-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 209 OF 2010 IN NOTICE OF MOTION NO. 115 OF 2009 IN SUIT NO. 75 OF 2009 IN PETITION NO. 115 OF 2009 1) Vasantben Raminklal Bhuta 2) Balwantrai Prabhudas Sheth. ..Appellants. Versus Jaysukhlal Nagardas Bhuta. ..Respondent. Mr. M. L. Palwa with Kamal Nichani with Deryani i/b B.R.Oza & Co., for the appellant. Mr. V. Y. Sanglikar for the respondent. Coram : F.. I. REBELLO & R. V. MORE, J. Date : June 17, 2010. Oral Judgment (Per R. V. More, J.): 1. Heard. Admit. In view of the short point involved, appeal is taken up for hearing forthwith with the consent of learned counsel for parties. 2. The appellants take exception to the order passed by the learned Single Judge on 26th February 2010 in Notice of Motion No. 115 of 2009 thereby rejecting the said notice of motion, which was taken out for following reliefs : -: 2 :- “(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” 3. The brief facts giving rise to the present appeal are as under : On 15th December 2008, the appellants have filed a petition for the probate of the Will left by the deceased Ramniklal. Ramniklal Nagardas Bhuta, the husband of the first appellant expired on 1st November 2005 leaving behind last Will dated 13th September 1989. The appellants are the executrix and executor named in the abovesaid Will. At the time of death the deceased Ramniklal left behind appellant no.1 - his widow, two married daughters, one son, daughter-in-law and grand-daughter. 4. The son of the deceased by name Narendra is missing since 21st June 1989 and his whereabouts are not known till date and therefore he is presumed to be dead under section 108 of the Indian Evidence Act. Two daughters of deceased Ramniklal, by name Mrs. Jayashri Mehta and Mrs. Shaila Gandhi have filed their affidavit dated 16th January 2009 giving their consent stating that the Probate may be granted in appellants’ favour without service of any citation/notice upon them. Similarly, the daughter- in-law and grand-daughter of deceased Ramniklal, by name Mrs. -: 3 :- Bhavanaben Narendra Bhuta and Ms. Riddhi Narnedra Bhuta have also filed their affidavit giving their consent stating that the probate may be granted in appellants’ favour without service of any citation or notice upon them. 5. The respondent who is the brother of deceased Ramniklal on 26th June 2009 filed caveat and thereafter on 13th July 2009 filed his affidavit opposing the grant of probate in favour of the appellants. It is the case of the appellants that the respondent being brother of the deceased is not entitled to claim any interest in the estate left by the deceased Ramniklal as heir and therefore the caveat is liable to be dismissed in limine. In the above premises the appellants took out the aforesaid notice of motion for the reliefs mentioned above. 6. The reliefs claimed in the notice of motion came to be opposed by the respondent mainly the ground that he has interest in the estates left by the deceased inasmuch as the said estates claimed by the appellants are inherited by him jointly with the deceased Ramniklal. The Will of the deceased also came to challenged on the ground mentioned above. 7. Learned Single Judge by the impugned order upheld the objections raised by the respondent and consequently the notice of motion came to be dismissed. Being aggrieved, the appellants have filed the present appeal. 8. Having heard learned counsel for the respective parties and having gone through the appeal memo alongwith the compilation of papers -: 4 :- annexed thereto including the impugned order, we find that there is no dispute about the following facts : (a) that, the parties are governed by the Hindu Succession Act; (b) that, the deceased Ramniklal expired on 1st November 2005; (c) that, the deceased Ramniklal left behind appellant no.1 – his widow, two married daughters, one son, daughter-in-law and one grand daughter; (d) that, since the whereabouts of son Narendra are not known since 31st June 1989 he is presumed to be dead in view of the provisions of section 108 of the Indian Evidence Act; (e) that, two daughters as well as daughter-in-law and grand daughter of the deceased have filed their respective affidavits and given their no objections for grant of probate in favour of the appellants without service of any citation or notice upon them; (f) that, the respondent is the brother of deceased – Ramniklal. 