Case Note & Summary
The case involves a Notice of Motion filed by Daya Subhash Tiwari, the applicant and original petitioner in a probate petition, seeking dismissal of a caveat filed by Mr. Lalta Prasad Ram Nihor Tiwari and for grant of probate of the Will dated 24th July, 1995 of Rajbali Ram Nihor Tiwari (the deceased). The deceased died on 21st September, 2006, a bachelor, leaving behind a Will appointing the applicant as sole executrix. The caveator, brother of the deceased, filed a caveat claiming that the deceased had executed a later Will in his favor, but did not produce or prove that Will. The court examined whether the caveator had any interest in the estate. The court noted that the caveator's claim was based on an alleged Will that was not produced, and thus he failed to show any interest. The court also considered the applicant's evidence: the Will was proved by examining one attesting witness and the scribe, who confirmed the execution and attestation. The court found the Will to be validly executed under Section 63 of the Indian Succession Act, 1925. Consequently, the court dismissed the caveat and granted probate of the Will to the applicant. The court also directed that the applicant furnish an administration bond and pay the requisite court fees.
Headnote
A) Succession Law - Caveat - Section 284 Indian Succession Act, 1925 - Interest of Caveator - The caveator must have an interest in the estate of the deceased to maintain a caveat. A person claiming under a Will that is not produced or proved cannot be said to have any interest. The court held that the caveator failed to show any interest and dismissed the caveat. (Paras 10-15) B) Succession Law - Probate - Grant of Probate - Section 276 Indian Succession Act, 1925 - Proof of Will - The applicant proved the execution of the Will by examining one attesting witness and the scribe. The court found the Will to be duly executed and attested, and granted probate to the applicant. (Paras 16-20) C) Succession Law - Will - Execution - Attestation - Section 63 Indian Succession Act, 1925 - Requirement of Two Attesting Witnesses - The Will was attested by two witnesses, one of whom was examined. The court held that the requirements of Section 63 were satisfied. (Paras 18-19)
Issue of Consideration
Whether the caveator had sufficient interest to maintain the caveat and whether the applicant is entitled to grant of probate of the Will dated 24th July, 1995.
Final Decision
Notice of Motion made absolute. Caveat and affidavit in support dated 5th February, 2007 filed by Mr. Lalta Prasad Ram Nihor Tiwari are dismissed. Probate of the Will dated 24th July, 1995 of Rajbali Ram Nihor Tiwari is granted to the applicant Daya Subhash Tiwari, subject to furnishing administration bond and payment of court fees.
Law Points
- Caveat under Section 284 Indian Succession Act
- 1925 requires caveator to have an interest in the estate
- mere filing of a caveat without supporting evidence of interest is not sufficient
- probate granted if Will is duly proved
- burden on caveator to show interest
