Calcutta High Court
Harsh Vardhan Lodah & Ors vs Ajoy Kumar Newar & Ors on 21 April, 2011
Author: K. J. Sengupta
Bench: Kalyan Jyoti Sengupta
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G.A. No. 2525 of 2010
G.A. No. 2444 of 2010
G.A. No. 2909 of 2010
G.A. No. 2911 of 2010
T.S. No. 6 of 2004
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
Original Side
PRESENT:
THE HON'BLE JUSTICE KALYAN JYOTI SENGUPTA
In the Goods of Priyamvada Devi Birla
And
In the matter of
Harsh Vardhan Lodah & ors.
Vs.
Ajoy Kumar Newar & ors.
Judgment on: 21.4.2011.
K. J. Sengupta, J.:
The aforesaid four applications have been taken out by the various persons/parties in connection with the aforesaid Testamentary Suit. All these applications were heard analogously and learned counsels advanced argument also in all these four applications. It is therefore just and convenient for this Court to decide all these applications by common judgment. 2
G.A. No. 2525 of 2010:- This application has been taken out by one Pradip Kumar Khaitan for direction upon the department to accept the caveat of the petitioner along with the affidavit in support of caveat being Annexure 'G' hereto in T.S. No. 6 of 2004 or he be added as a party defendant to the instant Testamentary Suit and other consequential orders.
Sum and substance of the case made out in this petition for the aforesaid relief is that he is one of the co-executors of mutual Wills of one Madhav Prasad Birla (hereinafter in short MPB) since deceased and his deceased widow Priyamvada Devi Birla (hereinafter in short PDB) dated 13th July, 1982. He is also one of the applicants for obtaining grant of probate to this Will. According to him in view of the judgment of this Court dated 11th March, 2005 in this matter as affirmed by the Supreme Court holding executor of a prior rival mutual Will has caveatable interest to contest grant of the subsequent Will of one of the testators he has right to apply. He therefore being one of the executors of rival mutual Will is desirous of coming in, and intends to join in this proceedings. Earlier an application was made for adding himself along with one Kashi Nath Tapuriah through the same Advocate on record. In view of change being taken by Kashi Nath Tapuriah he decided not to proceed with the aforesaid applications but, he obtained leave of the Court to withdraw the same. At that point of time he was advised to contend in view of the death of the original propounder of the later Will of PDB of 1999 Testamentary Suit in original form for grant of probate abated and that is why he thought it fit not to proceed with the said application. Now because of the subsequent order passed by this Court on 5th February, 2010 3 allowing to convert the Testamentary Suit for obtaining grant of Letters of Administration with the Will annexed present application has been made.
G.A. No. 2444 of 2010:- This application has been taken out by one Kashi Nath Tapuriah for his impleadment as a party defendant of the aforesaid Testamentary Suit and also for consequential order. In his application he has claimed the aforesaid relief contending that he is also one of the named executors of the said mutual Will dated 13th July, 1982. Both the said two mutual Wills were executed by MPB and his widow PDB both since deceased. He is the executor of prior Will of 1982 of PDB along with MPB, Ganga Prasad Birla and Pradip Khaitan. In view of the judgment rendered by the Supreme Court affirming the judgment of learned Single Judge dated 11th March, 2005 and Division Bench of this Court he has caveatable interest in view of being one of the executors of prior mutual rival Will. On the strength of the aforesaid Supreme Court pronouncement he had made an application for similar relief earlier. But this Court by judgment dated 12th February, 2010 held that so long Ganga Prasad Birla would be contesting the grant, this applicant, though one of the co- executors, could not come in and to join the proceeding as he is being represented by Ganga. He may come in the circumstance and situation when for any reason Ganga Prasad Birla is not contesting nor it is possible for him to contest he as one of the co-executors, having surviving right can come in and join. Therefore, his right to join in this proceeding is inchoate one at present. However, it would be open for this applicant to watch the proceedings remaining in Court and not to participate in the hearing, and the moment it is found Ganga 4 Prasad Birla is not willing to contest or for any reason he is unable to contest he would have opportunity to make application afresh. It is stated with supporting documents that said Ganga Prasad Birla died on 5th March, 2010, hence his right to be impleaded has now become matured so the order for impleadment shall be made as a matter of course.
