Bombay High Court
Amit Rajesh Mody vs Rupal Ankit Mody on 25 September, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-OS:14825
2 ial 14225 of 2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION (L) NO.14225 OF 2024
IN
CAVEAT NO.125 OF 2024
IN
TESTAMENTARY SUIT NO.109 OF 2024
IN
TESTAMENTARY PETITION NO.1225 OF 2023
Amit Rajesh Mody ... Applicant
and
Amit Rajesh Mody ... Plaintiff
versus
Rupal Ankit Mody ... Defendant/Caveator
Mr. Dhishon Kukreja with Mr. Suraj Dube i/by Arvind Nanghirmalani, for
Applicant.
Ms. Pooja Joshi, for Caveator.
CORAM: N.J.JAMADAR, J.
DATE : 25 SEPTEMBER 2024
JUDGMENT:
1. Heard the learned Counsel for the parties.
2. This interim application is filed to discharge the Caveat filed in the
petition for Letters of Administration to the property and credits of Rajesh
Budhidhan Mody (the deceased).
3. The background facts leading to this application can be stated in brief
as under:
3.1 The deceased passed away on 31st October, 2021. The deceased left
behind Kalpana Mody, his widow, and three sons, Ashish Rajesh Mody, Ankit
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Rajesh Mody and Amit Rajesh Mody – the petitioner. Asserting that thedeceased died intestate, the petitioner – applicant filed the instant petition for
Letters of Administration to the properties and credits of the deceased.
3.2 Rupal Mody, the caveatrix, is the wife of Ankit Mody. They have a 14
year old son namely Shubh Ankit Mody. Ankit Mody and the caveatrix –
defendant have been embroiled in a matrimonial dispute.
3.3 After the demise of the deceased, the caveatrix filed a complaint under
the provisions of the Protection of Women from Domestic Violence Act, 2005
(DV Act) against Ankit, Kalpana and Amit – the petitioner. The Caveator has
also lodged FIR against Ankit, Kalpana and the petitioner alleging commission
of the offences punishable under Sections 498A, 323 and 504 read with
Section 34 of the Indian Penal Code, 1860 (“the Penal Code”).
3.3 In the application, it is averred that as the caveatrix did not get any relief
in the proceedings under the D. V. Act, 2005, the caveatrix filed Third Party
Application (L) No.16737 of 2023 seeking certified copies of the Testamentary
Petition. In the said application, the caveatrix pleaded a false and concocted
story that the deceased had executed a Will dated 4 March 2020,
bequeathing certain movable and immovable properties to the caveatrix and
Shubh Mody, the son of the caveatrix.
3.4 In contrast, in the proceedings filed before the Learned Magistrate
under the D. V. Act, 2005 and the correspondence which the caveatrix had
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entered into with the housing Society, it was categorically asserted that, the
deceased died intestate. There was no whisper about the deceased having
executed a Will and bequeathed certain properties to the caveatrix and her
son.
3.5 The applicant further avers, the stark inconsistency in the stand of the
caveatrix was sought to be covered up by offering a patently false explanation
that on 21 May 2023, the caveatrix checked the bag of Ankit, her husband,
and, thereupon, she found a copy of the alleged Will dated 4 March 2020.
The caveatrix was till then made to believe that the deceased had changed
his mind and tore the aforesaid Will in the year 2020 itself, and, thus, under
the said belief, the caveatrix had made statements in the various applications
and the complaint that the deceased died intestate.
3.6 The applicant avers, the aforesaid stand of the caveatrix is wholly
unsustainable and there is not a shred of material to show the existence of
the alleged Will of the deceased. Nor the caveatrix has offered any particulars
about the mode and manner of execution and attestation of the Will and the
attesting witnesses, which are of critical importance in the matter of proof of
Will. The caveat has been lodged with an oblique motive to delay and defeat
the legitimate rights of the Applicant/Plaintiff to have Letters of Administration,
which could have otherwise been granted as a non-contentious matter, in
view of the consent given by all the heirs of the deceased. The caveatrix, or
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for that matter, her son Shubh, are not entitled to succeed to the estate of the
deceased. They are neither the legal heirs of the deceased nor they have any
caveatable interest. Therefore, the caveat be dismissed.
