Case: Saroj Agarwalla(Dead) Thr Lr Abhishek Agrawalla Vs. Yasheel Jain

2. The appellant Saroj Agarwalla is the propounder of a Will, alleged to have been executed by one Jagdish Prasad Tulshan. She claims to be the only surviving sister of the testator at the time of his death. She prayed for grant of the Probate of the Will allegedly executed by Jagdish. The respondent in the first appeal, i.e., C.A.No.473 of 2009 - Yasheel Jain lodged a caveat claiming to be the son of a pre-deceased sister of the testator and thus having interest in the estate of the deceased. His claim is founded on two grounds, firstly as a nephew of the testator and secondly as the sole beneficiary under an alleged prior Will of the testator in respect of the same estate.3. A learned Single Judge considered the objection raised by the propounder to the caveat filed by Yasheel Jain and rejected the objection. The Single Judge was of the view that the provision creating the right to file a caveat could be availed by a person who is not a rank outsider and could claim to be an heir after the propounder was no longer alive. In that view of the matter it was held that the caveat filed by Yasheel could not be discharged. Since the Single Judge did not discuss the claim of Yasheel based on an earlier Will, Yasheel filed a cross-objection before the Division Bench. The appeal and the cross objection were heard together. The Division Bench dismissed the appeal of the appellant and allowed the cross-objection by recording its prima facie satisfaction about existence of an earlier Will creating caveatable interest in favour of Yasheel. The Division Bench did not approve the view of the learned Single Judge that Yasheel had a caveatable interest as an heir of the testator but the conclusion of the learned Single Judge was approved, albeit for different reasons as noted above.4. In the connected civil appeal the prayer of the appellant for grant of probate of the afore-discussed Will of Jagdish Prasad Tulshan was opposed by the respondent Malati Tulshan. She claimed to be the second wife of the testator married on 28.02.1986 and lodged a separate caveat on that basis. The propounder later filed an application for discharge of the said caveat on the ground that Malati was never married to the testator and, therefore, had no caveatable interest in the matter.5. The learned Single Judge rejected the application for discharge of the caveat on the ground that the Will propounded by the appellant itself conferred some benefits upon Malati and therefore she had acquired caveatable interest. Single Judge also relied upon Rule 9 of Chapter XXXV of the Original Side Rules (hereinafter referred to as ‘theof Calcutta High Court to hold that in case any benefit is conferred upon a person by virtue of the alleged Will, the said rule provided for citation and was attracted. The Division Bench did not agree with the reasonings given by the learned Single Judge and held that mere receipt of some benefits under the Will cannot confer a caveatable interest in a third party unless he claims interest in the estate of the deceased otherwise than by way of Will sought to be probated. But the conclusions of the Single Judge were upheld on the basis of claim of Malati that she was widow of the testator. The Division Bench came to hold that the issue whether Malati is really a lawful widow of the testator or not cannot be conclusively decided in the probate proceedings but once prima facie materials support her claim, the application filed for discharge of her caveat deserves dismissal. This view is founded on the reason furnished by Division Bench by pointing out that a judgment in the probate proceedings is a judgment in rem and, therefore, a person establishing prima facie interest in the estate of the testator should be permitted to maintain a caveat and contest a claim for probate. At this stage, it is not necessary to establish caveatable interest by conclusive proof. The Division Bench finally made it clear that all its observations were tentative and such observations will not be binding upon the parties or upon any other court if the status of Malati is questioned in any proceedings.

Reasoning: The answer has been provided by learned counsel for the respondents by placing reliance upon paragraph 2 of the judgment of this Court in the case of Ishwardeo Narain Singh v. Kamta Devi (AIR 1954 SC 280 ). This Court pointed out thatCourt of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.Since we have noted the main submission on behalf of the appellant earlier, it is deemed proper to point out that although the caveator Yasheel Jain did not file the original Will, the Division Bench has noted that he has filed a photocopy of the prior Will allegedly executed by the testator and has also produced the registered envelope through which such copy was sent to him by the testator along with the forwarding letter written by him. Upon such materials, the Division Bench recorded its prima facie satisfaction that the caveat should not be discharged. In the case of caveat by respondent Malati, the Division Bench noted the citations in the Will propounded by the appellant showing Malati to be only a maid servant but on the basis of totality of facts and circumstances it rightly came to the conclusion that a person by merely making a contrary statement in the Will cannot change a real relationship if it actually existed and hence at least arguable case in favour of claim of Malati as regards her relation with the testator has been established and hence she deserves to be permitted to contest the probate proceeding. The Court, at the same time made it clear that whether Malati is really a lawful widow of the testator or not cannot be conclusively adjudicated in the probate proceedings and therefore, only a prima facie view was possible to decide whether her caveat should be discharged or not.