Calcutta High Court
Ms. Pemla Ghosal & Another vs Ms. Neelanjana Ghosal on 15 March, 2011
Equivalent citations: 2011 AIR CC 2909 (CAL), (2011) 105 ALLINDCAS 738 (CAL), (2011) 4 ICC 861, (2012) 2 CURCC 225, (2011) 2 HINDULR 184, (2011) 3 CAL HN 66, (2011) 2 CAL LJ 434, AIR 2012 (NOC) (SUPP) 1044 (CAL)
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
GA No. 2076 of 2009 PLA No. 326 of 2008 IN THE HIGH COURT AT CALCUTTA TESTAMENTARY & INTESTATE JURISDICTION ORIGINAL SIDE Ms. Pemla Ghosal & Another Versus Ms. Neelanjana Ghosal Before:
The Hon'ble Justice Sanjib Banerjee Date: 15th March 2011 Appearance:
Mr. S. Dasgupta, Advocate Mr. Aniruddha Mitra, Advocate This is an application for revocation of the grant of probate in rather peculiar circumstances.
The applicants are the second wife of the brother of the testator and the daughter of the brother through the second wife. The Will was propounded by the daughter of the brother through the divorced first wife of the brother. The substantial bequest relates to an immovable property which the propounder claims to have gone to her.
The testator was survived by his wife. The executor named in the Will was the brother and, failing the brother, the daughter of such brother through his first marriage. The Will was made in the year 1995, the 2 testator died in the year 2003, the brother died on July 10, 2008, the application for grant was made immediately thereafter and the grant was made on December 1, 2008.
According to the Will, the testator had apparently appointed brother Smaran Ghosal to be the executor. The third paragraph of the Will reads as follows:
"I give and bequeath my share in premises No.10, Meherali Road, Calcutta-700017 under Beniapukur Police Station to my younger brother the said Smaran Ghosal." The next couple of paragraphs are irrelevant. The paragraph thereafter refers to the wife of testator having expressed her intention to reside permanently in Germany and, accordingly, the wife not being given any right by the testator to claim the Indian property. The last sentence of such paragraph and the following paragraph read as follows:
"... God forbid, in the event Smaran dies then my niece i.e., daughter of Smaran namely Neelanjana gets my share in the said property.
Neelanjana the daughter of Smaran is aged about 21 years. Should my brother Smaran die then my said niece Neelanjana daughter of Smaran shall be sole Executrix and Beneficiary of this will."
It does not appear that the present applicants had any right to be cited in the probate proceedings. The only intestate heir of the testator 3 was his wife who was cited and who did not object to the grant. It is said that the widow is in Germany and is not the least bit interested in a property in Calcutta.
The applicant has referred to a judgment reported at 2002 (1) Cal LT 260 (Benoy Ranjan Banerjee vs Sadhan Ranjan Banerjee) for the proposition that notwithstanding a person not being entitled to the estate by intestate succession in the event the Will was not there, such person may have a caveatable interest within the meaning of the relevant expression in Section 283 of the Succession Act, 1925. The facts relating to that case need to be noticed. The appeal before the Division Bench arose from an order discharging a caveat. The deceased had apparently executed a Will. The brothers of the married deceased lady lodged caveats and filed affidavits in support thereof. On a subsequent application by the propounder, the caveats were discharged. The reasoning of the trial court was that upon the death of the testatrix in that case, her intestate heir would have been her mother under Section 15(1)(c) of the Hindu Succession Act, 1956. The trial Court held that since the brothers of the married sister would stand behind the mother in the matter of succession, when the mother of testatrix was alive, the brothers of the testatrix who were recognized in Section 15(1)(d) of the 1956 Act would have no right to 4 be cited or be heard. The mother of the testatrix in that case was alive and had not lodged a caveat.
The judgment of the trial court was upset in appeal on the strength of several pre-1956 judgments which dealt with the rights of reversioners and, in particular, a judgment that referred to the right of a subsequent reversioner notwithstanding that the first reversioner had not come to protest.
In a judgment reported at (2008) 4 SCC 300 (Krishna Kumar Birla vs Rajendra Singh Lodha) it has been held that the decisions which were rendered prior to the coming into force of the Hindu Succession Act, 1956, may not be of much relevance in assessing caveatable interest. In the same judgment, the nature of the right and the circumstances that would need to be established to show caveatable interest have been summarized at paragraph 86.
Ordinarily, in the context of an objection by a relative, caveatable interest has been understood to imply that if the direction of succession would have been otherwise than contained in the testamentary document that is propounded and the person lodging the caveat shows that the direction of the intestate succession would have led to him, he may be said to have a caveatable interest. In the Division Bench judgment of Benoy Ranjan Banerjee, the reasoning thereof is based on the rights of 5 reversioners and judgments prior to the 1956 Act and it does not appear that the same can hold good after paragraph 106 of the K.K. Birla judgment of 2008.
