TaxTMI 
TaxTMI 
2008 (3) TMI 741
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....sed to run several charitable institutions. 4. Both 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 ex....
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....ntrary to and inconsistent with the terms of the 1982 Will. The cause of action for the said suit was founded on the doctrine of mutual Wills. 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-objectio....
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....rsons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of 'Probate' or 'Letters of Administration'. Sub-section (2) of Section 283 postulates 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 ....
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....that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not, in any event, be liable to pay the costs of the other side, unless 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 ....
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....e in letter and spirit so that all the bequeathed properties are applied towards charitable disposition, particularly when a suit for the said purpose has been filed. (iv) The High Court committed a manifest error in ignoring the effect of the suit despite holding that if the suit succeeds, a caveatable interest would accrue to them. (v) Appellants having a two 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 p....
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....e the extent of right of a person for lodging a caveat had not been laid down under a statute, the decisions rendered from time immemorial holding that only a bare right (which would also mean a bare contention, i.e., which would give rise to an arguable point at the hearing constitutes a caveatable interest) should be held to be still a good law. (vi) Section 283(1)(c) of the 1925 Act should not be treated to be the sole repository for the purpose of determining 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 19....
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....the nature and character of a probate proceeding cannot be changed. (e) The claim of the appellants to have a caveatable interest in their capacity as agnates is wholly unsustainable as the sisters of MPB are alive. They do not have a caveatable interest even as executors of the Will of MPB of 1982 or otherwise. (f) 1982 Will of MPB is not affected by the 1999 Will, particularly, when appellants are not the legatees thereunder and as such the question of surviving executor deriving any interest in his place would not arise. (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 tha....
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....public charitable purposes the estate as they might think fit and proper. Clause 3 of the 1982 Will reads as under: 3. Subject to the provisions of Clause 2 above, the Executors will have power to donate the estate to one or more public charitable trusts, societies or institutions and/ or establish one or more public charitable trusts, societies or institutions for public charitable objects as they may think fit. 45. The Will purported to have been executed by PDB was on the same terms except that one outsider executor named therein was different, which we have noticed hereinbefore. 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 run....
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....rla. 52. According to the plaintiffs, they, as executors of the said Wills, became entitled to take possession of the entire estate, make over, donate or settle the same for public charitable purposes or to establish any public charitable trust at their absolute discretion. A plea of constructive trust on the basis of the said Wills was also raised. 53. The defendant's right of sole beneficiary of the said Will dated 18th April, 1999 was questioned, stating: 17. The defendant as alleged executor and sole beneficiary of the said purported will dated 18th April, 1999 is not entitled 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 t....
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....in of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the Will. A question of title arising under the Act cannot be gone into the proceedings. Construction of a Will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. 60. A person to whom a citation is to be issued or a caveator, must have some interest in the estate of the testator. Any person claiming any interest adverse to the testator or his estate cannot maintain any application before the Probate Court. His remedy would be elsewhere. 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....
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....however, at the outset, notice a decision of this Court in Elizabeth Antony v. Michel Charles John Chown Lengera [1990]2SCR486 which is binding on us. Therein, the testatrix, viz., one Mary Aline Browne, was the wife of one Herbet Evander Browne, the eldest son of John Browne. Mary died on 28th March, 1972. She had executed a Will on 12th March, 1962. An application for grant of a Letter of Administration with a copy of the Will annexed was filed by Michel. Petitioner Elizabeth Antony and her husband Zoe Enid Browne filed caveats on the plea that the said Will was a forged document. The petitioner therein also claimed that her daughter Browne had executed a Will on 23rd June, 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 Tru....
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....to a catena of decisions of the High Court and this Court, held that Probate court does not decide any question of title or of the existence of the property itself. In Basanti Devi v. Raviprakash Ramprasad Jaiswal AIR2008SC295 , it is stated: 21. The Probate Court, indisputably, exercises a limited jurisdiction. It is not concerned with the question of title. But if the probate has been granted subject to compliance of the provisions of the Act, an application for revocation would also lie. 71. Abhiram Dass v. Gopal Dass ILR 17 Calcutta 48 is a decision of the Division Bench of the Calcutta High Court. In that case, the District Judge admitted the objection. It was held that rival 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....
