Case: Krishna Kumar Birla Vs. Rajendra Singh Lodha

3. Smt. Priyamvada Devi Birla (PDB) and her husband Madhav Prasad Birla (MPB) were admittedly very wealthy persons. They owned an industrial empire known as the MP Birla Group of Industries. They were issueless and known for their charitable disposition. They used to run several charitable institutions.4. Both MPB and PDB are said to have executed mutual wills on identical terms on or about 10th May, 1981 bequeathing his/her respective estate(s) barring certain specific legacies to the other and on the death of the survivor to the charities to be nominated by the executors. However, the said wills were revoked and another set of mutual wills were executed on 13th July, 1982 in terms whereof, four executors were appointed in each set of Will (1982 Will).The executors nominated in MPBs WillSmt. Priyamvada Devi Birla (PDB)2. Krishna Kumar Birla (KKB)3. Kashinath Tapuria and4. Pradip Kumar Khaitanthe executors nominated in PDBs will wereMadhav Prasad Birla (MPB)2. Ganga Prasad Birla (GPB)3. Kashinath Tapuria4. Pradip KumarMPB died on 30th July, 1990.6. On or about 18th April, 1999, PDB executed her last Will (1999 Will) bequeathing her entire estate to the first respondent i.e. Rajendra Singh Lodha (RSL). He was also appointed as the sole executor. She executed a codicil on 15th April, 2003.7. PDB died on 3rd July, 2004.PROCEEDINGS BEFORE THE HIGH COURT8. KKB, BKB, and Yashovardhan Birla (YB), the appellants herein, having come to learn of the execution of the said Will filed caveats on 14th July, 2004 to oppose the grant of probate of the 1999 Will. Ganga Prasad Birla (GPB) and Smt. Laxmi Devi Newar also entered caveats on 19th July, 2004.9. In his application for grant of probate, GPB accepted that Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta were the heirs and legal representatives of PDB. In the said application, Pradip Kumar Khaitan and Kashinath Tapuria were also parties.10. On or about 19th July, 2004 the first respondent, RSL filed an application for grant of probate of 1999 Will (P.L.A. No. 204 of 2004) before the High Court of Calcutta showing Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta, the two sisters of MPB, as the only heirs and legal representatives of the testatrix.11. Smt. Radha Devi Mohatta also entered a caveat on 22nd July, 2004.12. First respondent took out an application which was marked as GA No.2721 of 2004 seeking discharge of caveats entered by or on behalf of KKB, BKB, GPB and YB before the High Court of Calcutta. Appellants as also Smt. Laxmi Devi Newar filed their respective affidavits in support of the respective caveats filed on 30th July, 2004. An affidavit in support of her caveat was also filed by Smt. Radha Devi Mohatta.13. The executors of the 1982 Wills filed two applications being P.L.A. No. 241 of 2004 for grant of probate of the Will of MPB dated 13th July, 1982 and P.L.A. No. 242 of 2004 for grant of probate of the Will of PDB dated 13th July, 1982 before the Calcutta High Court on 17th August, 2004 purported to have been executed by MPB and PDB, indisputably on the premise that even if the probate of the 1999 Will executed by PDB is granted in favour of the first respondent, he would be under an obligation to abide by the directions contained in the purported mutual Wills.14. A suit was filed by the surviving executors of the two 1982 Wills before the Calcutta High Court which was numbered as C.S. No.221 of 2004 claiming inter alia for a declaration that the first respondent as the alleged executor and sole beneficiary of the 1999 Will of PDB is not entitled to deal with the assets of PDB in any manner contrary to and inconsistent with the terms of the 1982 Will. The cause of action for the said suit was founded on the doctrine of mutual Wills.15. Two deeds of appointments dated 23rd August, 2004 and 24th August, 2004 were also executed appointing YB and BKB as surviving executors of the Wills of MPB and PDB (1982 Wills) in place of PDB and MPB respectively. Whereas appointment of YB was accepted; that of BKB was not.16. An application (G.A. No. 2721 of 2004) was filed by the first respondent to discharge the caveators viz. KKB, BKB, GPB and YB before the Calcutta High Court.HIGH COURT JUDGMENTS17. A learned Single Judge of the High Court allowed the said application of discharge of the caveats filed by KKB, BKB and YB. However, the caveat filed by GPB was retained. It may be placed on record that the first respondent, RSL, also entered into a caveat in the proceedings arising out of an application for grant of probate of 1982 Wills. Application for discharge of caveat of RSL was also dismissed.18. Appeals were filed under clause 15 of the Letters Patent of the Calcutta High Court before the Division Bench of the Calcutta High Court there against. Cross-objections were filed by RSL in the said appeal against retaining the caveat filed by KKB, BKB and YB as also the appointment of YB as the executor of MPB. The appeals as also the cross-objections have been dismissed by the Division Bench of the Calcutta High Court by reason of the judgment impugned herein.

