Calcutta High Court
Yash Vardhan Mall vs Tejash Doshi on 28 August, 2017
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
The Hon'ble JUSTICE SANJIB BANERJEE
And
The Hon'ble JUSTICE SIDDHARTHA CHATTOPADHYAY
APO No. 359 of 2017
GA No. 2552 of 2017
In
PLA No. 123 of 2016
YASH VARDHAN MALL
-VERSUS-
TEJASH DOSHI
For the Appellant: Mr S. P. Sarkar, Sr Adv.,
Mr Surojit N. Mitra, Sr Adv.,
Mr D. N. Sharma, Adv.,
Mr D. K. Jain, Adv.,
Mr Asim Chattopadhyay, Adv.,
Mr Subrata Das, Adv.
For the Respondent: Mr Ratnanko Banerji, Sr Adv.,
Mr Nirmalya Dasgupta, Adv., Ms Urmila Chakaraborty, Adv.
Hearing concluded on: August 22, 2017.
Date: August 28, 2017.
SANJIB BANERJEE, J. : -
The appeal arises out of proceedings for grant of a probate. By the order impugned dated June 28, 2017, the caveat lodged by the appellant has been discharged on the twin grounds that the appellant had no caveatable interest and that the affidavit in support of the caveat did not disclose any legal ground of objection to the grant of probate.
2. The facts are not much in dispute and have been succinctly narrated in the order impugned. The appellant asserts his right to lodge and maintain a caveat as being the stand-by executor of a previous Will of the testator. In addition, the appellant refers to his status as a co-trustee in respect of the Trust set up by the previous Will. The first legal proposition canvassed by the appellant is that once a rival Will is cited, a person nominated as an executor (even by default) in such Will would always have a right to object to the grant of probate of another Will. The same legal right is asserted qua the status of the appellant as a trustee of the Trust set up by the previous Will in relation to the probate sought of an alleged later Will.
3. Testator Shrutika Doshi died at age 35 on May 26, 2013. The respondent is the propounder in the present proceedings in respect of a Will said to have been executed by the testator on April 22, 2013. The appellant, however, seeks to assert an earlier Will of March 1, 2013 that, according to the appellant, was republished by the testator on May 22, 2013 at the time of its registration on commission. The contention of the appellant is that even though the first Will of March 1, 2013 may have been revoked upon the execution of the second Will of April 22, 2013, by virtue of the registration of the first Will on a date subsequent to the execution of the second Will, the first Will is deemed to have been revived and the second Will revoked by necessary implication.
4. The appellant submits that upon the respondent herein, who is named in the first Will as the sole executor thereof, evincing no interest to seek probate of such Will despite the appellant's request, the appellant was obliged, as the executor by default named in the first Will, to apply for probate thereof. The appellant appears to have applied accordingly in the Alipore court. Such petition for grant of probate of the first Will has been rejected on an application under Section 151 of the Code of Civil Procedure, 1908 filed by the respondent herein. An appeal has been preferred by the appellant against the relevant order. The appellant claims that Section 151 of the Code could not have been invoked in the proceedings which had not turned contentious. However, the merits of the appeal may be of no concern at this stage.
5. In the affidavit in support of the caveat filed by the appellant, he recited the execution of the first Will, the registration thereof, of the appellant obtaining a certified copy of the registered Will since the respondent did not part with the original and of his application for grant of probate being filed on October 5, 2015 in Alipore. A photocopy of the first Will was appended to such affidavit. On a reading of the first Will, it is evident that the testator appointed her husband, the respondent herein, as the sole executor of such Will and as one of the two trustees of the Trust created thereby. Such Will also provided that "if for any reason (the respondent herein) is unable to carry or act as the Sole Executor ... in such event, I appoint (the appellant herein) as the Sole Executor of my this Will to fill up the vacancy ...". It is also evident that almost the entire estate of the testator was to vest in a Trust in which the parties herein were to be the trustees. The mandate to the trustees under the first Will was to distribute the Trust properties and the usufructs therefrom to the two daughters of the testator in the manner indicated, upon their attaining the ages of 18, 25 and 30.
6. The Will propounded in the present proceedings by the respondent is not much different, save on two counts: the shares of one of the companies held by the testator have been bequeathed in the second Will of April 22, 2013 in favour of the respondent herein; and, though the rest of the estate is left to the two daughters in equal share and by way of a Trust identical to the one designed in the first Will, the second trustee named in the second Will is the father of the respondent herein.
