1 Ch-summons-148 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Chamber Summons No.148 of 2010 IN Suit No.113 of 2010 IN Petition No.293 of 2010 Hosang M. Banu & anr. ... ... Petitioners/ Plaintiffs v/s. Shapoor Aspi Irani ... ... Respondent/ Defendant Ms.Ansali P. Purav for Plffs. Mr.Tejas Vora with Mr.D.R. Mishra for Deft. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 6th January 2011 P.C. : 1.This Petition is filed for probating the Will dated 2nd August 2004 of the deceased Dr.Furrokh Bapuji Dhondi. The Caveat filed by the Caveator is sought to be dismissed. The Plaintiffs are the trustees of the Trust formed under the Will in which the main immovable property of the deceased has been bequeathed to a charity. The Caveator is a stranger and an outsider who claims to have cared for the deceased in his old age since the deceased had no near relatives. The Caveator being an outsider has no caveatable interest to challenge the grant of probate to the Will 2 Ch-summons-148 propounded by the Plaintiffs. However, the Caveator has produced another Will dated 7th December 2004, though belatedly. It is contended by the Plaintiffs that only after the property of the deceased was sought to be usurped by a builder, this Will has surfaced in September 2010. The deceased expired on 29th January 2006. The Caveator would first have to prove the Will propounded by him. He has filed a Petition for probate. The Plaintiffs herein have filed their Caveat. The Petition would be converted in a Testamentary Suit. If the Caveator has proved the later Will of the deceased, the Will propounded by the Plaintiffs in this Petition would not be considered at all. If the Caveator does not prove the later Will of the deceased, then alone the Plaintiffs would require to probate this Will. 2.The Caveator claims caveatable interest on the premise that he has another later Will of the deceased of which he is a beneficiary. Relying on the case of Krishna Kumar Birla vs. Rajendra Singh Lodha & ors., (2008) 4 Supreme Court Cases 300 that any slightest caveatable interest would have to be seen by the Court, the Caveator claims interest and seeks to challenge the Will. The Caveator has relied upon a judgment dated 11th January 2007 of this Court in Notice of Motion No. 106 of 2006 in Petition No.556 of 2006 in which upon production of another Will of the deceased in which the 3 Ch-summons-148 deceased gave the property to his wife and the wife bequeathed the property under a separate Will of which she appointed the executor, the Caveator was held to have caveatable interest. 3.The Caveat filed in this Petition to challenge the execution of the Will is on the ground that the deceased was well and in a fit state of mind at the time of the execution of the first Will dated 23rd August 2004. It is seen that the Caveator has himself sought to propound the Will executed by the deceased less than four months thereafter. Under these circumstances and in view of the later Will, the Caveat is at present not dismissed. Both the Testamentary Petitions and the Testamentary Suits filed by the Plaintiffs as well as the Caveator shall be heard together. 4.Both Testamentary Suit No.113 of 2010 and Testamentary Petition No.879 of 2010 shall be on Board on 18th January 2011 for framing issues. 5.The Chamber Summons is disposed of accordingly. (SMT.ROSHAN DALVI, J.)