Reasoning:
76. Such a suit, however, in our opinion must have a direct nexus with the estate of the testator and not to enforce a right in respect of the application of the estate of the testator under another will. Right to maintain a suit must be independent of the wills sought to be probated. No legal right accrues under an unprobated Will except in case where taking of probate is not mandatory.The propositions of law which in our considered view may be applied in a case of this natureTo 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 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 adjudicatedfrom that fact, the said decision, in our opinion, did not lay down the correct law, even the principles enunciated will have no application in this case as the heirs of Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta would succeed to their interest in the property and not the appellants, as classified heirs succeed absolutely and upon death of any such heir, the estate devolves upon the heirs of such absolute successor. There could not, therefore, be any question of reversion of the property. 102. We are not oblivious of the fact that a judgment rendered in a probate proceeding is a judgment in rem. But, its application is limited. A judgment rendered in a probate proceeding would not be determinative of the question of title. If a probate has been obtained by fraud or suppression of material fact, the same can be the subject matter of revocation of the grant in terms of Section 263 of the 1925 Act.The decisions which were rendered prior to coming into force of the Hindu Succession Act, thus, may not be of much relevance. Now, if on the interpretation of law, as then stood, a reversioner or a distant relative who could have succeeded to the interest of the testator was entitled to file a caveat, they would not be now, as the law of inheritance and succession is governed by a Parliamentary Act.107. Directly or indirectly the appellants and in particular KKB is questioning the title or disposing power of the testator, which is impermissible in a probate proceeding. Appellants, in fact, have been prevaricating their stand from proceeding to proceeding. They have been raising various contentions which are wholly impermissible inanswer thereto, in our opinion, must be rendered in the negative. If anybody and everybody including a busy body or an interloper is found to be entitled to enter a caveat and oppose, grant of a probate, then Sections 283(1)(c) and 284 of the 1925 Act would have been differently worded. Such an interpretation would lead to an anomalous situation. It is, therefore, not possible for us to accede to the submission of the learned counsel that caveatable interest should be construed very widely.110. A caveatable interest is not synonymous with the word contention. A contention can be raised only by a person who has a caveatable interest. The dictionary meaning of contention, therefore, in the aforementioned context cannot have any application in a proceeding under the 1925 Act.111. While interpreting the provisions of a statute, we must also bear in mind the admitted legal position that a probate proceeding should not be permitted to be converted into a title suit. It should not be permitted to become an unchartered field to be trespassed into by persons even if he is not affected by testamentary disposition.The Rules framed by the Calcutta High Court provide for determination of the issue of caveatable interest as a preliminary issue. We do not see any reason as to why the High Court, in exercise of its powers conferred upon it under Section 122 of the Code of Civil Procedure, could not frame such Rules. After coming into force of the Constitution such Rules can also be framed by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. If the contention of Mr. Jethmalani is to be accepted that there being no such provision in the Act for determination of such an issue as preliminary issue, the High Court should not have framed the Rules, we are of the opinion that in a similar situation this Court also could not direct listing of the writ petitions under Article 32 of the Constitution of India for preliminary hearing in terms of the Supreme Court Rules. The Court having regard to its general power as also the power under Order XIV Rule 1 of the Code of Civil Procedure can decide the matter by framing preliminary issues in regard to the maintainability or otherwise of the application. It is a rule of procedure and not of substance. A court is entitled to dismiss a lis at the threshold if it is found not maintainable. The Court even in absence of any rule must take the precaution of not indulging in wasteful expenditure of its time at the instance of the litigants who have no case at all. We do not, therefore, find any legal infirmity in the Rules.The contention that such a Will was irrevocable was held to be lacking any foundation. The court refused to go into the question as to whether the court having the jurisdiction to decide both the contentions independently should go there into by holding that it being a court of probate and not a court of construction, it could only construe testamentary documents to the extent of determining those testamentary documents that should be admitted for probate.123. What could be done and has not been done by a court of equity does not create a precedent. It does not even have a persuasive value.have examined the said decision. The proposition of law laid down therein was that the Probate Court will first revoke the Will and then determine the rights under mutual Will either in equity or in specific performance. It was held that a Probate Court cannot determine whether the proponent having revoked her own Will is thereby estopped from claiming under the Will executed by the deceased pursuant to a contract between the deceased and proponent.The law laid down in the aforementioned treatises and decisions rendered in different jurisdictions clearly