CORPORATE LAW

Caveatable Interest: Succession

In case of grant of probate, an application for grant of probate is to be filed in terms of Sections 275 and 276 of the Indian Succession Act, 1925. Particulars stated in the said provisions are to be furnished by the applicant. The petition for grant of probate is to be signed and verified. Citations in terms of Section 283 (1)(c) are to be issued calling upon all such persons who claim to have any interest in the estate of the deceased. Citations are issued in order to enable such persons to see the proceedings before the grant of probate and if necessary to oppose the same. Such persons to whom citations have been issued whether general or special, may file a caveat.

All proceedings are required to be taken only upon service of notice to the caveator(s). Section 286 uses the word “contention” to mean appearance of any one in person, or by his recognized agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding. In the contentious cases the procedures which are required to be adopted are specified in Section 295. Neither under section 284 nor under Section 295 of the Indian Succession Act, 1925 a caveator is required to show any interest in the estate of the deceased, whether the same would mean that anybody and everybody who intends to oppose the grant of probate would be entitled to lodge caveat is issue, whether any person can be said to have caveatable interest in the probate proceedings.

It is no more res integra that probate court does not decide any question of title or of the existence of the property itself during probate proceedings. Thus, any interest due to dispute in title of property cannot be said to have “caveatable interest” in probate proceeding. The probate court is only concerned with genuineness of the testator will.

In Basanti Devi vs. Raviprakash Ramprasad Jaiswal, Appeal (civil) 4896 of 2007, supreme court, following is stated:

“21. The Probate Court, indisputably, exercises a limited jurisdiction. It is not concerned with the question of title. But if the probate has been granted subject to compliance of the provisions of the Act, an application for revocation would also lie.”

In probate proceeding, the law governing the intestate succession must also be kept in mind. The right of the reversioner or even the doctrine of ‘spes successonis’ will have no application for determining the issue in a case of probate proceeding.

The section 284 of the Indian Succession Act, 1925 provides for lodging of caveats against the grant of probate or administration before district judge or district delegate. The question regarding “caveatable interest” within the meaning of the Indian Succession Act, 1925 (1925 Act) vis-a-vis the Rules framed by the Calcutta High Court in the year 1940 has been dealt in detail in case of Krishna Kumar Birla vs Rajendra Singh Lodha & Ors, in Civil Appeal No.-2277 of 2008 by supreme court of India and following was stated:

“103. We may notice that in Jagdish Prasad Tulshian vs. Yasheen Jain  [AIR 2007 Calcutta 218], the Calcutta High Court held:

20. In the case of Elizabeth Antony v. Michel Charles John Crown Lengera reported in 1990 (3) SCC 333 : (AIR 1990 SC 1576), the Supreme Court was dealing with an application for revocation of grant of a Probate and in the said case a party sought to establish a caveatable interest on the basis of a Will though the said Will or the copy thereof was not filed before the Court. In such a case, the Supreme Court was of the view that it was not expedient to reopen the matter. In the said case, the Supreme Court, however, held that for the purpose of revocation of a grant within the scope of Section 263 of the Indian Succession Act, the absence of caveatable interest does not stand in the way. In the case before us, we are not concerned with a case of revocation of grant. Therefore, the principle laid down in the said decision, cannot have any application to the case before us. Moreover, in that case, even the copy of the purported Will was not produced.”

What would be the cavetable 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.”

(Emphasis Supplied)

In Jagjit Singh & Ors vs Pamela Manmohan Singh, Civil Appeal No. 8031 of 2001 by supreme court, following was held:

“13. It is thus evident that apparently conflicting views have been expressed by coordinate Benches of this Court on the interpretation of the expression “caveatable interest”. In Krishna Kumar Birla’s case, the Bench did not approve the judgments of Calcutta High Court in Bhobosoonduri Dabee’s case and Madras High Court in G. Jayakumar’s case wherein it was held that any person having some interest in the estate of the deceased can come forward and oppose the grant of probate. As against this, in G. Gopal’s case, the dictum that a person who is having a slight interest in the estate of the testator is entitled to file caveat and contest the grant of probate has been reiterated. This being the position, we feel that the issue deserves to be considered and decided by a larger Bench.” 

This matter was itself dismissed as withdrawn on 27th March, 2015 after Interlocutory Application(I.A.) for clarification/modification of judgement. Be as it may, in case of Krishna Kumar Birla’s case itself both cases have been duly dissected and examined in para 75 to 78.

In case of Yash Vardhan Mall vs Tejash Doshi, Civil Appeal No. 19635-19636 of 2017, the Supreme Court set aside order of high court of Calcutta in case of existence of two successive will on following point:

On a detailed scrutiny of the affidavit filed in support of the caveat, we are satisfied that the Division Bench went wrong in not permitting the Appellant to contest the proceeding of probate of the Will dated 22.04.2013, especially after holding that he has a caveatable interest. It is relevant to mention that the petition filed by the Appellant for grant of probate of the Will dated 01.03.2013 was rejected by the District Judge, Alipore on the ground that the application for probate of the Will dated 22.04.2013 was pending and that the Appellant had lodged a caveat in that proceeding. It was further held in the said order passed by the District Judge on 17.04.2017 that the Appellant will have sufficient opportunity to prove his allegations against the Respondent in the said proceeding.”  

Under Hindu Succession Act, 1956 there is no possibility of any person other than heirs to derive a remote interest in the estate of the deceased not being legatee also, the decisions of various High Courts to the effect that the reversioner and/or distant relatives would have a caveatable interest are no longer good law.

Rajni Sinha,

Advocate Bombay High Court,

7738080174

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