[Cites 3, Cited by 0]
Calcutta High Court
For The vs Rajendra Singh Lodha 1; on 10 February, 2026
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IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
PRESENT:
THE HON'BLE JUSTICE BIVAS PATTANAYAK
IA No. GA/6/2024
In
PLA/125/2020
IN THE GOODS OF: CHHAYA ROY CHOWDHURY (DECEASED)
For the Petitioner : Mr. Ratul Das, Advocate
Mr. Pranay Mukherjee, Advocate
For the Caveator : Mr. Uday Narayan Betal, Advocate
Mr. Manas Das, Advocate
Mr. Mriganka Patra, Advocate
Reserved on : 6th November, 2025
Delivered on : 10th February, 2026
ORDER
Bivas Pattanayak, J. :-
1. By the present application being G.A. 6 of 2024, the applicant has
made the following prayers:
"a) The caveat filed by the Caveator is liable to be discharged being non-
maintainable in law and/or facts and the contentions raised be
dismissed as frivolous, baseless and vexatious in nature;
b) The Caveat filed by Debapriya Roy Chowdhury on 19th July, 2022
alongwith the affidavit in support is liable to be discharged and
such Caveat be struck off;
c) Such further and/or other order or orders be passed, direction or
directions be given as Your Lordships may deem fit and proper."
2. The Petitioner/applicant contends as follows:-
(i) The testatrix late Chhaya Roy Choudhury became the absolute
owner in respect of premises no. 52H, Beni Nandan Street, P.O.-
Bhawanipore, Kolkata-700025, by virtue of decree passed in a suit for
partition being Title Suit No. 67 of 1957 instituted amongst the
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descendants of Baroda Prasad Roy Choudhury. The said suit was
decreed on compromise by the learned Civil Judge (Senior Division),
4th Court, Alipore on 18th August, 2003. The testatrix and the
caveator Debopriyo Roy Choudhury were parties in the said suit. The
testatrix also purchased a flat at Prantik, Santiniketan. The applicant
being the full blooded younger brother of said Chhaya Roy Choudhury
used to look after his old ailing sister. Prior to her death, said Chhaya
Roy Choudhury on her own volition executed and registered her last
Will and testament on 20th January,2020 whereby she gave, devised
and bequeathed all her properties to her younger brother, the
applicant herein. After the demise of the testatrix, the applicant filed
an application for grant of probate in respect of last Will being PLA
No. 125 of 2020. The caveator/opposite party, filed affidavit-in-
support of caveat with the plea that they are guided under Mitakshara
School of Hindu Law under the Hindu Succession Act, 1956 and that
the caveator has got the right over the property of the family estate.
The caveator also alleged that the testatrix was not physically fit and
mentally alert for making such testamentary disposition and the
purported Will is a fraudulent document. The caveator is claiming an
interest adverse to the interest of the estate and/or the testatrix,
therefore, he has no caveatable interest in the estate of the testatrix
as he alleges that the testatrix could not be the owner of the
properties bequeathed by her in the said last Will. In such
circumstances the caveator, even if a relative, as he is claiming a right
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adverse to the estate of the testatrix hence the same is required to be
resolved before a civil court.
(ii) The caveator has raised the issue of suspicious circumstances
and that the last Will has been executed by perpetrating fraud. There
is presumption of execution of the Will, until proved otherwise. There
is no evidence to the contrary alleging the condition of mental health
of the said testatrix. In the absence of specific allegation of fraud, the
said affidavit cannot dispute the execution of the last Will.
(iii) The testatrix was allotted the premises 52H, Beni Nandan Street,
Kolkata-700025 for her exclusive use and enjoyment in a compromise
decree passed in Title Suit no.67 of 1957 in which the caveator was
also a party and as such the caveator cannot challenge the
compromise decree.
(iv) In the aforesaid facts and circumstances, the petitioner-
applicant has prayed for discharge of the caveat.
