1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE CIVIL JURISDICTION NOTICE OF MOTION NO. 121 OF 2009 IN SUIT NO. 70 OF 2006 IN PETITION NO. 742 OF 2005 Mr. Prem Makhija. ... Plaintiff. V/s. Mr. Rajesh Keshav Makhija & Anr. ... Caveator/Defendant. Mr. Mohan Punglia a/w. Yogesh Adhia for the Plaintiff. Mr. J.J. Thakkar for the Caveator. CORAM : S.C. DHARMADHIKARI,J. DATED : 18th NOVEMBER 2009. P.C. :- The request in this Notice of Motion which is moved by the Plaintiff is to dismiss the Caveat of the Caveator/Defendant Rajesh Keshav Makhija. 2. On behalf of the Plaintiff it is contended by Mr. Punglia that the Defendant – Caveator Rajesh filed a Caveat on 16th November 2006. In the affidavit in support of this Caveat, the Caveator has admitted the execution of the Will by the deceased. The only contention raised in the affidavit is that the Plaintiff is not entitled to any part of the estate. Mr. Punglia submits that once in Testamentary Jurisdiction this Court is only required to satisfy itself as to whether the Will 2 propounded is genuine and the same has been executed by the deceased or not, then, this Caveat cannot be entertained. He submits that the affidavit in support of the Caveat is very clear and therefore, there is no scope for the argument that the proceedings have been converted into a Suit and hence, now it is not open for the Court to dismiss the Caveat. 3. On the other hand, Mr. Thakkar, learned Counsel appearing on behalf of the Caveator submits that it is not correct that the Caveator/Defendant has executed and admitted the Will. He has specifically raised the plea of Will not being genuine. Once the genuineness of the Will is a plea raised and on the basis of which the proceedings are converted into a contested one, then, this Court should not proceed to dismiss the caveat. In support of his contention, Mr. Thakkar relies upon a decision of the Calcutta High Court reported in AIR 1963 Calcutta 205 (Gopi Debi Memani V/s. Chunilal Kothari). 4. I have heard the learned Counsel appearing for the parties and perused with their assistance, the Notice of Motion, the affidavit in support and reply. Upon perusal thereof, I am of the opinion that the relief claimed by the Plaintiff cannot be granted. The affidavit in support of the Caveat must be read as a whole. While it is true that the Caveator has referred to the Will of the mother which in turn refers to the Will of late father Keshav Makhija, yet, it is not as if he has accepted and admitted the Will. That cannot be a 3 conclusion drawn straightway. The affidavit must be read as a whole. Further, there are pleas raised in the affidavit in reply to the Notice of Motion as well. It is not as if, there is no contest as contended by Mr. Punglia. At more places than one the Defendant has stated that not only him but one Mamata has serious doubt about the genuineness of the Will (see paragraph 111). Further, they have also stated that the Will is executed in the circumstances which appear to be unnatural. Such are the issues and pleas raised in their affidavit. 5. In these circumstances, taking a overall view of the matter, it is not possible to agree with Mr. Punglia at this stage that the Caveat be dismissed. There is some substance in the complaint of Mr. Thakkar that the Caveat was on the file of this Court for nearly three years. The Suit is placed for framing issues and at this belated stage, the application for dismissing the caveat is preferred. For all these reasons, I do not deem it fit to dismiss the caveat at this stage. The Notice of Motion is dismissed but without any order as to costs. 6. It is clarified that this Court has not expressed any opinion on the merits of the controversy. All findings and observations are rendered purely for deciding the present Notice of Motion. None of the pleas of both sides are accepted. In the view that I have taken, it is not necessary to decide any wider controversy and more particularly, based upon the Judgment of the Single Judge of Calcutta High Court. 4 7. It is requested by both sides that when the Suit is placed for framing issues, alongwith the same, there are other proceedings between same parties and all be clubbed together. Since the other two matters are not assigned to this Court, at the joint request of parties, four weeks time is granted to obtain necessary directions from the Hon’ble the Chief Justice. (S.C. DHARMADHIKARI,J.)