Bombay High Court
Rhea Parthasarathy vs Ravi Parthasarathy (Deceased No. 1) on 3 September, 2025
2-IA-L-20148-2025(1).DOC
2025:BHC-OS:14411
Sumedh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION (L) NO.20148 OF 2025
IN
CAVEAT (L) NO.19816 OF 2025
IN
PETITION NO.1131 OF 2025
(i) Ravi Parthasarathy ]
(ii) Dr. (Mrs.) Vishpala Parthasarathy ] ... Deceased
Rhea Parthasarthy, ]
aged 40 years, Hindu, Indian ]
Inhabitant of Mumbai, ]
Occupation: Housewife, residing at ]
1201/1202, Vinayak Aangan, Old ]
Prabhadevi Road, Near VIP Showroom, ]
SUMEDH Prabhadevi S.O., Mumbai - 400 025 ]
NAMDEO
SONAWANE being the daughter and sole heir of the ]
Digitally signed by
SUMEDH NAMDEO
SONAWANE
Date: 2025.09.03
deceased above named. ]
20:00:31 +0530
In the matter between:
Rhea Parthasarthy, ]
aged 40 years, Hindu, Indian ]
Inhabitant of Mumbai, ]
Occupation: Housewife, residing at ]
1201/1202, Vinayak Aangan, Old ]
Prabhadevi Road, Near VIP Showroom, ]
Prabhadevi S.O., Mumbai - 400 025 ]
being the daughter and sole heir of the ]
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2-IA-L-20148-2025(1).DOC
deceased above named. ] ... Petitioner
V/s.
Sonali Nimesh Lokhandwala, ]
residing at A-1/7, Satyadarshan CHS, ]
Malpa Doongri No.3, Andheri East, ]
Mumbai - 400 093. ] ... Caveator
And
Smruti Co-Operative Housing Society ]
Ltd. registered under the Provisions of ]
the Maharashtra Co-operative Societies ]
Act 1960, bearing Registration No. ]
Bom/ WHW/ HSG/ TG/ 7881 of 1993- ]
94 having its address at Plot No.20, ]
Phirozshah Mehta Road, Santacruz ]
(West), Mumbai - 400 054. ] ... Respondent
______________________
Mr. Ankit Lohia a/w Kshitij Madekar, Murari Madekar, Sachin
Kudalkar i/by M/s Madekar & Co. for the Applicant/Petitioner
Ms. Mamta Sadh a/w Ms. Devika Kakoo i/by Mr. S. G. Lakhani
for the Caveatrix.
________________________
CORAM : Kamal Khata, J.
RESERVED ON : 28th July 2025.
PRONOUNCED ON : 3rd September 2025.
JUDGMENT:
1. By the present Application, the Applicant inter alia
seeks dismissal of the Caveat filed by the Caveatrix in the
Petition. The Petition itself seeks grant of Letters of
Administration of the Joint Will and Testament dated 4 th
2-IA-L-20148-2025(1).DOC
November 2018 (Exh.B Page 21 to the Petition) and Joint
Codicil dated 31st May 2019 (Exh.B1 Page 33 to the Petition)
of the deceased, who were the adoptive parents of the
Applicant-Petitioner.
BRIEF FACTS:
2. The Applicant is the duly adopted daughter of Mr. Ravi
Parthasarathy and Dr. (Mrs.) Vishpala Parthasarathy
(hereinafter jointly referred to as "the said deceased"). The
Order of Adoption is annexed at Exh. A, Page 19 to the
Interim Application. They expired on 27 th April 2022 and 6th
November 2023 respectively. The Joint Will dated 4 th
November 2018 and a Joint Codicil thereto dated 31 st May
2019 executed by them are hereinafter collectively referred
to as "the said Joint Will". The Applicant is the sole surviving
Class I legal heir and next of kin of the said deceased, under
the Hindu Succession Act, 1956.
3. The Applicant was constrained to file the Petition
seeking grant of Letters of Administration in respect of the
said Joint Will of the said deceased because the named
executors under the said Joint Will renounced their office as
Executors and Trustees of the said Joint Will their
2-IA-L-20148-2025(1).DOC
communications dated 13th December 2022 (Exh.C1 Page 63
to the Petition), dated 20th September 2024 (Exh.C2 Page 65
to the Petition), dated 21st September 2024 (Exh.C3 Page 66
to the Petition),
4. The Caveatrix claims to be the maternal cousin of the
deceased, Dr. (Mrs.) Vishpala Parthasarathy. She filed her
caveat in the present Petition on 10 th June 2025, seeking to
"be heard" in the matter. Her caveat rests on two grounds: (i)
nomination in respect of the flat of Dr. Vishpala
Parthasarthy, which was expressly excluded from the said
Joint Will; and (ii) a bequest of ₹ 30 lakhs made to her under
the said Joint Will.
