Nms115.09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 115 OF 2009 IN SUIT NO. 75 OF 2009 IN PETITION NO. 115 OF 2009 Vasantben Ramniklal Bhuta & Anr. ...Plaintiffs (Petitioners) Vs. Jaysukhlal Nagardas Bhuta ...Defendant (Caveator) Mr. M.L. Palan with Ms. Devyani i/by B.R. Oza & Co. for the Plaintiffs. Mr. Rajesh Shah with Mr. A.R. Bapat with Bruno Castelino i/by M/s. Divya Shah & Associates for the Defendant. CORAM :- ANOOP V. MOHTA, J. DATED :- 26TH FEBRUARY, 2010. P.C.- 1 The Plaintiffs/Petitioners have taken out this Notice of Motion for the following reliefs, “(a) that Caveat filed by the Defendant/ Caveator dated 26th June, 2009 be discharged and/or set aside; (b) the above Testamentary Petition be directed to proceed as non contentious proceedings and office of this Hon’ble Court be directed to proceed with the Testamentary Petition for issue of Probate as prayed;” Nms115.09 2 supported by an affidavit dated 28th August, 2009. The same is resisted by an affidavit/ reply dated 31st October, 2009 by the Defendant- Caveator. The Defendant-Caveator being the brother of the deceased Ramniklal Nagardas Bhuta, has interest and as served by notice/citation in the Petition for probate filed by the Plaintiffs, has filed caveat along with supporting affidavit on 2nd July, 2009. The Caveator has raised various challenges to the Will and averred as under:- “1. At the outset, I say and submit that I am filing this Affidavit as a person having interest in the estate, which is allegedly claimed to be the estate of the deceased. I have interest in the said estate because the said property allegedly claimed by the heirs of the deceased to be part of his estate, is inherited by me jointly with the deceased and since there is no partition of the estate of the deceased by metes and bounds, it is erroneous on the part of the heirs of the deceased to claim the said property as property of the deceased. In any event, I object and/or challenge the grant of Probate of this Hon’ble Court to the Petitioners. 2. I also challenge the alleged Will on the grounds which are set out hereinafter. I am also challenging the grant of Probate as a partner of three partnership firms where the deceased and myself have been partners. I am also challenging this Petition in my capacity as trustee of the family trust formed by the family members. Further, I also reserve my right to file further affidavits at a later date, when required. 3. Before I deal with the object to the Probate being granted of the said alleged Will, I say and submit that the alleged Will dated 13th September, 1989, in fact is not a Will. I say and submit that on perusal of the said alleged Will and the operative part thereof, what is stated therein does not constitute or comply with the basic requirements of a Nms115.09 3 Will and under the said Will, the properties have not been bequeathed to any of the heirs of the said deceased. At the highest, the said writings can be summarized as a good inventory of the estate.” referring to the inventory and particulars of Schedule 1 of the Will various related objections/ challenges are raised, including the title/ownership of the bequeathed property. The Apex Court in G. Gopal Vs. C. Baskar & Ors. (2008) 10 S.C.C. 489, has observed that slightest caveatable interest is sufficient to allow the Caveator to object the grant of Probate. Here, apart from the relations, the averments so made, it is difficult to accept the Petitioner that the Motion be allowed, at this stage, without giving opportunity to the Caveator to contest the Caveat to grant the Probate. The submission based upon the various Judgments to the effect that as the title/ ownership of the deceased is challenged that itself should be the reason/ ground to dismiss the Caveat/reject the Caveat. The Apex Court has already declared and decided that the testamentary Judge cannot decide the question of title of the property in question. (Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors., (2008) 4 S.C.C. 300) including Bai Parvatibai Vs. Raghunath lakshman, AIR 1941 Bombay, 60, (28) A.I.R. 1941, Patna 475, Kashi Nath Singh Vs. Dulhin Gulzari Kuer, AIR 1971 Mysore 148, D.S. Sriramiah Setty Vs. Smt. D. Kanthamma and Vol. XXXIV, Bombay Series 459, Pirojshah Bhikaji & Ors. Vs. Pestonji Merwanji (Division Bench) Nms115.09 4 2 The Apex Court in Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon & Ors., (2007) 11 S.C.C. 357 ( followed in, Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors., (2008)(4) S.C.C. 300, observed that- “15. In Ishwardeo Narain Singh Vs. Kamta Devi, AIR 1954 SC 280, this Court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. “A plain reading of this decision would not show that after the grant of probate by a competent court, the suit for title and permanent injunction cannot be said to be maintainable in law. What this Court held in that decision is that once a probate is granted by a competent court, it would become conclusive of the validity of the will itself, but, that cannot be decisive whether the Probate Court would also decide the title of the testator in the suit properties which, in our view, can only be decided by the civil court on evidence. It is true that the probate of the will granted by the competent Probate Court would be admitted into evidence that may be taken into consideration by the civil Court while deciding the suit for title but grant of probate cannot be decisive for declaration of title and injunction whether at all the testator had any title to the suit properties or not”. (Emphasis added) 3 However, considering the averments so raised it is not only the case of the title but there are various other facets, as agitated which cannot be overlooked at this stage. The whole object and purpose of issuance of notice/ citation to the person interested and/or the person having caveatable interest will loose its importance merely because amongst other Nms115.09 5 grounds the issue of title/ownership of the property bequeathed by the deceased is raised. 4 In Pirojshah Bhikaji (Supra) the Division Bench of this Court has also observed that “A person who is entitled to oppose the grant of Probate to a Will must derive his interest and have a right against him”. In the present case, considering the averments made, the Caveator has also derive his interest from the Testator and has right against the deceased. Therefore, unless the rights and/or caveatable interest of the Caveator are not decided finally by giving opportunity to both the parties, the rejection of the Caveat and grant of Probate, at this stage, itself in my view, is impermissible. 5 The Court cannot overlook the Apex Court observations (Supra) whereby, it is made clear that the slightest caveatable interest is sufficient to consider the objection before grant of Probate. 6 The Judgments, therefore, so cited (supra) including, 1993(1) Bom.C.R.340, Eruch Rustom Irani Vs. Limji Kaikashroo Panday, are distinguishable in the facts and circumstances. 7 Having once filed an affidavit pursuance to the Rules of Chapter XXVI of the Bombay High Court (Original Side) Rules, stating the rights, title of the Caveator and the grounds of the objection to the application and the Caveator is also falls within the ambit of the heirs and the next kin of the deceased and as the interest in the estate of the deceased, I am not inclined to grant the prayers so made by the Petitioners. Nms115.09 6 8 To avoid further complications referring to the properties in question, however, it is made clear that this does not mean to say that the Probating Court can decide the title or ownership of the property. However, the relevant other aspects including the grounds so raised, concerning the grant of Probate which need opportunity and hearing to be considered in accordance with law. 9 In view of this, the Notice of Motion is dismissed with no order as to costs. (ANOOP V. MOHTA, J.)