3. The instant application has been keenly contested by the caveator by
filing his affidavit-in-opposition denying, inter alia, the averments in
the application and specifically contend as follows:
(i) The caveator is the only son/issue of the deceased- testatrix and
has a caveatable interest. Several contentions that have been raised
by the caveator in his affidavit-in-support of the caveat cannot be
decided without full-fledged trial.
(ii) The family being a Hindu Khatriya Family is governed under the
Mitakshara school of Hindu law, as such the interest in the family
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properties shall devolve by survivorship upon the surviving members
of the coparcenary.
(iii) The deceased-testatrix had considerable amount of money
including Rs.56 lakh obtained from sale proceeds of the ancestral
property at 18B, Ashutosh Mukherjee Road, Kolkata and during her
lifetime she also purchased a flat from her own fund at Santiniketan.
The testatrix also inherited 1/3rd share in premises no. 8/1, Chapel
Road, Kokata-700022 and had sufficient income from rent. The
deceased- testatrix has not mentioned a single word in the alleged
Will about her share in the property at premises no.8/1, Chapel Road,
Kolkata.
(iv) The applicant, who is the brother of the testatrix taking
advantage of condition of the testatrix being not physically and
mentally alert, misappropriated the money and other valuables and is
now trying to grab the property with the active co-operation of the
maid namely Mamata Ghosh and others in ulterior manner. The
alleged Will is executed in suspicious circumstances which specifically
can be proved only upon taking evidence.
(v) The applicant is a permanent resident of 10/2, Diamond
Harbour Road, Alipore, Kolkata-700027. However, without any reason
and having no interest in the property, he is still residing in the
residence of the testatrix (sister) at 52H, Beni Nandan Street, Kolkata-
700025. By occupying the said house and property of deceased
testatrix (sister), the applicant is depriving the caveator who is the
only son/issue of the deceased testatrix.
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(vi) Though the caveator and his family members were living
separately from the testatrix, however, they had warm relationship
with deceased-testatrix, the mother, and they used to regularly visit
residence of the deceased and took all responsibility of her. The
applicant by way of the present proceedings is trying to grab the
property of the deceased testatrix and in consequence has filed the
application to avoid adducing evidence to prove his case.
(vii) In such backdrop, the caveator has prayed for dismissal of the
application since the merit of the affidavit-in-support of caveat cannot
be decided in an interlocutory application.
4. An affidavit-in-reply is also filed by the petitioner- applicant against
the affidavit-in-opposition of the caveator contending as follows:-
(i) That the title of the testatrix is being challenged by the caveator.
The existence of fund with the testatrix and her income has no
bearing and relevance to the subject matter of the instant application.
The caveator intends to raise dispute regarding the right, title and
interest in the property that is adverse to the estate of the testatrix. As
the caveator is not contending any caveatable interest in the estate of
the testatrix, therefore, such issues and contentions cannot be
decided in the probate proceedings.
(ii) The caveator has made formal denial without any specific
statement with regard to the compromise decree passed by the
learned Civil Judge (Senior division), 4th Court, at Alipore in Title Suit
no.67 of 1957 wherein the caveator was allotted seven valuable
properties in posh Calcutta and the testatrix was only allotted
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premises no.52H, Beni Nandan Street for her exclusive use and
enjoyment.
(iii) The caveator and his wife was not only indifferent to the textatrix
but they used to inflict torture upon her which will be evident from
her statement in the Will.