Both the above two applications are opposed by the plaintiffs filing affidavits.
G.A. No. 2909 of 2010:- This application has been taken out by the above-named plaintiffs namely Lodhas' and one Meenakshi Periwal who are the heirs and legal representatives of late R.S. Lodha who was the original applicant for grant of probate, for striking out the names of the defendants No.1b to 1d from the suit register and also the name of the defendant No.1a be formally struck off in terms of order dated 24.4.2005 passed in G.A. No. 1790 of 2005, and caveat lodged by original defendant No.1 in the said Testamentary Suit be discharged and revoked. The original defendant No.1 died leaving a Will appointing some of the parties executors and beneficiaries. Actually the defendant No.1a to 1d are the heirs and legal representatives in case of death intestacy, of the original defendant No.1. In the order dated 24th June, 2005 passed by this Court it is stipulated name of the defendant No.1a would stand struck off the moment the probate is granted to the Will of original defendant No.1. As far as the defendant No.1b to 1d are concerned their names should be struck off from the cause title and suit register by reason of the fact that the original defendant No.1 during her life time rendered disentitled herself to contest the grant of probate by setting up title adverse to the estate of testatrix and 5 further by denying power of disposal of testatrix of the estate. The name of the defendant No.1a would now be struck out because of the fact he is the son of the original defendant No.1 not being executor of the last Will of original defendant No.1.
G.A. No.2911 of 2010:- This application has also been taken out by the plaintiffs above-named for striking off the defendant No.2 from the suit register and for discharge of caveat lodged by this defendant. The aforesaid order is sought for on the ground that in the pleadings filed by her, in proceedings before the Company Law Board it was found that she has subsequent to filing of the affidavit in support of caveat, denied PDB's capacity to dispose of her properties by Will and also set up title adverse to the estate of her estate. To elaborate this averment it is stated in this application that in Company Petition No.825 of 2004 filed by the defendant No.2 along with original defendant No.1 before the appropriate Company Law Board, she has categorically accepted the statements contained in complaint filed by Rajendra Prasad Pansari being Complaint Case No.C-4693 of 2004 before the learned Chief Judicial Magistrate, Alipore as true and correct. In the said complaint petition the said Pansari stated that almost entire estate of PDB had vested in five charitable trusts and consequently, there has been divestment of the estate of PDB in these trusts. As such, the defendant No.2 has questioned the existence of title of PDB in respect of her estate and the capacity of PDB to dispose of her properties by Will on grounds outside the law of succession. Even in application being G.A.4375 of 2004 the defendant No.2 has denied the competence of PDB to dispose of her estate in a manner inconsistent 6 with the terms of the alleged mutual Wills of 13th July, 1982 of Madhav Prasad Birla and PDB.
These two applications are strenuously opposed by the respective defendants filing affidavits.
Smt. Nalini Chidambharam, learned Senior Advocate appearing on behalf of the applicant in second mentioned application being G.A. 2444 of 2010 submits that since Ganga Prasad Birla who was one of the joint executors of the rival mutual Will of 1982 died and in view of the earlier order dated 12th February, 2010 passed by this Court her client's right to come and to join in this proceedings has now become matured. She submits that in view of death of Ganga Prasad Birla who was declared to have caveatable interest qua executor of the mutual rival Will, the office of executorship in connection with the said mutual rival Will of 1982 have now vacant. Hence impleadment of her client is absolutely necessary to contest this application for grant on behalf of the executors as above. Moreover, she submits, he is also one of the natural heirs and legal representatives of the said Priyamvada Devi Birla in case of death intestacy hence he is also having similar right along with the heirs and legal representative of her deceased husband so far as her personal effect are concerned.
Mr. Anindya Kumar Mitra, learned Senior Advocate appearing on behalf of the plaintiffs submits to oppose this application, that the previous application of the present applicant was rejected by order dated 12th February, 2010. He cannot be allowed to be added as a party defendant to contest the proceedings in 7 view of his stand taken that testatrix had no disposing power at the time of her death as all her assets and properties have vested in five several trusts. Hence, he has set up adverse claim to the title of the testatrix accordingly he has no locus standi to participate in this proceeding. He has also relied on all the judgments of various Courts which have been cited to support his clients' aforesaid application to oppose this application also.