7. The appellant was also related to the testator as the son-in-law of the testator's father's brother. But the appellant did not assert any caveatable interest by virtue of such relationship.
8. The appellant asserts that the trial court misdirected itself in posing an irrelevant question in the opening sentence of the order impugned, "whether the son-in-law of the uncle of the testatrix would have a caveatable interest." The appellant maintains that it was only in the appellant's dual capacities as the executor by default and the trustee of the Trust under the first Will that the appellant had sought to protect the interest of the legatees by objecting to the grant of probate of a Will that, according to the appellant, was clearly revoked by the re-publication of the original Will notwithstanding its possible earlier eclipse upon the second Will being executed.
9. The appellant refers to a judgment reported at AIR 2005 Cal 343 (Chunibala Barui v. Lakshmimani Adhikary) for the duty of the probate court as discussed at paragraph 15 of the report:
"15. We cannot lose sight of the fact that a Probate Court is a Court of conscience and the judgement delivered by the Probate Court is a judgement in rem. Even if a person having no locus standi to consent the grant draws attention of the Probate Court that any Probate or Letters of Administration was improperly obtained without citation to the persons entitled to get such citation under the law for the mistake on the part of the Probate Court, such Court can of its own revoke such grant if it appears to the Court that non-situation (sic, non-citation) was of such a character as to substantially affect the regularity and correctness of the previous proceedings."
10. As to the doctrine of re-publication of a Will, the appellant has carried a judgment reported at 1925 (1) Ch D 287 (Teesdale v. McClintock) for the following passage at page 291 of the report:
"It is not right therefore to say that the effect of republication of a will is that you must necessarily and for all purposes construe the will as though it had been made at the date of the codicil. Barton J., in the case of In re Moore, in my opinion, accurately sums up the law on the subject when he says: "The authorities which have been cited" - mostly English authorities - "lead me to the conclusion that the Courts have always treated the principle that republication makes the will speak as if it had been re-executed at the date of the codicil not as a rigid formula or technical rule, but as a useful and flexible instrument for effectuating a testator's intentions, by ascertaining them down to the latest date at which they have been expressed. A glance at a few of the best known cases will, I think, support this view of the effect of republication. ..."
11. The respondent submits that the moot question is whether the first Will is of any relevance upon the second Will being brought into existence. According to the respondent, it is such question which has to be addressed in this appeal and not the mundane matter as to whether the appellant had any caveatable interest to object to the grant sought by the respondent.
12. In addressing such legal issue, the respondent asserts that the registration a Will does not prove its due execution in accordance with law and may be utterly irrelevant in the context of the exercise undertaken by a probate court to ascertain the validity and due execution of such a document. The respondent refers to Section 18(1)(e) of the Registration Act, 1908 that makes it optional for a Will to be registered. Sections 27, 40 and 47 of the same statute have also been placed, but such provisions do not have any bearing on the matters in issue herein. It may only be noticed in passing that Section 47 of the Act of 1908 enunciates a general principle that a registered document shall operate from the time when it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. Thus, if a Will is registered, the Will would not come into effect upon its registration but would come into effect as ordained by the Succession Act, 1925 and the matter of its registration would be of no significance in such regard.
13. The respondent also refers to various provisions of the Act of 1925. Section 63 of such Act has been placed for the legal requirements for a document to be regarded as a Will. According to the respondent, Sections 70 and 73 of the Act of 1925 are of some relevance in the present context. Indeed, Sections 70, 72 and 73 of the said Act must be noticed before embarking on any discussion on the principal issues raised herein:
"70. Revocation of unprivileged Will or codicil. -No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same."
"72. Revocation of privileged Will or codicil. -A privileged Will or codicil may be revoked by the testator by an unprivileged Will or codicil, or by any act expressing an intention to revoke it and accompanied by such formalities as would be sufficient to give validity to a privileged Will, or by the burning, tearing or otherwise destroying the same by the testator, or by some person in his presence and by his direction, with the intention of revoking the same.
Explanation. - In order to the revocation of a privileged Will or codicil by an act accompanied by such formalities as would be sufficient to give validity to a privileged Will, it is not necessary that the testator should at the time of doing that act be in a situation which entitles him to make a privileged Will."
"73. Revival of unprivileged will. -(1) No unprivileged Will or codicil, nor any part thereof, which has been revoked in any manner, shall be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and showing an intention to revive the same.
