the estate of the testator and the same is not adverse thereto. The said decision has been followed by other High Courts as for example G. Jayakumar v. R. Ramaratnam AIR1972Mad212 wherein it was held: 14. In support of this view, their Lordships quoted the observations of Field J., in the matter of the petition of Bhobosoonduri Dabee ILR (1881) 6 Cal 460 to the following effect: As to the test of what constitutes a sufficient interest to entitle any part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty left by deceased, yet it is manifest that he is substantially interested in the protection or devolution of the estate. It is well-settled that a reversioner can sue to restrain waste Hurry Doss v. Rangunmoney (1851) Sev.657. The reversioner can, if he makes out a proper case obtain an order for the appointment of the receiver On that premise, a reversioner was held to have a caveatable interest. 81. Nobeen Chander Sil (supra) and Abhiram Dass (supra) were also noticed therein. It was, however, held that it was not necessary to express any opinion on the other questions raised having regard to the fact situation obtaining therein. 82. In Gourishankar Chattoraj v. Smt. Satyabati Debi AIR1931Cal470 the High Court held that the applicant Gourishankar would not have inherited the estate of testatrix Charumati (wife of Shyamsunder) and furthermore held that he was neither a 'sapinda' nor a 'sakulya' nor a 'samanodaka' under the Dyabhaga School of Hindu law. Despite the fact that no opinion was expressed upon the rights of the competing heirs in the peculiar facts of that case, Gourishankar was allowed to appear and oppose the application for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of succession in terms whereof the caveator 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. 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 ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein. APPLICATION OF THE RULES: 90. The bare possibility test as advanced in Brindaban Chandra Shaha (supra) as adopted in Gourishankar Chattoraj v. Smt. Satyabati Debi AIR1931Cal470 , in our opinion would have no application in the instant case. However, we may also notice that the Calcutta High Court itself in some of the decisions have applied the real interest test as for example Nabin Chander Guha (supra) and Dinabandhu Roy Brajaraj Saha v. Sarala Sundari Dassya w/o Haralal Saha AIR 1940 Cal 296. 91. We may furthermore notice another line of decisions, where an interest in the estate of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest in the estate of the deceased to which the caveator would otherwise be entitled to, subject of course, of having a special interest therein. 96. Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta were heirs and legal representatives of PDB. Even in the event application of RSL for the grant of probate is dismissed, they and/ or their respective heirs would continue to represent the estate of PDB. 97. A Will is executed when the owner of a property forms an opinion that his/ her estate should not devolve upon the existing heirs according to the law governing intestate succession. 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. 98. Such a special interest may be a creditor of the deceased as was the case in Sarala Sundari Dassya v. Dinabandhu Roy Brajaraf Saha (Firm) But, in our opinion, the same would not mean that even if the estate of the deceased is being represented by the legal heirs, caveat can be entertained at the instance of a person who has no real interest therein or in other words would merely have a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a), it was held: 23. It is now well settled that an application for grant of probate is a proceeding in rem. A probate when granted not only binds all the parties before the Court but also binds all other persons in all proceedings arising out of the Will or claims under or connected therewith. Being a judgment in rem, a person, who is aggrieved thereby and having had no knowledge about the proceedings and proper citations having not been made, is entitled to file an application for revocation of probate on such grounds as may be available to him. We are, therefore, of the opinion that the application for revocation of the grant of probate should have been entertained. [See also Sunil Gupta (supra)]. These decisions relied upon by Mr. Jethmalani relating to revocation of grant, as for example Brindaban Chandra Shah (supra) are, thus, not applicable to the facts of the present case. 103. We may notice that in Jagdish Prasad Tulshian v. Yasheen Jain AIR2007Cal218 , the Calcutta High Court held: 20. In the case of Elizabeth Antony v. Michel Charles John Crown Lengera reported in [1990]2SCR486 , the Supreme Court was dealing with an application for revocation of grant of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act fulfilled; which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd. (supra). 51. Barak in his exhaustive work on 'Purposive Construction' explains various meanings attributed to the term purpose . It would be in the fitness of discussion to refer to Purposive Construction in Barak's words: Hart and Sachs also appear to treat purpose as a subjective concept. I say appear because, although Hart and Sachs claim that the interpreter should imagine himself or herself in the legislator's shoes, they introduce two elements of objectivity: First, the interpreter should assume that the legislature is composed of reasonable people seeking to achieve reasonable goals in a reasonable manner; and second, the interpreter should accept the non-rebuttable presumption that members of the legislative body sought to fulfill their constitutional duties in good faith. This formulation allows the interpreter to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itle or disposing power of the testator, which is impermissible in a probate proceeding. Appellants, in fact, have been prevaricating their stand from proceeding to proceeding. They have been raising various contentions which are wholly impermissible in law. 108. Be that as it may, even the decisions relied upon by Mr. Jethmalani were rendered in the factual situation obtaining therein. 