5. By this Interim Application the Applicant seeks
dismissal of the Caveat, on two grounds: (i) the Caveatrix has
not challenged the genuineness, existence or validity of the
said Joint Will, and (ii) her entire claim is founded only upon
an alleged nomination, which does not confer any ownership
rights in favour of the nominee.
Submissions on behalf of the Applicant -
The Caveatrix has no caveatable Interest
6. Mr Lohia, learned Counsel for the Applicant, submits
2-IA-L-20148-2025(1).DOC
that the Caveatrix does not have any caveatable interest in
respect of the said Joint Will, and on this ground alone, the
Caveat is liable to be dismissed. He submits that the right to
maintain a caveat against the grant of probate or letters of
administration is not available to every person who merely
asserts a general or speculative interest in the estate of the
deceased. Only a person whose claims arise through a
recognized line of succession, and whose rights are likely to
be defeated by the grant of a probate or letters of
administration, can be said to possess a caveatable interest.
7. In the present case, admittedly, the Applicant, being
the daughter of the said deceased is a Class I legal heir of the
said deceased. The Caveatrix on the other hand claims to be
the maternal cousin of the deceased Dr. (Mrs.) Vishpala
Parthasarathy. Therefore, even if the present petition was to
fail, the Caveatrix could not, in any circumstance, succeed to
any part of the estate of the deceased. This, by itself,
demonstrates that the Caveatrix has no caveatable interest
in the estate of the deceased whatsoever.
8. Reliance is placed on the following judgments of the
Hon'ble Supreme Court and the Hon'ble Bombay High Court:
2-IA-L-20148-2025(1).DOC
a. Krishna Kumar Birla v. Rajendra Singh
Lodha1
85. We may, by way of example notice that a
testator might have entered into an
agreement of sale entitling the vendee to
file a suit for specific performance of
contract. On the basis thereof, however, a
caveatable interest is not created, as such
an agreement would be binding both on the
executor, if the probate is granted, and on
the heirs and legal representatives of the
deceased, if the same is refused.
86. The propositions of law which in our
considered view may be applied in a case of
this nature are: (i) To 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 adjudicated therein.
xxxxxx
89. While determining the said question,
the law governing the intestate succession
must also be kept in mind. The right of the
reversioner or even the doctrine of "spes
successionis" will have no application for
(2008) 4 SCC 300
2-IA-L-20148-2025(1).DOC
determining the issue in a case of this
nature.
...(emphasis supplied)
b. Surya Prakash S. Makharia v. Pramod
Kumar Makharia2
"13. A caveatable interest denotes the
interest in the estate of the testator which
may be affected by grant of Probate of the
Will of the deceased. By its very nature, the
existence or otherwise of a caveatable
interest, would depend upon the facts of a
given case. Whether the grant of Probate or
Letters of Administration would prejudice
the right of the caveator would be a
barometer on which the existence of a
caveatable interest can be tested. For that
purpose, the law governing intestate
succession qua the deceased also needs to
be kept in view. If the caveator is likely to
succeed in case of intestacy, the existence
of caveatable interest can hardly be put in
contest.
Xxxxx
16. A conjoint reading of the propositions
culled out in clauses (ii) and (iii) of
paragraph 86 spells out the test which is to
be applied to ascertain the existence of a
caveatable interest, namely, "the Caveator
ought to be in a position to show that if the
grant of Probate or Letters of
Administration is made it will defeat his
claim of succession or inheritance to the
estate of the deceased for the reason that it
defeats some other line of succession. If the
Caveator is likely to inherit a very small
part of the estate of the deceased in the
event the Probate or Letters of
Administration, as the case may be, is not
granted, it can be said that the Caveator has
2024 SCC OnLine Bom 2063
2-IA-L-20148-2025(1).DOC
a caveatable interest. Conversely, if the
Caveator questions the existence of title in
respect of the estate or capacity of the
testator to dispose of the property by Will
on a ground outside the law of succession,
ordinarily, he can be termed as a stranger
to the Probate proceeding."
...(emphasis supplied)
c. Bindia Kripalani v. Naresh Nathulal Pal3
"These are the Petitioner's Motions for dismissal
of the Caveat on the ground that the Caveators
have no caveatable interest. The Caveators are
not relatives or heirs of the deceased, but are the
deceased's servants or employees. Mr. Kanade for
the Caveators does not dispute that there is no
kinship. He only says that the Caveators are
legatees under some previous Will. However,
admittedly, the Caveators have made no steps to
obtain Letters of Administration or probate in
respect of that alleged previous Will. Even if the
present Petition for Letters of Administration
with Will annexed fails, the Caveators cannot
possibly succeed to any part of the estate.
2. All the three Motions are made absolute. As the
Caveats stand discharged, the Petition shall
proceed as an uncontested Petition."