(2) When any Will or codicil, which has been partly revoked and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as has been revoked before the revocation of the whole thereof, unless an intention to the contrary is shown by the Will or codicil."
14. The respondent submits that upon a second Will of a testator covering the entire estate of such testator being proved, whether or not such second Will expressly revoked any earlier Will of such testator, all earlier Wills stand revoked by necessary implication and the operation of law. The respondent does not contest the proposition that a once-revoked Will may be a revived, but says that such revival has to be strictly in accordance with law. The respondent maintains that merely because the first Will was registered after the execution of the second Will, it would not imply that such registration would tantamount to the re-publication of the first Will or, in law, the revival of the first Will in supersession of the second Will. For good measure, the respondent says that the Registrar supervising the registration of a Will does not discharge any authority as a statutory attesting witness. In support of such proposition, a judgment reported at (1990) Supp SCC 684 (Dharam Singh v. Aso) is placed where the Supreme Court observed that when the execution of a Will had not been proved, the statement of the registering authority would have no bearing as to the execution of the document since "the Registrar could not be a statutory attesting witness."
15. The scope of the present appeal, it must be emphasised, appeared at the initial stage to be limited to the caveatable interest of the appellant in objecting to the probate being granted of the second Will and whether the nature of the objection was such as could be taken cognisance of for the matter to be set down as a contentious cause. However, the appellant has enlarged the scope of the appeal by referring to the doctrine of re- publication and the respondent has joined issue by asserting that there can be no re-publication of a revoked Will unless its revival is in the same manner as would be necessary in the execution of a Will.
16. It needs also to be recorded that the approach of the parties to the present appeal has been in the nature of confession and avoidance: the respondent does not question the due execution of the first Will or the subsequent registration thereof, but maintains that the first Will is legally invalid and cannot be regarded as the manner in which the testator wanted her estate to be managed or distributed, albeit there being only a marginal difference in the matter of the bequests under the two Wills and the management of the estate thereunder. Likewise, the appellant appears to accept that the first Will was revoked by the second Will; but insists that the first Will was revived at the time of its registration and the second Will revoked thereby.
17. Since the parties have been heard on the enlarged scope of the matter, such aspect is dealt with herein; though without the benefit of any evidence in such regard. Any bearing that the discussion herein may have on the appellant's appeal from the rejection of the petition filed in Alipore for grant of probate of the first Will is unavoidable, though this judgment may not be seen to directly deal with such other appeal except on the legal issues which may be common.
18. But before the questions raised herein are answered, the stand taken on facts by the appellant in his affidavit in support of the caveat must be seen. So that the nature of the objection canvassed by the appellant in such affidavit is not diluted in summarising or paraphrasing it, the entirety of the statement on the substance thereof in paragraph 7 in the affidavit in support of the caveat is reproduced:
"7. In view of the fact that my name has been also recorded as a trustee in respect of the property of the deceased along with her husband Mr. Tejash Doshi to make a check and balance of the minors property, the reason best known to her. I have a caveatable interest so as to contest the probate of the Will filed by the propounder Tejesh Doshi before this Hon'ble Court. I further submit that on a meaningful reading of the document it will appear that it is stated allegedly that Shrutika Doshi executed her last Will and Testament on 22nd April, 2013 in English language and character. From the annexure to this affidavit it will appear that the Will propounded by me has been registered on 22nd May, 2013 before the Additional Registrar of Assurance-III, Kolkata and has been registered in Book No.3, C.D. Volume No.1, pages 5432 to 5440 being no.00617 for the year 2013. It will also appear from the said document that the learned Registrar has categorically endorsed in respect of the Deed no.00617 of 2013 to the effect that the document was presented for registration at about 18.45 hours on 22nd May, 2013 at the private residence of Shrutika Doshi, deceased, testatrix and the execution of the said document was admitted by Shrutika Doshi on 22nd May, 2013 and she put her hand and photograph. Therefore, for all intents and purposes the Will propounded by me happens to be the last Will and Testament of Shrutika Doshi, deceased. Most unfortunately, Shrutika Doshi who died at the age of 35 years only did have assets of considerable amount and again most unfortunately, Tejesh Doshi, her husband is otherwise doing acts unexpected. The two daughters of the said Shrutika Doshi who are not only minors but the only beneficiaries in respect of the assets of Shrutika Doshi except for certain shares in respect of the Demat Account 2are being put to great difficulty inasmuch a the minors are losing in lakhs if not crores."
