# KRISHNA KUMAR BIRLA ) v. RAJENDRA SINGH LODHA AND OTHERS

- **Citation:** [2008] 5 S.C.R. 640
- **Court:** Supreme Court of India
- **Decided:** 2008-03-31
- **Case number:** Civil Appeal No. 2277 of 2008
- **Bench:** S.8. Sinha, Harjit Singh Bedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/krishna-kumar-birla-v-rajendra-singh-lodha-and-others-24473
- **Pages:** 87

## Headnote

..
Succession- Indian Succession Act, 1925- Section 2(c),
2(h), 283, 284, 285 & 286 - Calcutta High Court Rules, 1940
c - Rule 4, 5(a), 24, 25, 26, 27, 28, 29 & 30- Indian Trusts Act,
1882 - Section 73 - Probate And Administration Act, 1881 -
Section 69, 70, 71, 72, 73 & 83.
Caveatable interest means an interest in the estate of
the deceased to which the caveator would otherwise be entitled
D to and having a special interest therein - Caveatable interest
may arise only after suit for enforcement of mutual Will is
decreed.
+
Manner of filing an application for grant of probate -
E
Jurisdiction of Probate Court - Discussed.
Construction of a Will relating to the right, title and interest
of any other person to whom a citation is to be issued or a
caveator, must have some interest in the estate of the testator.
,.
F
Judgment rendered in a probate proceedings - Not
determinative of the question of title.
Scope and applicability of Section 284 of Indian
)l
...
Succession Act.
Interpretation of Statutes:
G
Purposive construction to be resorted to having regard
to the purport and object of the Act.
,__
While interpreting the provisions of a statute, one must
+
also bear in mind the admitted legal position that a probate
H
640
·
KRISHNA KUMAR BIRLA v RAJENDRA SINGH LODHA
641
AND OTHERS
1 i
proceeding should not be converted into a title suit.
A
..
Code of Civil Procedure, 1908 - S. 122 - High Court
could frame Rules under the power conferred to it- Constitution
of India, Article 227.
Precedent - What could be done and has not been done B
by a Court of equity does not create precedent.
Words & Phrases:
"Ceasing to be" - "contention" - Meaning of
PDB and MPB were very wealthy persons. and c
owned an industrial empire known as Birla Group of
Industries. Both of them had executed mutual wills on
identical terms on or about 10.5.1981 bequeathing his/her
respective estate(s). Later, the wills were revoked and
another set of mutual wills were executed on 13.7.1982 D
and four executors were appointed in each set of will.
-t
MPB died on 30.7.1990. On or about 18.4.1999, PDB
executed her last will bequeathing her entire estate to tlJe
first respondent RSL, appointing him as the sole executor. E
PDB died on 3.7 .2004.
RSL filed an application for grant of probate. The
appellants in the connected appeals filed caveats. RSL
took out an application seeking discharge of caveats
entered into by KKB, BKB, GPB and YB before the High F
Court.
..,
~
A suit was filed by the surviving executors of the 1982
wills for a declaration that RSL was not entitled to deal
with the assets of PDB in any manner contrary to and
inconsistent with terms of the 1982 will.
G
Single Judge of the High Court allowed the
application of discharge of caveats filed by KKB, BKB and
+
YB; caveat filed by GPB was retained. Application filed
for discharge of caveat of RSL was also dismissed. H
642
SUPREME COURT REPORTS
[2008) 5 S.C.R.
,.
A Appeals were filed before the High Court. Cross
)-
objections were filed by RSL against retaining the caveat
filed by KKB, SKB and YB as also the appointment of YB
as the executor of MPB. The appeals and the cross
objections were dismissed. Hence the appeals.
B
On the basis of the contentions raised by the parties,
the question involved in the appeals is what is a cavetable
+
interest within the meaning of the Indian Succession Act
vis-a-vis the rules framed by the Calcutta High Court in
the year 1940.
c
Allowing Civil Appeal No. 2278 of 2008 filed by RSL
challenging the appointment of YB, and dismissing the
other appeals, the Court
HELD: 1.1 A suit in respect of property over which
D probate would have effect, 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
E right accrues under an unprobated Will except in case
where taking of probate is not

## Text

_Characters 0–39,908 of 163,007. This is a partial read: ask again with offset=39908 for what follows._

[2008] 5 S.C.R. 640
A
KRISHNA KUMAR BIRLA
)-
v
RAJENDRA SINGH LODHA AND OTHERS
(Civil Appeal No. 2277 of 2008)
B
MARCH 31, 2008
(S.8. SINHA AND HARJIT SINGH BEDI, JJ.)
