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