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The Battle Of The Two Wills

September 20, 2024 10:45 IST

When there are two wills produced before the court, which one will be executed?

Kindly note the image has been published only for representational purposes. Photograph: Kind courtesy Iffany/Pixabay
 

It's the battle of two wills between Bharat Forge Chairman Baba Kalyani and his younger brother Gaurishankar Kalyani over their late mother Sulochana's will.

In a new twist in the ongoing legal dispute involving Baba, Gaurishankar, and the children of their sister Sugandha Hiremath regarding the Kalyani family assets, the Pune court has stepped in to hear the parties.

Baba has approached the Pune civil court, seeking to enforce a will of Sulochana dated January 27, 2012, while his brother Gaurishankar has disputed it with a different will dated December 17, 2022, which suggests a different way to distribute their mother's estate.

The Indian Succession Act, of 1925 (the Act) provides that a later will revokes an earlier will.

A will is to be executed by the executors named in the will after the death of the person making the will (called the testator).

"However, interpreting this provision, the Supreme Court of India seems to have taken contrary views in two separate judgments," said Shaishavi Kadakia, Partner, Cyril Amarchand Mangaldas.

In 2012, the Supreme Court ruled that the execution of a second valid will automatically makes a previous will redundant because the second will represents the last wish of the testator (a person who has made a will or given a legacy), and the latter will doesn't need to carry a specific provision cancelling the earlier will (refer to Mahesh Kumar (Dead) by LRs v. Vinod Kumar & Ors).

Conversely, in 2018, the Supreme Court held that a reference to the revocation of the earlier will is necessary for the latter will to revoke the earlier one (refer to HV Nirmala v. R Sharmila).

"A will is required to be probated before it is enforced. Probate (defined under Section 2(f) of the Act) is the certification of a will with the seal of approval by a court of competent jurisdiction and is a judgment in rem (binding all persons in the jurisdiction), as opposed to a judgment in personam (which binds only the parties to litigation)," Nishant Datta, advocate at the Delhi high court, said.

If a will is made in a place that falls within the original jurisdiction of the high court of Bombay, Calcutta, or Madras, or if it deals with immovable property situated in such a place, then the executor must make an application to seek probate of such a will from the jurisdictional court -- for instance, in Mumbai, this would be the Bombay high court.

"Probate is granted by the court to certify the genuineness of the will. Once probate is granted, the sanctity of the will is proven," Kadakia said.

Gaurishankar had told the court that Baba's attempt to probate the 2012 will was achieved through 'coercion and undue influence'.

He cited the 2022 affidavit, claiming that Sulochana had revoked all her previous wills.

Gaurishankar further accused Baba of trying to 'usurp' the properties intended for him.

A will may be challenged on various grounds, such as the testator not possessing mental capacity; in legal parlance, this is referred to as a lack of 'testamentary capacity'.

Such challenges are particularly likely if the testator is old or mentally disabled.

A will may also be challenged on the ground that the testator did not exercise 'free will' when preparing the will.

Challenges may also be made because the will was forged or prepared by fraud.

A will may also be challenged on the ground that it has been revoked or replaced by another later will.

A dispute over the will of hotelier late Prithvi Raj Singh Oberoi of the Oberoi Hotel Group also reached the Delhi high court when the court restrained the transfer of shares in EIH and EIH's holding companies Oberoi Hotels and Oberoi Properties.

The court ruled in favour of Oberoi's daughter, Anastasia, who had moved court claiming rights to shares in the companies as per the will of the late Oberoi.

Anastasia and her mother claimed her brother, sister, and cousin (defendants) were obstructing the execution of the will.

Prithvi Raj Singh Oberoi passed away on November 14, 2023.

The parties have each produced a will to support their case.

While Anastasia and her mother have based their claims on the October 25, 2021 will, the defendants have pinned their hopes on the will dated March 20, 1992.

"The court will hear the parties and examine the evidence, and accordingly declare whether the will is valid or is void and liable to be set aside," Kadakia said.

Kalyani siblings wage a battle of wills

Dev Chatterjee

Pune-based billionaire Baba Kalyani has dismissed claims made by his younger brother, Gaurishankar, about a supposed second will from their late mother Sulochana as a 'misinformation campaign'.

While Baba Kalyani, the 75-year-old patriarch of the Kalyani Group, has maintained a high profile throughout his career, his younger brother Gaurishankar, 70, a non-executive director at the Pune-based engineering firm Kalyani Forge, prefers to stay low-key.

The day-to-day operations of Kalyani Forge, which reported revenues of Rs 237 crore (Rs 2.37 billion) as of March 2024, are managed by Gaurishankar's wife Rohini and their son Viraj.

Gaurishankar, a commerce graduate with 'expertise in management and the financial sector', is not on the board of any firm operated by his elder brother.

However, he serves on various committees of the Kalyani Forge board and several private firms within the group.

"He is not actively involved in the day-to-day operations of Kalyani Forge, but provides guidance to the board as needed," said a source close to the family.

The new will from 2022, according to an affidavit filed by Gaurishankar with the court, is contested by both Baba and their sister Sugandha Hiremath.

A source in the Hiremath family said that, based on their information, their mother died intestate, so the court will need to determine the authenticity of the wills presented by both brothers.

This is not the first time Gaurishankar and his family have fought for their share of the family assets.

In 2015, Gaurishankar's daughter Sheetal sought her share of the family wealth in a Pune court. The matter remains pending.

The latest dispute over the 'purported' will escalated when Madan Umakant Takale and Shrikrishna Kiran Adivarekar, independent directors in private investment companies of the group, filed for probate of Sulochana's earlier will dated January 27, 2012.

The probate application in a Pune court is scheduled for October 9.

On July 15, Gaurishankar filed an affidavit contesting the 2012 will and submitted a new will dated December 9, 2022.

On August 3, Viraj, Gaurishankar's son, also filed for probate on the December 9, 2022, will in a Pune court. The matter is set for a hearing on September 23.

In a statement, Baba Kalyani condemned these claims as orchestrated attempts to tarnish his reputation and sway public opinion through a media trial.

'The claims made in the affidavit from the late Sulochana Kalyani, as presented by Gaurishankar Kalyani, are fabricated, incorrect, and denied,' Baba's statement read.

Baba is engaged in legal battles with his siblings on multiple fronts, including a dispute with his sister Sugandha over the control of BSE-listed Hikal.

Both Gaurishankar and Sugandha seek a division of Kalyani Group assets, including those in the flagship Bharat Forge, which has a market value of Rs 74,508 crore (Rs 745.08 billion) as of Monday, September 16, 2024.

The Kalyani family owns a 45.25 per cent stake worth Rs 33,731 crore (Rs 337.31 billion) in the flagship company.

According to Sulochana's new affidavit from 2022, between 1992 and 1994, Baba assumed control of several companies, including Bharat Forge and Kalyani Steels, from her husband -- the founder of the group.

After 1994, her husband and she were left with only a small portion of the wealth generated by the group and decided to transfer control of Hikal to Sugandha, as stated in the Will.

'Only Gaurishankar had not received any of the family and Hindu Undivided Family assets until then. To safeguard Gaurishankar and his family, my husband wished to bequeath his remaining assets to Gaurishankar, including shares of Kalyani Forge, shares of Bharat Forge, and some immoveable properties,' the affidavit dated December 9, 2022, by Sulochana, reads.

Feature Presentation: Aslam Hunani/Rediff.com

Bhavini Mishra
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