..
Succession- Indian Succession Act, 1925- Section 2(c),
2(h), 283, 284, 285 & 286 - Calcutta High Court Rules, 1940
c - Rule 4, 5(a), 24, 25, 26, 27, 28, 29 & 30- Indian Trusts Act,
1882 - Section 73 - Probate And Administration Act, 1881 -
Section 69, 70, 71, 72, 73 & 83.
Caveatable interest means an interest in the estate of
the deceased to which the caveator would otherwise be entitled
D to and having a special interest therein - Caveatable interest
may arise only after suit for enforcement of mutual Will is
decreed.
+
Manner of filing an application for grant of probate -
E
Jurisdiction of Probate Court - Discussed.
Construction of a Will relating to the right, title and interest
of any other person to whom a citation is to be issued or a
caveator, must have some interest in the estate of the testator.
,.
F
Judgment rendered in a probate proceedings - Not
determinative of the question of title.
Scope and applicability of Section 284 of Indian
)l
...
Succession Act.
Interpretation of Statutes:
G
Purposive construction to be resorted to having regard
to the purport and object of the Act.
,__
While interpreting the provisions of a statute, one must
+
also bear in mind the admitted legal position that a probate
H
640
·
KRISHNA KUMAR BIRLA v RAJENDRA SINGH LODHA
641
AND OTHERS
1 i
proceeding should not be converted into a title suit.
A
..
Code of Civil Procedure, 1908 - S. 122 - High Court
could frame Rules under the power conferred to it- Constitution
of India, Article 227.
Precedent - What could be done and has not been done B
by a Court of equity does not create precedent.
Words & Phrases:
"Ceasing to be" - "contention" - Meaning of
PDB and MPB were very wealthy persons. and c
owned an industrial empire known as Birla Group of
Industries. Both of them had executed mutual wills on
identical terms on or about 10.5.1981 bequeathing his/her
respective estate(s). Later, the wills were revoked and
another set of mutual wills were executed on 13.7.1982 D
and four executors were appointed in each set of will.
-t
MPB died on 30.7.1990. On or about 18.4.1999, PDB
executed her last will bequeathing her entire estate to tlJe
first respondent RSL, appointing him as the sole executor. E
PDB died on 3.7 .2004.
RSL filed an application for grant of probate. The
appellants in the connected appeals filed caveats. RSL
took out an application seeking discharge of caveats
entered into by KKB, BKB, GPB and YB before the High F
Court.
..,
~
A suit was filed by the surviving executors of the 1982
wills for a declaration that RSL was not entitled to deal
with the assets of PDB in any manner contrary to and
inconsistent with terms of the 1982 will.
G
Single Judge of the High Court allowed the
application of discharge of caveats filed by KKB, BKB and
+
YB; caveat filed by GPB was retained. Application filed
for discharge of caveat of RSL was also dismissed. H
642
SUPREME COURT REPORTS
[2008) 5 S.C.R.
,.
A Appeals were filed before the High Court. Cross
)-
objections were filed by RSL against retaining the caveat
filed by KKB, SKB and YB as also the appointment of YB
as the executor of MPB. The appeals and the cross
objections were dismissed. Hence the appeals.
B
On the basis of the contentions raised by the parties,
the question involved in the appeals is what is a cavetable
+
interest within the meaning of the Indian Succession Act
vis-a-vis the rules framed by the Calcutta High Court in
the year 1940.
c
Allowing Civil Appeal No. 2278 of 2008 filed by RSL
challenging the appointment of YB, and dismissing the
other appeals, the Court
HELD: 1.1 A suit in respect of property over which
D probate would have effect, 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
E right accrues under an unprobated Will except in case
where taking of probate is not mandatory. [Para 76]
[683-D-E]
'.
1.2 A suit which would be maintainable must have
·something to do with the estate of the testator. Inheritance
F by Will itself may be a subject matter of contention.