4. An affidavit in reply is filed on behalf of the caveatrix/Defendant. The
caveatrix contends that the deceased was concerned about the future of
Shubh, his only grandson. Thus, on 4 March 2020, the deceased executed
the Will. It was notarized. The deceased had shown the said Will to the
caveatrix, whereunder the deceased had bequeathed Flat No.605, B Wing,
Mount Alps, Bhakti Park, Wadala East, Mumbai 400037 and a sum of Rs.2
Crores to Shubh, his grand son. The deceased had also bequeathed
securities worth Rs.2 Crores and an amount of Rs.2 Crores for her
maintenance and household expenses as Ankit had been neglecting the
caveatrix. After the demise of the deceased, when the caveatrix called upon
the heirs of the deceased to distribute the properties in accordance with the
aforesaid Will, Ankit, her husband, and in-laws made her believe that the
deceased had changed his mind and tore the aforesaid Will in the year 2020
and the deceased passed away intestate. The caveatrix was forced to
believe that the deceased died intestate and, therefore, in the wake of
matrimonial discord, she was constrained to lodge complaints and
applications and make averments therein that the deceased had died
intestate under the said belief.
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4.1 The caveatrix further contended that on 21 May 2023, when she
checked the bag of Ankit, while he had been to her house to meet Shubh, she
found the statement of Demat Account, Saving Bank Account, a cheque
drawn on HDFC Bank, Matunga Branch, and the copies of the Petition for
Letters of Administration and also a copy of the Will dated 4 March 2020.
However, before the caveatrix could take photo of the said Will, Ankit
snatched all the documents from her and assaulted her. The caveatrix, thus,
realized that a false representation was made to her that the deceased had
revoked the Will dated 4 March 2020 and died intestate.
4.2 The caveatrix contends, in view of the testamentary disposition under
the said Will dated 4 March 2020, the caveatrix and her son Shubh have a
caveatable interest. The mere non-availability of the original Will cannot
defeat the rights of the caveatrix and her son. Nor the presumption of
revocation of the said Will by destruction or otherwise, can be drawn. Even in
a case where the original Will is not produced, the factum of the existence of
the Will can only be proved at the trial.
4.3 In the affidavit in reply, it is further contended that the deceased was the
Karta of Hindu undivided family. Master Shubh, the grand son of the
deceased, was thus a coparcener with the deceased and his sons.
Therefore, Shubh has a definite caveatable interest in the estate of the
deceased. On these, amongst other grounds, the caveatrix has prayed for
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rejection of the application.
5. I have heard Mr. Kukreja, learned Counsel for the Applicant/Plaintiff,
and Ms. Pooja Joshi, learned Counsel for the caveatrix at some length. With
the assistance of the learned Counsel for the parties, I have perused the
material on record.
6. Before adverting to record the rival submissions canvassed across the
bar, it may be apposite to note uncontroverted facts. First, the relationship
between the parties is not much in contest. The deceased left behind the
widow and three sons, including Ankit, the husband of the caveatrix. Ankit and
caveatrix are blessed with a son, Shubh. Secondly, the marital life of Ankit
and caveatrix seems to be afflicted with discord. There is not much
controversy over the fact that caveatrix has initiated proceedings under D. V.
Act, 2005 and has also lodged FIR against her husband and in laws. Thirdly,
the caveatrix does not controvert the fact that in those proceedings she had
asserted that the deceased died intestate. The caveatrix, however, offers an
explanation that she was forced to entertain such belief on account of the
false representation by Ankit, her husband, and in laws. Fourthly, neither the
caveatrix nor her son Shubham was served with the citation of the petition for
the Letters of Administration in accordance with Rule 397 of the Bombay High
Court (Original Side) Rules, 1980. Caveatrix obtained the certified copies of
the papers and proceedings in the instant petition by filing third party
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application. Lastly, as of now, the caveatrix does not claim that she is in the
custody of the original, copy or draft of the Will dated 4 th March, 2020. The
caveatrix alleges that Ankit, her husband, and in laws have deliberately
concealed the said Will.
