: 1 : IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION NOTICE NOTICE NOTICE OF OF OF MOTION NO.57 OF 2007 MOTION NO.57 OF 2007 MOTION NO.57 OF 2007 IN IN IN PETITION PETITION PETITION NO.311 NO.311 NO.311 OF 1998 OF 1998 OF 1998 IN IN IN SUIT SUIT SUIT NO.71 NO.71 NO.71 OF 1999 OF 1999 OF 1999 Minoo R.Shroff & Ors. .. Petitioners/ Plaintiffs. Versus Shiraaz D.Zilla & Ors. .. Respondents/ Defendants. Ms.R.Iyer, Senior Counsel with Mr.M.Chavan for plaintiffs. Mr.Gangal N. with Ms.A.Khan for defendants. CORAM CORAM CORAM : V.C.DAGA, J. : V.C.DAGA, J. : V.C.DAGA, J. DATED DATED DATED : 16th January, 2008. : 16th January, 2008. : 16th January, 2008. ORAL ORAL ORAL JUDGMENT :- JUDGMENT :- JUDGMENT :- The The The Facts :- Facts :- Facts :- ------------ ------------ ------------ 1. The petitioners / plaintiffs have filed the present petition for Letters of Administration with the Joint Will annexed thereto to the properties and credits of the late Pirojsha Pestonji Narielwalla and Mrs.Hirabai Pestonji Narielwalla. Mrs.Vaishali Vasudeo Ingle, duly Constituted Attorney and Legal officer of the petitioners : 2 : / plaintiffs has filed an affidavit dated 28th June, 2007, in support of the Notice of Motion of which para 3 reads as under :- "3. I say that Mr.Pirojsha Pestonji Narielwalla and Mrs.Hirabai Pestonji Narielwalla executed a joint Will dated 21st December, 1978. Mr.Pirojsha Pestonji Narielwalla died on 22nd January, 1980, leaving his only sister Hirabai as his only heir and next of kin. Mrs.Hirabai Pestonji Narielwalla died on 12th September, 1981. There were no executors appointed under the Will and the residuary legatees were the Trustees of Parsi Panchayet Funds and Properties, Bombay. Accordingly, the then Trustees filed a Petition bearing Petition No.4 of 1986 for Letters of Administration with the joint Will annexed." 2. It appears that the original suit / petition bearing Petition No.4 of 1986 for Letters of Administration with joint Will annexed was converted into a suit bearing Suit No.3 of 1989. 3. It appears that prior to the filing of the above suit / petition, the Trustees had issued notices in two local newspapers dated 3rd January, 1983 and 28th January, 1983, inviting objections and / or claims, if any, in relation to the estate of the late Pirojsha Pestonji Narielwalla. 4. In response to the aforesaid public notices, four persons, viz. : (1) Shri.S.A.Narielwalla, (2) : 3 : Shri.P.A.Narielwalla, (3) Miss Piroja A.Narielwalla and (4) Mrs.Virabaiji N.Narielwalla, filed their caveats in Petition No.4 of 1986, which was lateron converted into a suit bearing Suit No.3 of 1989 since trial issues were raised. 5. However, the said caveats were withdrawn on 9th June, 1989. The withdrawal has been recorded in the order passed by Justice Variava (as he then was) in Chamber Summons No.436 of 1989 in T&IJ Petition No.4 of 1986 in Suit No.3 of 1986. 6. The suit proceedings, with the withdrawal of the caveat, were re-converted into a proceedings meant for Letters of Administration. However, for want of removal of office objections, proceedings were dismissed by an order dated 22nd June, 1994, passed by the Prothonotary and Senior Master of this Court for non prosecution. The appeal followed by review petition, did not succeed in restoration of the said proceedings / petition. 7. It appears that after having found unsuccessful in the aforesaid appeal and review petition, fresh petition being Petition No.311 of 1998 came to be filed at the instance of the Trustees of the Parsi Panchayat. The same : 4 : was notified pursuant to the order dated 15th September, 1999. The citation was issued and published on the notice board of this Court. 8. One Mr.Shiraaz D.Zilla, on 10th September, 2000, had filed a caveat with an affidavit in support thereof. During the pendency of the present proceedings, he left for heavenly abode on 9th November, 2005. Consequently, Chamber Summons No.5 of 2006 was taken out to substitute the name of the deceased caveator Mr.Zilla S.D., which was made absolute by an order dated 1st March, 2007. That is how the present caveators, who are claiming to be the heirs and legal representatives of the deceased original caveator, came on record of the present proceedings. In other words, they have stepped into the shoes of late Mr.Shiraaz D.Zilla. 9. The present Notice of Motion No.57 of 2007 is taken out by the petitioners / plaintiffs with the surviving prayer reading as under :- "a) that this Hon’ble Court be pleased to dismiss the caveat filed by the original Caveator late P.D.Zilla." 10. The notice of motion is supported by an affidavit, which was opposed by the caveators (heirs and legal : 5 : representatives of the original caveator Mr.Zilla S.D.) vide their counter affidavit dated 16th January, 2008, wherein locus to maintain the caveat was sought by them on the basis of the alleged interest in the property left by the deceased Mr.& Mrs.Narielwalla. Rival Rival Rival Submissions :- Submissions :- Submissions :- -------------------- -------------------- -------------------- 11. Ms.Iyer, learned Senior Counsel appearing for the petitioners / plaintiffs contends that the original caveator had no locus to maintain the caveat, consequently, his heirs and legal representatives will also have no right to prosecute their caveat, in view of the law laid down by this Court in the case of Eruch Eruch Eruch Rustom Rustom Rustom Irani v/s.Limji Kaikashroo Panday reported in 1993 Irani v/s.Limji Kaikashroo Panday reported in 1993 Irani v/s.Limji Kaikashroo Panday reported in 1993 (1) (1) (1) Bom.C.R.340 Bom.C.R.340 Bom.C.R.340. She placed heavy reliance on para 7 and 8 of the said judgement, which read as under :- "7. The procedure laid down in the Original Side Rules of this High Court in respect of such a petition and caveat to be filed challenging the grant of probate may be noted at this stage. Chapter XXVI of the Original Side Rules pertains to testamentary and intestate jurisdiction of this Court. Rule 401 provides for filing caveats in petitions for probate etc. and reads thus :- "Any person intending to oppose the grant of probate or letter of administration shall file a caveat in Form No.116 within fourteen days from the service of the citation