Tripurari Sharan Pandey vs Arun kumar Sinha

IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1171 of 2024
In
Civil Writ Jurisdiction Case No.19163 of 2015
======================================================
Tripurari Sharan Pandey Son of late Rama Shankar Pandey, R/o LIG, 42
Housing Board Colony, P.O. Rampur , Ner Asha Singh More, Gaya.
... ... Petitioner
Versus
Arun kumar Sinha Son of late Ishwari Prasad, R/o Flat No. A/E 22, Aruna
Enclave, Chirachas, Bokaro, P.S. Chas, District- Bokaro, Jharkhand.
... ... Respondent
======================================================
Appearance :
For the Petitioner/s : Mr. Shashi Shekhar Dwivedi, Sr. Advocate
Mr. Partha Gaurav, Adv.
Mr. A.K. Pandey, Adv.
Ms. Divya Prakash, Adv.
Mr. Rahul Kumar, Adv.
Mr. Ranjan Kumar Dubey, Adv.
For the Respondent/s : Mr. Sri Nandan Singh, Sr. Advocate
Mr. Ram Prasad Singh, Adv.
Mr. Dhirendra Narain Malik, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE S. B. PD. SINGH
CAV JUDGMENT
Date : 17-07-2026
Heard learned counsel for both the parties.
2. The instant application has been filed on behalf of the
petitioner for quashing the order dated 22.09.2015 passed by
th
learned VII Additional District Judge, Gaya, in Probate Case No.
08 of 2015/57 of 2014.
3. Learned counsel for the petitioner-applicant submits
that the petitioner has instituted Probate Case No. 08 of 2015/57 of
2014 before the learned District Judge seeking grant of probate in
respect of the registered Will dated 14.10.2009 executed by the
testator, Late Ghanshyam Prasad, in favour of the petitioner-

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applicant pertaining to the properties described therein. It is further
submitted that Late Ghanshyam Prasad, during his lifetime,
executed the aforesaid registered Will dated 14.10.2009
bequeathing his self-acquired residential house standing on land
measuring 2,356 square feet situated at Mohalla–MIG 40, Housing
Board Colony, District Gaya, in favour of the petitioner-applicant.
4. Learned counsel further submits that late Ghanshyam
Prasad was son of late Rameshwar Prasad who had four sons and
four daughters amongst which only two sisters namely Savitri
Prasad and DR. Prabha Prasad are alive. He further submits that
objector/caveator being the nephew of Ghanshyam Prasad has
filed this objection petition while he has no caveatable interest in
the bequeathed property through registered deed of Will.
5. Learned counsel for the respondent/caveator submits
that objector has been served with notice by the Court of learned
District and Sessions Judge with respect to this probate case filed
by applicant namely, Tripurari Sharan Pandey and has filed
objection/caveat as this objector/caveator has got direct subsisting
interest in the house property being House No. MIG 40 situated at
Mohalla Chanakyapuri Colony, P.S. Rampur, Town/District-Gaya.
6. He further submits that he has got direct interest
having share along with other class-II heir of Ghanshyam Prasad

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(deceased) who died unmarried. The said Ghanshyam Prasad to
whom the House no. 40 was allotted by Bihar State Housing Board
Gaya died unmarried, so the entire interest in the said house has
been inherited and succeeded by his class-II heirs inclusive of this
objector/caveator and the detail particulars of class-II heirs of late
Ghanshyam Prasad is also annexed with the objection petition. As
per his submission common ancestor late Rameshwar Prasad died
leaving behind three sons and three daughters his two daughters
are still alive namely Savitri Prasad and Dr. Prabha Prasad but the
applicant has not arrayed Savitri Prasad in the column of near
relative. Only Dr. Prabha Prasad and objector/caveator namely
Arun Kumar Sinha have been arrayed as near relative in para 9 of
the probate application.
7. Learned counsel for the respondent/objector further
submits that applicant has not filed this probate application with
clean hands because he has not mentioned the name of Savitri
Prasad one of the sister of late Ghanshyam Prasad. He further
submits that the said house which is the subject matter of the Will
was not transferred/registered in favour of Ghanshyam Prasad
conferring title by Bihar State Housing Board, Gaya.
Consequently, the objector/caveator and other class-II heir, as
stated above, having inherited the said allotted house bearing