109. It is in that backdrop the question which is required to be posed is: Did the Calcutta High Court or the other High Court opine that even a busy body or an interloper having no legitimate concern in the outcome of the probate proceedings would be entitled to lodge a caveat and oppose the probate? The answer thereto, in our opinion, must be rendered in the negative. If anybody and everybody including a busy body or an interloper is found to be entitled to enter a caveat and oppose, grant of a probate, then Sections 283(1)(c) and 284 of the 1925 Act would have been differently worded. Such an interpretation would lead to an anomalous situation. It is, therefore, not possible for us to accede to the submission of the learned Counsel that caveatable interest should be construed very widely. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i is to be accepted that there being no such provision in the Act for determination of such an issue as preliminary issue, the High Court could not have framed the Rules, we are of the opinion that in a similar situation this Court also could not direct listing of the writ petitions under Article 32 of the Constitution of India for preliminary hearing in terms of the Supreme Court Rules. 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. MUTUAL WILLS 116. We have noticed the recitals of the 1982 Wills purported to have been executed by MPB and PDB. Whether the same constitutes a mutual Will in the sense that thereby an agreement h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spositions in pursuance of the agreement, sever the joint tenancy and convert it into a tenancy in common. [Emphasis supplied] 118. In Lewin on Trusts, Seventeenth Edition, pages 270-271, it is stated: 10-27 -If the survivor, whether or not after taking an actual benefit under the arrangement, alters his will, his personal representative takes the property which is subject to the agreement upon trust to perform the contract. Equity cannot prevent the survivor from revoking his will, for instance, by marriage or another will, but it causes his personal representatives to give effect to his revoked will in so far as his contract bound him not to revoke it [See also Theobald on Wills, Sixteenth edition, pages 26, 27 (Paras 2.09 and 2.11) ]. 119. Similar statement of law can be found In Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 18th edition, pages 131- 132. While dealing with the probate issue, therefore, the authors categorically state that only the latter Will would have to be probated. 120. We may notice a decision rendered in our country in this regard. In Kuppuswami Raja and Anr. v. Perumal Raja and Ors. AIR1964Mad291 , th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersuasive value. In this country, we are bound to follow the law laid down under the statute or the decision which create binding precedents. An observation made by a Court of Probate would not persuade us to hold that the High Court should have taken recourse to advance from the region of testamentary disposition into that of contracts and trusts and to declare certain trusts upon the footing of contract which could be done by the Chancery Division. 124. The American law operating in the field may be noticed from American Jurisprudence, Second Edition, Vol. 79, page 850 in the following terms: The breach of a contract for the joint execution of a will, or the execution of separate wills, containing reciprocal bequests, gives rise to the same remedies in favor of the injured party as are employed in other cases of breach of contract to make a will, namely, an action at law for damages and a suit in equity, but it is to be observed that the latter is the type of relief usually invoked. In fact, according to some authority, only a court of equity can take cognizance of an allegation that the revocation of a joint and mutual will by the surviving testator was in violation of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint are not of this character, it is plain that they could not be passed on in the probate proceedings, and are not concluded by the result of those proceedings. 126. In Massey (supra), it was observed: It was held that the question whether the defendant was guilty of fraud, and therefore should be declared trustee of the property received under the will, could not have been determined in the probate proceeding, and consequently plaintiffs were not concluded by the order admitting the will to probate. The said authority, therefore, does not advance the case of the appellants. 