1 ch-summons-123 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Chamber Summons No.123 of 2010 IN Suit No.28 of 2010 IN Petition No.779 of 2009 Ashok P. Hinduja .. .. Plaintiff v/s. Mrs.Malti Ashok Wadhwani & ors. .. Defendants Ms.Vandana D. Jaisingh for Plaintiff. Mr.Nilesh Modi with Ms.Chaya Asher i/by Rustomji Ginwala & Co. for Defendants. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 19th January 2011 P.C. : 1.This Chamber Summons is filed for dismissal of the Caveat. The Affidavit-in-support of the Caveat indeed does not show how and why the Will is not validly executed. The Affidavit-in-support of the Caveat essentially shows the extent of the interest of the Defendants as one of the heirs of the deceased in the property of the deceased showing their caveatable interest and the transfer and partition of the property of the deceased. However, in paragraph 11 of the Affidavit-in-support of the Caveat, the Caveators are 2 ch-summons-123 called upon the Plaintiff to prove the Will dated 15th June 2008 in solemn form. This is pursuant to his right to give notice in that behalf under Rule 405 of the High Court (Original Side) Rules, which runs thus: 405. Notice to prove will in solemn form.- In a testamentary suit the party opposing the will may, with his affidavit, give notice to the party setting up the will that he merely insists upon the will being proved in solemn form and only intends to cross-examine the witnesses produced in support of the will, and he shall thereupon be at liberty to do so, and shall not, in any event, be liable to pay the costs of the other side, unless the Court shall be of opinion that there was no reasonable ground for opposing the will. The Plaintiff would, therefore, have to prove the Will in solemn form and the Caveators would be entitled to cross-examine the witnesses to prove in support of the Will. To that extent, the Caveat stands. Hence the Plaintiff shall file an affidavit of the attesting witness and any other witness as required by the Plaintiff to prove the Will in solemn form. 2.By consent, Ms.J.M. Sidhwa is appointed a Commissioner 3 ch-summons-123 to record the cross-examination of the witness/witnesses of the Plaintiff in support of the proof of the Will. 3.The Plaintiff shall file his affidavit of examination- in-chief within two weeks from today. 4.The parties shall appear before the Court Commissioner initially on 11th February 2011 and thereafter as fixed by the Commissioner. 5.The parties shall pay the fees of the Commissioner as fixed by the Commissioner equally. 6.The Commissioner shall record the evidence preferably day to day. 7.The Chamber Summons is disposed of accordingly. (SMT.ROSHAN DALVI, J.)