13 December 2021


Judgments

Supreme Court

Yash Vardhan Mall Vs. Tejash Doshi

MANU/SC/1482/2017

23.11.2017

Family

Affidavit filed in support of caveat shall state the right and interest of caveator, and grounds of objections to the application

In facts of present case, a Will was executed by Shrutika Doshi on 1st March, 2013 by which she appointed her husband, the sole Respondent, as the executor and trustee. Her minor daughters were made the beneficiaries. It was mentioned in the Will that, in case the Respondent is unable to carry out or act as the sole executor by giving effect to the Will and testament, the Appellant shall become the sole executor. The Will dated 1st March, 2013 was registered with the Sub-Registrar of Assurance. Shrutika Doshi died. Another Will executed by Shrutika Doshi on 22nd April, 2013 surfaced wherein the Respondent was appointed as the sole executor and in case he is unable to act as the sole executor his father would replace him. As the Respondent did not apply for grant of probate of the Will dated 1st March, 2013 for two and half years, the Appellant applied for a probate of the Will.

The petition filed by the Appellant for grant of probate of the Will dated 1st March, 2013 was dismissed by the District Judge. An appeal has been filed against the said order which is pending in the High Court at Calcutta. Single Judge of the High Court allowed the application filed by the Respondent and discharged the caveat. The appeal filed against the said was disposed of by High Court holding that, there was no reason to interfere with the order of the learned Single Judge, though the Appellant had a caveatable interest. Aggrieved thereby the Appellant has approached present Court.

As per Rule 25 of the High Court at Calcutta (Original Side), 1914, the right and interest of the caveator and the grounds for objection to the application have to be mentioned in the affidavit filed in support of the caveat. The right and interest of the caveator as the executor of rival Will dated 1st March, 2013 have been mentioned in the affidavit filed in support of the caveat and the High Court rightly upheld the contention on behalf of the Appellant that, he has caveatable interest. The grounds for objection to the application for grant of probate have also been mentioned in the affidavit. On a detailed scrutiny of the affidavit filed in support of the caveat, the Division Bench went wrong in not permitting the Appellant to contest the proceeding of probate of the Will dated 22nd April, 2013, especially after holding that he has a caveatable interest.

The petition filed by the Appellant for grant of probate of the Will dated 1st March, 2013 was rejected by the District Judge, on the ground that, the application for probate of the Will dated 22nd April, 2013 was pending and that, the Appellant had lodged a caveat in that proceeding. It was further held in the said order passed by the District Judge that, the Appellant will have sufficient opportunity to prove his allegations against the Respondent in the said proceeding.

Present Court in Krishna Kumar Birla v. Rajendra Singh Lodha and Ors. considered the point of caveatable interest in a detailed manner and held that no hard and fast Rule can be laid down. The existence of a caveatable interest would depend upon the fact situation of each case. In the instant case, the High Court found that, the Appellant has caveatable interest, but the caveat filed by the Appellant was discharged on the ground that, the affidavit filed in support thereof was bereft of an averment doubting the due execution of the Will dated 22nd April, 2013. The affidavit filed in support of the caveat fulfils the condition of Rule 25. The appeals are allowed and the judgment passed by the Division Bench of the High Court is set aside.

Relevant

Krishna Kumar Birla v. Rajendra Singh Lodha and Ors. MANU/SC/1693/2008
: (2008) 4 SCC 300

Tags : Caveat Affidavit Conditions

Share :