5. Mr. Ratul Das, learned advocate for the petitioner-applicant
submitted that the caveator being the son of the testatrix has a caveatable
interest in the estate of the testatrix. Be that as it may, the caveator has
challenged the bequeath in the last Will by filing caveat and affidavit-in-
support of caveator raising objections in relation to the ownership and title
of the estate of the testatrix particularly in paragraph nos. 7(b), 7(f) and
7(h). The records would show that by decree of a civil court, the testatrix
became the absolute owner of the premises at 52H, Beni Nandan Street,
P.O-Bhawanipore, Kolkata-700025, which has been sought to be disputed
by the caveator stating whether the testatrix was a necessary party and
that the allotment of the said premises was based on the fact that her
dwelling house at 18B, Ashutosh Mukherjee Road, P.O-Bhawanipore,
Kolkata-700025 was supposed to be sold out and thus a provision in the
compromise decree was made for his mother by allotting the subject
premises. The aforementioned pleadings in the affidavit-in-support of
caveat shows that the caveator disputes the right, title and interest of the
testatrix in respect of premises no. 52H, Beni Nandan Street, P.O-
Bhawanipore, Kolkata-700025 and purports to raise contention which is
adverse to the title of the testatrix. Thus, in the event the caveator
contends that the testatrix is not a necessary party or the premises was
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only allotted to the testatrix and she was not its owner, such dispute of
adverse title cannot be raised in the present proceedings and if sought to
be pursued, would render the caveat in the probate proceedings not
maintainable and hence would become liable to be discharged. Any person
even with caveatable interest if sets up a case of adverse title of the
testatrix over the estate, it would amount to being considered that he
would not have any caveatable interest in that case, as in the testamentary
proceedings the probate court does not decide issue of title. The caveator
cannot dawn both hats of a person having caveatable interest as well as
challenge the testatrix's title over the estate. The caveator objecting to
grant by setting up adverse title is disputing existence of estate, therefore,
does not have title. In support of his contention, he relies on the following
decisions.
(i) Krishna Kumar Birla versus Rajendra Singh Lodha 1;
(ii) Surya Prakash S Makharia versus Pramod Kumar
Makharia2;
(iii) Purushottam Vishandas Raheja versus Asha Shrichand
Raheja and Anr3.
In the event the caveator alters, explains and/or clarifies his stand in the
affidavit-in-support, then he has to refrain from raising question of
testatrix being a necessary or proper party in the partition suit wherein the
decree was passed and her ownership rights were confirmed. Any such
question of her presence in such proceedings as a necessary party or the
1 (2008) 4 SCC 300
2 2024 SCC Online Bom 2063
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capacity as a guardian of the caveator cannot be decided in the present
proceedings. Such pleadings in the affidavit-in-support of caveat if left
outstanding would lead to multiplicity of proceedings.
In light of his aforesaid submissions, he prayed that the caveat along with
affidavit in support is liable to be discharged, unless the pleadings in
paragraph nos. 7(b), 7(f) and 7(h) are withdrawn and/or clarified.
6. In reply to the contention raised on behalf of the petitioner-applicant,
Mr. Uday Narayan Betal, learned advocate for caveator at the outset
submitted that the caveator has not challenged the title of the testatrix in
any manner whatsoever in his pleadings till date. The instant application
is not maintainable for the following reasons. As per Rule 28 of Chapter
XXXV of the Original Side Rules of the High Court, once caveat and
affidavit-in-support thereof is filed, the probate petition should be
converted into testamentary suit by the order of the Court. The petitioner
has already made an application to that effect being GA 3 of 2022 which is
still pending consideration. There is no provision in the rules to hold any
trial of the preliminary issue save and except ascertaining the caveator's
interest. By filing such application for conversion to testamentary suit, the
petitioner accepted the caveatable interest of the caveator.
