[Cites 12, Cited by 0]
Calcutta High Court
Of Substitution Was Filed By The vs Nageshwar Singh (Dead) Through Lrs ... on 31 March, 2026
Author: Sugato Majumdar
Bench: Sugato Majumdar
OD - 2
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY & INTESTATE JURISDICTION
ORIGINAL SIDE
PLA/234/2022
IA NO: GA/2/2023, GA/3/2023, GA/4/2023
IN THE GOODS OF:
BINA DEVI BAJORIA, DECEASED
BEFORE:
THE HON'BLE JUSTICE SUGATO MAJUMDAR
Date: 31st March, 2026
Appearance:
Mr. Jishnu Chowdhury, Sr. Adv.
Mr. Ratul Das, Adv.
Mr. A. Agarwalla, Adv.
Mr. S. Majumdar, Adv.
Mr. P. Garain, Adv.
...for the Executor
Mr. Ranjan Bachawat, Sr. Adv.
Mr. Biswanath Chatterjee, Adv.
Mr. Rohit Banerjee, Adv.
Ms. Mahurima Halder, Adv.
Mr. Subhankar Chakraborty, Adv.
Mr. Saptarshi Bhattacharjee, Adv.
Ms. Sayani Gupta, Adv.
...for the Caveator
The Court: The instant application for grant of probate of the last Will and
Testament of the Testatrix Bina Devi Bajoria has been filed by the named Executor.
Subsequent to issue of citations caveat was lodged by one Gautam Roy. Affidavit in
support of caveat was filed in time.
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GA 3 of 2023 is an application filed by the Executor, praying for discharge of
the caveat contending therein that the Caveator has neither caveatable interest nor
locus standi to intervene in the matter. It was further contended that the Caveator is
neither the heir of the Testatrix nor related to the Testatrix. The only question raised
by the Caveator is on the title of the property which a probate court cannot consider.
Accordingly, it was prayed that the caveat should be discharged.
Affidavit-in-Opposition was filed by the Caveator opposing the contention of
discharge of caveat. It was contended that a suit being CS 100022 of 1996 is still
pending between the Testatrix and others. On death of the Testatrix, the application
of substitution was filed by the Petitioner. The instant will had been executed under
suspicious circumstances which demands enquiry and adjudication on the
surrounding circumstances.
Affidavit-in-reply was also filed by the Executor in GA 3 of 2023.
GA 4 of 2023 is an application filed by the Caveator, praying for accepting the
caveat and converting the proceeding to a contentious cause and renumbered the
same.
The contention of the Caveator, as appears from the affidavit in support of
caveat is that CS 129C of 1996, renumbered as CS 100022 of 1996 was filed against
M/s Bina Guri Investment Pvt. Ltd. and others making the Testatrix one of the
parties. This is a suit for declaration and cancellation of instrument as well as
recovery of possession in respect of the property located at 24/2, Alipore Road,
Kolkata-700027. This property is the subject matter of the Will. It was contended
that the Defendant in the said suit are trying to steal on the Caveator and trying to
create unnecessary complications. In the said suit, an order was passed on
11/05/2001
restraining the Defendant Nos. 1 and 3 by order of injunction, namely,
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Debendra Kumar Bajoria and M/s Bina Guri Investment Pvt. Ltd. from dealing with
disposing of or encumbering in any manner or from creating a third party interest in
respect of the premises no. 24/2, Alipore Road, Kolkata-700027. The said order is
still subsisting. Subsequently, Debendra Kumar Bajoria, the original Defendant No.
1 in the said suit, expired and legal heirs were substituted, one of whom was the
Testatrix. In other words, it was contended that litigations are pending between the
parties when this Will suddenly cropped up. In the said Will, the Testatrix claimed
that M/s Bina Guri Investment Pvt. Ltd. and the shareholders thereof agreed to sell
the said property and compensate the Testatrix against her alleged permanent
residential rights and interests in the said property. According to the Caveator, such
contentions of the Will were made only to fetter the right, title and interest
beneficiary to the said property. The Testatrix never claimed the title to the said
property but claimed that she was entitled to one third value of the property by
reason of the alleged agreement for permanent residential rights and interests
therein with the M/s Bina Guri Investment Pvt. Ltd. It was further pleaded that the
present Defendants in CS 100022 of 1996 are trying to create confusion relating to
the said property and were indirectly trying to encumber the same in violation of the
subsisting order of injunction in the suit. This is the reason leading the Caveator to
file the caveat and contest the matter.
The principal point to be decided is whether the Caveator has any caveatable
interest.
