Krishna Kumar Birla vs Rajendra Singh Lodha & Ors

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.

8. 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.

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 6 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.

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 thereagainst. 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.

19. We may, at the outset, notice the details of the SLPs filed by the parties herein :-

47. PDB executed the disputed Will on 18th April, 1999, in terms whereof any Will made prior thereto stood cancelled. In the said Will, she categorically stated that she had been running several business concerns and also managing properties and institutions, bequeathed to her, in the true and sincere spirit of a trustee for the larger benefit of the country and of the interest of shareholders and workers.

49. On or about 15th April, 2003, a Codicil was executed with a view to avoid any confusion or ambiguity in the 1999 Will. By reason thereof, certain declarations were made and some directions were also issued to the first respondent.

96. Smt. Laxmi Devi Newar and Smt. Radha Devi Mohatta were heirs and legal representatives of PDB. Even in the event application of RSL for 51 the grant of probate is dismissed, they and/ or their respective heirs would continue to represent the estate of PDB.

109. It is in that backdrop the question which is required to be posed is:

While dealing with the probate issue, therefore, the authors categorically state that only the latter Will would have to be probated.

The said authority, therefore, does not advance the case of the appellants.

132. The principles which can be deduced from the discussions made heretobefore are :-

FAMILY INTEREST

SPIRITUAL WELL-BEING

QUALITY OF TITLE

PRE-EMPTION : FUTURE DOMAIN DOCTRINE

AS EXECUTORS OF 1982 WILL

152. The genuineness of the Will executed by MPB and PDB in 1982 is not admitted by the first respondent. Their genuineness therefore is in question.

There is nothing to show that BKB or any other executor accepted the office of the executor during the life time of MPB or PDB. In the absence of any such statement having been made, the said authority cannot be said to have any application.

Whether the executor has accepted the office or not will depend upon the facts of each case. In this case the 89 plaintiff has not given evidence and no oral evidence was at all tendered by her. We can only, therefore, deduce the fact of her acceptance from the record available. In Ex. B-2, the counsel of the plaintiff stated that his client was appointed as an executrix under the will of her husband and that he was instructed to take adequate legal steps to have the estate duly represented. We are of opinion that this letter written obviously on behalf of the plaintiff is enough to constitute acknowledgment or the acceptance of the plaintiff of her office as an executrix."

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.

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. CAVEATABLE INTEREST OF GPB AS A NAMED EXECUTOR

164. GPB was held to have caveatable interest on the premise that he was named as an executor. He, therefore, in our opinion, has rightly been held to have a caveatable interest.

APPOINTMENT OF YB AS AN EXECUTOR IN PLACE OF MPB 92

927). But it is urged on behalf of the appellant that this section will not bar her because she obtained letters of administration of the will of her mother Mrs. Mitter under which she is claiming and that it was not necessary 95 for Mrs. Mitter to have obtained probate of the will of Dr. Miss Mitter in her favour.

172. 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.

APPLICATION OF SECTION 92 CPC

SECTION 73 OF THE INDIAN TRUST ACT.

179. The said arguments, therefore, do not appeal to us to determine the issues in favour of Birlas. We wish that these contentions were not raised before us.

APPEAL ARISING OUT OF SLP (C) NO. 19040 OF 2007

180. Whether RSL has a cavetable interest in the proceeding in respect of the probate of the Will of MPB dated 13th July, 1982 is also in question in this appeal.

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 thereto.

EPILOGUE 101

184. Before parting with this case we may notice some disturbing features. Each party for good or bad reasons has been opposing one or the other application filed by the other. It is stated that respondent No.1 is opposing the application for substitution of heirs and legal representatives of Mrs. Laxmi Devi Newar, sister of MPB. We do not know on what premise such a stand is being taken. Counsel for both the parties put the blame on the other side for causing delay in disposal of the matters.

185. We, keeping in view the facts and circumstances of the case, are of the opinion that the probate proceedings should be taken up for hearing by the High Court as expeditiously as possible. We would request the High Court to consider this aspect of the matter.

186. Probate proceedings may also be taken up for hearing one after the other.

187. Probate proceeding of RSL in respect of Will of PDB executed in the year 1990 should be taken up first. The hearing of the probate proceeding of Will of MPB of 1982 may be taken up immediately thereafter. Judgments may be delivered, if possible, at the same time. The suit filed by the executors of the two 1982 Wills being Civil Suit No. 221 of 2004 may 102 be taken up for hearing only after the disposal of the probate proceedings, if necessary.

CONCLUSION

188. For the reasons aforementioned, Civil Appeal arising out of SLP (C) No. 10176 of 2007 filed by RSL challenging appointment of YB is allowed and all other appeals are dismissed with costs.

189. Who would be the beneficiaries of the case? We think that benefit should go to Legal Services Authority. We direct the appellants in the appeal filed by Birlas should deposit a sum of Rs.2,50,000/- (Rupees Two lac fifty thousand only) with the Member Secretary of West Bengal Legal Services Authority. Such deposit should be made within four weeks from today, failing which the West Bengal Legal Services Authority would be entitled to realize the amount by filing application for execution wherefor cost would be borne by the appellant herein. Let a copy of this order be sent by the Registry to Member-Secretary, West Bengal Legal Services Authority.

March 31, 2008