Whether the interest claimed by the caveator is an
,..
established one or a bare claim must satisfy the test that
A
there exists an interest in the estate of the testator and
the same is not adverse thereto. [Para 78] [684-D]
G
Elizabeth Antony v. Michel Charles John Chown Lengera
(1990) 3 SCC 333; Kanwarjit Singh Dhillon v. Hardayal Singh
Dhillon and others 2007 (12) SCALE 282; Chiranjilal Shrilal
Goenka v. Jasjit Singh and Ors. (1993) 2 SCC 507 and Basanti
Devi v. Raviprakash Ramprasad Jaiswal (2007) 12 SCALE
+
H 542 - relied on.
KRISHNA KUMAR BIRLA v. RAJENDRA SINGH LODHA
643
AND on:ERS
Abhiram Dass v. Gopal Dass ILR 17 Calcutta 48; A
Prijoshah Bhikaji v. Pestonji Merwanji 12 Born LR 366;
Rahamtullah Sahib v. Rama Rau & Anr. ILR 17 Madras 373;
Nikunj Kumar Lohia v Narayan Prasad Garodia & Others 1996
,1) CHN 205; Goods of Mohammad Bashir (deceased) AIR
1964 Cal 34; Smt. Namita Singha v. Joydeb Chandra Paul B
AIR 2006 Cal 230; M.S. Saraswathi v. M.S. Selvadurai &
Anr.(1997) 3 LW 541 (Mad); Mrs. Perviz Sarosh Batliwal/a &
Anr. v. Mrs. Viloo Plumber & Anr.AIR 2000 Born 189; Rajiv
Ramprasad Gupta v. Rustom Sam Boyee AIR 2003 Born 242;
Nobeen Chander Sil and others v. Bhobosoondari Debee ILR c
6 Calcutta 460; G. Jayakumar v. R. Ramaratnam AIR 1972
Mad 212; Nabin Chandra Guha v. Nibaran Chandra Biswas
and others AIR 1932 Calcutta 734 and Gourishankar
Chattoraj v. Smt. Satyabati Debi AIR 1931 Calcutta 470 -
referred to.
D
-+
2.1 Two sisters of MPB being alive (one of them is
since deceased), indisputably in the event the application
for grant of probate of RSL in respect of the 1999 Will is
refused they will have an interest in the estate of the
testatrix. The right of the said sisters of MPB being definite E
and clear, it is not a case where it is necessary to apply
the bare possibility or the common ancestor test. [Para 93]
[689-C-D]
2.2 Both MPB and PDB claimed their interest in certain
companies. The subject matter of the Will is not the
F
, •
ancestral property over which the caveators claim any
interest. It is one thing to say that the subject matter of
the will is 'coparcenary' or a 'joint family property' in which
case the larger concept of interest in the agnates would
apply, but it is another thing to say that if people are G
available who would otherwise represent the interest of
the estate and against whom citations have been issued,
others who have no interest would also be entitled to enter
a caveat. [Para 94] [689-D-F]
H
644
SUPREME COURT REPORTS
[2008] 5 S.C.R.
A
Brindaban Chandra Shaha v. Sureshwar Shaha
Parmanick and others 10 Cal. LJ 263 and Gourishankar
Chattoraj v. Smt. Satyabati Debi AIR 1931 Cal 470 - held
inapplicable.
B
Dinabandhu Roy Brajaraj Saha v. Sara/a Sundari Dassya
wlo Hara/a/ Saha AIR 1940 Calcutta 296 - referred to.
3. A Will is executed when the owner of a property
+
forms an opinion that his/ her estate should not devolve
upon the existing heirs according to the law governing
c intestate succession. When, thus, a person who would
have otherwise succeeded to the estate of the testator,
would ordinarily have a caveatable interest, any other
person must ordinarily show a special interest in the
estate. Such a special interest may be a creditor of the
D deceased. But, the same would not mean that even if the
estate of the deceased is being represented by the legal
heirs, caveat can be entertained at the instance of a person
+
who has no real interest therein or in other words would
merely have a contingent interest. [Para 97, 98] [689-C-F]
E
Radharaman Chowdhuri and others vs. Gopa/ Chandra
•
Chakravarty AIR 1920 Calcutta 459 and Sara/a Sundari
Dassya v. Dinabandhu Roy Brajaraf Saha (Firm) AIR 1944
PC 11 - referred to.