The Learned Counsels for the Caveator argued firstly, that the Testatrix
devised and bequeathed, permanent residential rights and interests in the property
situated at 24/2, Alipore Road, Kolkata-700027, which is owned by M/s Bina Guri
Investment Pvt. Ltd. In case of sale of the said property by M/s Bina Guri
Investment Pvt. Ltd. the compensation to be receivable by the Testatrix should be
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distributed to the persons and in the manner as mentioned in the Will. The
immovable property located at 24/2, Alipore Road, Kolkata-700027 figures in the
affidavit of asset because the Testatrix has been devised and bequeathed her
undivided one third permanent residential right in respect of the property. It was
submitted that the Testatrix does not claim to be the owner of the property and the
Will is conditional monetary bequest.
Secondly, it was argued that the instant probate application, praying for grant
of probate of the Will of the Testatrix is an attempt to mislead this Court, by-passing
the earlier order of injunction passed in CS 100022 of 1996. It was argued in
nutshell that the instant probate application aims at to frustrate the said pending
suit. It was further submitted that it is well-settled that no Court will permit to do
anything which will permit violation of any order passed by any Court and such
actions which are in violation of the subsisting orders will be nullity. Referring to
Jehal Tanti & Ors. Vs. Nageshwar Singh (Dead) through LRS [(2013) 14
SCC 689] it was argued that the caveat was lodged on 09/06/2023 and within time
the affidavit in support of caveat was lodged, in terms of Chapter XXXV Rule 25 of
the Original Side Rules. Once the affidavit in support of caveat is lodged, in due
time, there is no option but to convert the proceeding into a contentious cause and
number the same as testamentary suit.
Next it was argued that for long it is settled principal of law that any person
who has a slightest interest in the estate of the Testator is entitled to file caveat and
contest the proceeding. The Learned Counsel referred to G. Gopal Vs. C. Baskar
& Ors. [(2008) 10 SCC 489]. According to the Learned Counsel for the Caveator,
the judgment in probate proceeding is a judgment in rem and any person aggrieved
by the outcome of probate proceeding and who has no knowledge about the
proceeding is entitled to file an application for revocation of probate on such grounds
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as may be available. Referring to Krishna Kumar Birla Vs. Rajendra Singh
Lodha [(2008) 4 SCC 300] it was argued that the Caveator has now knowledge of
a probate proceeding pursued by the Executor by fraud or by suppression of material
facts. The principal laid down in K.K. Birla's case suggesting remedy to file
application for revocation of grant is also not applicable since the Caveator has
knowledge of the proceeding. Referring to Jagjit Singh & Ors. Vs. Pamela
Monmohan Singh [(2010) 5 SCC 157][; Asim Kumar Chattaraj & Anr. Vs.
Sankar Prasad Chattaraj & Ors. [(2011) (5) CHN 52]; Ashoka Dhar & Anr.
Vs. Dr. Partha Banerjee & Ors. [(2012) (1) CHN 126] it was argued that even
slightest interest is sufficient for lodging caveat. The Learned Counsel referred to
Saral Palwar Vs. Smt. Sushila Dassi [(1983) (2) CHN 150] it was submitted
that that the expression "claiming to have an interest in the estate of the deceased" is
wide enough to incorporate all persons having possibility of an interest.
Per contra, the Learned Counsels for the Executor submitted firstly, that the
Caveator is not an heir in intestacy; he is not one of the inheritors of the Testatrix.
Therefore, there is no caveatable interest of the Caveator. K. K. Birla's case was
mainly relied upon. It was further argued that although that the same principal was
reitereated in subsequent cases, namely, Saroj Agarwalla Vs. Yasheel Jain
[(2017) 14 SCC 285]; Jose Paulo Coutinho Vs. Maria Pereira [(2019) 20
SCC 85]; Pashupati Nath Das Vs. Chanchal Kumar Das [92018) 18 SCC
547]; Bojendra Mohan Mazumdar Vs. Durga Chatterjee [(2024) SCC
OnLine Cal 2860]; Archana Mishra Vs. Dipali Chowdhury (AIR 2019 Cal
34); Kumar Bros Vs. Sushma Berlia [(2014) 2 CHN 492].
Secondly, it was argued that probate court does not decide the title. Even
though the Will refers to a property and affidavit of asset include the same, grant of
probate would not confer any title to the property. The objection of the Caveator is in
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relation to the title. The Caveator claims title for himself and adverse to the estate
which issue is pending for determination in a civil suit. Any title claimed adverse to
the estate of the Testatrix is destructive to caveatable interest. Therefore, the
Caveator has no caveatable interest. K. K. Birla's decision was again reiterated on
this point of law. In nutshell, the Learned Counsels for the Executors submitted that
the Cavator has no caveatable interest for which the caveat should be discharged.