127. The law as prevailing in Australia is also to the same effect, as would appear from the decision in Birmingham and Ors. v. Renfrew and Ors. 57 C.L.R. 666. Latham, CJ therein opined that a Will made in breach of an arrangement is nevertheless effective as a Will. It upheld the dicta contained in Stone v. Hoskins 1905 P. 197 wherein the following law was laid down: Though a will is always revocable, and the last must always be the testator's will; yet a man may so bind his assets by agreement that his will shall be a trustee for performance of his agreement These cases are common, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That far and no further. Some observations have been made in paragraph 49 of the said judgment but yet again it was opined: 50. We have entered into the above discussion, not to express any opinion, but to answer the main plank of the argument advanced on behalf of the appellant that this case basically involves a civil dispute. None of our observations be treated as expression of our opinion on the rightfulness of the claim made in the complaint. Shiva Nath Prasad (supra), therefore, is not an authority on the legal principles of mutual Will. 132. The principles which can be deduced from the discussions made heretobefore are: (i) 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. (ii) A subsequent infringing Will would be valid even if it revokes an earlier Mutual Will. (iii) Similarity of the terms would not be enough to establish the necessary agreement. (iv) Whether a legatee has taken any benefit under the alleged Wills of 1982 would, however, be relevant. FAMILY INTEREST 133. It is too far fetched a submission that a person having a remot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. SPIRITUAL WELL-BEING 139. The theory of looking after the spiritual well-being of the deceased soul by the near relatives has no application for the purpose of judging the validity or otherwise of a Will; more so, after coming into force of the Hindu Succession Act, 1956 as in terms thereof the concept of succession to the estate of a deceased on the said consideration has lost its relevance. Such a contention, therefore, must be rejected out right, being a wholly misconceived one. 140. The doctrine of 'larger circle of the caveators as being members of the Birla family' and to protect the spiritual interest does not convert a non- existent interest into a caveatable interest. Such a question had not been raised even in the aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould so conduct herself which would amount to fraud on her husband. The said purported Will is not her Will. (e) On a true construction of the terms and tenor of the aforesaid Wills and in the events which had happened, the deceased had only a life interest in the estate of her husband without being competent to dispose of on her own, the combined estate by alienation or dissipation in a manner inconsistent with the terms and tenor of the mutual Wills. The disposition made in favour of Rajendra S. Lodha under the purported Will dated April 18, 1999 is, therefore, unlawful, unauthorized and cannot be binding, as the entire estate of the deceased stood impressed with the trust in terms of the mutual Wills. (f) Accordingly on her death, the surviving executors of the Will of the deceased and her husband are entitled to take possession of her entire estate and make over, donate or settle the same for the purposes of charitable trust at their absolute discretion. The surviving executors as trustees of the constructive trust which came into being on the basis of the mutual Wills are entitled to execute and implement the said trust and do all things necessary for the said purposes. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the integrity of rural society, the unity of family life and the agnatic theory of succession are today irrelevant. The list of kinsfolk mentioned as entitled to pre- emption is intrinsically defective and self- contradictory. There is, therefore, no reasonable classification and clauses 'First', 'Secondly', and 'Thirdly' of Section 15(1)(a), 'First', 'Secondly' and 'Thirdly', of Section 15(1)(b), Clauses 'First', 'Secondly' and 'thirdly' of Section 15(1)(C) and the whole of Section 15(2) are, therefore, declared ultra vires the Constitution. 143. 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-empt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 2(c) of the 1925 Act defines 'executor' to mean a person to whom the execution of the last will of a deceased person is, by the testator's appointment, confided. 150. '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. 151. A person named as an executor under a Will cannot claim any right to act as an executor until the death of the testator. He has to survive him. He has to accept the office as an executor expressly or by conduct. The term ceasing to be thus necessarily means assumption of office of executor and thereafter ceasing to hold such office, by renouncement or removal or death, etc. In Salton v. New Beeston Cycle Company (1899) 1 LR.Ch.D. 775 interpretation of the words cease to hold was held to mean that a directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d take effect in the event of the death of either of the first named executors at any time. A proxy also was exhibited under the hand and seal of the Reverend Steward Hamilton, by which he waived his title to probate, and consented that it should pass to the substituted executors, jointly or severally. The said decision, therefore, was rendered in the fact of that case. 154. In RE Henrietta Johnson (supra) in the Will made by A, B,C,D and E were appointed executors and in case of the death of B, F to become executor in his place. B,C,D and E proved the Will. B and C died. F applied to have a double probate granted to him. D and E opposed such grant. It was held that F was entitled to the grant and that the casualty was not restricted to the death of B in A's life time holding: I should be very loath to take any presumed policy of the Court of Probate as my guide. In the Goods of Lighton there were in fact two decisions for there was a