7. In the backdrop of the aforesaid rather uncontroverted facts, Mr.
Kukreja, the learned counsel for the plaintiff submitted that the averments in
the affidavit in support of the caveat and the affidavit in reply to the instant
application are simply inconsistent with the stand of the caveatrix in the
proceedings under the DV Act, 2005, wherein the caveatrix had claimed
umpteen times that the deceased died intestate, even after the filing of the
third party application for the certified copies of the instant Testamentary
Petition. Those averments manifest the falsity of the claim raised by the
caveatrix to defeat the grant of the Letters of Administration. Mr.Kukreja
further submitted that the claim of the caveatrix that she had seen a copy of
the Will in the bag of Ankit, and before she could take photo thereof Ankit
snatched away the documents is plainly a make believe version. It was urged
forcefully that the caveatrix has no caveatable interest in the estate of the
deceased as she is not the legal heir of the deceased. In the absence of the
possibility of inheriting the estate in case of intestacy, the caveat cannot be
entertained unless the caveatrix is in a position to demonstrate that there is a
testamentary disposition. Therefore, bald assertions have been made about
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the caveatrix having seen the Will and copy thereof without furnishing any
particulars. Mr. Kukreja laid emphasis on the fact that the caveatrix has even
not named the persons who attested the alleged Will of the deceased.
Therefore, by no stretch of imagination it can be said that the caveatrix would
be in a position to prove the alleged Will of the deceased.
8. To buttress the aforesaid submissions, Mr. Kukreja placed strong
reliance on the decisions of the Supreme Court in the cases of Saroj
Agarwalla vs. Yasheel Jain1; Elizabeth Antony vs. Michel Charles John
Chown Lengera2; and a judgment of a learned single Judge of this Court in
the case of Naresh Nathulal Pal and Others vs. Bindia Kripalani and
Another3.
9. Lastly, Mr. Kukreja, would urge that the claim of the caveatrix that there
was HUF of which the deceased was a Karta and Shubh, her son was a
coparcener, is equally preposterous. First, the caveat has not been filed by
master Shubh. Second, the question of title to the estate of the deceased is
beyond the scope of inquiry by a testamentary Court. Therefore, the caveat
deserves to be dismissed, submitted Mr. Kukreja.
10. In opposition to this, Ms. Joshi, learned counsel for the caveatrix,
stoutly submitted that even though the caveatrix and her son Shubh are not
1 (2017) 14 Supreme Court Cases 285.
2 (1990) 3 Supreme Court Cases 333.
3 2018 SCC OnLine Bom 15499.
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the heirs of the deceased, they have a definite caveatable interest as they are
the beneficiaries under the Will of the deceased dated 4th March, 2020. The
inability of the caveatrix to produce the original Will or its copy, is the result of
the devious act on the part of Ankit and the in-laws of the caveatrix, to conceal
the said Will with a design to usurp the beneficial interest of the caveatrix and
her son in the estate of the deceased. Since the caveatrix has propounded
the Will dated 4th March, 2020, the instant petition for Letters of Administration
on the premise that the deceased died intestate is not tenable.
11. Elaborating the aforesaid submissions, Ms. Joshi earnestly urged that
the questions as to whether the Will dated 4 th March, 2020 exists; whether the
said Will has been deliberately concealed, damaged, burnt, torn or otherwise
destroyed by the plaintiff and his family members and whether by such act the
said Will dated 4th March, 2020 has been lawfully revoked, warrant
adjudication at the trial. Ms. Joshi further submitted that, to grant Letters of
Administration to the petitioner on the basis of a bald assertion that the
deceased died intestate, when the caveatrix is in a position to demonstrate
the existence of the Will, would be to allow the plaintiff to take advantage of
his own wrong.
12. Laying emphasis on the provisions contained in sections 237 and 238
of the Indian Succession Act, 1925, Ms. Joshi canvassed a submission that
there is no bar to grant Probate where the Will has been lost or destroyed, if
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the contents of the Will could be established by evidence. That stage would
arrive at the trial only. To lend support to the submission that for the mere
reason that the Will could not be found on the death of the testator an
inference of revocation of the Will cannot be drawn, Ms. Joshi placed reliance
on the decision of the Supreme Court in the case of Durga Prasad vs. Devi
Charan4. Ms. Joshi further submitted that the plaintiff cannot be permitted to
draw any mileage from the fact that the caveatrix had made assertion in
complaint in the D. V. case that the deceased died intestate as the said
statement was made on account of the belief which Ankit, her husband, and
in-laws induced the plaintiff to entertain.
13. The aforesaid submissions now fall for consideration.
14. The core controversy is required to approached in two parts. First,
whether the caveatrix is entitled to be heard in the instant petition for Letters
of Administration on the ground that she has a beneficial interest in the estate
of the deceased. Second, the existence of caveatable interest premised on
possibility of succeeding to the estate of the deceased in case of intestacy.