19. Section 283(1)(c) of the Act of 1925 provides for citations to be issued by the court in receipt of a petition for grant of probate or letters of administration "calling upon all persons 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." Section 284 of such Act conceives of caveats against the grant of probate or letters of administration being lodged with the relevant court. Section 295 of the Act provides for the procedure in contentious cases and recognises a contentious case to be proceeded in the form of a regular suit according to the provisions to the Code of Civil Procedure, 1908. Nothing in the Act of 1925 indicates as to who may be regarded as a person having any interest in the estate of the deceased and it is for the court in seisin of a petition for grant to consider the interest that is asserted by an applicant and as to whether such interest may entitle the applicant to object to the grant.
20. In this High Court, Chapter XXXV of the Rules on the Original Side lays down the instructions of procedure in the testamentary and intestate jurisdiction herein. Rule 5a of such Chapter mandates that all applications for grant of probate or for letters of administration with Will shall state the names of the members of the family or other relatives upon whom the estate would have devolved in case of intestacy together with their present places of residence. Rule 25 of such Chapter deals with the affidavit to be filed in support of the caveat and, apart from indicating the time within which the affidavit ought to be filed, makes it obligatory for such affidavit to "state the right and interest of the caveator and the grounds of the objection to the application."
21. Though a caveat may be lodged even prior to a petition for grant of probate or letters of administration being filed, an affidavit in support of the caveat entered has to be filed under Rule 26 of Chapter XXXV of the said Rules within eight days of the receipt of a notice that a petition for the grant of probate or letters of administration with or without a Will has been presented in respect of the deceased. If the caveat is lodged after the petition for grant of probate or letters of administration with or without Will has been filed, the affidavit in support thereof ought to be filed within eight days of the caveat being entered. Rule 28 in the same Chapter postulates that upon an affidavit in support of the caveat being filed, the proceedings shall, by order of a judge upon application by summons, be numbered as a suit in which the petitioner for the grant of probate or letters of administration shall be the plaintiff. In practice, a formal application is made before the interlocutory judge in chambers for the matter to be set down as a contentions cause, whereupon the petition for the grant of probate or letters of administration is treated as the plaint and the affidavit in support of the caveat as the written statement.
22. Thus, the importance of an affidavit in support of the caveat cannot be overstated; such affidavit indicates the grounds of objection and is the basis for the issues to be framed in the likely contentious cause. If no meaningful grounds of objection are indicated in the affidavit in support of a caveat, there is no need for a protracted action. While it is true that the probate court is a court of conscience and the traditional armchair test requires the court to ascertain the wishes and intention of the testator, when a caveator does not indicate any ground of objection in the affidavit in support of the caveat, the probate court may not require the Will to be proved in a solemn form in preference to the usual practice, as in a non- contentious cause, for it to be proved in the common form.
23. The essential consideration is whether the execution of the Will or its validity is doubted by the caveator by indicating any grounds of the lack of mental or physical ability of the testator to have executed the Will or of suspicious circumstances or the like. Again, an affidavit in support of the caveat has to be most generously construed and if there is the slightest whiff of a reasonable objection, such doubt has to be dispelled by requiring the execution and validity of the Will to be proved by cogent evidence. But, irrespective of the right of the caveator to lodge a caveat, if the most charitable reading of the affidavit does not make out any challenge to the validity or execution of the Will, such affidavit is demurrable.
24. Regrettably, nothing in the affidavit filed by the appellant in support of the caveat - even on the most broad-minded and liberal reading thereof - makes out any ground questioning the execution of the document or pertaining to the mental or physical state of the testator or of any suspicious circumstances. Allegations have been levelled against the respondent herein at paragraph 7 of such affidavit, but such allegations pertain to the conduct of the respondent after the death of the testator. There is not the slightest hint of the testator being coerced to execute the second Will or of any other doubtful or suspicious circumstances pertaining to the execution of the second Will. Indeed, paragraph 7 of the affidavit in support of the caveat amounts to an unequivocal acknowledgement of the due execution of the second Will coupled with an assertion that such second Will was revoked upon the perceived re- publication of the first Will at the time that the registration of the first Will was effected some four days prior to the death of the testator.
25. When a caveat is lodged and an affidavit in support thereof filed, if such affidavit does not question the genuineness of the Will or the execution or validity thereof, there is no case made out for the petition for grant of probate or letters of administration with Will being set down as a contentious cause. It is immaterial, in such a scenario, as to whether the caveator has any caveatable interest or is a rank busybody. However, in the context of the larger question raised as to the effect of the registration of a revoked Will subsequent to the execution of a later Will by which the original Will was revoked, the right or interest of the appellant has also to be adjudicated.