...(emphasis supplied)
d. Ashitkumar Surendra Mehta v. Trilochanaben
Thakorlal Fojdar4
"10. In view of the clear legal and factual position
is brought on record, caveators are not the next
kin and kith of the deceased. They are not
entitled to inherit property of the deceased. The
2016 SCC OnLine Bom 6633
2008 SCC OnLine Bom 252
2-IA-L-20148-2025(1).DOC
plaintiff is, thus, justified in contending that the
caveators have no locus or caveatable interest to
maintain the present caveat filed by them."
The Caveatrix has not challenged the said Joint Will
9. Mr. Lohia submits that the Caveatrix has not
challenged the legality, genuineness, existence or the validity
of the said Joint Will. On the contrary, the Caveatrix wrongly
claimed to be a beneficiary of the said Smruti Apartment
under the said Joint Will.
10. He submits that the very purpose of filing a caveat itself
is to challenge the existence, legality, validity and/or
genuineness of a will. In a petition seeking grant of probate or
letters of administration, the sole issue that can be raised
and can be adjudicated by the Testamentary Court is
whether the Will, in respect of which probate or letters of
administration is sought, is a legal and valid will. Therefore,
in order to maintain a caveat, it absolutely imperative for the
Caveatrix to dispute/question the validity and legality of the
said Joint Will.
11. He submits that in the entire Affidavit in support of her
caveat, the Caveatrix has not challenged the legality,
genuineness and/or the validity of the said Joint Will. The
2-IA-L-20148-2025(1).DOC
Caveat is, therefore, liable to be dismissed.
12. Reliance is placed on the judgment of the Division
Bench of the Hon'ble Bombay High Court in the case of Dr.
Meherji Aspendiar Oshtori v. Kaikhosrow Aspendiar Oshtori
, the relevant paragraphs of which have been reproduced
hereinunder:
"4. Perusal of the impugned order discloses that after
referring to the said para, the learned single Judge in
that regard has observed that the affidavit in support of
the caveat, apart from making the said submission,
nowhere discloses any factual matrix which could help
the Court to decide the issue regarding the legality and
validity of the Will. Indeed, mere submission that the
Will is invalid, illegal and fraudulently prepared and
not enforceable in law, would not be sufficient to raise
the dispute regarding the legality and validity of the
Will. For the purpose of consideration of issue
regarding the legality and validity of a Will, it is
necessary for the caveator to disclose the basic facts
which could lead to the conclusion about the illegality
or invalidity of the Will. Undisputedly, the affidavit in
support of the caveat does not disclose any such fact
which could reveal the Will to have been obtained
fraudulently or the Will to be invalid or illegal. Being so,
no fault can be found with the impugned order wherein
it has been held by the learned single Judge that the
caveators, apart from making mere submission, have
not actually disputed that the Will was duly signed and
attested and that the attestor was in the right frame of
mind to make the Will."
...(emphasis supplied)
C. Nomination in by the deceased member does not vest title
Appeal No. 64 of 2007, in Notice of Motion No. 122 of 2006,
in Testamentary Suit No. 33 of 2006
2-IA-L-20148-2025(1).DOC
with the nominee
13. Mr. Lohia submits that the Caveatrix has sought to
contend that she is a beneficiary under the said Joint Will in
respect to the Smruti Apartment, on the basis that the said
Smruti Apartment having been expressly excluded from the
said Joint Will, was allegedly nominated in her favour by the
deceased Dr. (Mrs.) Vishpala Parthasarathy.
14. He submits that it is trite law that nomination does not
confer any title upon the nominee. A nominee merely acts as
a trustee for the legal heirs and holds the property so
nominated until a conclusive determination of succession is
made. In any event, a mere nomination can neither override
the rules of succession, nor vest any ownership rights or
interest in favour of the nominee.
15. He submits that Section 154B-13 of the Maharashtra
Co-operative Societies Act, 1960, expressly provides that a
nominee shall be admitted only as a "provisional member"
until the legal heirs of the deceased are duly admitted as
members in place of the deceased.
16. In the circumstances, the contention of the Caveatrix
that she is entitled to the Smruti Apartment on the basis of
2-IA-L-20148-2025(1).DOC
the alleged nomination, is wholly misconceived and is liable
to be rejected.
17. He relies on the judgment of the Hon'ble Supreme Court
of India in Sarbati Devi and Anr. v. Usha Devi 6 particularly
paragraph no. 12 thereof which reads as under:
"12. Moreover there is one other strong circumstance
in this case which dissuades us from taking a view contrary
to the decisions of all other High Courts and accepting the
view expressed by the Delhi High Court in the two recent
judgments delivered in the year 1978 and in the year 1982.