Mr. Shyama Prasad Sarkar, learned Senior Advocate while pressing first mentioned application being No.2525 of 2010 contends that it has been made for addition of party in this proceeding which despite retaining its earlier nomenclature is an original proceeding. His client wants to be added as a party on the basis that he is one of the executors of PDB's earlier Will dated 13th July 1982 being rival testamentary document, on the same footing as that of Ganga Prasad Birla, who was also one of the executors of the same Will, and whose caveat was retained by order of this Court and affirmed by the Supreme Court at the earlier stage of this Testamentary Suit. By order dated 5th February, 2010, the locus standi of H.V.Lodha and other heirs of Rajendra Singh Lodha to apply for grant of Letters of Administration has been directed to be decided as preliminary issue at the trial of this suit of 2004. Hence, until such right is established they are not competent to question or dispute the petitioner's right to be added as a party.
He submits that the objection of the plaintiff that his client cannot have any caveatable interest in the estate because of the claim allegedly adverse to the title of the testator having been set up must be rejected.
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He contends that existence or absence of a caveatable interest is to be ascertained only from the affidavit intended to be used in support of caveat as Rule 25 of Chapter XXXV of the Original Side Rules requires that basis for such claim has to be disclosed in such affidavit. The plaintiffs seek to rely on the statement made by his client in a proceeding which is nowhere related to any of the testamentary proceedings of PDB i.e., an application made under Sections 235, 237, 397 and 398 of the Companies Act to contend that he has made claim adverse to the title of PDB. Whatever statement made in the company proceeding were made by way of information rather than assertion. Moreover, the said statements were made in the company proceedings not in the capacity of executor but as a trustee of the Birla Education Trust. In the said company petition the prayers are for investigation of the company's affairs and for necessary reliefs for oppression of minority shareholders and mis-management where no determination of title is involved in the said proceeding. It would be clear from such statement that no claim is made on behalf of the petitioner in whatever capacity which is adverse to the testator and those only refers to the state of affairs fraudulently brought into existence by Rajendra Singh Lodha over a period of time an event which to the best of his knowledge and belief said to have taken place with no involvement or benefit to his client. The disposition of those shares by PDB in 1988 only means that the estate as composed of at the time of making the 1982 Will has suffered diminution in value or size at the time of her death by reason of life time disposition. It is quite a common occurrence in testamentary proceeding and is known as ademption.
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He contends that in order to test the adverse claim or interest it has to be established that caveator has denied the testator's title to the estate or part of it by setting up an independent title of sort of his own, as owner, purchaser, co- owner, mortgagor etc. in such a situation a best person cannot contest the Will in testamentary proceeding as he can establish his own title in independent proceeding.
He contends further that his client, Pradip has not denied the title of the PDB to dispose of the shares, on the contrary by referring to the fact that she had settled those shares in her life time, he has only affirmed her title to dispose of them. At least, no where he has laid any stake or claim to these shares or any part of her estate independently or outside the rule of succession in any capacity whatsoever.
Mr. Anindya Kumar Mitra, learned Senior Advocate appearing to oppose this application contends that the present applicant filed affidavit before the Company Law Board to state that all the shares of joint stock companies held by he testatrix were vested in one or the other Public Charitable Trusts and Public Charitable Institutions. In the Affidavit-in-reply, the applicant had the opportunity of stating that he was abandoning such claim adverse to the testatrix, but did not do so. On the contrary, he reasserted the five Charitable Trusts stated to have been created in 1988. In short, the applicant still maintains that the testatrix at the time of her death in 2004 was not the owner of the substantial part of the estate (shares in joint stock companies), which according to caveator are most valuable part of the estate. Hence, the applicant 10 is disentitled to participate in this proceeding. The Will takes effect on the death of the testatrix. The assertion is that at the time of her death, the testatrix had no disposing power of the estate sought to be bequeathed by the Will. In the affidavit of assets filed by the Birlas the shares of joint stock companies have been valued at Rs.2400 crores and the other assets have been valued only Rs. 5 crores.