26. There is good reason why Section 283(1)(c) of the Act of 1925 does not specify the persons or classes of persons who may be seen to have any interest to object to the grant of a probate or letters of administration. A part of the answer lies in Section 263 of the said Act that provides for the revocation or annulment of a grant of probate or letters of administration for just cause. Again, Section 263 of the Act does not specify the persons or classes of persons who may apply for revocation or annulment of the grant of a probate or letters of administration. Section 263 of the Act is, so to say, the safety-net that ensures that the grant of a probate or letters of administration is foolproof and not questionable as there is a scope for its revocation in the usual course. Thus, if a person who ought to have been cited prior to the grant comes later to doubt the execution or the validity of the Will or letters of administration post grant, by claiming that he could have successfully thwarted the grant upon being cited, the court may adjudicate on his objection and revoke the grant or the court may, on prima facie satisfaction thereof, revoke the grant and set the matter down as a contentious cause. It must be said in the same breath that the right to apply for revocation or annulment of a grant is not restricted to persons who ought to have been cited prior to the grant and were not cited. It is in such context that the dictum in Chunibala Barui, unquestionably axiomatic as it is, is not applicable in the present case.
27. Several classes of persons, whether cited or not, may seek to object to a proposed grant. They may include creditors of the testator and even creditors of an intestate heir of the testator. No prudent judge would attempt to make out an exhaustive list of the persons or classes of persons who may be seen to have an interest in the estate and the consequent right to object to the grant that is sought. It is the nature of interest espoused in each case and the nexus of the person with the estate of the testator that would determine the issue.
28. Having said that, it is difficult to imagine how an executor of a previous Will - whether admitted or not - can be denied the right to lodge a caveat in respect of a subsequent Will of the same testator. Section 211 of the Act of 1925 recognises the executor of a Will of a deceased to be "his legal representative for all purposes, and all the property of the deceased person vest in him as such." Though no right as executor can be established unless a court grants a probate of the Will under which the right is claimed, as mandated by Section 213 of the said Act, property cannot be in limbo and, at least notionally, it vests in the executor of the Will subject to probate being granted later. It is said that till his last breath the testator remains the owner of his estate, but immediately thereafter it vests in the executor.
29. Apart from the rights conferred by the statute on an executor, even logically, the executor of a previous Will of the same testator has undeniable caveatable interest in respect of proceedings for the grant of probate or letters of administration of a subsequent Will of the same testator. Irrespective of whether an executor is also a legatee under the Will, the office comes with an obligation. The obligation of an executor is to obtain a probate of the Will and to administer the estate in accordance with the terms of the Will. Such obligation of the office clothes an executor with sufficient interest to lodge a caveat in respect of proceedings for the grant of probate or letters of administration in respect of a subsequent Will. If the subsequent Will is not accepted by the probate court, the earlier Will would govern the estate of the testator, subject to probate or letters of administration in respect thereof being obtained. That is the source of the right of the executor of a previous Will of a testator to lodge a caveat in proceedings for the grant of probate or letters of administration of a subsequent Will of the same testator.
30. The appellant herein had sufficient interest in the estate merely by citing his status as the executor of a previous Will, particularly since the previous Will in this case appears to be fairly admitted by the propounder of the subsequent Will. The appellant was also entitled to lodge a caveat by virtue of his position as a trustee in respect of the Trust created by the first Will. Though courts are wary in making broad generalisations, it is difficult to imagine a situation where an executor of a previous Will of the same testator or a trustee of a Trust created by a previous Will may not be seen to have sufficient interest to lodge a caveat in proceedings for the grant of probate or letters of administration in respect of a subsequent Will or to contest such grant.
31. It is an entirely different matter that the quality of the objection may be such that the probate court does not regard it to be an objection at all. That would not take away the right of an executor of a previous Will or the right of a trustee of a Trust created by a previous Will from having caveatable interest in a matter pertaining to the grant of probate or letters of administration in respect of a subsequent Will of the same testator.