4. A transferee pendente lite without the leave of the
F court would not have a caveatable interest and as such
cannot be impleaded as a party. A person cannot also be
impleaded as a party even on an apprehension that those
..
who have a caveatable interest and to whom citations
have been made would not take any interest in the
G litigation. [Para 99] [689-F-G]
Jagdish Chander v. State & Anr. 1988 RLR 678 and Sunil
Gupta v. Kiran Girhotra & Ors. 2007 (12) SCALE 59 - referred
to.
+
H
KRISHNA KUMAR BIRLA v. RAJENDRA SINGH LODHA
645
AND OTHERS
5. A statute must be interpreted having regard to the A
purport and object of the Act. The doctrine of purposive
construction must be resorted to in a case of this nature.
The court must place itself in the chair of a reasonable
legislator. In so doing, it would not be permissible for the
court to construe the provisions in such a manner which B
+
would destroy the very purpose for which the same was
enacted. The principles in regard to the approach of the
Court in interpreting the provisions of a statute with the
change in the societal condition must also be borne in
mind. [Para 104] [693-B-C; 694-F]
c
New Indian Assurance co: v. Nusli Neville Wadia and
Anr. 2007 (14) SCALE 556; Bharat Petroleum Corporation
Ltd. v. Maddula Ratnavalli & Ors. (2007) 6 SCC 81, para 22
and Anuj Garg & Ors. v. Hotel Association of India & Ors. (2007)
13 SCALE 762 - relied on.
D
6.1 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 E
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. [Para 106] [695-E-F]
6.2 Directly or indirectly the appellants and in F
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 G
i~permissible in law. [Para 107] [695-G]
6.3 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 H
646
SUPREME COURT REPORTS
[2008] 5 S.C.R.
A worded. Such an interpretation would lead to an
anomalous situation. It is, therefore, not possible to
accede to the submission that caveatable interest should
be construed very widely. [Para 109] [696-C]
6.4 A caveatable interest is not synonymous with the
8 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. While interpreting the provisions of a
C statute, one 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
D disposition. [Para 110 and 111] [696-D-F]
7. Section 284 of the 1925 Act only provides for a
+
forum and nothing more. It has nothing to do with
qualification. Drawing attention to the decisions prevailing
prior to coming into force of the 1925 Act, as also the
E decision of the Bombay High Court it was contended that
the legislature having not changed the wordings of the
earlier statute despite judicial interpretation of the
terminologies thereof, must be held to have not intended
to rectify the same. It is not necessary to go into the said
F question as the decisions upon which reliance has been
placed are either not good law or not relevant for the
present purpose. [Para 113, 114] [696-H; 697-A-C]
Pirajshah Bikhaji & Others v. Pestonji Merwanji (1910)
G ILR 34 Bombay 459 - referred to.
8. The Rules framed by the Calcutta High Court
provide for determination of the issue of caveatable
interest as a preliminary issue. There is no reason as to
why the High Court, in exercise of its powers conferred
H upon it under Section 122 of the Code of Civil Procedure,
KRISHNA KUMAR BIRLA v. RAJENDRA SINGH LODHA
647
AND OTHERS
could not frame such Rules. After coming into force of A
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 is
to be accepted that there being no such provision in the
Act for determination of such an issue as preliminary s
issue, the High Court could not have framed the Rules,
This Court is 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 c
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. 0
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. Therefore, there is no legal infirmity in
the Rules. [Para 115] [697-D-H; 698-A]
E
9.1 A Will by its nature is revocable. It is the last desire
of the testator. Till he breathes his last, he will have a final
say. In short, the latter Will revoking the earlier Will would
be probated. It is one thing to say that the agreement F
between the parties to the purported mutual Will would
not affect any agreement or arrangement on the
application of the latter Will or the estate of the testator
must be administered in terms of such agreement.
[Para 116] [698-C-D]
9.2 Despite the existence of a mutual Will, the
representative under the latter Will will take the property.
G
\
He, however, takes the property subject to the terms of
the Mutual Will. Whether there exists any such agreement
enforceable either in equity or by way of a suit for specific H
648
SUPREME COURT REPORTS
[2008] 5 S.C.R.
