skt/- 1 nmt135.09 ts.28.95 tp41.95.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 135 OF 2009 IN TESTAMENTARY SUIT NO. 28 OF 1995 IN TESTAMENTARY PETITION NO. 41 OF 1995 Kirit Navnital Damania & Anr. ...Petitioners/ Plaintiffs. Vs. Smt.Anuradha Anil Bhagwat & Ors. ...Caveators/ Defendants. .... Mr.Devvrat Dhankar i/by V.R.Tripathi for the plaintiffs. Mr.Atul G. Damle for the defendants. ...... CORAM : ANOOP V. MOHTA, J. DATE : 5th JANUARY, 2010. P.C. 1. The notice of motion is taken out by the petitioners/plaintiffs on the ground that the caveators/defendants in their affidavit- in-support of their caveat have also challenged the title/ownership of the deceased. 2. Considering the averments made, the ownership issue even if raised in affidavit-in-support of the caveators, that itself, in my skt/- 2 nmt135.09 ts.28.95 tp41.95.sxw view, cannot be the reason to dismiss the caveat and to grant Probate, for want of objection as raised. 3. The Apex Court in “G.Gopal Vs. C. Baskar & Others (2008) 10 SCC 489” has already observed that the caveatable interest is sufficient to consider the case of the caveator. This does not mean that it is a final adjudication. The Court, while granting Probate Petition, need to consider the merit of the objections on all grounds. It is settled that in Probate Petition, the Court cannot decide the title/ownership with regard to the property in question including the title of the testator to bequeath such property and/or whether the property is ancestral or individual property. The remedy is elsewhere. 4. The learned counsel appearing for the plaintiffs in support of motion has strongly relied on “(2008)4 Supreme Court Cases 300, Krishna Kumar Birla V/s. Rajendra Singh Lodha & Ors.”. The relevant paragraphs are reproduced as under : “58. A person to whom a citations to be issued or a caveator, must have some interest in the estate of the testator. Any person claiming any interest adverse to the testator or his estate cannot maintain any application before the skt/- 3 nmt135.09 ts.28.95 tp41.95.sxw Probate Court. His remedy would be elsewhere. The question with regard to the degree of interest or the right which a caveator must show to establish his or her caveatable interest before the Probate Court should be considered having regard to the aforementioned legal propositions.” “84. Section 283 of the 1925 Act confers a discretion upon the court to invite some persons to watch the proceedings. Who are they? They must have an interest in the estate of the deceased. Those who pray for joining the proceeding cannot do so despite saying that they had no interest in the estate of the deceased They must be persons who have an interest in the estate left by the deceased. An interest may be a wide one but such an interest must not be one which would not (sie) have the effect of destroying the estate of the testator itself. Filing of a suit is contemplated inter alia in a case where a question relating to the succession of an estate arises.” “86. The propositions of law which in our considered view may be applied in a case of this nature are : (i) To sustain a caveat, a caveatable interest must be shown. (ii) The test required to be applied is : Does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right ? (iii) It is fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be skt/- 4 nmt135.09 ts.28.95 tp41.95.sxw accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein.” “115. The Rules framed by the Calcutta High Court provide for determination of the issue of caveatable interest as a preliminary issue. We do not see any reason as to why the High Court, in exercise of its powers conferred upon it under Section 122 of the Code of Civil Procedure, could not frame such Rules. After coming into force of the Constitution such Rules can also be framed by the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India.” “116. If the contention of Mr.Jethmalani is to be accepted that there are being no such provision in the Act for determination of such an issue as preliminary issue, the High Court could not have framed the Rule, we are of the opinion that in a similar situation this Court also could not direct listing of the writ petitions under Article 32 of the Constitution of India for preliminary hearing in terms of the Supreme Court Rules. The Court having regard to its general power as also the power under Order 14 Rule 1 of the Code of Civil skt/- 5 nmt135.09 ts.28.95 tp41.95.sxw Procedure can decide the matter by framing preliminary issues in regard to the maintainability or otherwise of the application. It is a rule of procedure and not of substance. A court is entitled to dismiss a lis at the threshold if it is found not maintainable. The court even in absence of any rule must take the precaution of not indulging in wasteful expenditure of its time at the instance of the litigants who have no case at all. We do not, therefore, find any legal infirmity in the Rules.” 