Further the instant application is framed to cause prejudice to the
legitimate right of the caveator in the later stage of the proceedings. The
sole argument and the claim of the petitioner is that the caveator in his
affidavit-in-support of the caveat has challenged the title of the testatrix in
respect of bequeathed immovable property under the alleged last Will and
testament and thereby the caveator has lost his caveatable interest in the
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instant case. However, such argument is not tenable since the caveator
never challenged the title of the testatrix and never challenged the
compromise decree passed in Title Suit No.67 of 1957 by the Civil Judge
(Senior Division), 4th Court, at Alipore. In none of the paragraphs as
indicated on behalf of the petitioner-applicant, the caveator has challenged
the title of the testatrix rather the caveator has accepted the title of the
testatrix in paragraphs nos. 7(f) to 7(h), 7(j), 7(p) to 7(t), 19, and 21 of the
affidavit-in-support of caveat. The pleadings should not be read in
isolation. The petitioner-applicant has tried to establish that the caveator
has challenged the title of the testatrix which is wholly incorrect and
irrelevant in the whole context of the affidavit-in-support of caveat. In such
backdrop, the judgment cited on behalf of the petitioner-applicant are also
not applicable in the present context.
In light of his aforesaid submissions, he prayed for dismissal of the
application in limine.
7. Having heard the learned advocates for the respective parties the only
question which falls for consideration is whether the caveat along with the
affidavit-in-support thereof filed by the caveator ought to be discharged or
not?
8. In the instant case the caveat has been filed by the son of the
deceased-testatrix. The caveator has also filed affidavit-in-support of the
caveat within the prescribed period as provided under Rule 25 of Chapter
XXXV of the Original Side Rules of the High Court. The sole ground on
which the caveat is sought to be discharged is that the caveator in his
affidavit-in-support of the caveat has challenged the title of the testatrix in
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respect of bequeathed immovable property under the alleged last Will and
testament and thereby the caveator has lost his caveatable interest in the
instant case.
9. In order to examine the issue at hand, it would be profitable to
reproduce the observation of Hon'ble Supreme Court in Krishna Kumar
Birla (supra) as follows:
"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."
10. The aforesaid proposition has also been followed by Hon'ble Bombay
High Court in Purushottam Vishandas Raheja (supra) as well as Surya
Prakash S. Makharia (supra).
11. From the proposition as laid down by the Hon'ble Apex Court in
Krishna Kumar Birla (supra) in paragraph no.86 it manifest 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
such rights cannot be effectively adjudicated upon in the Probate
proceedings. In clause (ii) and (iii) of paragraph no.86 the Hon'ble Court
lays down the test that is to be applied to ascertain the existence of
caveatable interest namely the caveator ought to be in a position to show
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that if the grant of probate or letters of administration, as the case may be,
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 even a very small portion 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 a caveatble
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 proceedings. If the caveator opposes to
the grant of probate or letters of administration either upon setting up an
adverse title in himself or by disputing the very existence of the estate
professed to be disposed by the deceased, the caveator cannot be said to
have a caveatable interest as that would be a matter of adjudication of title
which is clearly beyond the jurisdiction of the Testamentary court. It is
trite law that court exercising testamentary jurisdiction cannot delve into
the question of title to the subject property. Whether the deceased had title
to the subject property is a question to be agitated before the civil court.
12. In the touchstone of above proposition of law, let me revert to the
facts pleaded in the affidavit-in-support of the caveat and examine whether
the caveator has set up any adverse title or disputed the title of the
deceased in the immovable property of the Will.
13. Mr. Das, learned advocate for the petitioner-applicant has strenuously
argued that the caveator has challenged the bequeath in the last Will by
filing affidavit in support of caveat raising objections in relation to the
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ownership and title of the estate of the testatrix particularly in paragraph
nos. 7(b), 7(f) and 7(h). Per contra, Mr. Betal, learned advocate for caveator
has categorically submitted that the caveator never challenged the title of
the testatrix rather the caveator has accepted the title of the testatrix in
paragraphs nos. 7(f) to 7(h), 7(j), 7(p) to 7(t), 19, and 21 of the affidavit-in-
support of caveat.
14. For the sake of convenience and brevity of discussion, the paragraph
nos. 7(b), 7(f) and 7(h) of the affidavit-in-support of the caveat are
reproduced hereunder:
"7(b) That my family being Hindu Khatriya family governed under the
Mitakshara School of Hindu Law, as such the interest in the family
properties shall devolved by survivorship upon the surviving members of
the coparcenery.