A performance, will have to be considered only in the
event the probate is granted and not prior thereto. [Para
116] [698-E-F]
Halsbury's Laws of England, Fourth Edition, Volume 50,
page 108; Lewin on Trusts, Seventeenth Edition, pages 270B 271; Theobald on Wills, Sixteenth edition, pages 26, 27
(Paras 2.09 & 2.11) and Williams, Mortimer and Sunnucks
on Executors, Administrators and Probate, 18th edition, pages
131-132 - referred to.
c
10. 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. In this country, we are
bound to follow the law laid down under the statute or
the decision which create binding precedents. An
0 observation made by a Court of Probate would not
persuade this Court to hold that the High Court should
have taken recourse to "advance from the region of
testamentary disposition into that of contracts and trusts
and to declare certain trusts upon the footing of
contract" which could be done by the Chancery Division.
E [Para 123] [701-C-D]
Kuppuswami Raja and another v. Perumal Raja and
Others AIR 1964 Madras 291 - distinguished.
Walker and Another v. Gaskill and Others [1914] P. 192
F - referred to.
American Jurisprudence, Second Edition, Vol. 79, page
850 and Corpus Juris Secundum, Vol. XCVll, pages 304 to
312 - referred to.
G
11. 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. A
subsequent infringing .Will would be valid even if it
revokes an earlier Mutual Will. Similarity of the terms would
H not be enough to establish the necessary agreement.
.·i ~··.'
+
KRISHNA KUMAR BIRLA v. RAJENDRA SINGH LODHA
649
AND OTHERS
Whether a legatee has taken any benefit under the alleged A
Wills of 1982 would, however, be relevant. [Para 132]
[705-E-H]
Dilharshankar C. Bhachech v. Controller of Estate Duty
(1986) 1 SCC 701 and Shiva Nath Prasad v. State of WB.
and Others (2006) 2 SCC 757 - referred to.
B
Branchflower et al v. Massey 208 P. 2d 341; Birmingham
and Others v. Renfrew and Others 57 C.L.R. 666 and Re Dale
(deceased) Proctor v. Dale (1993) 4 All ER 129 - referred to.
12.1 It is too far fetched a submission that a person C
having a remote family connection or as an agnate is
entitled to file a caveat. A reversioner or an agnate or a
family member can maintain a caveat only when there is
a possibility of his inheritance of the property in the event
the probate of the Will is not granted. If there are heirs 0
intestate who are alive, entertaining of a caveat on the part
of another family member or a reversioner or an agnate
or cognate would never arise. The Hindu Succession Act,
1956 has brought about a sea change in the matter of
inheritance and succession. Agnate or cognates are, thus,
recognized as heirs. They may be the erstwhile members E
of a nuclear family. So far as heirs and legal
representatives of the family are concerned, the Hindu
Succession Act clearly lays down five classes of heirs,
Sisters of husband belong to Class II heir. They succeeded
to the interest of MPB in 2004 on the death of PDB.
F
Appellants accepted the said fact but contended that as
the life of the said heirs was uncertain they, thus, have a
caveatable interest. It has been accepted that there would
be no difficulty in ascertaining the successors of PDB. It
is an indisputable case of intestacy having regard to G
Section 15 of the Hindu Succession Act. [Para 133, 134,
135] [706-A-F]
t
12.2 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 H
650
SUPREME COURT REPORTS
[2008] 5 S.C.R
A in their own right and not as the heirs of MPB. The dispute
regarding intestacy does not change the law of
succession and inheritance. 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
8 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
C would pass on to their legal heirs. Appellants being not
the heirs of MPB or PDB have no caveatable interest. [Para
137, 138] [707 -A-D]
13.1 The theory of looking after the spiritual wellD 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
E said consideration has lost its relevance. [Para 139]
[707-E]
13.2 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
F into a caveatable interest. Such a question had not been
raised even in the affidavits of the appellants. [Para 140]
[707-F-G]
14. The affidavit of KKB also reiterates the contents
of the plaint. No contention, however, has been raised that
G they have a caveatable interest keeping in view the
spiritual life of MPB and the testatrix as a member of the
family or otherwise. Similar affidavits have been filed by
others. The sisters are also supporting the Birla family.