15. The beneficial interest, according to the caveatrix, arises on account of
the testamentary disposition allegedly made by the deceased. In a normal
case, where a party opposes grant of Letters of Administration sought on the
premise that the deceased died intestate by propounding a Will, the pivotal
4 1979 SCC (1) 61.
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question as to whether the deceased died testate or intestate can only be
determined at the trial. There can be no duality of opinion on the point that if
the caveator has a semblance of caveatable interest, the issue can only be
determined at the trial. However, the case at hand, poses an interesting
question as to whether testamentary disposition can be claimed sans the
original Will, copy or draft thereof ?
16. Part IX, Chapter II of the Indian Succession Act, 1925 contains
provisions under the caption, “Limited Grants”. Sections 237, 238 and 240
read as under:-
237. Probate of copy or draft of lost Will – When a Will has
been lost or mislaid since the testator’s death, or has been
destroyed by wrong or accident and not by any act of the testator,
and a copy or the draft of the Will has been preserved, probate
may be granted of such copy or draft, limited until the original or a
properly authenticated copy of it is produced.
238. Probate of contents of lost or destroyed Will – When a
Will has been lost or destroyed and no copy has been made nor
the draft preserved, probate may be granted of its contents if they
can be established by evidence.
240. Administration until Will produced – Where no Will of the
deceased is forthcoming, but there is reason to believe that there
is a Will in existence, letters of administration may be granted,
limited until the Will or an authenticated copy of it is produced.
17. The aforesaid provisions would indicate that even in the absence of the
original Will, a Probate can be granted if the conscience of the Court is
satisfied that there is a testamentary instrument. The aforesaid provisions
address different contingencies. Under Section 237, when a Will has been
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lost or mislaid since the testator’s death, or has been destroyed by wrong or
accident, not attributable to the testator, if the Court is satisfied that a copy or
draft of the Will has been preserved, the probate may be granted of such
copy or draft of the Will, limited until the original or a properly authenticated
copy of the Will is produced. Section 238 addresses a situation where the Will
has been lost or destroyed but no copy has been made or the draft preserved.
In such a case probate may be granted of the contents of the Will if the
contents can be established by evidence. Under Section 240, if there is a
reason to believe that there is a Will in existence but the Will of the deceased
is not forthcoming, Letters of Administration may be granted, limited until the
Will or an authenticated copy of the Will is produced.
18. By their very nature, these provisions address exceptional situations.
In order to ensure that, the estate does not remain un-administered and the
desire of the testator is given effect to, the legislature has made provisions to
address myriad situations. However, the Court must be satisfied that there is
indeed a Will. These provisions, cannot be so construed as to dilute the
rigour of the provisions contained in Section 63 of the Indian Succession Act
or Section 68 of the Indian Evidence Act.
19. The submission of Ms. Joshi that mere fact that original Will or copy
thereof cannot be produced by the propounder cannot be a ground to jettison
away the case of the testamentary disposition appears attractive, in principle.
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However, the said submission would be required to be tested on the premise
as to whether there is reason to believe that the Will exists. An inquiry into the
attendant circumstances and the conduct of the parties becomes imperative
to determine the question whether a claim based on a Will merits adjudication
despite the original Will, its copy or draft not being available.
20. As noted above, in the wake of the marital discord between the
caveatrix and the Ankit, the caveatrix filed proceedings under the D. V. Act,
2005. In the said proceedings, the caveatrix categorically asserted that the
deceased died intestate leaving behind the properties worth Rs. 24 Crores in
which Ankit, the husband of the caveatrix, has 25% i.e. ¼ th share along with
the plaintiff, plaintiff’s mother Kalpana and another brother Ashish. The
submission on behalf of the plaintiff that the said stand was taken by the
caveatrix umpteen times is borne out by the averments in the said application
in paragraphs 29, 59 and 61. Even in the complaint lodged by the caveatrix
against Ankit and her in laws, the caveatrix asserted that the deceased
passed away intestate leaving behind properties in which Ankit has 25%
interest.
21. Before adverting to deal with the sustainability of the explanation
sought to be urged by the caveatrix, two factors are required to be kept in
view. One, the assertion that the deceased died intestate is in the pleadings.
