1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO.134 OF 2008 IN TESTAMENTARY PETITION NO.667 OF 2008 Sardar Surinder Singh Gyani .. Petitioner Verrsus Bansilal N. Matta .. Caveator Mr.Sakhalkar with Anil Mishra i/b. P.G.Parkar for petitioner Mr.N.B.Jadhav with A.G.Pandit for Caveator. CORAM : S.C.DHARMADHIKARI, J. DATE : 16th January 2009. P.C. . This is a motion by the original petitioner praying that the Caveat dated 23rd August 2008 along with affidavit dated 8th September 2008 be dismissed. 2. It is contended by the petitioner that the petition is filed for probate of the last will and testament dated 23rd July 1972 of 2 Mrs.Sardarni Balwant Kaur Gyani @ Balwant Kaur, who was a widow residing at Andheri, Mumbai (hereinafter referred as deceased). 3. The petitioner has filed this petition on the basis that he is the only son of deceased. The deceased expired on 31st May 1980 much after making the above will. Petitioner claims to be the sole beneficiary under this will. The probate petition is pending. 4. The caveator has filed his caveat and affidavit in support. It is contended on behalf of the petitioner that the respondent caveator is a third party having no caveatable interest in the the property. The caveator claims that he has purchased one of the properties at Andheri from the parents of petitioner. The caveator claims that the property was sold to him by the deceased parents of the petitioner by an agreement dated 30th October 1979. Apart from 3 questioning the document, the petitioner states in the affidavit in support of this motion that the respondent has no locus to file this caveat. He is not a heir of the deceased. His rights in the said property cannot be gone into and decided by this Court in the limited jurisdiction that is conferred by the Indian Succession Act, insofar as grant of probate. For all these reasons, the caveat be dismissed. 5. Mr.Sakhalkar appearing for petitioner has invited my attention to these statements in the affidavit in support and contended that the law laid down by this Court in the case of Minoo Shroff and Ors. Vs. Shiraj Zilla and Ors. reported in 2008 (3) Mh.L.J. 542 would squarely apply. 6. On the other hand, Mr.Parkar appearing for respondent has contended that the law laid down by this Court would not apply because the 4 decision has been rendered in the peculiar facts. In fact the decision earlier in point of time is that of learned Single Judge M.G.Choudhary, (as His Lordship then was) reported in 1992 (2) Mh.L.J. 1198. Referring to para 8 of this judgement, Mr.Parkar contends that in the said judgement this Court observed that the Caveator in that case had not disclosed any right even in the property by setting out appropriate details, whereas in the present case, the caveat and the affidavit in support thereof fully discloses all details. Therefore, the said decision is distinguishable on facts. 7. The principle is well settled. After referring to all decisions in the field this Court in the latest decision (Minoo Shroff) has held as under:- "16. Having heard rival submissions, in my considered view, it is not 5 necessary at this stage to go into the questions of maintainability of the petition, that too, at the instance of the present caveators. The question whether Will is proved or not, would be an issue requiring consideration at the time of the final disposal of the proceedings. The question whether the Will is fraudulent or forged, would also be a subject matter of evidence. It can be considered at the end of the trial. Today, the question before me is whether the caveators can maintain a caveat or not. It is obligatory on the part of the caveators to establish that they are heirs and/or next of the kin of the deceased. Learned Counsel appearing for the respodnents/ defendants fairly admitted that the present caveators do not fall in that category." 6 "17. In the above backdrop, having found that the caveators are not the heirs and next kin of the deceased merely on the basis of some claim relating to the interest in the property of the deceased, the caveators’ caveat is not maintainable. I agree with the view taken by the learned Single Judge of this Court in the case of Eruch Rustom Irani (supra)." "18. In Ishwardeo Narain Singh Vs. Smt.Kamta Devi, A.I.R. 1954 SC 280, the Apex 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 7 whether a particular bequest is good or bad is not within the purview of the probate Court. Therefore, the only issue in a probate proceedings relates to the genuineness and due execution of the Will and the Court itself is under duty to determine it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the probate Court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the probate Court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the 8 valid execution of the Will. Thus, it does no more than establish the factum of the will and the legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself." 8. In the affidavit in reply to the present notice of motion, all that is stated by the caveator respondent is that he is a bonafide purchaser of the property more particularly described in para 3 of the affidavit in reply and, therefore, he has a legal right to the estate of the deceased. The caveator has admitted that the deceased expired leaving behind the petitioner as her only son. Prior to the death of deceased, her husband Gurbax Singh had also expired. Petitioner is party to all documents executed in his favour, is the other statement, and details of all those transactions are set out. 9 9. On perusal of the affidavit in support and reply, I am fully satisfied that the caveator has not disclosed any caveatable interest so as to enable him to place any caveat and oppose grant of probate in favour of petitioner. He is neither a heir nor next of kin of the deceased. That is not disputed either. The caveator claims right, title and interest in the immovable property on the basis of certain documents executed by the deceased. His right, title and interest in these properties cannot be the subject matter of the present proceedings as is well settled. This Court has no jurisdiction to adjudicate upon such issues. Caveator’s remedy, therefore, lies elsewhere and the forum chosen is not proper. 10. Applying the abovequoted principles, to my mind, the petitioner has made out a case for dismissal of the caveat. In the light of the 10 same, this notice of motion is made absolute in terms of prayer clause (a). However, it is clarified that while recording the above findings, this Court has not adjudicated upon the right, title and interest of the parties to the immovable property in question and all pleas in that behalf are kept open to be raised in appropriate proceedings. Leaving all contentions of both sides open, the notice of motion is made absolute in terms of prayer clause (a). No costs. (S.C.Dharmadhikari, J)