K.J. Sengupta, J. - (1.) The above application was originally taken out by one Kashinath Tapuriah and one Pradip Kumar Khaitan for adding themselves as party defendants to the aforesaid Testamentary Suit. Subsequently by an order dated 20th February 2009 on the prayer of Pradip Kumar Khaitan his name was deleted, as he did not wish to proceed with this application. Hence the present application was pressed by Kashinath Tapuriah alone on the ground that he is one of the co-executors to a rival prior will dated 13th July 1982 said to have been executed by the aforesaid lady Priyamvada Devi Birla, since deceased (hereinafter referred to as the deceased Lady). It is the contention that one Ganga Prasad Birla who was also appointed Co- executor by the deceased lady in the said Instrument dated 13th July 1982 lodged Caveat to contest the grant of the last Testamentary Instrument said to have been executed by the said deceased Lady dated 18th April 1999 and the Caveat lodged by Ganga Prasad Birla sustained by the learned Single Judge of this Court, thereafter by the Division Bench of this Court and ultimately by the Hon'ble Supreme Court. In the judgment of the learned Single Judge as affirmed by both the aforesaid Courts, it was held that Ganga Prasad Birla who is one of the Co-executors has caveatable interest and as such he was allowed to file affidavit in support of Caveat. Thereafter the aforesaid suit was set down as contentious cause and marked as the Testamentary Suit as above. It is the claim of the applicant that his right, title and interest is exactly the same as that of the said Ganga Prasad Birla, under such circumstances he went to department to lodge Caveat, however the same was refused to be accepted by the department in view of said application for grant of probate having been set down for contentious hearing.
(2.) This application is opposed by filing affidavit by the plaintiff namely Rajendra Singh Lodha (since deceased) contending that this application is misconceived and harassing. He cannot come forward at this stage to join as a party defendant as he did not lodge caveat in spite of citation being issued within the time stipulated in the rules of Chapter XXXV of Original Side Rules. According to him that once the suit is set down for contentious cause, Caveat cannot be allowed to be lodged. Moreover it is also said that he is claiming adverse interest to the estate of the said deceased lady. He could have come to lodge Caveat at early stage and he has chosen not to seize this opportunity. Mrs. Nalini Chidamvaram learned Senior Counsel appearing in support of this application submits that when Ganga Prasad Birla who is one of the Co- executors and is in the same footing with that of the present applicant has been treated to be defendant in the present suit, he is also having caveatable interest to contest the grant hence he should be allowed to be added as a party as a matter of course. He is one of the Co-executors and his right is emanating from the earlier mutual will of the said deceased lady. She further submits that apart from his testamentary right and title in the estate of the said deceased lady her client is also the heirs from the side of the parents of the said deceased lady as her assets namely ornaments, jewelleries and other estate which she had acquired from her parents would revert back to her parents' heirs and legal representatives and he being one of the heirs and legal representatives of her parents is also entitled to contest the grant. This intestacy right was not claimed in the present petition and it is brought for the first time in written additional argument. Therefore, at the outset I reject this contention as it is essentially fact which was not pleaded and the plaintiff did not have the chance to counter the same. Consequently, I would consider what is stated in the petition earlier namely his testamentary right and interest.
(3.) Mr. Anindya Kumar Mitra learned Senior Counsel submits that this application is legally misconceived as testamentary suit is not a suit in substance as it is known in case of civil matters. It is a special type of proceeding. In this connection he has relied on an unreported decision of the learned Single Judge of this Court on the Application being GA No. 1940 of 2005 in Testamentary Suit No. 6 of 2004 (R.S.Lodha v. Laxmi Davi Newar & others ). He submits further that if a person wants to contest the grant he has to lodge caveat as mentioned in Rule 24 of Chapter 35 of the Original Side Rules. In this case this applicant did not lodge any caveat. He despite being one of the Co-executors stayed away when time came for lodging caveat and also to file affidavit in support of caveat which is also to be done within the time stipulated in the Rules 25 and 26 as the case may be of the said Chapter. In one words any one and everyone cannot come to contest the Testamentary Suit unless he or she lodges his or her Caveat and disclosing his or her caveatable interest to contest the grant by filing affidavit in support of Caveat. The persons whose Caveats are retained and affidavits in support of caveat is accepted by the Court as being written statement are only entitled to contest. In this case Ganga Prasad Birla being one of the Co-executors lodged caveat and such Caveat was sustained and as such he filed affidavit in support of Caveat and he qua executor alone is entitled to contest the grant. In this Testamentary Suit he has no special interest apart from the right of Executorship which is fully represented by Shri Ganga Prasad Birla. Mr. Mitra in support of his submission has relied on the three decisions, one of the Supreme Court and two of this Court reported in: AIR 2004 Supreme Court 1238, AIR 1963 Calcutta 205, and Cal. Law Times 2005 (3) page 212.;