TaxTMI 
TaxTMI 
2008 (3) TMI 741
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....oth MPB and PDB are said to have executed mutual wills on identical terms on or about 10th May, 1981 bequeathing his/her respective estate(s) barring certain specific legacies to the other and on the death of the survivor to the 'charities' to be nominated by the executors. 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. KK....
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.... 15. Two deeds of appointments dated 23rd August, 2004 and 24th August, 2004 were also executed appointing YB and BKB as surviving executors of the Wills of MPB and PDB (1982 Wills) in place of PDB and MPB respectively. 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 a....
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....es that the citation shall be fixed up in some 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 ....
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....the Court shall be 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 t....
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....fold duty to see that 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) A....
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....g the 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 ....
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....or 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, the same meaning t....
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....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, certain declarations were made and some directions wer....
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....aid 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 Sections 275 and 276 thereof. Particulars stated in the said provisions are to be furnishe....
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....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, droit, holding lawful possession, part, participation, percentage of ownership, portion, possession, property, proprieto....
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....rowne 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 registered gift deed or a copy of it has not been filed. Before the learned Single Judge of the High Court also same contentions ....
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....t 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 noticed by the Calcutta High Court in Nikunj Kumar Lohia v. Narayan Prasad Garodia and Ors. 1996 (1) CHN 205, In the Goods of Mohammad Bashir (deceased) ....
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....tor - 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 particular person to be made a party, according to the view which I have already stated, I think it comes to this that any person has a sufficient interest who can show....
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....o 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 grant of Letters of Administration. 83. No principle of law was laid down therein. It does not have even a persuasive value. It, in our opinion, does not lay down any law. 84.....
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....ed 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 deceased-testator which may be affected by grant of probate of the will of the deceased had been applied for determination of the issue of caveatable interest, which, inter alia, are: 1. Abhiram Dass (supra) ....
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.... 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 contingent interest. 99. A transferee pendente lite without the leave of the court would not have a caveatable interest and as such cannot be impleaded as a party. A person cannot also be impleaded as a party even on an apprehensi....
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....ut 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 a Probate and in the said case a party sought to establish a caveatable interest on the basis of a Will though the said Will or the copy thereof was not filed before the Court. In such a case, the Supreme Court was of the view that it was not expedie....
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....utional 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 inquire not into the subjective intent of the author, but rather the intent the author would have had, had he or she acted reasonably." (See also Bharat Petroleum Corporation Ltd. v. Maddula Ratnavalli and Ors. (2007)6SCC81 , para 22) In so doing, it would not ....
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.... 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. 110. A caveatable interest is not synonymous with the word 'contention'. A 'contention' can be raised only by a person who has a caveatable interest. The dictionary meaning of 'contention', therefore, in the aforementioned context cannot have any applicat....
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....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 had been entered into by and between the husband and the wife in regard to the application of the property is in question. We although may not be directly concerned therewith, the law operating in the field should be considered only on the premise as to whether the said doctrine creates any caveatable inter....
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....l, 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 , the Madras High Court stated the law, thus: We confess that the matter is not free from difficulty. But after a careful consideration of all the aspects of the matter, we are inclined to take the view that a joint mutual Will becomes irrevocable on the death of one of the testators if the survivor had received benefits under ....
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....s 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 his contract with the deceased testator. In any case, the enforceability of a contract to make wills containing mutual and reciprocal provisions depends, of course, upon the establishment of the contract by good and sufficient evidence. 794. Remedy in probate court; contest of revoking will. A probate court whose jurisdiction is limited....
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.... 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, and there is no difference between promising to make a will in such a form and making his will with a promise not to revoke it. This court does not set aside the will; but makes the devisee heir or executor trustee to perform the contract." 128. The law laid down in the aforementioned treatises and decisions rendered in different jurisdictions clearly su....
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....ression 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 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 ....
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....PB 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 affidavits of the appellants. We do not find any force therein. QUALITY OF TITLE 141. We may notice the affidavit of Shri KKB in opposition to the grant of probate, as a caveator. In the said affidavit, apart from the genuineness of the 1999 Will, the power of the testatrix to execute the same has also been questioned. In paragraph 7, it is contended: "7. It will be evident from the same that the deceased, L....
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....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. (g) The petitioner is not entitled to put any impediment in the implementation of the said trust. (h) I am one of the surviving executors of the said mutual will of Late Madhav Prasad Birla executed on July 13, 1982." The said affidavit also reiterates the contents of the plaint. No contention, however, has been raised that they have a caveatable interest keeping in view the spiritual life of MPB and the testatrix as a me....
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.... 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-emption, if any, is not affected by grant of probate. A right of pre-emption would arise only when a voluntary transfer is made for consideration in favour of a stranger and not prior thereto. 144. Reliance has been placed by Mr. Venugopal on Bhoop v. Matadin Bhardwaj AIR1991SC373 . We may notice that therein a decree for pre-emption had already been granted. 145. Right of a co-owner is not affected by testamentary disposition. Indisputably, the ....
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....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 director could not 'cease' to hold a qualification which he never possessed. Thus, if a Director is named in the articles, and never had a qualification, he cannot be said to cease to hold it, stating: "If Lord Norreys had been only a de facto director and never a de jure director, I think there might have been force in this contention ; but it seems to follow from what I have held on the first point that Lord Norryes, not having ceased to be a director, must be reg....
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.... 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 trustee and executor of the person from whom she received a considerable amount of property in a complicated state, and John Joseph Balko, as his father's partner, was conversant with the whole business. These are very good reasons why the testatrix should have desired him to succeed his father as her executor, and I cannot consider such substitution as limited to the casualty of the father's decease in the lifetime of the testatrix." 155. Reliance has also been placed upon William....
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.... 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 later will, a citation would be necessary as is provided for by Section 229, Succession Act, calling upon the executor to accept or renounce his executorship and if the executor renounces or fails to accept the executorship within the time limited for acceptance or refusal thereof, the will may be proved and letters of administration with a copy of the will annexed may be granted to the person who would be entitled to administration cases of intestacy. (Section 231, Succession Act.)" The said decisions, ther....
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.... 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 YB as an executor of the Will of MPB in place of PDB cannot be sustained. It is not a case of YB that PDB had assumed office or the purported Will of MPB had been given effect to. Genuineness of the said Will is in question. KKB has already filed an application for grant of probate in respect of the said Will. As there is nothing to show that any vacancy has been created by reason of death of PDB, YB could not have been appointed in her place at this stage. 176. The vacancy has to be filled up in terms of the instrument or in accord....
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....e 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 : (see Ghanshamdoss v. Gulab Bi Bai) (1927) I.L.R. 50 Mad. 927. But it is urged on behalf of the appellant that this section will not bar her because she obtained letters of administration of the will of her mother Mrs. Mitter under which she is claiming and that it was not necessary for Mrs. Mitter to have obtained probate of the will of Dr. Miss Mitter in her favour. It was further observed: Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to esta....
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....s 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 Will in favour of another is a matter of his/her choice. One may by a Will deprive his close family members including his sons and daughters. She had a right to do so. The court is concerned with the genuineness of the Will. If it is found to be valid, no further question as to why did she do so would be completely out of its domain. A Will may be executed even for the benefit of others including animals. Various documents have been placed before us by the learned Counsel appearing on behalf of the first respondent to show that MPB was not happy in regard to management of....
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....termine 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 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. SUIT ON MUTUAL WILLS 182. We have noticed hereinbefore the averments made in the plaint of Civil Suit No. 221 of 2004. 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 arr....