32. Now to the doctrine of re-publication and the operation of such doctrine in this country. There is no law that every person must make a Will or that every Will must be registered or that a Will made by a person must cover his entire estate. There is no finality in a Will till the death of the executant thereof and the probate or letters of administration being obtained of such Will. The law ordains that when a person alters his Will he may do so by way of a codicil or he may execute a fresh Will in respect of the matters covered by his previous Will, whereupon the previous Will stands revoked whether or not the executant expressly revokes such previous Will. It is also possible that the subsequent Will does not surface and probate of the earlier Will is obtained. However, such grant in respect of the previous Will loses all meaning upon a subsequent Will being discovered and probate thereof being obtained.
33. Ordinary prudence would demand that if a person has executed a previous Will and he wishes to alter the same by executing a fresh Will, he would obliterate or destroy the previous Will whether by burning it or tearing it or otherwise disposing of the same. But in certain cases as in the present, there may be two Wills executed by the same person without the previous being destroyed. It is the undisputed position in this case that the testator was suffering from pancreatic cancer and she executed the Wills with knowledge that she had only a limited time to live. She may have been too infirm or weak to destroy either Will and the law takes over to indicate what the testator must have intended to do. Section 70 of the Act of 1925 recognises the revocation of a Will (otherwise than by marriage) to be only by another Will or codicil or by some writing declaring an intention to revoke the same and executed in the manner in which a Will is required to be executed. Or else, it is open to a testator to burn or tear or otherwise destroy a Will or cause some other person in his presence to so destroy at his direction with the intention of revoking the same.
34. A previous Will that has been revoked by a subsequent Will may be revived but only by the re-execution thereof or by a codicil upon such codicil showing an intention to revive the revoked Will. A codicil has, of course, to be executed in the same manner as a Will. Section 73 of the Act of 1925 limits the operation of the common law doctrine of re-publication.
35. The English judgment cited by the appellant on the doctrine of re-
publication throws no light on the facet of re-publication that is relevant in the present proceedings. In that case, a testator bequeathed a substantial legacy, "in trust for my cousin and children and his wife failing his children upon his death and that of his wife or until she remarries again." The cousin of the testator, at the time of execution of the Will, was married to his first wife and the first wife died during the lifetime of the testator. Sometime after the death of the first wife of the cousin, the testator, with knowledge of the death of her cousin's first wife, made a codicil to her Will in which she made a bequest of a sum of stock and appointed a residuary legatee. The codicil contained no reference to the substantial bequest made by the testator to her cousin. Sometime thereafter, the cousin of the testator remarried and was survived by his second wife at the time of his death. There was no issue of either marriage. The question that arose was whether the second wife of the cousin was entitled to the benefit under the bequest. It was on such facts that it was held that the Will and the codicil had to be read together and the second wife of the cousin was entitled to the bequest for her life or until remarriage. The principle enunciated in the judgment has nothing to do with the revocation of an original Will and the re-publication of the original Will after the execution of a second Will.
36. In view of the respective stands of the parties to the present proceedings it seems that the appellant does not question the execution of the second Will and accepts due execution thereof, but only asserts that the second Will was eclipsed by its deemed revocation upon the first Will being registered at a point of time subsequent to the execution of the second Will. Similarly, the respondent does not so much question the due execution of the first Will but asserts that such first Will stood revoked upon the execution of the second Will. As to the perceived re-publication of the first Will, the respondent insists that the mere registration thereof would not amount to the re-execution of the first Will and the second Will was not destroyed by the testator or on the testator's directions.
37. Since the execution of either Will is not doubted by the parties and no other person interested in the estate has stepped forward to object to either, the question of which of the Wills would prevail in the ultimate analysis depends on whether the case of re-execution of the first Will in course of its registration had been made out in the petition for grant of probate of the first Will filed in Alipore by the appellant herein. Again, such issue may only be required to be gone into if the appeal against the rejection of the petition for grant of probate filed in Alipore succeeds. Such other appeal is pending elsewhere and the matter calls for no further discussion here.
38. Accordingly, APO 359 of 2017 and GA 2552 of 2017 are disposed of by holding that though the appellant had caveatable interest to object to the grant of probate of the second Will propounded by the respondent herein, in the light of the affidavit in support of the caveat not disclosing any cogent ground to doubt the due execution of such Will of April 22, 2013, the matter does not call to be set down as a contentious cause. As such, the order impugned calls for no interference.
39. The parties will bear their costs.
40. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Sanjib Banerjee, J.) I agree.
(Siddhartha Chattopadhyay, J.) Later:
The appellant seeks a stay of the operation of the order, which is declined.
(Sanjib Banerjee, J.) I agree.
(Siddhartha Chattopadhyay, J.)