The Act has been in force from the year 1938 and all along
almost all the High Courts in India have taken the view that a
mere nomination effected under Section 39 does not deprive
the heirs of their rights in the amount payable under a life
insurance policy. Yet Parliament has not chosen to make any
amendment to the Act. In such a situation unless there are
strong and compelling reasons to hold that all these decisions
are wholly erroneous, the Court should be slow to take a
different view. The reasons given by the Delhi High Court are
unconvincing. We, therefore, hold that the judgments of the
(1984) 1 SCC 424
2-IA-L-20148-2025(1).DOC
Delhi High Court in Fauza Singh case [AIR 1978 Del 276] and
in Uma Sehgal case [AIR 1982 Del 36 : ILR (1981) 2 Del 315]
do not lay down the law correctly. They are, therefore,
overruled. We approve the views expressed by the other High
Courts on the meaning of Section 39 of the Act and hold that
a mere nomination made under Section 39 of the Act does
not have the effect of conferring on the nominee any
beneficial interest in the amount payable under the life
insurance policy on the death of the assured. The nomination
only indicates the hand which is authorised to receive the
amount, on the payment of which the insurer gets a valid
discharge of its liability under the policy. The amount,
however, can be claimed by the heirs of the assured in
accordance with the law of succession governing them."
Submissions by the Caveatrix
18. Per Contra, Miss Sadh, learned counsel for the
Caveatrix, submitted that the term caveatable interest is not
defined under the Indian Succession Act, 1925. She contends
that, law on this subject has evolved through judicial
interpretation. Upon a conjoint consideration of various
pronouncements and the provisions of the Indian Succession
2-IA-L-20148-2025(1).DOC
Act, the expression caveatable interest has been judicially
recognized and understood. Reliance is placed on section 283
(1) (c) of the Indian Succession Act, 1925 which provides:
"Issue citations calling upon all persons claiming to
have an interest in the estate of the deceased to come and see
the proceedings before the grant of Probate or Letters of
Administration".
19. She further relies on the decision of this Court in
Maneklal V Shah v Jagdish C. Shah7 in support of her above
contention.
20. She submits that the question of caveatable interest
may arise at two stages- first, at the time of filing of the
caveat, and second, at the time of revocation of the grant
under section 263. However, the underlying principle
governing both stages remains the same. In this regard, she
places reliance on decisions ranging from Abhiram Dass v
Gopal Dass8 to Jadeja Naval Singh Mohobat Singh & Ors v
Mahesh Govind Trivedi & Ors. Our Courts, she argues, have
consistently held that even the slightest interest in the estate
(1970) 72 Bom LR 719
ILR (1889-90) 17 Cal 48
2-IA-L-20148-2025(1).DOC
entitles a person to lodge a caveat and contest the grant of
the probate. Referring to Krishnakumar Birla V Rajendar
Singh Lodha & Ors (supra) and G. Gopal v C Bhaskar & Ors,
(supra) she stresses that a Caveator must show "some
interest" in the estate derived from the deceased by
inheritance or otherwise.
21. Basis the above, she contends that since the deceased,
Dr. (Mrs.) Vishpala Parthasarathy expressly excluded the
two residential flats from the Joint Will and executed a
nomination in favour of the Caveatrix - further recognised by
the Dy. Registrar granting provisional membership - the
Caveatrix has a caveatable interest sufficient to maintain a
Caveat. She also points out that the Caveatrix is a beneficiary
to a substantial bequest of ₹ 30,00,000/- under the Will,
thereby reinforcing her direct and special interest in the
estate of the deceased and entitling her to insist that the
Petitioner proves the Will in solemn form.
22. Reliance is placed on the following portions of the
judgement in Krishnakumar Birla v Rajendar Singh Lodha &
Ors (supra) where the Court held that a person would have
caveatable interest if he/she is (i) likely to succeed to the
2-IA-L-20148-2025(1).DOC
estate of the testator, or (ii) has a "special interest" in the
estate. The Caveatrix, she submits, falls in the latter
category.
"58. ... a person to whom a citation is to be issued or a
caveator must have some interest in the estate of the
testator..."
23. Referring to paragraph 173 of the said judgement
"173. The 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 the PDB"
she submits that in the present case the Caveatrix is a
legatee under the Will, having been bequeathed a
substantial sum of ₹ 30 lakhs.
24. She also relies on paragraph 4 at page 83-84 of
judgement in G Gopal v C. Bhaskar & Ors (supra)
"It is well settled that if a person who has even a
slightest interest in the estate of the testator is
2-IA-L-20148-2025(1).DOC
entitled to file a caveat and contest the grant of
Probate of the Will of the testator"
Where the Supreme Court observed that the concept of
"special interest" is well settled. She submits that the
Caveatrix qualifies, having "special interest" being both a
nominee to Flat No. 4 Smruti CHSL, and a legatee. Until
overruled by a Constitution Bench, G.Gopal v C. Bhaskar
continues to be a binding precedent.