These assertions that the deceased died intestate and Ankit, the husband of
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the caveatrix, has ¼ th
share in the estate left behind by the deceased
constitute admissions in pleadings. It is trite admission in pleadings stand on
a higher pedestal that evidentiary admissions. The admissions in pleadings
can be made foundation of the liability, unless properly dispelled.
22. A useful reference in this context can be made to a three Judge Bench
Judgment of the Supreme Court in the case of Nagindas Ramdas Vs.
Dalpatram Ichharam @ Brijram and Ors.5 wherein the value of admissions
in pleadings was expounded as under:-
“Admissions in pleadings or judicial admissions, admissible under Section
58 of the Evidence Act, made by the parties or their agents at or before the
hearing of the case, stand on a higher footing than evidentiary admissions.
The former class of admissions are fully binding on the party that makes
them and constitute a waiver of proof. They by themselves can be made
the foundation of the rights of the parties. On the other hand evidentiary
admissions which are receivable at the trial as evidence, are by
themselves, not conclusive. They can be shown to be wrong.”
23. Two, the aforesaid admissions about the intestacy and right of the Ankit
only, in contradistinction to the right of the caveatrix and Shubh, in the estate
left behind the deceased, are irreconcilable with the stand of the caveatrix that
there was testamentary disposition by the deceased under which the
caveatrix and her son are beneficiaries. The stand that the deceased died
intestate, in a sense, works out retribution of the claim that the deceased died
testate.
24. In the aforesaid backdrop, it has to be evaluated whether the caveatrix
5 (1974) 1 SCC 242.
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succeeds in surmounting the impediments which appear to be prima facie
insuperable. The thrust of the submission on behalf of the caveatrix was that
Ankit, her husband, and in-laws deviously made her believe that the
deceased died intestate and she became aware of the said fraudulent
representation only when she found a copy of the Will dated 4 th March, 2020
in the bag of Ankit in the month of May, 2023. Whether this explanation
appeals to human credulity ?
25. It is imperative to note that the caveatrix has categorically asserted that
in the month of March, 2020, the deceased had shown the Will dated 4 th
March, 2020 and disclosed the bequest in favour of Shubh and caveatrix.
After the demise of the deceased, Ankit her husband, and in-laws falsely
represented to her that the deceased had changed his mind and tore the
aforesaid Will in the year 2020 itself. The deceased passed away on 31 st
October, 2021. Pertinently, the caveatrix filed the proceedings under DV Act in
the month of November, 2022. The said proceedings was preceded by a
complaint for the offences punishable under sections 498A, 323 and 504 read
with Section 34 of the Indian Penal Code, 1860, dated 21st September, 2022.
26. A legitimate inference can be drawn that the situation had come to such
a pass that the caveatrix was required to lodge prosecution and initiate
proceedings under DV Act, 2005. It defies comprehension that the caveatrix
would have missed to state that the deceased had executed the Will in the
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month of March, 2020 wherein a substantial bequest was made in favour of
the caveatrix and her son Shubh. In the wake of marital discord with Ankit, in
particular, and the disputes with his relatives, in general, it would be difficult to
fathom that the caveatrix would have readily believed the alleged version of
her husband, and in laws that the deceased revoked the Will by tearing it of,
in the year 2020 itself. Prima facie, the explanation sought to be offered by
the caveatrix that she had made the statement that the deceased died
intestate as she was made to believe that the deceased had revoked the Will
in the year 2020, in the backdrop of the attendant circumstances, especially
the strained relations between the parties, does not appeal to human
credulity.
27. The claim of the caveatrix that the deceased had shown the Will dated
4th March, 2020 and thereupon she learnt about disposition made thereunder,
as pleaded in the affidavit in support of the caveat and affidavit in reply to the
instant application, also appears to be fraught with infirmities. First and
foremost, the assertion of the caveatrix lacks basic particulars. The caveatrix
does not divulge the particulars of the alleged Will. Neither the factum of
execution of the Will by the deceased has been disclosed with material
particulars. Nor the fact that the Will was attested by two witnesses has been
categorically pleaded much less the identity of the attesting witnesses
disclosed. What accentuates the situation is the fact that apart from the
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disposition of particular portions of the estate of the deceased in favour of the
caveatrix and Shubh, the caveatrix did not claim that the deceased made
bequest in favour of his wife and sons as well. It is not the claim of the
caveatrix that the deceased had disinherited either Ankit or her in laws. Thus,
had the caveatrix seen the original Will in the year 2020 or its copy in the
month of May, 2023, as alleged, the caveatrix would have been in a position
to disclose the bequest in favour of the other heirs.