He advanced legal proposition that adverse claim means denial or even non-admission of title of the testator to the estate sought to be disposed of by the Will or any portion of such estate. The caveator is disputing the disposing power of the testator by the Will. He contends placing an old decision of this Court reported in ILR 17 Cal 48 and also that of a Supreme Court reported in AIR 2004 SC 1238 that in order to have caveatable interest a person must admit that property forms part of the estate of the testator, if he does not do then it shall be concluded that he has the interest of the said estate of the deceased. He also argues that adverse claim against the testator need not be made in the proceedings for probate of Will or Letters of Administration with a copy of the Will annexed.
He further contends that the person asserting the testator had no title to the estate or portions of any particular property cannot be said to be claiming an interest in the deceased's estate. This legal principle has been firmly settled by various judgments of the Supreme Court and High Courts in India. The followings are the judgments he has cited in support of his contention:- 11
1979 (2) ALT 284, 2004 (1) CLT 96, AIR 1952 All 543, 1910 (12) BLR 366, (1910) 14 CWN 119, 1913 (20) Indian Cases 342, 1985 (2) MLJ 331, 1995 (3) Bom CR 497, ILR 1955 (1) Cal 429, AIR 1931 Mad 37, AIR 1932 Pat 89, AIR 1957 SC 887, (2008) 4 SCC 300, 1 CLT 258, AIR 1922 Cal 181 (2).
Moreover, this applicant having withdrawn his name from the application in G.A. 1960 of 2005 on earlier occasion, has renounced his office of executorship.
Mr. Mitra while placing two applications taken out on behalf of his clients namely GA NO. 2909 of 2010 and GA No. 2911 of 2010 submits reiterating the facts mentioned therein, that the caveators subsequent to filing of the caveats and affidavits in support thereof have asserted claim adverse to the interest of the testatrix, and further disputed disposing powers of the testatrix. In view of subsequent event it has become a case of cession of right to maintain caveat. In other words they have rendered themselves disentitled to contest this application. He has drawn my attention to paragraphs 20, 24 of the petition (GA NO. 2010 of 2010) and paragraph 20 of the petition (GA NO. 2911 of 2010) and the copy of the complaint in the criminal proceedings to substantiate above contention annexed thereto. It will appear from the statement and averment in the said paragraphs 20 and 24 of the petition together with annexure that these defendants Nos. 1 (b) to (d) and the defendant No. 2 have stated in the proceeding before the Company Law Board that the deceased PDB had no disposing power as on the date of execution of the will of 1999 or at the time of the death as all those shares had already been transferred to five trusts in 1988. These 12 submissions and averments were not even denied and disputed by the present defendants namely defendant Nos. 1 (b) to (d) and defendant No.2 as such they have not given up their assertion, they on the contrary have repeated and reiterated their adverse claim. In view of the aforesaid admitted position of the subsequent stand being taken, that is tantamount to denial of the testatrix's interest in the estate, this Court should take note of it immediately. He contends therefore that a person having caveatable interest has disentitled himself to continue to watch and participate in probate proceedings. A person having filed caveat has subsequently by his own conduct, brought about discharge thereof. It is not a matter of discretionary relief, it is a matter of disentitlement of the caveator to participate in the probate proceedings. The Court has no option and will discharge caveat if it is satisfied the caveator has made claim adverse to the interest of the estate of the deceased.
He contends as far as the striking out of the defendant No. 1 (a) is concerned the same shall be done as a matter of course by virtue of the order passed by this Court on 24th June 2005 as the probate of the predecessor in interest of the defendant Nos. 1(a) to (d) has been granted. Now named executors being defendant Nos. 1 (b) to 1 (d) would have right to contest this proceedings but for the aforesaid stands having been taken in the company petition.
All the decisions cited to resist the application for addition of party in case of Pradip Kumar Khaitan by him are also relied on in this case on the question of locus standi, for claiming interest adverse to the estate of P.D.B. 13 Mr. S. Pal learned Senior Counsel appearing on behalf of the defendants Nos. 1(a), 1(b) and 1(c) to oppose this application contends that the Court while maintaining these two applications must examine the statements contained in the affidavit in support of Caveat to oppose grant of probate which is treated as written statement. Indisputably Laxmi Devi Newar since deceased in her affidavit in support of caveat has not taken any stand adverse to the interest of PDB nor disputed disposing power of PDB.
