* 1 * Appeal.350.2011 28.6.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION APPEAL NO. 350 OF 2011 IN NOTICE OF MOTION NO. 22 OF 2011 IN PETITION NO. 1172 OF 2010 Purshotam Vishandas Raheja ... Appellant V/S. Asha Shrichand Raheja & anr. .... Respondents/Petitioners * * * * Mr. Ravi Kadam, Advocate General with Mr. Ashish Kamat i/by. M/s. Ranjit & Co., Advocate forthe appellant. Mr. Sharan Jagtiani with Ms. Soniya Putta, i/by. M/s. S.U. Lakdawala, Advocate for the respondent CORAM :- MOHIT S. SHAH, C.J. & SMT. R.P. SONDURBALDOTA, JJ. 28th June, 2011. P.C. :- 1. The challenge in this Appeal is to the order dated 5th May, 2011 of the learned trial judge of this Court passed in Notice of Motion No. 22 of 2011 allowing the said Notice of Motion and dismissing a caveat filed by * 2 * Appeal.350.2011 28.6.2011 the caveator, who is the appellant herein. By the impugned order, the learned trial judge set aside the order dated 2nd February, 2011 converting testamentary petition into a testamentary suit. The learned trial judge further held that the office shall treat the testamentary petition as a petition which can be taken ahead as uncontested petition. 2. The respondents herein filed Testamentary Petition No. 1172 of 2010 for issuing probate in their favour in respect of a property left by the deceased Shrichand Vishandas Raheja (hereinafter referred to as the deceased”) who expired on 20 “ th August, 2010 allegedly leaving behind a will dated 3rd July, 2010. The opponent is the brother of the deceased. 3. The appellant filed a caveat opposing the grant of probate and seeking the conversion of the petition into a suit alongwith an affidavit- in-support thereof. Since the testamentary department raised an objection that the caveat was not under the prescribed form i.e. Form-116 as specified under the Bombay High Court (Original Side) Rules, 1980 (hereinafter referred to as the Rules”) the appellant filed “ another caveat on 27th January, 2011. The appellant did not file an affidavit-in-support of the said caveat, but, relied upon the affidavit which was filed on 10th January, 2011. 4. The respondents-petitioners in testamentary petition took out * 3 * Appeal.350.2011 28.6.2011 Notice of Motion No.22 of 2011 contending that since the caveat filed on 10th January, 2011 was not in proper form and the subsequent caveat dated 27th January, 2011 was not supported by an affidavit as required by the Rules, there was no caveat in the eye of law and therefore the order dated 2nd February, 2011 converting testamentary petition into testamentary suit on the basis of the above caveat be set aside. 5. After hearing the learned counsel for the parties, the learned trial judge held that the caveat dated 10th January, 2011 was not under Form-116 and that the second caveat dated 27th January, 2011 was not supported by an affidavit. Therefore, the impugned order. 6. After the matter was heard for some time by consent of the parties, we set aside the order dated 5th May, 2011 and direct that Testamentary Suit No.14 of 2011 be proceeded with on the basis of the caveat filed already by the appellant by treating the caveat filed on 10th January, 2011 as amended by the caveat filed on 27th January, 2011 and the affidavit dated 10th January, 2011 in support of the caveat be treated as the affidavit filed in accordance with the Rules. 7. The learned trial judge will now decide the question, whether the appellant has a caveatable interest in the matter. We make it clear that we shall not be treated to express any opinion on the merits of the said controversy. The learned trial judge to decide the said question, as * 4 * Appeal.350.2011 28.6.2011 expeditiously as possible, preferably within one month from today. The appeal is accordingly allowed in the aforesaid terms with costs quantified at Rs.10,000/- payable in one set to the respondents. The costs shall be paid within 2 weeks from today. [SMT. R.P. SONDURBALDOTA, J] [CHIEF JUSTICE]