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....e any interest must be persons having such an interest as would entitle them to maintain a suit in respect of the subject matter of such estate - persons having, for example, such an interest as, according to the practice of the Court of Chancery, would entitle them to file a bill in a Court of Equity." 77. It contains two competing passages. One rendered by White, J. and another by Field, J. White, J. stated: "It is not necessary to consider whether the case cited by the District Judge is good law, for it does not determine the question with which we have to deal. In that case the parties opposing the probate were simple creditors of a person who was the heir of the deceased, supposing the testator had died without 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 mainta....
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....e property of the testatrix, if the court refused to grant probate. Noticing the statement of law that the interest of a Hindu reversioner expectant upon the death of a Hindu female cannot be validly alienated, it was held that a Hindu widow not only cannot dispose off the estate, but also cannot bind the reversioner's expectant rights. Having said so, a question was posed. Does it necessarily mean that such a person has not such an interest in the estate under Section 69 of the Probate and Administration Act so as to entitle him to oppose the grant of probate of a Will which if probated is likely to prejudice him? Answering the said question, this Court held: "...Although a reversioner under the Hindu Law has no present interest in the property 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 Si....
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....ting to the succession of an estate arises. 88. 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. 89. 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 the prope....
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....e estate and against whom citations have been issued, others who have no interest would also be entitled to enter a caveat. 95. In the context of the laws governing inheritance and succession, as they then stood, the widest possible meaning to the term "interest" might have been given in a series of decisions to which the learned Counsel for the appellants rely upon ranging from Nobeen Chunder Sil (supra) to Radharaman Chowdhuri and Ors. v. Gopal Chandra Chakravarty so as to hold that a caveat would be maintainable even at the instance of a person who had been able to establish "some sort of relationship" and howsoever distant he may be from the deceased which per se cannot have any application after coming into force of the Hindu Succession Act. Ordinarily, therefore, a caveatable interest would mean an interest 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....
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....case as the heirs of Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta would succeed to their interest in the property and not the appellants, as classified heirs succeed absolutely and upon death of any such heir, the estate devolves upon the heirs of such absolute successor. There could not, therefore, be any question of reversion of the property. 102. We are not oblivious of the fact that a judgment rendered in a probate proceeding is a judgment in rem. But, its application is limited. A judgment rendered in a probate proceeding would not be determinative of the question of title. If a probate has been obtained by fraud or suppression of material fact, the same can be the subject matter of revocation of the grant in terms of Section 263 of the 1925 Act. [See Elizabeth Antony (supra)]. In Basanti Devi (supra), 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 havin....
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....Court. If the landlord being a State within the meaning of Article 12 of the Constitution of India is required to prove fairness and reasonableness on its part in initiating a proceeding, it is for it to show how its prayer meets the constitutional requirements of Article 14 of the Constitution of India. For proper interpretation not only the basic principles of natural justice have to be borne in mind, but also principles of constitutionalism involved therein. With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/ author. So done, the rules 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.....
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....mong large numbers is essential, and it must not only be a transformation of consciousness but must also involve individual action. But individuals need the nurture of crops that carry a moral tradition reinforcing their own aspirations. These are commitments that require a new social ecology and a social movement dedicated to the idea of such a transformation. 106. The decisions which were rendered prior to coming into force of the Hindu Succession Act, thus, may not be of much relevance. Now, if on the interpretation of law, as then stood, a reversioner or a distant relative who could have succeeded to the interest of the testator was entitled to file a caveat, they would not be now, as the law of inheritance and succession is governed by a Parliamentary Act. 107. Directly or indirectly the appellants and in particular KKB is questioning the title 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. Jeth....