Two other judgments subsequent to the K.K. Birla judgment also need to be seen. In G.Gopal vs C. Baskar reported at (2008) 10 SCC 489 a two-judge Bench of the Supreme Court held that if a person has even a slightest interest in the estate of a testator, he would be entitled to lodge a caveat and contest the grant of probate. A subsequent two-judge Bench of the same Court in Jagjit Singh vs Pamela Manmohan Singh reported at (2010) 5 SCC 157 found a conflict between the K.K. Birla dictum and the observation in the G. Gopal and has referred the matter to a larger Bench.
The perceived conflict between the K.K. Birla and G. Gopal appears from the parameters as to what may amount to caveatable interest having been set in the former and a line in the latter saying that the slightest interest in the estate would allow the person a look-in. K.K. Birla has referred to a plethora of previous judicial pronouncements and, to the extent that it is held therein that judgments on the issue rendered in the context of the law as it stood prior to the 1956 Act were now no guide to throw light on the matter, it has not been doubted in G. Gopal. In fact, G. Gopal did not notice or refer to K.K. Birla. The position in law is that if two conflicting precedents of equal binding value of a superior forum are cited, 6 the Court can choose the one better-suited in the context. It is on such basis that the dictum in K.K. Birla appears to be the more considered opinion of the Supreme Court that is apposite in the present context. The "slightest interest" principle may be applicable to the class of objectors other than the relatives of the testator; but when a relative of a superior class survives the testator, a relative of an inferior class cannot have any interest in the estate of the testator if on the date of the protest or grant the relative of the superior class is alive.
In the instant case, since it is evident that the applicants here would have had no right to lodge any caveat prior to the grant and would not have been necessary to be specially cited by the propounder, it cannot be said that the grant of probate without the applicants being given specific notice thereof was flawed. The wife of the testator was cited and she did not object. When there is an heir of a higher class who is cited, an heir of a lower class who is not cited cannot seek revocation of the Will merely on the ground of such heir in the lower class was not given notice prior to the grant.
The matter can be seen from a different perspective. Let us say that X leaves his property under a Will in favour of a complete stranger when his only intestate heir would have been his sole surviving son. If then the stranger legatee propounds the Will and cites the surviving son 7 and the son does not oppose the grant, no brother or cousin of the testator or even a grandson through his son would be entitled to oppose the grant, or subsequently seek revocation, by virtue of citing the relationship with the testator and the lack of citation. The other class of objectors may be joint owners of any property covered by the Will or creditors of the testator or creditors of an intestate heir of the testator who are shown to be excluded from the estate by virtue of the Will or similarly placed persons who are recognized to have an interest under Section 283 of the Succession Act. But, when an heir on intestacy of the highest class is available and such heir does not object to the grant, an heir on intestacy of a lower class has no right to have a look-in in the probate proceedings.
The challenge of the applicants on the ground that the probate ought to be revoked for the applicants not being cited is found to be without any merit and is repelled.
The applicants, however, claim that notwithstanding their challenge to the Will, the applicants may also be entitled to claim under the Will since the nature of the bequest is such that the predecessor-in- interest of the applicants (Smaran, the brother of the testator) was entitled thereto in the event he survived the testator. The applicants contend that the wording of the Will would imply that if Smaran predeceased the testator then Neelanjana would be the legatee, but the Will cannot be read 8 to imply that Smaran had merely a life interest in the property and that it would go thereafter and absolutely to Neelanjana.
It is not necessary to go into such aspect of the matter since that is beyond the scope of the present proceedings. This order will, however, not preclude the applicants from claiming under the Will notwithstanding the present challenge to the very basis of the Will.
GA No. 2076 of 2009 is disposed of by giving the applicants leave to institute proceedings for claiming under the Will, if they are otherwise entitled, notwithstanding the challenge to the grant on the ground of the applicants not being cited having failed. On behalf of Neelanjana a petty point has been raised that such leave cannot be granted because it has not been specifically sought in the application. Such submission cannot be appreciated. A challenge to the Will may not disentitle the challenger from claiming under the Will upon the challenge failing. Say, a son contests the grant on the ground of suspicious circumstances and the Will is probated despite the challenge. It cannot then be said that the son cannot assert his right under the Will since he had once challenged the very document under which he subsequently seeks to claim. In this case, the ultimate object of the applicants was to assert and establish a right in respect of the property that is covered by the Will. It is specious to suggest that upon the dismissal of this application, the applicants cannot be heard to suggest 9 that since the estate vested in their common predecessor-in-interest they would be entitled thereto according to the succession governing such predecessor's estate. For such irresponsible and frivolous objection, Neelanjana will pay costs assessed at 500 GM.
Urgent certified photocopies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
(Sanjib Banerjee, J.) R. Bose AR(C.R.)