25. Referring to the relevant portion of paragraph 23 of
Jadeja Navalsing Mohabatsing & Ors v Mahesh Govind
Trivedi & Ors.9 she contends that the Caveatrix's right would
be displaced upon grant of Probate, which itself substantiates
her standing.
26. As regards the Applicant's contention that the
Caveatrix has not challenged the Will, she submits that no
copy of the Will or the testamentary proceedings has been
served on her, thereby depriving her of the opportunity to
challenge it.
27. Relying on H. Venkatachala Iyengar v B N
Thimmajamma & Ors. she submits that the execution of the
2016 (4) BCR 800
2-IA-L-20148-2025(1).DOC
Will is surrounded by suspicious circumstances. She
contends that the following scenarios create suspicious
circumstances:
i. Clause 3.2 of the alleged Will categorically excludes
the 2 flats at Milan and Smruti and still the same are
included in the Schedule of the Petition.
ii. There is no doctor's certificate appended either to the
Joint WiIl or the Codicil certifying the sound state of
mind of the testators;
iii. Both the alleged Will and Codicil are not registered;
iv. Both the alleged Will and Codicil are not notarized;
v. The Petitioner has not mentioned Flat no. 1302 of
Vinayak Aangan in
the Schedule of the petition.
vi. The Petitioner has not mentioned the money
advanced towards the 'Turf view' Flat at Mahalaxmi in
the Schedule of the petition.
vii. The deceased had a number of jewelry items.
However, there is no
mention of the jewelry in the schedule of the petition.
2-IA-L-20148-2025(1).DOC
(Clause 9.2 mentions exclusion of jewelry)
28. She further submits that the exclusion of Flat No. 4 at
Smruti CHS, from the Joint Will, coupled with the nomination
in her favour, makes clear the deceased's intention to
bequeath the flat to the Caveatrix. Grant of Probate in respect
of this flat would extinguish her independent right to
institute a civil Suit to establish her title. She asserts that the
Applicant has falsely claimed in paragraph 4 of the IA that
"under the joint Will of the said deceased, the said Flat is
bequeathed to the Applicant"
29. She relies on clause 3.2 of the Will, which specifically
excludes the said Flat in Smruti CHSL from disposition.
Therefore, the residuary clause 13 in the Joint Will, which
bequeaths all the rest and residue of their properties, would
be excluded on account of the words "not specifically dealt
with in this our Will".
30. She contends that the false assertion made by the
Applicant in paragraph 4 of the IA attracts the principle laid
down in S. P. Chengalvaraya Naidu v Jagannath & Ors 10 and
1994 (1) SCC 1
2-IA-L-20148-2025(1).DOC
the Applicant would fall within the scope and ambit of a
person, who has not come to the Court with clean hands and
liable to be thrown out at any stage.
31. She according seeks dismissal of the IA.
Rejoinder to the submission of the Caveatrix
32. He submits that although the Caveatrix has, in no
manner whatsoever, challenged the said Joint Will itself, she
has nevertheless sought to contend that she possesses a
caveatable interest in the present matter and, on that basis,
claims a right to "be heard".
33. In support of her contentions, the Caveatrix has relied
upon the following judgments, which either have no
application to the facts of the present case, or in fact, directly
contradict her own submissions.
34. He submits that the judgment of the Hon'ble Calcutta
High Court in Abhiram Dass v. Gopal Das has no
applicability or bearing to the facts of the present matter.
That decision merely holds that a person claiming title
adverse to the deceased testator does not have a caveatable
interest. (see internal page no. 52 of the judgment). In fact,
ILR (1889) 17 Cal 48
2-IA-L-20148-2025(1).DOC
the above judgment runs contrary to the contentions as put
forth by the Caveatrix herself. A bare perusal of her affidavit
in support of her caveat, indicates that that the Caveatrix, is
in effect, attempting to challenge the authority of the said
deceased to bequeath her properties through the said Joint
Will.
35. He submits that the judgement of the Hon'ble Bombay
High Court in Maneklal Shah v. Jagdish Shah 12 also has no
applicability or bearing to the facts of the present matter. The
decision merely holds that any number of caveats to the
grant of probate or letters of administration can be filed, and
that the Testamentary Department of the court is bound to
take each of such caveats on file (see internal page no. 721).
Needless to state that in the present case, the question of
number of caveats being filed, does not arise.
36. He submits that the judgement of the Hon'ble Supreme
Court in G. Gopal v. C. Bhaskar 13, relied upon by the
Caveatrix to contend that any person with "even a slight
interest" is entitled to file and maintain a caveat, is
misconceived. The facts of that matter were materially
(1969) 72 Bom. L.R. 719
AIR 2009 SC 1232
2-IA-L-20148-2025(1).DOC
different, as the case dealt with the caveatable interests of
the grand children of the testator.