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....nterpretation of the terminologies thereof, must be held to have not intended to rectify the same. 114. In our opinion, it is not necessary to go into the said question as we have held that the decisions upon which reliance has been placed are either not good law or not relevant for our purpose. RULES OF THE CALCUTTA HIGH COURT 115. 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. If the contention of Mr. Jethmalani 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 fo....
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....r will set aside, since the notice gives him the chance of altering the will as regards his own property; and the death of the deceased party is itself sufficient notice for this purpose. If, however, the deceased has stood by the agreement and not revoked or altered his will, the survivor is bound by it, and although probate will be granted of a later will, the survivor is bound by it, and although probate will be granted of a later Will made by him in breach of the agreement, since a court of probate is only concerned with the last will, the personal representatives of the survivor nevertheless hold his estate in trust to give effect to the provisions of the joint will or mutual wills. Where mutual will, whether constrained in a joint will or in separate documents, relate to joint property, the agreement to make the mutual wills and the making of the dispositions 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 ....
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....ained irrevocable despite the death of the husband. It was held "the function of this Court as a Court of Probate is to ascertain and pronounce that is the last Will, or what are the testamentary documents constituting the last Will, of a testator, which is or are entitled to be admitted to probate". 122. The contention that such a Will was irrevocable was held to be lacking any foundation. The court refused to go into the question as to whether the court having the jurisdiction to decide both the contentions independently should go thereinto by holding that it being a court of probate and not a court of construction, it could only construe testamentary documents to the extent of determining those testamentary documents that should be admitted for probate. 123. What could be done and has not been done by a court of equity does not create a precedent. It does not even have a persuasive 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 d....
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.... specific performance. It was held that a Probate Court cannot determine whether the proponent having revoked her own Will is thereby estopped from claiming under the Will executed by the deceased pursuant to a contract between the deceased and proponent. It referred with approval the decision of Brazil v. Silva 181 Cal. 490 wherein it was observed: "In support of their contention that the complaint does not state a cause of action, counsel for the defendant advance two propositions. The first is that the matter is determined by the order admitting the will to probate. The soundness of this position depends upon whether or not the issues presented by the present complaint are questions going to the final question before the probate court; that is, the question as to the instrument being the legal and valid will of the decedent unrevoked at the time of his death. If the issues presented by the complaint 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 ....
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....nd not that of the appellants. 130. It is not much in dispute that probate has to be granted to the latter Will even when made in prejudice of the agreement not to revoke the mutual wills inasmuch as the court of probate is only concerned with the last Will. 131. Mr. Jethmalani has also placed strong reliance upon a decision rendered by this Court inter-parties arising out of a criminal case in Shiva Nath Prasad v. State of W.B. and Ors. 2006CriLJ1258 . Therein, this Court was concerned with the question as to whether a First Information Report lodged against the first respondent herein and Ors. under Sections 417 and 420 of the Indian Penal Code should be quashed. This Court dealt at some details with the legal principles behind the doctrine of mutual Will, ultimately to hold: 48. We have referred to the doctrine of mutual and reciprocal wills and trusts only to understand the basis of the complaint... 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 ....
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.... contended that having regard to the testate succession created by reason of the Will and the matter remaining pending for last three years, the claim of the appellants and family members is required to be decided on the happening of certain contingencies in the intervening period between the death of PDB and the ultimate decision of the probate application, as one of the heirs of PDB has died. 137. The submission, to say the least, is fallacious. The heirs of the deceased have already been impleaded as parties. Inheritance to an estate never remains in abeyance. In the event of death of the sisters of MPB, their heirs and legal representatives would inherit the property in their own right and not as the heirs of MPB. The dispute regarding intestacy does not change the law of succession and inheritance. 138. As Agnates KKB, BKB, YB and GPB also claimed caveatable interest as agnates. Entry 2 of Class II of the Schedule appended to the Hindu Succession 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 inter....