28. Reliance placed by Mr. Kukreja on the decision of a learned single
Judge of this Court in the case of Naresh Pal (supra) appears well founded.
In that case an endeavour was made to propound a document, which was in
the nature of an affidavit-cum-declaration made before an advocate and
subsequently notarized before a notary. Repelling such endeavour, the
learned single Judge, observed as under:-
3. The proposition by Mr Kumarswami is extreme and cannot be
accepted. It amounts to saying that every single document that has
three signatures is automatically and ipso facto a Will. By that
reasoning, every Affidavit and filing affirmed in this Court is also
potentially ‘a Will’ because it has the signature of the deponent, the
signature of an Advocate and the signature of the Court Associate.
The fact that every Will needs at least three signatures does not
mean that any three signatures are sufficient to convert just about
any document into a Will. Three signatures do not on their own
make a Will.
4. The proposition is wholly untenable and cannot possibly be
accepted. This is not the intention of Section 63(c). The document
must be one that is intended to serve as a Will and it must be
signed by the Testator with that intention, whatever be the form or
the language used. The Testator must ask each of the witnesses,
who need not be both present at that time, to attest his or her
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execution of the document as a Will and each of the witness must
attest that execution as being the execution of a testamentary
instrument. Nothing short of this will suffice. No amount of
evidence is going to be able to rectify this position.
29. In the case of Saroj Agarwalla (supra), the Supreme Court accepted
the existence of caveatable interest despite the caveator not producing the
original Will as the High Court had noted that the caveator had filed a
photocopy of the prior Will allegedly executed by the testator and had also
produced the registered envelope through which such copy was sent to him
by the testator along with the forwarding letter written by the testator. Drawing
analogy, Mr. Kukreja submitted that there is not an iota of material which
points to the existence of the Will.
30. The aforesaid submission of Mr. Kukreja cannot be said to be
unfounded. Conceivably, in a given situation, a Probate can be granted, albeit
limited grant, where the original Will is lost or destroyed on the basis of a
copy or draft Will (under Section 237), or for that matter, if the contents of the
Will can be established at the trial even where no copy of the lost or
destroyed Will has been made or draft preserved, (under Section 238). Yet it
cannot be urged that such prayer can be countenanced even though there is
not a shred of material to show the existence of the Will. Lest, Otherwise,
the provisions contained in section 63 of the Indian Succession Act and
section 68 of the Indian Evidence Act would be rendered completely otiose. A
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party can simply assert that she had seen contents of the Will and without
furnishing any proof of due execution and attestation of the Will establish the
contents of the Will that too to the extent of the disposition in favour of such a
party only. The solemnity attached to the proof of the Will would be completely
lost if such a contention is unreservedly accepted.
31. A Will has to be executed in the manner required by Section 63 of the
Indian Succession Act. Section 68 of the Indian Evidence Act requires the Will
to be proved by examining at least one attesting witness. Even where the
original Will is produced, situations may arise when the Will, which otherwise
satisfies the requirement of attestation as provided by law, cannot be proved
in terms of the aforesaid provisions either for non-availability of attesting
witness or denial of attestation by such witness. In such cases, sections 69
and 71 of the Indian Evidence Act, come to the aid of the propounders of the
Will. Yet, it must be kept in mind that Sections 69 and 71 of the Indian
Evidence Act, are enabling provisions and do not dilute the requirement of
proof as envisaged by Section 68, if the conditions requisite to invoke
Sections 69 and 71 are not satisfied.
