abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION CHAMBER SUMMONS NO. 32 OF 2008 IN TESTAMENTARY SUIT NO. 14 OF 2008 IN TESTAMENTARY PETITION NO. 338 OF 2007 Shantilal J. Parekh .. Petitioner/ Plaintiff V/s Kannan Srinivasan .. Caveator/ Defendant Mr.Snehal Shah i/b Purnanand & Co. for the petitioner. Mr.Atul Rajadhakshya with Mrs.R.V. Thakkar for the caveator/defendant. CORAM : D.G. KARNIK, J. DATE : 5TH JUNE 2008 P.C. P.C. P.C. : 1. Heard the learned counsel for the petitioner and the caveator/defendant. 2. By this chamber summons, the petitioner prays for discharge of the caveat dated 14th January 2008 filed by the caveator/defendant. 3. The petitioner claims to be an executor of the - 2 - will of the late Mr.Vardhachari Srinivasan alias V. Srinivasan who died on 25th October 2006 leaving behind him last will and testament dated 7th September 2006. As an executor of the will of the late Mr.V. Srinivasan, the petitioner has filed the petition for probate of the will of late Mr.V. Srinivasan. Notice of the petition was served on the caveator and other heirs of the deceased. The caveator, who is one of the sons of the deceased, filed a caveat. 4. Mr.Rajadhakshya, learned counsel appearing for the caveator, submitted that the caveator does not dispute the genuineness of the will and the caveator has no objection for grant of the probate to the said will. He however submitted that the petitioner is colluding with the other son and daughter of the deceased and is not protecting the interest of the caveator. He therefore prays that directions be issued to the executor regarding the manner of execution of the will and besides such directions, the caveator has no interest in the caveat nor is he challenging the will. 5. Rule 401 of the Bombay High Court (Original Side) Rules provides: "any person intending to oppose the grant of probate or letters of administration shall file caveat in Form 116 within 14 days from the service of the citation upon him or within such shorter time as the judge in chambers may direct". The right to file a - 3 - caveat is conferred upon a person who intends to oppose the probate or letters of administration. In the affidavit in support of the caveat, the caveator has not specifically denied the execution of the will nor has he denied the capacity of the deceased to make the will. At the stage of argument, learned counsel for the caveator specifically stated that the caveator does not dispute the genuineness or correctness of the will does not oppose the grant of probate but only seeks certain directions as mentioned above. In view of the fact that the caveator is not opposing the grant of the probate, he is not entitled to file the caveat. The grievance, if any, of the caveator regarding the alleged breach of any fiduciary duty can be made by him in appropriate proceedings before an appropriate forum and not before the testamentary court. The testamentary court is only concerned with the genuineness of the will, capacity of the testator to make a will and whether the will is made in accordance with law. 6. In the circumstances, the chamber summons is required to be allowed by discharging the caveat Accordingly, the chamber summons is made absolute in terms of prayer (a). (D.G. KARNIK, J.)