1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO. 3 OF 2008 IN SUIT NO. 64 OF 2007 IN PETITION NO. 571 OF 2007 Yashwant Vithal Vardam. ... Plaintiff. V/s. Kamlesh H. Shah. ... Defendant. WITH NOTICE OF MOTION NO. 31 OF 2008 IN SUIT NO. 64 OF 2007 IN PETITION NO. 571 OF 2007 Jaswantlal Kandhar & Ors. ... Plaintiffs. V/s. Kamlesh H. Shah. ... Defendant. Dr. Birendra Saraf a/w. Yogini Gada i/b. Harakhchand & Co. for the Plaintiffs in support of Notice of Motion 3/08. Mr. Tejas Vora a/w. D.R. Mishra for the Defendant in support of Notice of Motion 31/08. CORAM : S.C. DHARMADHIKARI,J. DATED : 9th DECEMBER 2009. P.C. :- This Notice of Motion is by the Plaintiff for dismissal of the Caveat of the Caveator/Defendant. 2. Mr. Saraf, learned Advocate appearing in support of this Motion contended that the Caveat is filed by the Caveator on 2 the basis that he has a caveatable interest while it is true that the deceased expired without leaving any issues of her own and the caveator is claiming to be a heir of the deceased in Class – II of the relevant statutory provision, yet, a consent decree was passed by the Civil Judge, Senior Division, Surendranagar in Special Suit No. 20 of 1971. That was a Suit between the husband of the deceased as a Plaintiff and the brothers and sisters of the late husband. They were arrayed as Defendant Nos.1 to 8 and 10 to 19. The Caveator/Defendant to the present Petition/Suit was a party to the Suit at Surendranagar. In that Suit, compromise terms were arrived at and a decree made in furtherance thereof by the said Civil Judge. My attention is invited by Mr. Saraf to Clause 5 of the Consent Terms recording that none of the Defendants have any claim, right, title or interest in the business of M/s. Prakash Chemical Industries and/or the shares held by the Plaintiffs and Defendant No.9 in M/s. Enar Chemie Pvt. Ltd. and/or in any other properties, assets and credits of the Plaintiff and Defendant No.9. 3. Mr. Saraf submits that in the light of these clear stipulations in the consent terms, the caveat in the instant case is not maintainable. He places reliance upon a decision of this Court reported in XXXIX (1937) BLR page 490 (Swatantranandji V/s. Lunidaram Jangaldas). 4. On the other hand, Mr. Vora, learned Advocate appearing on behalf of the Caveator submits that the Plaintiff does not 3 dispute that the Caveator is a heir and next of kin. The deceased and her husband had no issue. The estate of the deceased according to the testator is governed by Hindu Succession Act, 1956. The husband of the deceased had a sister. The caveator is the son of the said sister. Thus, the caveator is the nephew of the husband of the deceased. However, the husband of the deceased, pre-deceased her and thereafter, the deceased Saroj N. Shah expired leaving behind no issue of her own. However, the caveator falls within the category of heirs and more particularly, in entry IV of Class II as per Section 8 and Section 15 (1)(B) of the Hindu Succession Act, 1956. This is the undisputed position once there is a caveatable interest disclosed then whether the Caveator has right, title, interest in the property of the deceased is something which is not capable of being adjudicated by this Court and in any event at this stage. Therefore, the Motion is mis-conceived and should be dismissed. 5. After hearing parties, I find much substance in the contention of Mr. Vora. What would be the effect of the consent terms and what are the rights of the Caveator/Defendant herein in the properties of the deceased, are matters which cannot be gone into at this stage. At the stage at which the matter stands, all that the Court is concerned with, is whether the caveatable interest is disclosed or not. The nature of the interest is a matter of dispute. That the caveatable interest is disclosed is apparent, even from the case set up by the Plaintiff. Therefore, there is 4 no alternative but to hold that the Notice of Motion deserves to be dismissed. It is accordingly dismissed. 6. As far as the reliance placed on the decision of this Court in case of Swatantranandji V/s. Lunidaram Jangaldas, in my view, the tests are now fairly well settled, in the latest decision of the Hon’ble Supreme Court in the case of K.K. Birla V/s. R.S. Lodha & Ors. (2008) 4 S.C.C. Page 300). All earlier views in the field have been referred to and thereafter, the Hon’ble Supreme Court has observed thus :- “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 a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any 5 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. 91. Both MPB and PDB claimed their interest in certain companies. The subject-matter of the will is not the ancestral property over which the caveators claim any interest. It is one thing to say that the subject matter of the will is “coparcenary“ or a “joint family property” in which case the larger concept of interest in the agnates would apply, but it is another thing to say that if people are available who would otherwise represent the interest of the estate and against whom citations have been issued, others who have no interest would also be entitled to enter a caveat. 92. In the context of the laws governing inheritance and succession, as they then stood, the widest possible meaning to the term “interest” might have been given in a series of decisions which the learned counsel for the appellants rely upon ranging from Nobeen Chunder Sil to Radharaman Chowdhuri V. Gopal Chandra Chakravarty so as to hold that a caveat would be 6 maintainable even at the instance of a person who had been able to establish “some sort of relationship” and howsoever distant he may be from the deceased which per se cannot have any application after coming into force of the Hindu Succession Act. Ordinarily, therefore, a caveatable interest would mean an interest in the estate of the deceased to which the caveator would otherwise be entitled to, subject of course, to having a special interest therein. 94. A will is executed when the owner of a property forms an opinion that his/her estate should not devolve upon the existing heirs according to the law governing intestate uccession. When, thus, a person who would have otherwise succeeded to the estate of the testator, would ordinarily have a caveatable interest, any other person must ordinarily show a special interest in the estate.” 7. In the light of these principles, to my mind, the Plaintiff cannot urge that the caveat in the instant case should be dismissed. While it is true that in the said decision, relied upon by Mr. Saraf, the tests have been adverted to but ultimately, the Court held that the Defendant has caveatable interest in itself to oppose the grant of probate. 7 8. The Court was called upon to interpret two wills and then, consider the controversy. The Court refused to go into the same and despite referring to the clauses of the Will held that there is sufficient interest in the estate disclosed by the Defendants for which he can maintain the caveat. In such circumstances, how this decision is of any assistance is not clear to me at all. The Notice of Motion fails and stands dismissed. No costs. (S.C. DHARMADHIKARI,J.)