Decided on October 24,2016

Saroj Agarwalla (Dead) Thr. Lr Abhishek Agrawalla Appellant
YASHEEL JAIN Respondents


SHIVA KIRTI SINGH, J. - (1.) Both the appeals arise out of same proceedings initiated by the appellant for grant of probate on the basis of a Will claimed to be the last Will and testament of appellant's brother Jagdish Prasad Tulshan. Appellant's prayer to reject the caveats of respondents in the above proceedings was turned down by a Division Bench of High Court at Calcutta by impugned orders, both dated 04.05.2007. Both the appeals, therefore, have been heard together and shall be governed by this common judgment.
(2.) The appellant Saroj Agarwalla is the propounder of a Will, alleged to have been executed by one Jagdish Prasad Tulshan. She claims to be the only surviving sister of the testator at the time of his death. She prayed for grant of the Probate of the Will allegedly executed by Jagdish. The respondent in the first appeal, i.e., C.A.No.473 of 2009 - Yasheel Jain lodged a caveat claiming to be the son of a pre-deceased sister of the testator and thus having interest in the estate of the deceased. His claim is founded on two grounds, firstly as a nephew of the testator and secondly as the sole beneficiary under an alleged prior Will of the testator in respect of the same estate.
(3.) A learned Single Judge considered the objection raised by the propounder to the caveat filed by Yasheel Jain and rejected the objection. The Single Judge was of the view that the provision creating the right to file a caveat could be availed by a person who is not a rank outsider and could claim to be an heir after the propounder was no longer alive. In that view of the matter it was held that the caveat filed by Yasheel could not be discharged. Since the Single Judge did not discuss the claim of Yasheel based on an earlier Will, Yasheel filed a cross-objection before the Division Bench. The appeal and the cross objection were heard together. The Division Bench dismissed the appeal of the appellant and allowed the cross-objection by recording its prima facie satisfaction about existence of an earlier Will creating caveatable interest in favour of Yasheel. The Division Bench did not approve the view of the learned Single Judge that Yasheel had a caveatable interest as an heir of the testator but the conclusion of the learned Single Judge was approved, albeit for different reasons as noted above.;

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