The claim of acquiring cavetable interest on the said basis,
H thus, is wholly unacceptable. [Para 141] [709-H; 710-A-B]
f
KRISHNA KUMAR BIRLA v. RAJENDRA SINGH LODHA
651
AND OTHERS
~
15.1 A right to claim pre-emption is not a right in the A
estate. It creates an interest in the property. It does not
create an interest in succession. If such a right has been
created by an agreement, the same can be enforced only
in the event any contingency in that behalf takes place. A
Will ·is not a transfer for enforcement of a right of preB
emption under a contract. It must be enforced by a suit.
[Para 142] [710-C-D]
15.2 KKB, BKB and GPB claimed caveatable interest
as co-owners of 1/51h share in Kumaon Orchards, two
other co-owners being PB and SKB. SKB does not claim c
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 D
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 E
a stranger and not prior thereto. [Para 143] [711-D-F]
15.3 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
F
•
acquiring interest in an immovable property as a co-sharer
or to keep objectionable strangers away from the
neighbourhood. The same by itself does not constitute a
caveatable interest. [Para 145] [711-G-H; 712-A]
Atam Prakash v. State of Haryana & Ors. (1986) 2 SCC
G
249, Bhoop v. Matadin Bhardwaj (1991) 2 SCC 128 and Sri
Audh Behari Singh v. Gajadhar Jaipuria & Ors. AIR 1954 SC
t
417 - referred to.
16.1 Will takes effect after the death of testator. Rights
H
652
SUPREME COURT REPORTS
[2008] 5 S.C.R.
A and obligations of an executor of a Will arise only then.
B
No right is created in the executor during the life time of
the testator. Appointment of a testator and appointment
of a trustee stand completely on different footings.
[Para 150] [713-B]
16.2 A person named as an executor under a Will
cannot claim any right to act as an executor until the death
of the testator. He has to survive him. He has to accept
the office as an executor expressly or by conduct. The
term "ceasing to be" thus necessarily means assumption
C of office of executor and thereafter ceasing to hold such
office, by renouncement or removal or death, etc.
[Para 151] [713-C-D]
16.3 An executor must first become an executor. As
0 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. For the aforementioned
purpose, it may be assumed that the 1982 Will was valid.
As MPB could never become an executor, BKB's
appointment does not confer on him a caveatable interest.
E An appointment of an executor ordinarily is the function
of a court in terms of Section 301 of the 1925 Act. This
Court, need not go into the question as to whether his
appointment was legal or not, but, only notice that even
in the deed of appointment, there is nothing to show that
F 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. [Para 160, 161] [718-A-C]
G
16.4 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, ttie question of his "ceasing to be an
H
•
KRISHNA KUMAR BIRLA v. RAJENDRA SINGH LODHA
653
AND OTHERS
executor" does not arise. [Para 162] [718-D-E]
A
16.5 Appellants are not the legatees of the said Will.
They are not the beneficiaries thereunder. They being
merely executors, would not clothe them with a right to
lodge a caveat as by reason thereof they did not derive
B
any caveatable interest in the estate of PDB. [Para 163]
[718-F]
Jnanadndra Nath Mukherjee and another v. Jitendra
Nath Mukherjee and others AIR 1928 Cal. 275; Sri Raja
Kakadapudi Venkata Sudarshana Narasayyamma and others c
v. Andhra Bank Ltd., Vijayawada and others, AIR 1960 AP 273;
Ramautar Singh v. Ramsundari Kur., AIR 1959 Pat 585; Leo
Sequiera v. Magdalene Sequiers Bai and others, AIR 1971
Mysore 143 and Smt. Usharani Roy v. Smt. Hemlata Roy
AIR 1946 Cal. 40 - relied on.
D
Salton v. New Beeston Cycle Company (1899) 1
LR.Ch.D. 775; Re Lighton ER (1 HAGG. ECC) 569 and RE
Henrietta Johnson ER (1 SW& TR-18) 609 - referred to.
Williams on Executors, 15th Edition page 34 - referred
to.