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House No. MIG 40 situated at Mohalla Chanakyapuri Colony, P.S.
Rampur, Town/District-Gaya and they are legally entitled to get
the said flat registered in their favour from Bihar State Housing
Board, Gaya.
8. Learned counsel further submits that the alleged Will,
relied upon by applicant of probate case, must have been brought
in existence by playing fraud and by fraudulent means on
Ghanshyam Prasad, who had never any intention to execute Will
in favour of stranger to the family and not even of caste of late
Ghanshyam Prasad. Furthermore, late Ghanshyam Prasad, who
was a professor was also in know of the fact that he cannot make a
Will of said House MIG 40 as the same, till his life time, was not
transferred/registered as sale deed by Bihar State Housing Board,
Gaya in favour of Ghanshyam Prasad (now deceased).
Consequently, no title ever accrued in said house MIG 40 to
Ghanshyam Prasad, yet it appears by fraudulent means and after
putting undue influence on Ghanshyam Prasad (deceased) the
alleged Will has been prepared which does not bear the actual
signature of Ghanshyam Prasad.
9. After hearing the learned counsel appearing on behalf
of both the parties it appears that the only moot question to decide
this Civil Miscellaneous case is that whether the petitioner being

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the nephew of testator has caveatable interest in the probate case
or not?
10. During course of argument, the leading case
Krishna Kumar Birla Vs. Rajendra Singh Lodha and Others
reported in (2008) 4 SCC 300 was referred and relied upon by both
the parties. The above judgment has been relied upon in the recent
judgments also i.e. Saroj Agarwalla (dead) Thr. LR Abhishek
Agarwalla Vs. Yashel Jain passed in Civil Appeal No. 473 of
2009. Para 9 of the said judgment reads as under:-
“9. Learned counsel for both the parties have
addressed us at some length as to the meaning of the
words "caveatable interest". The matter is no longer
res integra in view of a detailed discussion of this
term in the case of Krishna Kumar Birla v. Rajendra
1
Singh Lodha . Paragraphs 59 to 86 of this judgment
refer to large number of authorities of this Court as
well as various High Courts. The conclusions
flowing from that judgment including the proposition
of law in paragraph 86 clearly support the case of
the respondents in both the appeals that they have a
caveatable interest. The test which may be applied in
the present case is: Does the claim of grant of
probate prejudice the respondent's right because it
defeats some other line of succession in terms
whereof the respondent as a caveator asserted
his/her right? Since the answer, in the facts of the
case would be in the affirmative, we are in agreement

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with the view taken by the Division Bench that
respondents have a caveatable interest”
11. Another recent judgment that has relied upon the
decision in Krishna Kumar Birla v. Rajendra Singh Lodha and
Others is Yash Vardhan Mall v. Tejash Doshi , decided by the
Hon’ble Supreme Court in Civil Appeal Nos. 19635–19636 of
2017 . Para 8 of the said judgment reads as under:-
“This Court in Krishna Kumar Birla v.
Rajendra Singh Lodha and Ors. (2008) 4 SCC
p.300 considered the point of caveatable interest in a
detailed manner and held that no hard and fast rule
can be laid down. The existence of a caveatable
interest would depend upon the fact situation of each
case. In the instant case, the High Court found that
the Appellant has caveatable interest, but the caveat
filed by the Appellant was discharged on the ground
that the affidavit filed in support thereof was bereft of
an averment doubting the due execution of the Will
dated 22.04.2013. For the reasons stated supra, we
are satisfied that the affidavit filed in support of the
caveat fulfils the condition of Rule 25.”
In the present case, the respondent/caveator had
specifically averred and doubted the genuineness of the Will dated
14.10.2009 executed by the testator, namely, Late Ghanshyam
Prasad.

