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Succession – Indian Succession Act, 1925 – Section 2(c), 2(h), 283, 284, 285 & 286 – Calcutta High Court Rules, 1940 – 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 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 – 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. Judgment rendered in a probate proceedings – Not determinative of the question of title. Scope and applicability of Section 284 of Indian Succession Act. Interpretation of Statutes: 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 proceeding should not be converted into a title suit. 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 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 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 and four executors were appointed in each set of will. MPB died on 30.7.1990. On or about 18.4.1999, PDB executed her last will bequeathing her entire estate to the first respondent RSL, appointing him as the sole executor. 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 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. 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. 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. 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-Succession – Indian Succession Act, 1925 – Section 2(c), 2(h), 283, 284, 285 & 286 – Calcutta High Court Rules, 1940 – 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 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 – 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. Judgment rendered in a probate proceedings – Not determinative of the question of title. Scope and applicability of Section 284 of Indian Succession Act. Interpretation of Statutes: 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 proceeding should not be converted into a title suit. 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 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 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 and four executors were appointed in each set of will. MPB died on 30.7.1990. On or about 18.4.1999, PDB executed her last will bequeathing her entire estate to the first respondent RSL, appointing him as the sole executor. 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 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. 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. 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. 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- =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 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 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 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 there exists an interest in the estate of the testator and the same is not adverse thereto. [Para 78] [684-D] 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 542 – relied on. Abhiram Dass v. Gopal Dass ILR 17 Calcutta 48; Prijoshah Bhikaji v. Pestonji Merwanji 12 Bom 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 AIR 2006 Cal 230; M.S. Saraswathi v. M.S. Selvadurai & Anr.(1997) 3 LW 541 (Mad); Mrs. Perviz Sarosh Batliwalla & Anr. v. Mrs. Viloo Plumber & Anr.AIR 2000 Bom 189; Rajiv Ramprasad Gupta v. Rustom Sam Boyee AIR 2003 Bom 242; Nobeen Chander Sil and others v. Bhobosoondari Debee ILR 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. 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 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 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 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] 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. Dinabandhu Roy Brajaraj Saha v. Sarala Sundari Dassya w/o Haralal 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 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 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] Radharaman Chowdhuri and others vs. Gopal Chandra Chakravarty AIR 1920 Calcutta 459 and Sarala Sundari Dassya v. Dinabandhu Roy Brajaraf Saha (Firm) AIR 1944 PC 11 – referred to. 4. 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 been made would not take any interest in the 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. 5. A statute must be interpreted having regard to the 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 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] 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. 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 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 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 impermissible 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 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 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 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 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 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 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) 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 upon it under Section 122 of the Code of Civil Procedure, could not frame such Rules. After coming into force of 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 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 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. 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] 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 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. 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 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 270-271; 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. 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 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. [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 – referred to. American Jurisprudence, Second Edition, Vol. 79, page 850 and Corpus Juris Secundum, Vol. XCVII, pages 304 to 312 – referred to. 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 not be enough to establish the necessary agreement. Whether a legatee has taken any benefit under the alleged 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 W.B. and Others (2006) 2 SCC 757 – referred to. 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 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 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 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. 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 Section 15 of the Hindu Succession Act. [Para 133, 134, 135] [706-A-F] 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 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 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 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 well-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 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 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 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, thus, is wholly unacceptable. [Para 141] [709-H; 710-A-B] 15.1 A right to claim pre-emption is not a right in the 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 pre-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 1/5th share in Kumaon Orchards, two other co-owners being PB and SKB. SKB does not claim 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 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 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 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 249, Bhoop v. Matadin Bhardwaj (1991) 2 SCC 128 and Sri Audh Behari Singh v. Gajadhar Jaipuria & Ors. AIR 1954 SC 417 – referred to. 16.1 Will takes effect after the death of testator. Rights and obligations of an executor of a Will arise only then. 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 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 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. 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 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] 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, the question of his “ceasing to be an executor” does not arise. [Para 162] [718-D-E] 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 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 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. 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. 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 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 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 appeal against that part of the judgment whereby his appointment as an executor of the Will of MPB of 1992 in 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 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 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] 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 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 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 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 petition for grant of probate of 1982 Will of PDB show that the assets held by the former mentioned in the petition 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 Legal Representative Mr. Marlean Wilkinson v. Isolyne Sarojbashini Bose and others AIR 1962 SC 1471 – referred 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, the 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-B-C] Sirajul Haq Khan & Others v. The Sunni Central Board of Waqf, U.P. 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 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 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 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 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 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 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 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 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 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-B-G; 724-F] 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 dated 13th July, 1982. If the grounds taken in the appeal are to be upheld, the same ex facie would destroy the case 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 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 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. 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 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; 726-A-B] 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, Akhil Sibal, D.N. Sharma, Nupor Mukherjee (for M/S. Khaitan & Co.), B.A. Ranganadhan, Amit Sibal, Abhradt Mitra, D. Mandal, Sanjiv Trivedi, Sameer Parekh, E.R. Kumar, Ankur Chawla, Minakshi Grover, Ranjeeta Rohatgi, Mary Mitgy, Sumit Goel, Arjun Garg, Pallavi Srivastava, Pawan, Rukmini Bobde, Meenakshi Chatterjee (for M/s P.H. Parekh & Co.), Ashish Jha, Pratap Chatterjee, Indraneel Ghosh, Sangeeta Mandal, D. Mandal, Sanjiv Trivedi, Jayasree Singh and Swati Sinha (for M/s Fox Mandal & Co.) for the appearing parties. =, 2008(5 )SCR640 , 2008(4 )SCC300 , 2008(4 )SCALE202 , 2008(4 )JT82

REPORTABLE IN THE SUPRME COURT OF INDIA CIVIL APPELALTE JURISIDCTION CIVIL APPEAL NO. _2277 OF 2008 (Arising out of SLP (C) NO. 2089 OF 2007) Krishna Kumar Birla …. Appellant Versus Rajendra Singh Lodha and others … Respondents WITH CIVIL APPEAL NOS. 2275,2279,2276,2274,2278 OF 2007 (Arising out of SLP (C) NOS. 10176, 10571, 19040, 2090 … Continue reading

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