37. In any event, the above judgment of the Hon'ble
Supreme Court did not consider the development of law as on
caveatable interest, as comprehensively analyzed by the
Hon'ble Supreme Court in Krishna Kumar Birla (supra).
Accordingly, reliance on G. Gopal (supra) is misplaced and
cannot assist the Caveatrix.
38. The fact that the Hon'ble Supreme Court, in G. Gopal
(supra) failed to apply the principles earlier laid down in
Krishna Kumar Birla (supra), has already been examined by
various High Courts. The relevant findings of the Hon'ble
Delhi High Court, Bombay High Court and Calcutta High
Court, respectively, are reproduced hereinbelow:
i. Vinod Kumar Aggarwal v. State and Ors.14
"40. Pursuant to the judgment passed in Krishna
Kumar Birla v. Rajendra Singh Lodha & Ors.
(supra) on 31.03.2008, the Hon'ble Apex Court in
another decision dated 03.09.2008 in G. Gopal v.
C Baskar and Ors (supra) held as under: - "That
being the position, we must hold that the
respondents had caveatable interest in the estate
of the testator and, therefore, they are entitled to
be served before the final order is passed. It is
well settled that if a person who has even a slight
FAO(OS) 32/2020
2-IA-L-20148-2025(1).DOC
interest in the estate of the testator is entitled to
file caveat and contest the grant of probate of the
will of the testator."
41. It appears that the Hon'ble Apex Court in the
case had not taken note of the judgment passed in
the case of Krishna Kumar Birla v. Rajendra
Singh Lodha & Ors. (supra) and held that even a
slight interest in the estate of a testator would
entitle a person to file a caveat and contest the
grant of probate of will of the Testator.
42. The Hon'ble Apex Court later in its judgment
dated 10.03.2010 in the case of Jagjit Singh and
Ors. Vs. Pamela Manmohan Singh: (2010) 5 SCC
157, noted that the views taken by the Hon'ble
Supreme Court in Krishna Kumar Birla v.
Rajendra Singh Lodha & Ors. (supra) and G.
Gopal v. C Baskar and Ors (supra) were
conflicting and referred the issue to be considered
by a Larger Bench. The said case Jagjit Singh and
Ors. Vs. Pamela Manmohan Singh (supra) was
thereafter withdrawn by the appellants and
therefore, it appears that no reference is pending
before a larger bench of the Hon'ble Supreme
Court as on date.
43. In such circumstances, it would be apposite to
note the principle laid down by the Hon'ble
Supreme Court in the case of National Insurance
Co. Ltd. v. Pranay Sethi: (2017) 16 SCC 680. The
same reads as under:
"16. Presently, we may refer to certain
decisions which deal with the concept of
binding precedent.
17. In State of Bihar v. Kalika Kuer alias
Kalika Singh and others, it has been held: -
"10. ... an earlier decision may seem to be
incorrect to a Bench of a coordinate
jurisdiction considering the question later,
on the ground that a possible aspect of the
matter was not considered or not raised
before the court or more aspects should
have been gone into by the court deciding
the matter earlier but it would not be a
2-IA-L-20148-2025(1).DOC
reason to say that the decision was
rendered per incuriam and liable to be
ignored. The earlier judgment may seem to
be not correct yet it will have the binding
effect on the later Bench of coordinate
jurisdiction. ..."
The Court has further ruled: -
"10. ... Easy course of saying that earlier
decision was rendered per incuriam is not
permissible and the matter will have to be
resolved only in two ways -- either to follow
the earlier decision or refer the matter to a
larger Bench to examine the issue, in case it
is felt that earlier decision is not correct on
merits."
18. In G.L. Batra v. State of Haryana and
others, the Court has accepted the said
principle on the basis of judgments of this
Court rendered in Union of India v. Godfrey
Philips India Ltd., Sundarjas Kanyalal
Bhatija v. Collector, Thane, Maharashtra
and Tribhovandas Purshottamdas Thakkar
v. Ratilal Motilal Patel. It may be noted here
that the Constitution Bench in Madras Bar
Association v. Union of India and another,
has clearly stated that the prior
Constitution Bench judgment in Union of
India v. Madras Bar Association is a binding
precedent. Be it clarified, the issues that
were put to rest in the earlier Constitution
Bench judgment were treated as precedents
by latter Constitution Bench."
44. Therefore, we are bound to follow the
law as laid down by the Hon'ble Apex Court
in Krishna Kumar Birla v. Rajendra Singh
Lodha & Ors. (supra)."
...(emphasis supplied)
ii. Kusum Bharat v. Jagdish Asarpota15
"35. Insofar as judgment of Supreme Court in
case of G. Gopal (supra) relied upon by the
2015 (1) Mh.L.J. 127
2-IA-L-20148-2025(1).DOC
learned counsel appearing for the caveators is
concerned, it is clear that the Supreme Court did
not notice the judgment in case of Krishnakumar
Birla v. Rajendra Singh Lodha (supra) in the said
judgment."
iii. Pemla Ghosal v. Neelanjana Ghosal16
"12. The perceived conflict between the K.K.