E
17. GPB was held to have caveatable interest on the
premise that he was named as an executor. He, therefore,
has rightly been held to have a caveatable interest. An
application for grant of probate of 1982 Will is also
pending. Therein a contention has been raised by the first F
respondent that the said Will was not genuine. If
.,.
respondent No.1 has a caveatable interest in respect of
1982 Will, GPB would not have any right in respect of 1999
Will. [Para 164, 165] [718-G-H; 719-A]
18.1 So far as the case of YB is concerned his G
.
'
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
't
appeal against that part of the judgment whereby his
appointment as an executor of the Will of MPB of 1992 in H
654
SUPREME COURT REPORTS
[2008] 5 S.C.R.
A place of PDB has been upheld. 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,
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
B 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
c 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. [Para 166,
167] [719-B-F]
D
18.2 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.
There exists a distinction between an executor named by
the testator in the Will and an executor who is appointed
E 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
F 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
G parties in this behalf cannot be adjudicated upon at an
interlocutory stage. (Para 168, 169) [719-G-H; 720-A-B]
18.3 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
-f
H petition for grant of probate of 1982 Will of PDB show that
,
_,
...
1
KRISHNA KUMAR BIRLA v. RAJENDRA SINGH LODHA
655
AND OTHERS
the assets held by the former mentioned in the petition A
for probate of his Will of 1982 are also shown as assets of
PDB. [Para 172] [721-H; 722-A-B]
Mrs. Hem Nolini Judah (since deceased} and after her
_egal Representative Mr. Marlean Wilkinson v. lsolyne
Sarojbashini Bose and others AIR 1962 SC 1471 - referred 8
to;
19. A suit contemplated under Section 92 of the Code
of Civil Procedure cannot be equated with a probate. In a
suit under Section 92 of the Code of Civil Procedure, t~e c
title of the donor may be disputed. Such a question as of
necessity must be gone into by the court which, however,
is a forbidden domain for the Probate Court. [Para 173]
[722-8-C]
Sirajul Haq Khan & Others v. The Sunni Central Board D
of Waqf, UP and Others 1959 SCR 1287 - referred to.
20. Provisions of Section 73 of the Indian Trust Act
have limited application. Applicability thereof would arise
when a trustee disclaims, dies or is absent from India for
a period of more than six months or leaves India for the E
purpose of residing abroad or is declared an insolvent
etc. 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 F
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 G
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 H
656
SUPREME COURT REPORTS
[2008] 5 S.C.R.
A application. [Para 174, 175] [722-E-H; 723-A]
21. 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
B
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 on behalf of the
c 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. Indisputably, however, they were
separate. They were in the control and management of
D 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.
According to the first respondent he had closely been
E involved in the M.P. Birla Group of Companies and had
been inducted as Director/Co-Chairman/Chairman of
various M.P. Birla Group of Companies during the lifetime
of PDB. Other persons belonging to Birla family were not
so involved. In fact according to the appellants
F themselves, the first respondent was a man of trust so far
PDB is concerned. Thus, the submission that RSL is an
outsider does not appeal to this Court to determine the
issues in favour of Birlas. [Para 176, 177, 178 and 179]
[723-8-G; 724-F]
G
22. It has already held that GPB has caveatable
interests as executor of MPB in respect of his Will of 1982.
Therefore, there is no reason 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
H dated 13th July, 1982. If the grounds taken in the appeal
KRISHNA KUMAR BIRLA v. RAJENDRA SINGH LODHA
657
AND OTHERS
are to be upheld, the same ex facie would destroy the case A
of the appellants in the other cases. [Para 181] [724-H;
725-A-B]
23.1 Filing of Civil Suit No.221 of 2004 does not bar
considering the caveatable interest and as this Court is
not called upon to decide the maintainability of the said B
suit at this stage, no observation is made thereupon.
[Para 182] [725-C]
23.2 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 C
thereto. [Para 183] [725-D]
24. Keeping in view the facts and circumstances of
the case, the probate proceedings should be taken up
for hearing by the High Court as expeditiously as possible. 0
The High Court is requested to consider this aspect of
the matter. Probate proceedings may also be taken up for
hearing one after the other. Probate proceeding of RSL in
respect of Will of PDB executed in the year 1999 should
be taken up first. The hearing of the probate proceeding
E
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 be taken up for
hearing only after the disposal of the probate
proceedings, if necessary. [Para 185, 186, 187] [725-G-H;
F
726-A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2277 of 2008.