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....s but increasing the number of Executors from three to four in each will. Each of them, by his or her Will devised and bequeathed his or her entire estate to the other absolutely and in the event of the other predeceasing him or her as case may be, the Executors appointed in their respective Wills were directed to make over, donate or settle the entire estate, barring certain specific legacies for charitable purposes at their absolute discretion. (c) The husband of the deceased died on July 30, 1990 and the deceased as beneficiary of her husband's Will came to possess, own and control his estate in terms thereof and thus had taken and enjoyed the benefit under the said Will until her death. (d) The purported Will dated April 18, 1999 has thus been allegedly executed by the deceased in clear breach and total disregard of the subject matter of the agreement and the mutual Will of the deceased and her husband. It is inconceivable that the deceased consciously would 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 even....
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....n Section 15(1)(a) of the Punjab Pre-emption Act, 1913 as being ultra vires of Article 14 of the Constitution it was opined at Paragraph 2: "The right of pre-emption based on consanguinity has been variously described by learned judges as 'feudal', 'piratical', 'tribal', 'weak', 'easily defeated', etc. [Kalwa v. Vasakha Singh at 490 and Bishan Singh v. Khazan Singh [1959]1SCR878 Fusing as it does the ties of blood and soil, it cannot be doubted that the right is antiquated and feudal in origin and in character." It was thus held: "We are thus unable to find any justification for the classification contained in Section 15 of the Punjab Pre-emption Act of the kinsfolk entitled to pre-emption. The right of pre-emption based on consanguinity is a relied of the feudal past. It is totally inconsistent with the Constitutional scheme. It is inconsistent with modern ideas. The reasons which justified its recognition quarter of a century ago, namely, the preservation 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 pr....
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....ly. 147. MPB was an executor under the 1982 Will of PDB. He expired in 1990. The deed of appointment was executed on 25th August, 2004. Both the learned Single Judge as also the Division Bench of the High Court opined that MPB never ceased to be the executor. The High Court noticed a term of purported 1982 Will, which reads as under: "If any of them ceases to be executor for any reason, survivor or survivors might, if he or they so desire, fill up such vacancy or vacancies with a person of their choice." 148. It was furthermore held that on the death of PDB, the three executors were alive. It was furthermore noticed that he did not claim any caveatable interest as an executor to the 1982 Will. Such a claim was made for the first time in a supplementary affidavit in opposition filed on 25th August, 2004 after the commencement of the hearing of the application for discharge. It was not averred that MPB had ever become an executor or ceased to be an executor under the said Deed of Appointment. 149. Section 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....
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....everend Steward Hamilton, executors and trustees; and, in case of the death of either of them, I nominate and appoint Edmund Hayes, and my brother Henry Lighton, to act and be executors and trustees in their stead". Having regard to the phraseology used therein, it was held that the appointment of Edmund Hayes was complete stating: "The deceased died possessed of a policy of insurance on his own life in the Equitable Assurance Office, in England, of the value of about 63001; and for the purpose of obtaining payment of it the present application was made for a grant of probate, in this country, of the same will to Sir Edmund Hayes. It was founded on the affidavits of Sir Edmund Hayes, of Mr. Shaw of Dublin (who prepared the will), and of Dr. Abraham Colles (the physician who attended the deceased); that he, the deceased, at the time of executing his will, was in a very dangerous state of health, and contemplated the near approach of his death; and that it was intended by the deceased that the substitution of executors should 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 se....
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....he testator and not by the law, one named executor may refuse the office or renounce. It is, however, too late to refuse or renounce when one has once elected to act as executor; and he may determine such election by acts which amount to an administration." (See also Sri Raja Kakadapudi Venkata Sudarshana Narasayyamma and Ors. v. Andhra Bank Ltd., Vijayawada and Ors. AIR1960AP273 ; Ramautar Singh v. Ramsundari Kur. AIR1959Pat585 and Leo Sequiera v. Magdalene Sequiers Bai and Ors. AIR1971Kant143 ). 157. We may notice that in Sri Raja Kakadapudi Venkata Sudarshana Narasayyamma (supra), it has been held: 57. In Parlhasarathy Aiyar v. Subbaraya Gramany AIR 1924 Mad 07 at p. 70, it was observed by Schwabe C. J., that "It is not right, as has been suggested in some cases, to treat a will of which probate has not been granted as non-existent and the property passing intestacy." This will of course depend upon the fact whether the plaintiff has accepted the office as an executrix. The learned Counsel for the appellant has placed strong reliance on certain observations in the judgment of the Madras High Court in Parthasarathy Appa Rao v. Venkatadri Appa Rao ....