Birla and G. Gopal appears from the parameters
as to what may amount to caveatable interest
having been set in the former and a line in the
latter saying that the slightest interest in the
estate would allow the person a look-in. K.K.
Birla has referred to a plethora of previous
judicial pronouncements and, to the extent that it
is held therein that judgments on the issue
rendered in the context of the law as it stood
prior to the 1956 Act were now no guide to throw
light on the matter, it has not been doubted in G.
Gopal. In fact, G. Gopal did not notice or refer
to K.K. Birla. The position in law is that if two
conflicting precedents of equal binding value of a
superior forum are cited, the Court can choose
the one better-suited in the context. It is on such
basis that the dictum in K.K. Birla appears to be
the more considered opinion of the Supreme
Court that is apposite in the present context. The
"slightest interest" principle may be applicable to
the class of objectors other than the relatives of
the testator; but when a relative of a superior
class survives the testator, a relative of an
inferior class cannot have any interest in the
estate of the testator if on the date of the protest
or grant the relative of the superior class is
alive."
...(emphasis supplied)
2011 SCC OnLine Cal 644
2-IA-L-20148-2025(1).DOC
39. He submits that the judgment of the Hon'ble Supreme
Court in National Insurance Co. Ltd. v. Pranay Sethi 17 runs
contrary to the Caveatrix's own contentions. The said
judgment has held that a decision rendered by a bench of co-
ordinate jurisdiction, is binding on a subsequent bench of the
same strength, and that any decision rendered without
considering the ratio of an earlier judgment of co-equal or
larger bench is per incuriam. He therefore submits that
reliance on G. Gopal (supra) is misplaced and ought not to be
accepted.
40. He further submits that the Hon'ble Bombay High Court
in Jadeja Navalsing Mahobatsing and Ors. v. Mahesh Govind
Trivedi and Ors.18 does not in any manner support her
contentions. On the contrary, the Court in that case held that
a person not having any claim of title over the property of the
deceased testator does not possess any caveatable interest.
(see paragraph no. 21). A plain reading of the said judgment,
in fact, fortifies the Applicant's submissions. Despite having
no claim of title in the Smruti Apartment, the Caveatrix has
maliciously sought to maintain the present caveat.
(2017) 16 SCC 680
2016 (4) Bom. C.R. 800
2-IA-L-20148-2025(1).DOC
41. He submits that the Caveatrix's reliance on the Hon'ble
Supreme Court's judgement in Radha Sundar Dutta v. Mohd.
Jahadur Rahim19 is wholly misconceived. That judgement
merely lays down the principle that, where two
interpretations of a document are possible, the construction
which gives effect to all the clauses should be preferred. He
submits that in a petition seeking grant of probate or letters
of administration, the jurisdiction of the Court is confined to
examining the legality and validity of the Will, and not to
interpret its contents. Therefore, the said judgment has no
application to the facts of the present case.
Conclusion
42. In light of the foregoing, he submits that, on the facts
and circumstances of the present case, the Caveatrix does
not possess any caveatable interest. The very purpose of
filing a caveat is to challenge the legality, validity and/or
genuineness of a will. The Caveatrix has neither
demonstrated any caveatable interest nor raised any case to
dispute the legality, validity and/or genuineness of the said
Joint Will. On the contrary, while she claims a legacy under
AIR 1959 SC 24
2-IA-L-20148-2025(1).DOC
the said joint Will, she simultaneously seeks to challenge it. A
legatee claiming under the Will cannot, at the same time,
question its validity. In the absence of any claim to the
Smruti Apartment arising through any recognized line of
succession, he submits that the Caveat is liable to be
dismissed.
REASONS ANC CONCLUSIONS:
43. Heard both Counsel and perused the record.
44. The short question that arises for consideration is:
whether a person possesses a caveatable interest on (i) being
nominated by the deceased in respect of an immovable
property, and/or (ii) being a beneficiary under the Will.
45. Ms. Sadh, for the Caveatrix, relies on expressions such
as "any interest", "slightest interest", "some interest" or
"special interest" in the estate in support of her contentions.
46. Her argument based on the words "any interest"
appearing in the Section 283 (1) (c) of the Indian Succession
Act, 1925, read with the decisions in Maneklal Shah (supra),
Abhiram Dass (supra), Jadeja Naval Singh (supra) and G.
Gopal vs. Bhaskar (supra) is misconceived.
2-IA-L-20148-2025(1).DOC
47. In Maneklal Shah (supra) the Court was concerned
with the use of word "caveats" in section 284 (1) of the
Succession Act. There issue there was whether multiple
caveats could be filed, and it was held that each caveat would
convert into a separate suit, unlike another bench's view that
all caveats merge into one suit. The reliance on the said
decision, therefore, is misplaced.