grant of the Irish Court in the first instance and that was acted upon by the Judge of the Prerogative Court in this country. Here there are ample grounds to satisfy me as to the intention of the testatrix. Blake, the father, was tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain observations in the judgment of the Madras High Court in Parthasarathy Appa Rao v. Venkatadri Appa Rao 43 Mad LJ 486 at p. 515 : AIR 1922 Mad 457 at pp. 469-470. But that case obviously has no application, because on the facts of that case it was found that the executor died without accepting the office or showing any indication that he took upon himself the duties of executor. Whether the executor has accepted the office or not will depend upon the facts of each case. In this case the plaintiff has not given evidence and no oral evidence was at all tendered by her. We can only, therefore, deduce the fact of her acceptance from the record available. In Ex. B-2, the counsel of the plaintiff stated that his client was appointed as an executrix under the will of her husband and that he was instructed to take adequate legal steps to have the estate duly represented. We are of opinion that this letter written obviously on behalf of the plaintiff is enough to constitute acknowledgment or the acceptance of the plaintiff of her office as an executrix. 158. In Smt. Usharani Roy v. Smt. Hemlata Roy AIR 1946 Cal. 40 it was held: If the caveator is not the executor under the lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest in the estate of PDB. CAVEATABLE INTEREST OF GPB AS A NAMED EXECUTOR 164. GPB was held to have caveatable interest on the premise that he was named as an executor. He, therefore, in our opinion, has rightly been held to have a caveatable interest. 165. An application for grant of probate of 1982 Will is also pending. Therein a contention has been raised by the first respondent that the said Will was not genuine. If respondent No.1 has a caveatable interest in respect of 1982 Will, we do not see any reason as to why GPB would not have any right in respect of 1999 Will. APPOINTMENT OF YB AS AN EXECUTOR IN PLACE OF MPB 166. 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. 167. For the reasons stated in regard to the legal position governing the filling up of vacancy of one of the named executors by the others, we are of the opinion that the appointment of Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the properties coming to her by the will of her mother. The question therefore that arises is whether it was necessary before the appellant could take advantage of the bequest in favour of Mrs. Mitter that letters of administration of the will of Dr. Miss Mitter should have been obtained by Mrs. Mitter Section 213(1) which governs this matter is in these terms: (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of will annexed. This section clearly creates a bar to the establishment of any right under a will by an executor or a legatee unless probate or letters of administration of the will have been obtained. It is now well-settled that it is immaterial whether the right under the will is claimed as a plaintiff or a defendant; In either case Section 213 will be a bar to any right being claimed by a person under a will whether as a plaintiff or as a defendant unless probate or letters of administration of the will have been obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f would arise when a trustee disclaims, dies or is absent from India for a period of more than six months or leaves India for the purpose of residing abroad or is declared an insolvent etc. 175. Prima facie BKB or YB were not appointed as trustee. They were only appointed as executors. An executor becomes a trustee only upon completion of administration of trust. This proposition does not appear to be in dispute. Administration of trust being incomplete, MPB did not become an executor. He, therefore, was not a trustee. Provisions of Section 73 of the Indian Trusts Act will, therefore, have no application. In the Will of PDB executed in the year 1982 he was merely named as an executor. It is also difficult, at this stage, to construe the Will of 1982 of PDB as an instrument of trust. The question in regard to the administration of the estate of PDB only arose after her death which took place in 2004. MPB died in 1990. The said provisions, therefore, have no application. PREJUDICE ARGUMENTS 176. Submission that RSL is an outsider and the bequest is un-natural does not appeal to us. Such a question cannot be determined at this stage. Why an owner of the property executes a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner with regard to her assets, savings and investments and with regard to and in the management and affairs of several companies and institutions where the deceased had a stake in the shareholding and/or management and the deceased was at all material times accustomed to act as per the wishes and dictates of the petitioner. The petitioner is and was at all material times aware of the same. (h) By reason of the aforesaid, the petitioner was, at all material times, in a fiduciary relationship with the deceased. 179. The said arguments, therefore, do not appeal to us to determine the issues in favour of Birlas. We wish that these contentions were not raised before us. APPEAL ARISING OUT OF SLP (C) NO. 19040 OF 2007 180. Whether RSL has a caveatable interest in the proceeding in respect of the probate of the Will of MPB dated 13th July, 1982 is also in question in this appeal. 181. 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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