32. A profitable reference in this context can be made to a Judgment of the
Supreme Court in the case of Jagdish Chand Sharma Vs. Narain Singh
Saini (Dead) Through his Lrs and Ors. 6, wherein it was enunciated that
6 (2015) 8 SCC 615
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Section 71 of the Indian Evidence Act does not in any manner efface the
essence and efficacy of Section 63 of the Indian Succession Act and 68 of the
Indian Evidence Act, in the following words:
57. A will as an instrument of testamentary disposition of property being a
legally acknowledged mode of bequeathing a testator’s acquisitions during
his lifetime, to be acted upon only on his/her demise, it is no longer res
integra, that it carries with it an overwhelming element of sanctity. As
understandably, the testator/testatrix, as the case may be, at the time of
testing the document for its validity, would not be available, stringent
requisites for the proof thereof have been statutorily enjoined to rule out
the possibility of any manipulation. This is more so, as many a times, the
manner of dispensation is in stark departure from the prescribed canons
of devolution of property to the heirs and legal representatives of the
deceased. The rigour of Section 63(c) of the Act and Section 68 of the
1872 Act is thus befitting the underlying exigency to secure against any
self-serving intervention contrary to the last wishes of the executor.
57.1 Viewed in premise, Section 71 of the 1872 Act has to be
necessarily accorded a strict interpretation. The two contingencies
permitting the play of this provision, namely, denial or failure to recollect
the execution by the attesting witness produced, thus a fortiori has to be
extended a meaning to ensure that the limited liberty granted by Section
71 of the 1872 Act does not in any manner efface or emasculate the
essence and efficacy of Section 63 of the Act and Section 68 of the 1872
Act. The distinction between failure on the part of an attesting witness to
prove the execution and attestation of a will and his or her denial of the
said event or failure to recollect the same, has to be essentially
maintained. Any unwarranted indulgence, permitting extra liberal flexibility
to these two stipulations, would render the predication of Section 63 of the
Act and Section 68 of the 1872 Act, otiose. The propounder can be
initiated to the benefit of Section 71 of the 1872 Act only if the attesting
witness/witnesses, who is/are alive and is/are produced and in clear terms
either denies/deny the execution of the document or cannot recollect the
said incident. Not only, this witness/witnesses has/have to be credible and
impartial, the evidence adduced ought to demonstrate unhesitant denial of
the execution of the document or authenticate real forgetfulness of such
fact. If the testimony evinces a casual account of the execution and
attestation of the document disregardful of truth, and thereby fails to prove
these two essentials as per law, the propounder cannot be permitted to
adduce other evidence under cover of Section 71 of the 1872 Act. Such a
sanction would not only be incompatible with the scheme of Section 63 of
the Act read with Section 68 of the Act but also would be extinctive of theSSP 20/25
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paramountcy and sacrosanctity thereof, a consequence, not legislatively
intended. If the evidence of the witnesses produced by the propounder is
inherently worthless and lacking in credibility, Section 71 of the 1872 Act
cannot be invoked to bail him (the propounder) out of the situation to
facilitate a roving pursuit. In absence of any touch of truthfulness and
genuineness in the overall approach, this provision, which is not a
substitute of Section 63(c) of the Act and Section 68 of the 1872 Act,
cannot be invoked to supplement such failed speculative endeavour.
57.2 Section 71 of the 1872 Act, even if assumed to be akin to a
proviso to the mandate contained in Section 63 of the Act and Section 68
of the 1872 Act, it has to be assuredly construed harmoniously therewith
and not divorced therefrom with a mutilative bearing. This underlying
principle is inter alia embedded in the decision of this Court in CIT v. Ajax
Products Ltd. (AIR 1965 SC 1358).
33. In the light of the aforesaid enunciation of law, I find it rather difficult to
accede to the submission on behalf of the caveatrix that the question of
existence of the Will is a matter which must be relegated to the trial.
34. This leads me to the aspect of existence of caveatable interest de hors
testamentary disposition. The legal position with regard to the existence of
caveatable interest is fairly crystallized. A caveatable interest denotes the
interest in the estate of the deceased which may be affected by the grant of
Probate or Letters of Administration, as the case may be. Whether the grant
of Probate or Letters of Administration would prejudice the right of the
caveator, would be the barometer on which the existence of a caveatable
interest can be tested. For that purpose, the law governing intestate
succession qua the deceased also needs to be kept in view. If the caveator is
likely to succeed in case of intestacy, the existence of caveatable interest can
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hardly be put in contest.
35. A profitable reference, in this context, can be made to a decision of the
Supreme Court in the case of Krishna Kumar Birla V/s. Rajendra Singh
Lodha and Ors.7 wherein the Supreme Court, after an elaborate analysis of
the provisions and precedents, culled out the propositions as under :
84. Section 283 of the 1925 Act confers a discretion upon the court
to invite some persons to watch the proceedings. Who are they?