He also asserts that the factual recording in the Supreme Court Judgment reported in (2008) 4 SCC 300 in its paragraph 144 is not correct. He explained that stand taken by the deceased Laxmi Devi Newar, Arvind Kumar Newar, Ajoy Kumar Newar and Nand Gopal Khaitan is in different proceedings and not in the probate proceedings. Applications for grant of probate is dealt with under Chapter I of Part IX of Indian Succession Act, 1925, whereas for limited grants are dealt with in separate Chapter viz., Chapter II of Part IX namely for grant of Administration pendente lite. Therefore, such a stand which is permitted in relation to Section 247 cannot have effect of nullification of the right to pursue the Caveat.
He contends that the principle of law that statements made by an executor adverse to the title of the testator, in a proceedings outside the probate proceeding does not amount to renunciation of executorship should also be applied by way of analogy here, and to buttress this legal submission he has drawn support of the decisions of the Supreme Court reported in (2010) 6 SCC 432 and of Madras High Court reported in AIR 2006 Mad 605. He contends that 14 whether the original defendant No. 1 and their successor in interest are entitled to contest the grant or not has been conclusively settled by the Hon'ble Supreme Court in Its decision reported in (2008) 4 SCC 300 in paragraphs 23,90,93,139 and 194, Once caveatable interest of Laxmi Devi Newar since deceased, and through her, that of Ajoy Kumar Newar, Arvind Newar and Nanad Gopal Khaitan is established, any subsequent plea setting up a claim adverse to the title of PDB will not result in discharge of their caveat or striking out their names. He contends the Supreme Court decision reported in AIR 2004 SC 1230 has settled legal issue that setting up of stand adverse to title of testator by a person who has an undoubted right to enter caveat and object to grant of probate, is permissible by way of subsequent alternative or additional plea by amendment of affidavit in support of caveat. His next contention is while referring to decision of this Court reported in AIR 1963 Cal 85, once probate proceeding is marked as suit and further steps are taken therein, it is not open to contend that Caveator has no locus standi.
Mr. Pal then would say these two applications are extreme abuse of process of court relying on false statement on oath. The stand taken by his clients in company petition were well aware since long time before filing of the present application and their prior knowledge would appear from the application made in GA No. 3434 of 2008 for conversion of the probate proceedings into proceedings for grant of Letters of Administration and again from two subsequent applications being GA 3731 of 2008 and GA 958 of 2009 taken out by the same 15 persons. These action are mala fide and are brought solely to delay the hearing of the suit in order to frustrate the direction of the Hon'ble Supreme Court for expeditious hearing. In any event the plea taken in these two applications is barred by constructive res judicata since this plea could have been taken earlier in the above proceedings. He urges referring to two decisions of Supreme Court reported in 2001 (5) SCC 593 and (2001) 7 SCC 113 apart from bar of constructive res judicata the plaintiffs are estopped from making instant applications. As far as striking out of the names of Ajay Kumar Newar is concerned the order dated 24th June 2005 does not say that he should be struck out. It only says on happening of certain contingencies his name might or will be struck off. In any event this issue is no longer res integra because the Supreme Court in its judgment reported in (2008) 4 SCC 300 has already held all heirs and legal representatives of Laxmi Devi Newar have caveatable interest.
Mr. Hirak Mitra appearing for the defendant No. 1(d) namely Devendra Kumar Mantri submits that the right to contest the grant lodging caveat emanates from the provisions of Section 283 (1) ( c) of the Indian Succession Act, 1925. A casual look at the said Section it clearly shows it is enabling provision but does not contain any indication relating to discharge of a caveat at all. In fact, in the Succession Act, there is no provision for discharge of caveat whatsoever. However, there is a provision in Chapter XXXV, Rule 17 of the Original Side Rule for discharge of a caveat. This too is confined only to cases where affidavit in support of caveat is not filed within the time as mentioned in Rule 25 Chapter XXXV. It is however, apposite to mention in this connection that 16 probate court is a court of conscience and hence, the court has got the power to receive caveat from any person who can throw light on the issue that are involved in the matter where the grant of probate is in the question.