suggests that existence of a mutual Will or filing of a suit, by themselves, are not sufficient to create a caveatable interest. In fact the appellants have disentitled themselves from lodging a caveat as they are questioning the title of the testatrix as also her right to execute a Will as it had been contended that she merely had a life interest and no right of dispossession of property by Will or otherwise. They cannot fall back upon the purported "Mutual Wills" only because they also challenge the genuineness of the 1999 will.129. Mr. Jethmalani, furthermore, relied upon a decision in ReDale (deceased) Proctor v. Dale4 All ER129] which, in our opinion, has no application in this case as it was not a case dealing with "caveatable interest" arising out of "mutual Wills". Strong reliance has also been placed on Dilharshankar C. Bhachech v. Controller of Estate Duty [(1986) 1 SCC 701] wherein again Halsburys Laws of England has been quoted, which we have noticed hereto before. The said decision of this Court, therefore, supports the contention of the first respondent and not that of the appellants.130. It is not much in dispute that probate has to be granted to the latter Will even when made in prejudice of the agreement not to revoke the mutual wills inasmuch as the court of probate is only concerned with the last Will.Will.132. The principles which can be deduced from the discussions made hereto before are:A Will made in prejudice of an agreement will nevertheless be effective as a Will as it is by its very nature and by its very essence a revocable instrument.(ii) A subsequent infringing Will would be valid even if it revokes an earlier Mutual Will.(iii) Similarity of the terms would not be enough to establish the necessary agreement.(iv) Whether a legatee has taken any benefit under the alleged Wills of 1982 would, however, be relevant.The submission, to say the least, is fallacious. The heirs of the deceased have already been impleaded as parties. Inheritance to an estate never remains in abeyance. In the event of death of the sisters of MPB, their heirs and legal representatives would inherit the property in their own right and not as the heirs of MPB. The dispute regarding intestacy does not change the law of succession and inheritance.138. As Agnates KKB, BKB, YB and GPB also claimed caveatable interest as agnates. Entry 2 of Class II of the Schedule appended to the Hindu Succession Act in this case would not bring them into the picture, as agnates will acquire an interest only when there is no heir of either Class I or Class II. When there exists Class II heirs, the appellants would not have any real interest in the property. The property upon the death of Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta would pass on to their legal heirs. Appellants being not the heirs of MPB or PDB have no caveatable interest.The theory of looking after the spiritual well-being of the deceased soul by the near relatives has no application for the purpose of judging the validity or otherwise of a Will; more so, after coming into force of the Hindu Succession Act, 1956 as in terms thereof the concept of succession to the estate of a deceased on the said consideration has lost its relevance. Such a contention, therefore, must be rejected out right, being a wholly misconceived one.140. The doctrine of larger circle of the caveators as being members of the Birla family and to protect the spiritual interest does not convert a non-existent interest into a caveatable interest. Such a question had not been raised even in the affidavits of the appellants. We do not find any force therein.KKB, BKB and GPB claimed caveatable interest as co-owners of 1/5th share in Kumaon Orchards, two other co-owners being PB and S.K. Birla. S.K. Birla does not claim any caveatable interest in the estate of PDB. Even a person claiming an interest in the property of the testator by reason of an agreement for sale would not have a caveatable interest on the premise that such an agreement would be binding both upon the executor as also upon the heirs of the deceased (in the event, probate is not granted). The same principle would apply herein. Right of pre-emption, if any, is not affected by grant of probate. A right of pre-emption would arise only when a voluntary transfer is made for consideration in favour of a stranger and not prior thereto.Right of a co-owner is not affected by testamentary disposition. Indisputably, the object of conferring the right on a co-sharer or owner of an adjacent immovable property is to exclude strangers from acquiring interest in an immovable property as a co-sharer or to keep objectionable strangers away from the neighbourhood. The same by itself, in our considered opinion, does not constitute a caveatable interest.159. If the submission of the learned counsel that the executors had interest even during the life time of MPB is accepted the same would give rise to an absurdity.160. An executor must first become an executor. As MPB predeceased PDB, he never became an executor. If he did not become an executor, the question of filling up of any vacancy would not arise.161. For the aforementioned purpose, we may assume that the 1982 Will was valid. As MPB could never become an executor, BKBs appointment does not confer on him a caveatable interest. An appointment of an executor ordinarily is the function of a court in terms of Section 301 of the 1925 Act. We, however, need not go into the question as to whether his appointment was legal or not. But, we may only notice that even in the deed of appointment, there is nothing to show that the necessary ingredients for appointment of B.K. Birla by the surviving executors had been made out as it was not stated that the original executor had seized to hold office.162. The office of executor under the 1982 Will does not carry any remuneration therewith. The power to appoint an executor was dependent upon any executor ceasing to be one. The condition precedent has