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....im 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. 162. The office of executor under the 1982 Will does not carry any remuneration therewith. The power to appoint an executor was dependent upon any executor ceasing to be one. The condition precedent has not been fulfilled. In the instant case, MPB had never become the executor, hence, the question of his "ceasing to be an executor" does not arise. 163. Appellants are not the legatees of the said Will. They are not the beneficiaries thereunder. They being merely executors, in our opinion, would not clothe them with a right to lodge a caveat as by reason thereof they did not derive any caveatable interest in the estate of PDB. CAVEATABLE INTEREST OF GPB AS A NAMED EXECUTOR 164. GPB was h....
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.... said Will and not as an heir of MPB. If the Will had not been given effect to for such a long time, there is no reason as to why the terms thereof should be directed to be acted upon at this juncture and/or in terms thereof dispute between the parties in this behalf cannot be adjudicated upon at an interlocutory stage. 170. In Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean Wilkinson v. Isolyne Sarojbashini Bose and Ors. AIR1962SC1471 , it was held: "(7) Re. (1). We have already pointed out that though it was said that Dr. Miss Mitter had executed a will in favour of her mother Mrs. Mitter in June 1925 bequeathing the house in dispute to her, no probate or letters of administration were ever obtained by Mrs. Mitter. It is true that Mrs. Mitter in her turn made a will in favour of the appellant and she obtained letters of administration of that will. In that will the house in dispute was mentioned as the property of Mrs. Mitter was bequeathed to the appellant and in the letters of administration granted to her this property was mentioned as one of the properties coming to her by the will of her mother. The question therefor....
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....for grant of probate in respect of 1982 Will of MPD and the affidavit of assets annexed by them to the petition for grant of probate of 1982 Will of PDB show that the assets held by the former mentioned in the petition for probate of his Will of 1982 are also shown as assets of PDB. APPLICATION OF SECTION 92 CPC 173. A suit contemplated under Section 92 of the Code of Civil Procedure cannot be equated with a probate. In a suit under Section 92 of the Code of Civil Procedure, the title of the donor may be disputed. Such a question as of necessity must be gone into by the court which, however, is a forbidden domain for the Probate Court. Reliance has been placed on Sirajul Haq Khan and Ors. v. The Sunni Central Board of Waqf, U.P. and Ors. [1959]1SCR1287 wherein this Court was of the opinion that a person ascertaining that the property in dispute was not a wakf property was entitled to be heard. In a suit of that nature the title in the property or lack of it would be germane. SECTION 73 OF THE INDIAN TRUST ACT. 174. Provisions of Section 73 of the Indian Trust Act have limited application. Applicability thereof would arise when a trustee disclaims, dies or is absent from....
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....ily were not so involved. In fact according to the appellants themselves, the first respondent was a man of trust so far PDB is concerned as it was stated: "(f) The Petitioner through Lodha & Co. and/or other firms under his control, ostensibly or otherwise, came to be appointed as statutory auditors and/or to be otherwise involved in matters concerning the finance and accounts of several companies and organizations where the Birla family has substantial stakes in management and/or shareholding. By reason of the same, the petitioner came to enjoy the trust and confidence of most of the members of the Birla family. (g) After the death of late Madhav Prasad Birla in or about July, 1990 the deceased who has had no formal education relied and continued to rely on the petitioner and reposed and continued to repose complete trust and confidence in the petitioner in the matters pertaining to all her financial affairs by reason whereof, the petitioner was at all material times, privy to all information concerning the personal and financial affairs of the deceased. The deceased also sought and obtained advice from the petitioner with regard to her assets, savings and inves....