48. Likewise, reliance on the word "otherwise" in Abhiram
Dass (supra) is misconceived. The passage relied upon
(quoted above) clearly emphasizes that the claim must be
either by way of inheritance or by way of an interest in the
estate itself. A mere nomination in her favour, cannot be
equated with an interest in the estate so as to entitle the
person to issuance of citation.
49. In this regard, the Supreme Court in Challamma vs.
Tilaga & Ors.20 held that a nominee cannot be treated as an
heir or legatee.
50. Similarly, in Om Siddharaj Co-operative Housing
Society Ltd vs. State of Maharashtra & Ors.21, the Court
2009 9 SCC 299
1998 SCC OnLine Bom 243.
2-IA-L-20148-2025(1).DOC
clarified that a nomination under Section 30 of the
Maharashtra Co-operative Societies Act merely indicates the
person with whom the society should deal, and does not
confer ownership rights in the nominee to the exclusion of
the legal heirs. Referring to Gopal Vishnu Ghatnekar vs.
Madhukar Vishnu Ghatnekar22 the Court observed that the
nominee or recognized legal representative merely holds the
deceased's share and interest in trust for lawful heirs. The
rights of the heirs are not lost, and the Society's role remains
administrative until succession is duly determined by law or
Court.
51. Admittedly, the Caveatrix is only a nominee of the flat.
In my view therefore, the flat being excluded from the Will,
coupled with a nomination in favour of the Caveatrix, will not
confer a caveatable interest. She is not an heir under
intestate succession who would otherwise benefit if the Will
were invalidated.
52. The reliance on Krishnakumar Birla (supra) is
unhelpful to the Caveatrix, and in fact supports the
Applicant. Ms Sadh is unable to point out any paragraph in
1981 SCC OnLine Bom 118.
2-IA-L-20148-2025(1).DOC
the judgement which would substantiate her contention that
a nominee of an immovable property would have caveatable
interest.
53. Thus, in my view, the Caveatrix cannot be said to have
a "special interest" in the estate, because a nominee is merely
a trustee for the lawful heirs, and the Caveatrix is neither a
legal heir nor a legatee of the flat under the Will.
54. In view of the aforesaid decisions, the argument that
the Caveatrix has a caveatable interest in the property is
devoid of merit.
55. It is admitted that the Applicant is the daughter of the
deceased and sole heir in the event that the Will fails. In such
a scenario, the Caveatrix would have to independently
establish any claim to the flat by virtue of nomination
through a separate Civil Suit. The filing of a Caveat, in these
proceedings is not the remedy.
56. I find merit in Mr. Lohia's submission that the
Caveatrix has no rights whether the Will is proved or not. In
either scenario, the Applicant, being the sole heir, is entitled
to the estate. Whether or not the flat is specifically covered by
the Will, the Applicant inherits the estate as heir.
2-IA-L-20148-2025(1).DOC
57. There is further force in Mr. Lohia's reliance on the
residuary clause in the Will, which vests all undisposed
property specifically in the Applicant.
58. If the Caveatrix wishes to assert any claim, she must
establish the same in independent civil proceedings, where
she may not succeed given the settled law that a nominee is a
trustee for the legal heirs. This Application must, therefore,
succeed against the Caveatrix.
59. In these circumstances, a nominee being a trustee has
no locus to file or maintain a caveat in Testamentary
proceedings.
60. It is also admitted that the Caveatrix has been
bequeathed a sum of Rs.30,00,000/- under the Will, which
remains unchallenged. This further reinforces the
Petitioner's case that the Caveatrix has no ground to oppose.
61. The contention that averments in the Petition
regarding the bequest of the flat are false, does not by itself
confer caveatable interest on the Caveatrix.
62. Consequently, reliance on S.P. Chengalvaraya Naidu vs.
Jagannath & Ors.23 is misplaced. A nominee/trustee has no
1994 (1) SCC 1
2-IA-L-20148-2025(1).DOC
right to object to the heirs inheriting either under the Will or
by intestate succession.
63. Ms Sadh's contention that if served with a copy of the
Will and Petition, the Caveatrix could raise suspicious
circumstances and challenge the Will, is untenable and
contrary to her stand. The Caveatrix cannot approbate and
reprobate to suit her convenience- she cannot
simultaneously claim as a beneficiary under the Will and
contest it.
64. Accordingly, the Interim Application is allowed in
terms of prayer clauses (a) and (b).
65. However, it is clarified that the Caveatrix shall be at
liberty to pursue independent civil proceedings, if so advised,
to establish her rights as a beneficiary or as a nominee. This
Court has not adjudicated upon such rights in the present
Application.
(Kamal Khata, J.)