not been fulfilled. In the instant case, MPB had never become the executor, hence, the question of his "ceasing to be an executor" does not arise.163. Appellants are not the legatees of the said Will. They are not the beneficiaries thereunder. They being merely executors, in our opinion, would not clothe them with a right to lodge a caveat as by reason thereof they did not derive any caveatable interest in the estate of PDB.So far as the case of YB is concerned, his appointment as an executor has been upheld by the High Court. It was, however, opined that by reason thereof, he did not acquire any caveatable interest. RSL has filed an appeal against that part of the judgment whereby his appointment as an executor of the Will of MPB of 1992 in place of PDB has been upheld.167. For the reasons stated in regard to the legal position governing the filling up of vacancy of one of the named executors by the others, we are of the opinion that the appointment of YB as an executor of the Will of MPB in place of PDB cannot be sustained. It is not a case of YB that PDB had assumed office or the purported Will of MPB had been given effect to. Genuineness of the said Will is in question. KKB has already filed an application for grant of probate in respect of the said Will. As there is nothing to show that any vacancy has been created by reason of death of PDB, YB could not have been appointed in her place at this stage. The vacancy has to be filled up in terms of the instrument or in accordance with law. It cannot be directed to be filled in equity by a Court of Law as was submitted by Mr. Venugopal.168. We are furthermore of the opinion that only because YB has a right to maintain a suit for purported enforcement of the Mutual Wills, the same by itself cannot confer upon him a caveatable interest.169. There exists a distinction between an executor named by the testator in the Will and an executor who is appointed on a purported vacancy arising out of death of another executor. In the latter case such an appointment may not be valid. In a case of this nature YB could not be held to have caveatable interest only by reason of such an appointment as here is nothing on record to show that PDB had enjoyed the benefit under the said Will and not as an heir of MPB. If the Will had not been given effect to for such a long time, there is no reason as to why the terms thereof should be directed to be acted upon at this juncture and/or in terms thereof dispute between the parties in this behalf cannot be adjudicated upon at an interlocutory stage.The affidavit of assets annexed by the Birlas to their petition for grant of probate in respect of 1982 Will of MPD and the affidavit of assets annexed by them to the petition for grant of probate of 1982 Will of PDB show that the assets held by the former mentioned in the petition for probate of his Will of 1982 are also shown as assets of PDB.Prima facie BKB or YB were not appointed as trustee. They were only appointed as executors. An executor becomes a trustee only upon completion of administration of trust. This proposition does not appear to be in dispute. Administration of trust being incomplete, MPB did not become an executor. He, therefore, was not a trustee. Provisions of Section 73 of the Indian Trusts Act will, therefore, have no application. In the Will of PDB executed in the year 1982 he was merely named as an executor. It is also difficult, at this stage, to construe the Will of 1982 of PDB as an instrument of trust. The question in regard to the administration of the estate of PDB only arose after her death which took place in 2004. MPB died in 1990. The said provisions, therefore, have no application.Submission that RSL is an outsider and the bequest is un-natural does not appeal to us. Such a question cannot be determined at this stage. Why an owner of the property executes a Will in favour of another is a matter of his/her choice. One may by a Will deprive his close family members including his sons and daughters. She had a right to do so. The court is concerned with the genuineness of the Will. If it is found to be valid, no further question as to why did she do so would be completely out of its domain. A Will may be executed even for the benefit of others including animals. Various documents have been placed before us by the learned counsel appearing on behalf of the first respondent to show that MPB was not happy in regard to management of Birlas Group of Companies and by the division thereof which took place after the demise of G.D. Birla in 1983.177. Indisputably, however, they were separate. They were in the control and management of their respective companies. The group of companies managed by MPB and PDB were known as M.P. Birla Group of Companies. There are other companies, named separately, in the name of individual group of Birlas.We have already held that GPB has caveatable interests as executor of MPB in respect of his Will of 1982. We, therefore, see no reason as to why RSL would not have a caveatable interest being a beneficiary under the 1999 Will in the proceedings for grant of probate of the Will of MPB dated 13th July, 1982. If the grounds taken in the appeal are to be upheld, the same ex facie would destroy the case of the appellants in the other cases.We have noticed hereinbefore the averments made in the plaint of Civil Suit No.221 of 2004. Filing of the said suit, in our opinion, does not bar considering the caveatable interest and as we have not been called upon to decide the maintainability of the said suit at this stage, we do not make any observation thereupon. We have noticed the averments made in the plaint at some length only for the purpose of arriving at a finding on the question as to whether the plaintiffs therein have acquired any caveatable interest by reason thereof or not.183. In our opinion, the High Court was right in opining that a caveatable interest may arise only after suit for enforcement of mutual Will is decreed and not prior