He also urges with reference to point of interest adverse to estate of the testatrix, that stand taken in proceedings before Company Law Board was within the knowledge of the plaintiffs since way back in September 2006 and even earlier. In the Hon'ble Supreme Court and in this Hon'ble Court the question of caveatable interest of his client were asserted, discussed and held in favour of his client as reported in (2008) 4 SCC 300 (paragraphs 99 and 135). Hence principle of constructive res judicata is applicable. He contends that plea of constructive res judicata is an essential question of law and for which no specific pleading is required and it can be argued on the basis of the material placed before the Court. Mr. Bimal Chatterjee appearing to oppose the plea of the plaintiff adopts and supports the argument of M/s. Hirak Mitra, S. Pal and S.P.Sarkar.
I have read all the pleadings and affidavits in all those applications heard the learned Counsels appearing for all the parties. The records clearly demonstrate that the plaintiffs want to establish that existing defendants on subsequent development lost right to contest grant, and the persons intending for addition have no right to come and join to contest the grant.
Presently, I shall be dealing with the applications taken out by the plaintiffs for striking out of the defendants from the proceeding on the question of claiming interest, adverse to the title of the PDB. Admittedly, in the applications 17 of the petitioners the original defendants No. 1 and 2 in their affidavit in support of caveats, which have been treated to be written statement did not take such plea. Admittedly again, as contended by Mr. Mitra, it was at the subsequent stage which is said to have been discovered later that such stand of self-defeating right to maintain caveat has been taken in the company proceeding before the Company Law Board. Hence, this has disentitled them to contest grant as enunciated by a large number of decisions cited by him.
The decisions cited by him are well known and have been discussed at length at an earlier stage in the various application filed in this suit by this Court and the Hon'ble Supreme Court. I find substance in the argument of Mr. Pal and Mr. Sarkar that in order to examine such a plea only the pleadings in this suit shall be examined at this stage. What stand has been taken subsequently in the different proceedings or in any proceeding incidental to this suit in my view cannot be examined at this stage. The prayer for deletion of the present defendants is basically on the statement and averment made in another proceedings or for that matter in a proceeding for appointment of Administrator pendente lite not in the pleadings of the testamentary suit. According to me those materials can at best be treated as an evidence as admission and it cannot be examined in this interlocutory proceeding. These materials are required to be proved in witness action to get the same admitted. It is important to note that the original pleading namely written statement has not been amended even after the aforesaid stands having been taken in different proceedings in different fora, so that this Court could take note of the same.
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Moreover, it has been rightly urged that the Supreme Court has already examined the right of original two defendants to maintain caveat and their locus standi to contest the grant and has upheld on the ground that they were heirs and legal representatives and are having right of inheritence in case of death intestacy [see paragraphs 99,135 and 139 of (2008) 4 SCC 300]. In view of pronouncement of the Supreme Court the right of the defendant No.2 and heirs and legal representative of original defendant No.1 cannot be upset by this Court subsequently, unless the witness action is initiated and it is proved they have rendered themselves disentitled to contest grant.
Hence for the time being I do not find any reason to nonsuit the defendants Nos. 1(b), (c) and (d) and defendant No. 2 at this stage on the plea taken by Mr. Mitra's client. This would be examined at a later stage on receipt of this materials as evidence relied on by his clients in their respective applications. Besides as appropriately pointed out by Mr. Sarkar the question of locus standi for obtaining grant of the present plaintiffs is to be decided in terms of earlier judgment of this Court dated 5th February 2010 while passing order of conversion.
As far as the applications for impleadment of Pradip Kumar Khaitan and Kashinath Tapuria are concerned now the question is whether Pradip and Kashinath are entitled to come in and to contest the grant in any manner whatsoever or not. This proceedings has now partaken the character of the suit, claim for addition of party cannot be ruled out, but again the person concerned has to satisfy the same test as it requires in case of lodging and maintaining 19 Caveat to contest the grant. Procedurally after citations whether special or general are issued if any person fail to appear on receipt or with knowledge, of issuance of citations is debarred from applying for addition after the testamentary suit is set down for contentious cause for it is presumed such person is not interested to contest. But in exceptional cases where it is proved no citation was served upon person having right to contest the grant, such person may come and apply for addition even if the testamentary proceeding is set down for contentious cause.