5. In view of the following paragraphs of the petition, the caveat cannot be dismissed on the sole ground that the caveatrix/caveator also has raised objections to the title/ownership of the deceased. “2. .....The caveators no.1 is one of the surviving heirs and legal representative of the said deceased Shashikala B. Alandkar, she being the daughter of her late brother....” “3 (c) The said Padmakar B. Alandkar, died on 7th March 1974 at Solapur leaving behind him his wife Smt.Charusheela, a son Anil and two daughters. The caveator no.1 is eldest of the two daughters of late Padmakar B. Alandkar, the said Padmakar B. Alandkar left behind him the last Will dated 2nd December 1972 where in the wife of late Padmakar i.e. Smt.Charusheela Alandkar was appointed as the sole executrix. The said Will skt/- 6 nmt135.09 ts.28.95 tp41.95.sxw dated 2nd December 1972 has been probated on 30-10-1975. The said probate proceedings had concluded in the District Court at Solapur.” “3.(e) The caveators further state that under the Will of the said deceased Padmakar suit property has been bequeathed to the caveator no.1 and her husband Anil S. Bhagwat (since deceased) under the said Will dated 2-12-1972.” (3)(k) The Cavators state that the said deceased died at Mahim on 27th February 1994 in very suspicious circumstances. The police had taken charge of the dead body and informed the petitioners abovenamed about the death of the said deceased. It was shocking and surprising that the caveators received the news of the demise of the said deceased only after two weeks from outsiders. After inquiry the Mahim Police station also informed to the caveators that the Police had cremated the body of deceased on 7th March 1994 and that till the auctions the body of the deceased was lying in J.J.Hospital Morgue as unclaimed.” “3.(l) The caveators state that the deceased was in control of the petitioners and the petitioners have taken full advantage of her sickness and old age and thereby utilized their position as legal advisors of the deceased for their own benefit in breach by trust made by the deceased in the petitioners as the guardian of her interest.” “3 (m) The caveator therefore vide their Advocates letter dated 24th January 1995 skt/- 7 nmt135.09 ts.28.95 tp41.95.sxw addressed to the petitioners have called upon the petitioners to provide for the particulars about the Will and that of the above petition. The caveators have received a reply to the said letter from the petitioners which did not contain any satisfactory reply. ” “4. The caveator states that the petitioner of the above petition have not disclosed the full detail of the relatives of late Shashikala B. Alandkar. The names which disclosed in the said petition are really not this correct heirs.” 6. Mere raising title dispute is not sufficient to dismiss the caveat, by a person who has interest in the Will, in view of succession of the estates and/or within the law of succession. He is not stranger to the Probate Proceedings. It is always subject to the proof and evidence as required under the law. I am of the view that the caveatable interest, in the present case, as averred, is sufficient for further trial, as there is no dispute, so far as the relationship is concerned. This, itself, in my view, is sufficient to hold that the caveators/defendants have caveatable interest. The petition/suit need to be proceeded accordingly. skt/- 8 nmt135.09 ts.28.95 tp41.95.sxw 7. A Division Bench of this Court in “Kamlesh Singh Harnamsingh Chowhan Vs. Kishorsingh Gangasingh Chowhan & Anr., [2010 (1)Mh.L.J.], 238”, has observed that while granting probate, the Court does not enter into the question of title. Therefore, even for this reason also no case is made out. 8. The another aspect in the present fact is that the Probate Petition is of the year 1999 and the present Notice of Motion is of the year 2009, after 10 years. This is also the another fact, which goes against the applicant. The learned counsel appearing for the applicant submits that the delay cannot be the reason of the dismissal. This plea, in my view, has no substance, while granting/rejecting the motion in the present facts and circumstances. The Notice of Motion is dismissed. No costs. [ ANOOP V. MOHTA, J. ]