In reply, the Learned Counsel for the Caveator submitted that the Caveator is
not claiming anything adverse to the title of the estate. Admittedly, the premises did
not belong to the Testatrix. She stated in the Will that the property belongs to the
company. She only claims monetary benefit which she might be entitled to in case of
sale. The Caveator is not seeking any right over the money and/or compensation.
According to the Learned Counsels for the Caveators, their claim is not adverse to the
estate of the Testatrix and not destructive to caveatable interest.
I have heard rival submissions.
The Caveator herein, is neither the relative of the Testatrix nor the creditor.
The concept of caveatable interest came for consideration of the courts on
innumerable occasions in different factual perspectives. In Nobeen Chunder Sil
& Ors. Vs. Bhobosoonduri Dabee [Manupatra - The Indian Law Reporter
(Vol. VI) ILR (1881) 6 Cal 460] mortgagee and attaching creditors lodged caveat.
It was held that the attaching creditor as well as the mortgagee at caveatable interest.
In K.K. Birla's case proposition of law was set out as follow:
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.
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(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.
In Para. 103, it was expressed that what would be the caveatable interest
would, thus, depend upon the facts situation obtaining in each case. No heard and
first rule, as such, can be laid down. Thus, K. K. Birla's case did not conclusively
state that only people coming into line of inheritance or near relative should have
caveatable interest. Subsequent decisions reiterated the principal that any slightest
interest would entitle a person to lodge caveat. Now in K.K. Birla's case certain
observations were made additionally. It was observed that the Will is executed when
the owner of a property forms an opinion that his or her estate should not devolve
upon the existing heirs according to the law governing intested 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. A special interest may be of a creditor. But, as observed, caveat
should not be entertained at the instance of a person who has no real interest therein
or who merely have a contingent interest. A transferee pendente lite without the
leave of the 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
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been made, would not take any interest in the litigation. Likewise, a tenant
occupying the premises belonging to the Testator has no caveatable interest.
It is judicially pronounced and settled that any slightest interest would invite
caveatable interest. In Asim Kumar Chattaraj & Anr. Vs. Sankar Prasad
Chattaraj & Ors. [(2011) SCC OnLine Cal 1638]; Smt. Ashoka Dhar & Anr.
Vs. Dr. Partha Banerjee & Ors. [(2011) SCC OnLine Cal 2791] were decided
in specific facts and circumstances. In the earlier one Caveator was the purchaser of
the property; in the later one Caveator was relative. In Saral Patwa's case the
Division Bench held that interest contemplated in Section 283(c) of the Indian
Succession Act, 1925 is wide enough also to include persons having possibility of an
interest and the interest is likely to be prejudicially or adversely effected by the grant.
In the instant case, a civil suit is pending between the Caveator on the one
hand and M/s Bina Guri Investment Pvt. Ltd. as well as the legal heirs of the
Testatrix on the other hand. The suit is for cancellation of certain deeds and setting
aside of a compromise decree. In case, the suit succeeds the Caveator shall be
entitled to own the property in question. But at present, the Caveator has no right,
title and interest in the property. Pendency of litigation does not confer any right,
title or interest in the property. In fact, as of now, the Caveator has no interest in the
property in question, namely, 24/2, Alipore Road, Kolkata-700027. He may acquire
such right, title or interest subject to outcome of this suit; in other words there lurks
a possibility of interest than any real interest. K. K. Birla's case did not close the
categories of caveatable interest but kept it open and at the same time explained
which might not be caveatable interest as noted above. The caveatable interest or
slightest interest must be real one and should be in presenti. A future possibility
does not create any interest, far away from caveatable interest.
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There is another issue to consider. The Testatrix never professed herself to be
the owner of the property. The property belongs to M/s Bina Guri Investment Pvt.
Ltd. Any decree in the pending civil suit would be binding on M/s Bina Guri Estate.
The Testatrix disposed of, in terms of the Will, her right to receive compensation and
directed manner of distribution of such compensation. This has no bearing with the
pending suit.
In view of discussions made above, this Court is of opinion that the Caveator
has no caveatable interest and the caveat remains discharged.
Accordingly, GA 3 of 2023 and GA 4 of 2023 stands disposed of.
GA 2 of 2023 has already been disposed of and shall not appear in the list
again.
The probate application will appear in the list on 18th May, 2026 under
heading for further order.
(SUGATO MAJUMDAR, J.)
A.Das
(P.A.)