7(f) In the said suit, a final decree was passed on 16.08.2003 in terms of
compromise amongst the co-sharers. Since the said suit was decreed on
the basis of the terms of compromise, irrespective of the fact whether my
mother Chhaya Rani Chowdhury was a necessary party in the partition
suit or not, under the Mitakshara School of Hindu law however she had
opted for the guardians of the caveator herein who was minor at that
point of time under the Mitakshara School of Hindu law under Hindu
Succession Act, 1956, she was allotted premises no.52H, Beninandan
Street, P.O & P.S Bhawanipore, Kolkata-700025 on the basis of the said
compromise decree.
7(h) That from the sale proceeds of Rs.1.91 crore for the said property at
18B, Ashutosh Mukherjee Road, P.S Bhowanipore, Kolkata-700025, my
mother was allotted 56 lakh for her maintenance irrespective of the fact
that the residence situated at 52H, Beninandan Street, P.O & P.S
Bhawanipore, Kolkata-700025 was allocated to my mother and
irrespective of the fact that I and my wife on regular basis made
substantial payments to my mother."
15. At the outset, the averment in paragraph no. 7(b) is a proposition of
law. Now with regard to paragraph no. 7(f) and 7(h), upon bare reading it is
found that the caveator nowhere has specifically challenged the title of the
deceased-testatrix, his mother, in respect of the immovable property
comprised within premises no. 52H, Beninandan Street, P.O & P.S
Bhawanipore, Kolkata-700025. Needless to mention that the caveator also
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does not challenge the allocation of the aforesaid premises to his mother
made on the basis of a compromise decree passed on 16th August 2003 in
Title Suit No. 67 of 1957 by the learned Civil Judge (Senior Division), 4th
Court, at Alipore. Moreover, in paragraph no.7(g), the caveator states that
in terms of joint decision of all the co-sharers their dwelling house situated
at 18B, Ashutosh Mukherjee Road, P.S-Bhawanipore, Kolkata-700025 was
supposed to be sold out and for such reason his mother's residence was
required to be shifted and thereby a provision was made in the
compromise decree making allocation of the residence at 52H, Beninandan
Street, P.O & P.S Bhawanipore, Kolkata-700025 to his mother out of his
1/3rd share in the petition suit. In paragraph No. 7(j), 7(p) to 7(t), 19, and
21 of the affidavit-in-support of caveat, the caveator has consistently
referred the premises-in-question to be his mother's residence/property.
Thus, there is no such averment to suggest that the caveator opposes the
grant of probate or letters of administration either upon setting up an
adverse title in himself or by disputing the very existence of the estate
professed to be disposed by the deceased. Though the caveator stated in
his affidavit that his family being Hindu Khatriya family is governed under
the Mitakshara School of Hindu Law, as such the interest in the family
properties shall devolve by survivorship upon the surviving members of the
coparcenery yet the allocation of the subject immovable property in favour
of his deceased mother in the compromise decree has not been challenged
in the present proceedings by him. It is also placed on record that during
argument as well as in his written notes of argument learned advocate for
the caveator has categorically submitted before this court that the caveator
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has never challenged the title of the deceased-testarix. Such being the
position, the proposition of law in Krishna Kumar Birla (supra) of the
Hon'ble Supreme Court which is also followed by Hon'ble Bombay High
Court in Purushottam Vishandas Raheja (supra) and Surya Prakash S.
Makharia (supra) does not apply to the facts of this case.
16. In light of the above discussion the instant application seeking
discharge of caveat falls short of merit.
17. Accordingly, the application being GA 6 of 2024 is hereby dismissed.
18. There shall be no order as to costs.
19. Urgent photostat certified copy of the order, if applied for, be given to
the parties after completion of all necessary legal formalities.
(Bivas Pattanayak, J.)