It appears from the statement and averment made in the application of Pradip he has come forward on the strength of the rival mutual will of 1982 in the capacity of the co-executor along with Ganga Prasad Birla. This Court held Ganga as one of the co-executors of the 1982 Mutual Will is entitled to maintain caveat and had locus to contest the application for grant of probate of the subsequent will of 1999. This claim was based on holding of office of Executor of the prior will and not on any individual interest. The Hon'be Apex Court has affirmed the decision of this Court that Ganga being co-executor of prior mutual rival Will had locus standi to contest the grant. Now Ganga Prasad died so also M.P.Birla and P.D.B, who were also the joint respective executors in two Mutual rival Wills of 1982. Pradip is one of the surviving executors hence right to contest grant survives on him. I have held in my earlier judgment that the Office of the Joint Executors is compendium one and one executor represents the other. When Ganga Prasad is no longer available surviving co-executors as a matter of right can come in automatically. I therefore, hold that Pradip is entitled to come 20 and join as a defendant although earlier he chose not to press such claim on the ground that probate proceedings had abated. I have examined the order passed by me earlier and I do not find any intention of Pradip renouncing the office of Executorship rather on legal advice chose not to put forward his claim as an Executor, and at that point of time he would not have been allowed for Ganga Prasad was alive and was representing the office of the Executorship. This factual position will be evident from my earlier judgment when I refused to implead Kashinath Tapuria at that stage. Accordingly I allow this application for addition party.
In view of my judgment passed on 12th February 2010 the right of Kashinath Tapurira has now become matured to be impleaded as another surviving co-executor of the same prior wills, not as intestate heirs of PDB, as his claim of inheritance of the estate of PDB cannot be entertained in view of contest by the defendants Nos.1(a) to (d) and 2 who exclude all other heirs of any degree [see paragraph 135 of the report viz. (2008) 4 SCC 300 at page 348] accordingly I allow his application for impleadment. Before I pass formal order of addition it is necessary to deal with the objection raised by Mr. Mitra on the premise that these two persons have set up adverse claim in the proceedings before another forum. It is premature to say what stand they will be taking in this proceeding. In my view whether a particular person is having caveatable interest or not is adjudged as and when affidavit in support of caveat is filed. Since it has been held by this Court as affirmed by the Supreme Court [see (2008) 4 SCC 300] that executor of the prior rival mutual will has right to contest the grant of application 21 for probate of subsequent will of the same person, this Court cannot hold otherwise at present.
The Court cannot decide this aspect unless those facts are established by evidence. Moreover, in this case these two persons cannot take different stand from that had been taken by Ganga Prasad in his affidavit in support of caveat. They are bound to adopt the same stand which had been taken by him. Hence the plea of taking interest adverse to the interest of the testator namely P.D. B is not required to be examined at this stage by the Court. I fail to understand why all these decisions have been cited on the given facts and situations. I am constrained to record that unnecessarily these citations have been placed to consume the Court's time for nothing and this could have been avoided.
I therefore, reject the prayer for deletion of the defendant Nos.1(b) to (d)and 2 made by the plaintiffs/petitioners, at present, however, keep all the points open to be decided when evidence would be adduced at the time of trial.
However, I allow the prayer of the plaintiffs to strike out the defendant No. 1(a) from the array of the defendant for the time being as probate of the will of Laxmi Devi Newar has already been granted. As her Executors are already on record namely Defendant No. 1(b) and 1(d) who are representing the cause of the Laxmi Devi Newar, they are now legal representative for all purposes.
In view of the above let the amendment of cause title and suit-register be made incorporating the names of these two persons by the department within three weeks from the date of communication of this order but no additional written statement by these two persons should be allowed to be filed. 22
Cost of these applications be cost in the cause.
Let operative portion of this judgment and order be made available to all the parties and department to act on a xerox signed copy thereof.
(K. J. Sengupta, J.)