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12. Learned counsel for the respondent placed reliance
on the judgment passed in the case of G.Gopal Vs. C.Baskar &
Ors. Passed in Civil Appeal No. 6067 of 2008 by Hon’ble Apex
Court apart from the above mentioned judgments. Para 4 of the
said judgment reads as under:-
“4. We have heard Mr. Thiayagarajan, learned
counsel appearing on behalf of the appellant and
Mrs. R.Ragini, learned counsel appearing on behalf
of the respondents. We have also examined the
judgment under appeal as well as the materials on
record. The only question that was agitated before us
by Mr.Thiayagarajan, learned counsel appearing for
the appellant challenging the judgment of the High
Court revoking the probate granted in respect of the
Will executed by the testator, was that the
respondents having no caveatable interest in the
estate of the deceased, the application for revocation
filed by them could not be allowed. We are unable to
accept these submissions made by Mr.Thiayagarajan,
learned counsel appearing on behalf of the appellant
only for the simple reason that admittedly the
respondents were grand children of the testator and
they have claimed the estate of the deceased on the
basis of a settlement deed executed by the testator
himself which admittedly was revoked by the testator.
That being the position, we must hold that the
respondents had caveatable interest in the estate of
the testator and, therefore, they are entitled to be

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served before the final order is passed. It is well
settled that if a person who has even a slight interest
in the estate of the testator is entitled to file caveat
and contest the grant of probate of the will of the
testator.”
13. In the case of Krishna Kumar Birla Vs. Rajendra
Singh Lodha and Others the Hon’ble Supreme Court has
discussed at length and given guideline about caveatable interest in
para 59 onwards of the said judgment.
14. In the present case, the objector/caveator has been
arrayed as near relative in the probate application and he was
summoned to appear before the Court. If the summon has been
issued by the Court to a person, he cannot be debarred and
restrained to say and assert what the applicant wants in his
application otherwise provision of summoning to near relative
would be meaningless. In this case, the respondent appeared as
near relative being nephew of testator and alleged that the above
registered deed of Will is fake and forged one and he alongwith
other co-sharers have interest in the property which is the subject
matter of the probate case. He has filed the objection petition
under Section 284 of Indian Succession Act.
15. In the case of Krishna Kumar Birla Vs. Rajendra
Singh Lodha and Others the scope of Section 284 of Indian

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Succession Act has been discussed in paragraph nos. 112 and 113
which reads as under:-
“112. Section 284 of the 1925 Act
may have to be construed keeping in view the
aforementioned legal principles. It does not la
down the qualification or disqualifications of
the of the caveator. Once a caveat is filed, it is
for the court to determine the question as to
whether the caveator has any caveatable
interest or not.
113. Section 284 of the 1925 Act
only provides for a forum and nothing more. It
has nothing to do with qualification. Drawing
our attention to the decisions prevailing prior
to coming into force of the 1935 Act, some of
which have been noticed by us hereinbefore, as
also the decision of the Bombay High Court in
Pirojshah Bikhaji v. Pestonji Merwanji the
learned senior counsel 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.”
16. After discussing the caveatable interest, the Hon’ble
Supreme Court has held in para 103 as under:-
“103. what would be the caveatable
interest would, thus, depend upon the fact situation

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obtaining in each case. No hard-and-fast rule, as
such, can be laid down. We have merely made
attempts to lay down certain broad legal principles.”
17. In this case, respondent has appeared after due
service of notice/summon and have filed objection, he is
admittedly near relative, that is why his name has been arrayed in
the petition and he got some objection with regard to grant of
probate pertaining to the subject matter of the Will in question.
One of the class-II heir i.e. own sister of testator namely Savitri
Devi has not been arrayed as near relative in the probate
application which goes to show the lack of bona fide intention of
the petitioner-applicant. All these facts suggest that respondent has
a caveatable interest in the subject matter of the Will.
18. Hence, I find that there is no illegality and
impropriety in the impugned order and accordingly it is upheld as
a result of which the instant civil miscellaneous application stands
dismissed.

(S. B. Pd. Singh, J)
Ankit Kumar/-
AFR/NAFR AFR
CAV DATE 06.04.2026
Uploading Date 17.07.2026
Transmission Date 17.07.2026