They must have an interest in the estate of the deceased. Those who
pray for joining the proceeding cannot do so despite saying that they
had no interest in the estate of the deceased. They must be persons
who have an interest in the estate left by the deceased. An interest
may be a wide one but such an interest must not be one which would
not (sic) have the effect of destroying the estate of the testator itself.
Filing of a suit is contemplated inter alia in a case where a question
relating to the succession of an estate arises.
85. We may, by way of example notice that a testator might have
entered into an agreement of sale entitling the vendee to file a suit for
specific performance of contract. On the basis thereof, however, a
caveatable interest is not created, as such an agreement would be
binding both on the executor, if the probate is granted, and on the
heirs and legal representatives of the deceased, if the same is
refused.
86. The propositions of law which in our 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 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 the7 (2008) 4 Supreme Court Cases 300.
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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.
………..
89. While determining the said question, the law governing the
intestate succession must also be kept in mind. The right of the
reversioner or even the doctrine of “spes successionis” will have no
application for determining the issue in a case of this nature.
……….
103. What would be caveatable interest would, thus, depend upon
the fact situation obtaining in each case. No hard and fast rule, as
such, can be laid down. We have merely made attempts to lay down
certain broad legal principles.
…………
135. It is too far fetched a submission that a person having a remote
family connection or as an agnate is entitled to file a caveat. A
reversioner or an agnate or a family member can maintain a caveat
only when there is a possibility of his inheritance of the property in the
event the probate of the Will is not granted. If there are heirs intestate
who are alive, entertaining of a caveat on the part of another family
member or a reversioner or an agnate or cognate would never arise.”
(emphasis supplied)
36. A conjoint reading of the propositions culled out in clauses (ii) and (iii) of
paragraph 86 spells out the test which is to be applied to ascertain the
existence of a caveatable interest, namely, the Caveator ought to be in a
position to show that if the grant of Probate or Letters of Administration is
made, it will defeat his claim of succession or inheritance to the estate of the
deceased for the reason that it defeats some other line of succession. If the
Caveator is likely to inherit a very small part of the estate of the deceased in
the event the Probate or Letters of Administration, as the case may be, is not
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granted, it can be said that the Caveator has a caveatable interest.
37. In the case at hand, ex facie, the caveatrix has no caveatable interest,
as Ankit, her husband was alive on the day the succession opened. The
caveatrix and her son Shubham were not entitled to succeed to the estate of
the deceased as they are not the Class-I heirs of the deceased. In fact, it was
sought to be urged on behalf of the caveatrix that though the caveatrix and
Shubham are not the heirs of the deceased yet they have a caveatable
interest as they are the beneficiaries under the testamentary disposition. This
stand may not necessitate a deeper evaluation of existence of caveatable
interest in case of intestate succession.
38. An endeavour was also made on behalf of the caveatrix to urge that
Shubham was a coparcener with the deceased and his three sons. As noted
above, in the proceedings before the Magistrate under DV Act, it was
asserted on behalf of caveatrix that Ankit, her husband has 25% interest in
the estate left behind by the deceased, purportedly in the capacity of Class I
heir of the deceased along with the plaintiff, his mother and another brother.
The aforesaid contention runs counter to the claim now sought to be urged
that Shubham was a coparcener with the deceased. At any rate, if Shubham
claims any title to the estate of the deceased, the said dispute is beyond the
remit of the jurisdiction of this Court in a petition for grant of Letters of
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Administration. Shubham will have to work out his remedies before the
appropriate forum. In the case of Krishna Kumar Birla vs. Rajendra Singh
Lodha and Ors.8, it was enunciated that if there are heirs intestate who are
alive, the question of entertaining of a caveat on the part of another family
member or a reversioner or an agnate or cognate would never arise.
39. The conspectus of the aforesaid consideration is that the caveatrix has
no caveatable interest. Therefore, the application deserves to be allowed.
Hence, the following order.
ORDER
(i) The application stands allowed.
(ii) Caveat No.125 of 2024 stands dismissed.
(iii) Testamentary Suit No.109 of 2024 stands converted into
Testamentary Petition No.1225 of 2023.
(iv) Testamentary Petition No.1225 of 2023 be now processed
in accordance with law and rules.
(v) No costs.
( N.J.JAMADAR, J. )
8 (2008) 4 SCC 300.
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Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 27/09/2024 18:18:58