From the Judgment and Order dated 21.12.2006 of the G
High Court of Judicature at Calcutta in G.A. No. 1429 of2005 in
A.P.O.T. No. 284 of 2005 in A.P.O. No. 242 of 2005.
WITH
Civil Appeal Nos. 2278, 2274, 2276, 2279 and 2275 of2008.
H
658
SUPREME COURT REPORTS
[2008] 5 S.C.R.
A
Ram Jethmalani, Shyam Sarkar, Mahesh Jethmalani, K.K.
Venugopal, Dushyant Dave, Arun Jaitley, Bhaskar P.Gupta,
Harish N. Salve, A.K. Mitra, Indira Jaisingh, P.H. Parekh, Pratap
Chatterjee, Anindya Kumar Mitra, Abnhrajit Mitra, Nand Gopal
Khaitan, Ajay Bhargava, Atul Shankar Mathur, Vanita Bhargava,
B Akhil Sibal, D.N. Sharma, Nupor Mukherjee (for M/S. Khaitan &
Co.), B.A. Ranganadhan, Amit Sibal, Abhradt Mitra, D. Manda!,
Sanjiv Trivedi, Sameer Parekh, E.R. Kumar, Ankur Chawla,
Minakshi Grover, Ranjeeta Rohatgi, Mary Mitgy, Sumit Goel,
Arjun Garg, Pallavi Srivastava, Pawan, Rukmini Bobde,
c Meenakshi Chatterjee (for M/s P.H. Parekh & Co.), Ashish Jha,
Pratap Chatterjee, lndraneel Ghosh, Sangeeta Manda!, D.
Manda!, Sanjiv Trivedi, Jayasree Singh and Swati Sinha (for M/
s Fox Manda! & Co.) for the appearing parties.
D
The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted.
INTRODUCTION
2. What is a caveatable interest within the meaning of the
E Indian Succession Act, 1925 (1925 Act) vis-a-vis the Rules
framed by the Calcutta High Court in the year 1940 is the
question involved herein.
BACKGROUND FACTS
3. Smt. Priyamvada Devi Birla (PDB) and her husband
F
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.
G
4. Both MPB and PDB are said to have executed mutual
wills on identical terms on or about 1 oth 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
H nominated by the executors. However, the said wills were
+
KRISHNA KUMAR BIRLA v. RAJENDRA SINGH LODHA
659
/AND OTHERS [S.B. SINHA, J.]
revoked and another set of mutual wills were executed on 13th A
July, 1982 in terms whereof, four executors were appointed in
each set of Will (1982 Will).
The executors nominated in MPB's Will were :-
1. Smt. Priyamvada Devi Birla (PDB)
B
2. Krishna Kumar Birla (KKB)
3. Kashinath Tapuria and
4. Pradip Kumar Khaitan ;
c
Whereas the executors nominated in PDB's will were :-
1. Madhav Prasad Birla (MPB)
2. Ganga Prasad Birla (GPB)
3. Kashinath Tapuria .
D
4. Pradip Kumar Khaitan
5. MPB died on 30th July, 1990.
6. On or about 18th April, 1999, PDB executed her last E
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.
F
PROCEEDINGS BEFORE THE HIGH COURT
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 G
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
H
660
SUPREME COURT REPORTS
[2008] 5 S.C.R.
A
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.
B
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
c 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
D 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
E
MPB dated 13th July, 1982 and P.L.A. No. 242 of2004 forgrant
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
F 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
G 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
H founded on the doctrine of mutual Wills.
KRISHNA KUMAR BIRLA v. RAJENDRA SINGH LODHA
661
AND OTHERS [S.S. SINHA, J.]
-1
15. Two deeds of appointments dated 23rd August, 2004 A
and 24th August, 2004 were also executed appointing YB and
BKB as surviving executors of the Wills of MPS and PDB (1982
Wills) in place of PDB and MPS respectively. Whereas
appointment of YB was accepted; that of BKB was not.
16. An application (G.A. No. 2721 of 2004) was filed by 8
the first respondent to discharge the caveators viz. KKB, BKB,
GPB and YB before the Calcutta High Court.
HIGH COURT JUDGMENTS
17. A learned Single Judge of the High Court allowed the c
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 D
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 thereagainst.