Pinaki Chandra Ghose, J. - (1.) These appeals have been filed by Krishna. Kumar Birla (hereinafter referred to as KKB), Basan Kumar Birla (hereinafter referred to as BKB) and Yashovardhan Birla (thereinafter referred to as YB) against the judgment of the Hon'ble First Court discharging their caveats in the proceeding for grant of probate of the Will dated 18th April, 1999 and Codicil dated 15th April, 2003 of Late Smt. Priyamvada Devi Birla (hereinafter referred to as PDB). Cross -appeals have been filed by Rajendra Singh Lodha (hereinafter referred to as RSL) in so far as the Hon'ble First Court held that G. P. Birla (hereinafter referred to as GPB) has caveatable interest. By consent of parties both the appeals and the cross -appeals were heard together and disposed of by this common judgment.
(2.) The question arose in this matter whether the Appellants have any caveatable interest in the Estate of the said deceased PDB in the facts of the case. Facts of the case briefly are as follows: On 3rd July, 2004 PDB died. Her husband Madhav Prasad Birla (Hereinafter referred to as MPB) pre -deceased her on 30th July, 1990. The couple had no issue. It is submitted on behalf of the KKB that KKB and Late MPB had a common ancestor and were/ are both male lineal descendants of the Raja Baldeodas Birla (the common ancestor). The relationship between the parties will appear from a Genealogical Table set out in the Paper Book, Volume 1, Page -352. It is stated that the said Late MPB and PDB executed mutual Wills in 1981. On July 13, 1982 the said couple executed mutual Wills revoking the earlier mutual Wills. It further appears that on April 18, 1999 PDB executed a fresh Will by which she bequeathed all her properties to RSL. It also appears that the executors including the KKB to the mutual Wills of MPB and PDB have applied for grant of probate of the said mutual Wills. RSL has also applied for grant of probate of PDB's Will dated April 18, 1999. It is the case of the KKB that Laxmi Devi Newar and Radha Devi Mohatta, both sisters of MPB, are the heiress of PDB on intestacy. It further appears that the caveats were filed by KKB, BKB, GPB, YB, Laxmi Devi Newar and Radha Devi Mohatta, Similarly, RSL also filed caveats in respect of the said Wills of 1982 of Late MPB and PDB. RSL applied for discharge of caveats filed by KKB, BKB, Ganga Prasad Birla and YB in respect of the Will dated April 18, 1999. The said application for discharge of the caveats was heard and disposed of by the judgment and order dated March 11, 2005 and caveats filed by KKB, YB, BKB were discharged and the caveats filed by Ganga Prasad Birla allowed to be retained. The application also made on behalf of the executors of 1982 Will for discharge of the caveat viled by RSL in relation to the Will of MPB was rejected by the said judgment dated March 11, 2005. Hence, KKB and other Birlas filed these instant appeals.
(3.) Mr. S. B. Mookherjee, Learned Senior Advocate appearing in support of the appeal filed on behalf of the KKB contended that it cannot be disputed that there were mutual Wills left behind by MPB and PDB. He also drew our attention to a decision reported in : 2006 (2) SCC 757 (Shivanath Prasad v/s. State of West Bengal and Ors.) and submitted that the undisputed facts are that the couple executed mutual Wills in 1981 arid in 1982 the couple executed fresh mutual Wills after revoking the earlier mutual Wills. He further contended that the concept of the mutual Wills has now been recognized in our country and he relied upon the following decisions reported in ), : 1986 (1) SCC 701 (Dilharshankar C. Bhachech v/s. Controller of Estate Duty) and, 1993 All E. R. 129 (Re: Dale (deceased) Proctor v/s. Dale). According to him, in 1982, by concent the said couple revoked the earlier mutual Wills, but agreed once again with each other as to the disposition of their respective Estate on their deaths in favour of charities as ultimate beneficiaries, and pursuant to such agreement the said Wills were executed on July 13, 1982. He further contended that the said Wills would be irrevocable and would remain unaltered. On July 30, 1990 after the death of MPB, PDB as beneficiary of her husband's Will, came to possess, own and control the Estate of MPB in terms of the said Will until her death. It is submitted that the purported Will Dated 18th April, 1999 and the alleged codicil dated April 15, 2003 were executed in breach and total disregard of the subject matter of the agreement and the mutual Wills. Hence, he submitted that the executors of the mutual Wills are entitled to take possession of the entire Estate and make over, donate and settle the same for the purpose of charity at their absolute discretion. The executors are trustees of the constructive trust, which came into force, on the basis of the mutual Wills. Therefore, the said Executors are entitled to execute and implement the said trust and do all things necessary for the said purpose. He further submitted that a suit has been filed, inter alia, for a declaration that RSL as the alleged executor and sole beneficiary of the purported Will of PDB dated April 18, 1999 and the purported Codicil dated April 15, 2003, is not entitled to deal with the subject matter of mutual Wills dated July 13, 1982 and for other reliefs. It is further submitted that the suit is pending and written statement has been filed.;