LexSAROJ AGARWALLA (DEAD) THR. LR ABHISHEK AGRAWALLA versus YASHEEL JAIN
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[2016] 5 S.C.R. 876 A SAROJ AGARWALLA (DEAD) THR. LR ABHISHEK B c D E F G H AGRA WALLA v. YASHEEL JAIN (Civil Appeal No. 473 of2009) OCTOBER 24, 2016 [DIPAK MISRA AND SHIVA KIRTI SINGH JJ.] Caveat - Original Side Rules of Calcutta High Court - Chapter XXXV- rr. 9,24,28,30 - Testamentary and intestate jurisdiction - Caveat against grant of probate - Caveatable interest - Application for discharge of caveatable interest - Maintainability of - Proceedings initiated by appellant for grant of probate on the basis of Will and testament of appellants brother - Appellant pleaded for rejection of the caveats of respondents - High Court turned down appellants plea - On appeal, Held: 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 for probate - It is not necessary to establish caveatable interest by conclusive proof - rr. 28 and 30 make it clear that before the proceedings are numbered as a suit by orders of a Judge for being tried as a suit as per provisions of the C.P.C, the Court may take up a preliminary issue, whether the caveator has a caveatable interest, if an application praying rejection for caveats is filed before the Court - Court to discharge the caveat where, upon trial of such issue, it appears that caveator has no caveatable interest - On facts, claim of grant of probate prejudiced the rights of the respondents, hence they had a caveatable interest - Consequently, caveats filed by them could not be discharged. Dismissing the appeals, the Court HELD: 1. 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. [Para 5) (880-B) 876 SAROJ AGARWALLA (DEAD) THR. LR ABHISHEK AGRA WALLA v. YASHEEL JAIN 2. Rules 28 and 30 of the Original Side Rules of the Calcutta High Court make it abundantly clear that before the proceedings are numbered as a suit by orders of a Judge for being tried as a suit as per provisions of the Code of Civil Procedure, the Court may take up as a preliminary issue, whether the caveator has a caveatable interst, if such an application is filed before the Court by the petitioner. The preliminary issues are triable before the proceedings are treated as a full-fledged suit under order of the Judge concerned. Whereas suit is required to be tried as per provisions of the Code, the procedure for trial of preliminary issue has been left to the discretion of the court. Rule 30 does not require the court to come out with specific findings in respect of preliminary issue because the language used in Rule 30 requires the court to discharge the caveat where, upon trial of such issue, "it appears that the caveator has no interest ........ ". [Para 8] [881-F-H; 882-A] 3. The case of the respondents in both the present appeals is that they have a caveatable interest. The preliminary issue does not relate to the validity or legality of the Will sought to be probated but only to the issue whether the caveator has an interest for which he can maintain the caveat. Although, one respondent-caveator did not file the original Will but 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. Based upon such materials, caveat filed by him should not be discharged. Insofar as the other respondent- caveator is concerned, issue whether the she was really a lawful widow of the testator or not cannot be conclusively decided in the piobate proceedings but once prima, facie materials supported her claim, the application filed for discharge of her caveat deserved dismissal. The test which may applied in the present case is : Does the claim of grant of probate prejudice the respondent's right because. it defeats some other line of succession in terms whereof the respondent as a caveator asserted his/her right? Since the answer, in the facts of the case would be in the affirmative, the respondents have a caveatable interest. [Paras 8, 9, 11] [882-B-E, G; 883-A] 877 A B c D E F G H 878 SUPREME COURT REPORTS [2016) 5 S.C.R. A Krishna Kumar Bir/a v. Rajendra
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