9. The defendant who is brother of the deceased Ramniklal cannot claim any interest in the estate of deceased Ramniklal as his heir when the deceased has left his widow, son and daughters who, under the provisions of Hindu Succession Act, are Class-I heirs. The respondent, however, wrongfully tried to challenge the right of the deceased testator to make a Will. In the absence of caveators interest, we are of the opinion that the respondent has no locus standi to file the caveat. -: 5 :- 10. Mr. Sanglikar, learned counsel appearing on behalf of the respondent opposed the appeal on two grounds. Firstly, the appeal is not maintainable inasmuch as the impugned order is not a judgment within the meaning of Clause 15 of the Letters Patent. Secondly, the respondent and deceased Ramniklal each hold 50% share in some of the properties left by their father Nagardas Bhuta and without partition by metes and bound probate cannot be granted. In support of his contention, Mr. Sanglikar relied upon the decision of Supreme Court in the matter of G.Gopal v/s. C. Baskar & Ors reported in (2008) 10 SCC 489. We find both the grounds of objections have no merit. 11. Firstly, we will deal with the second ground of objection. It is the case of the respondent that he and deceased Ramniklal jointly inherited the estate left by their father Nagardas Bhuta and therefore he has interest in the estates left by said Nagardas Bhuta. However, the subject matter of the probate proceedings in view of the Will in question of Ramniklal, is only 50% share of deceased Ramniklal. The appellants have not claimed any relief in respect of 50% share of the respondent in the estate left by his father Nagardas. As stated above, the respondent cannot claim any right or interest in the estate left out by the deceased Ramniklal when he died leaving behind his widow, son and daughters who are Class-I heirs. At this stage, it is worth to note that the respondent has also filed a suit for declaration and partition of the properties left out by his father and same is -: 6 :- pending. It is now settled legal position that the issue of title cannot be gone into in the probate proceedings. Thus, we find that the respondent has failed to show any caveatable interest. 12. The Apex Court in G. Gopal’s case (supra) held that the person even having a slightest interest in the estate of the testator is entitled to file caveat and contest the grant of probate. In a case before the Apex Court the respondents - grand children of the testator, were claiming interest in the estate of deceased on the basis of settlement deed executed by the testator himself. However, in the present case the respondent could not even show slightest interest in the estates of deceased Ramniklal. In the absence of any interest, the respondent cannot contest the probate proceedings initiated by the appellants by filing caveat. 13. The other ground of objection is about the maintainability of appeal. The Apex Court in Shah Babulal Khimji v. Jayaben D. Kania & Anr. [AIR 1981 SC 1786] held that in finding out whether any order is a “judgment” or not within the meaning of Clause-15 of the Letters Patent, it has to be found out that the order affects merits of the action between the parties by determining some right or liability. It was further held that the nature of the order will have to be examined in order to ascertain whether there has been determination of any right or liability. The Apex Court also observed that though every interlocutory order cannot be regarded as judgment, but only those orders would be judgments which decide the matters of -: 7 :- moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. In the present case, in our opinion, if the respondent is allowed to contest the probate proceedings initiated by the appellants in the absence of slightest right or interest in the estate left out by the deceased Ramniklal, then the appellants vital and valuable rights will be effected. Serious injustice will be caused to the appellants inasmuch as participation of the respondent will result in protracting the proceedings unnecessarily. In the above facts we are of the view that the impugned order is a judgment within the meaning of Clause – 15 of the Letters Patent and therefore the present appeal is maintainable. 14. Since we have come to the conclusion that the respondent has no caveable interest in the estate left out by the deceased Ramniklal and appeal against the impugned order is maintainable, the appeal deserves to be allowed and same is accordingly allowed. The impugned order is quashed and set aside. The Notice of Motion No. 115 of 2009 taken out by the appellants is allowed in terms of prayer clauses (a) and (b). No order as to costs. (R.V. MORE, J.) (F. I. REBELLO, J.)