upon him or within : 6 : such shorter time as the judge in Chambers may direct. Notice of the filing of the caveat shall be given by the Prothonotary and Senior Master to the petitioner or his advocate on record. The Judge in Chambers may extend the time to file a caveat, provided the grant has not in the meantime been issued." Then comes Rule 402 which provides that the affidavit to be filed in support of the caveat shall state the right and interest of the caveator and the grounds of the objections to the application. It provides :- "402. An affidavit in support of a caveat shall be filed within eight days from the date of the filing of the caveat, notwithstanding the Court vacations. Such affidavit shall state the right and interest of the caveator, and the grounds of the objections to the application. A copy of the said affidavit shall be served by the caveator on the petition or his advocate on record. If such affidavit be not filed within the prescribed time, the caveat shall not prevent the grant of probate or letter of administration. No such affidavit shall be filed after the expiry of the said eight days without an order of the Judge in Chambers". The aforesaid two Rules indicate the limited class of persons who can file a caveat. It is abundantly clear therefore that the citation is to be served or notice in respect of the application for probate is to be given to all the heirs and next of kin of the deceased. That suggests that the caveat can only be filed by such party who has an interest in the estate of the deceased. 8. With the aforesaid position under the Rules, turning now to the facts, it is neither claimed by the caveator nor it is the case of the petitioner that the caveator is an heir or next of kin of the deceased and his claim is derived from or through the deceased or any person claiming through the deceased. Therefore, the caveator is not a person holding any interest in the property of the deceased which is bequeathed under the Will in question which entitled him to put in the caveat. He has no interest in the estate of the deceased. There indeed is a dispute over the title of the property inasmuch as the caveator : 7 : denies the title of the deceased and claims the title in himself. He has no interest in the estate to be derived from the deceased in inheritance or otherwise. He having set up a title adverse to that of the testator it is not sufficient to sustain any interest of his so as to be entitled to file the caveat. It is obvious that the grant of probate to the petitioner will not in any manner displace the right which the caveator is pleading namely his own title. He is therefore not an interested party. The affidavit in support of the caveat does not disclose any right or interest which is required to be disclosed under Rule 402. I draw support for the above view which I have taken from the judgement of the Division Bench of this Court (Desai & Parekh, JJ), in Appeal No.1050 of 1986 in Testamentary Suit No.22 of 1985 dated 9-1-1987 (unreported)". 12. Ms.Iyer also contends that the suit filed by Mr.P.D.Zilla in this Court bearing Suit No.2059 of 1994 does not survive in view of the fact that the original plaintiff died somewhere in the year 2005 and inspite of lapse of more than three years, no steps were taken to substitute the name of the deceased plaintiff. With the result, the suit has already abated. 13. Ms.Iyer further submits that the question of title to the property involved in the Will cannot be gone into in the present proceedings as such caveat is not maintainable. She further submits that the caveators, by no stretch of imagination could be said to be the heirs and or next of the kin of the deceased. The caveators have not derived any interest in the property of the : 8 : deceased by inheritance or otherwise, as such they have no caveatable interest in the proceedings. She further submits that the caveators have set up their own title to the property as such their interest is adverse to that of the deceased and, therefore, they cannot maintain the caveat in question. 14. Per contra, learned Counsel appearing for the caveators tried to repeal the submissions of Ms.Iyer but could not take it to logical end. He could not point out how Suit No.2059 of 1994 still survives. He also could not point out that the caveators are the legal heirs or the next of the kin of the deceased. He only tried to establish locus on the basis of the alleged interest in the immovable properties, which according to him are the subject matter of the present petition. 15. Learned Counsel for the caveators also went on to argue that the present suit is not maintainable in view of the dismissal of the earlier suit for want of removal of office objections. He further submits that the wife of the late Pirojsha Pestonji Narielwalla has also not been served with the citation. That is how, he tried to seek dismissal of petition and claimed caveatable interest in the proceedings. : 9 : CONSIDERATION CONSIDERATION CONSIDERATION :- :- :- ---------------- ---------------- ---------------- 16. Having heard rival submissions, in my considered view, it is not 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 respondents / defendants fairly admitted that the present caveators do not fall in that category. 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 : 10 : learned Single Judge of this Court in the case of Eruch Eruch Eruch Rustom Rustom Rustom Irani (supra) Irani (supra) Irani (supra). 18. In Ishwardeo Narain Singh v. Smt.Kamta Devi Ishwardeo Narain Singh v. Smt.Kamta Devi Ishwardeo Narain Singh v. Smt.Kamta Devi (AIR AIR AIR 1954 1954 1954 SC 280 SC 280 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 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 fascicle 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 valid execution of : 11 : 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. 19. The above view is affirmed in another judgement, in the case of Chiranjilal Shirilal Goenka v. Jasjit Chiranjilal Shirilal Goenka v. Jasjit Chiranjilal Shirilal Goenka v. Jasjit Singh Singh Singh reported in 1993 (2) SCC 507. reported in 1993 (2) SCC 507. reported in 1993 (2) SCC 507. 20. No case is made out by the caveators to maintain caveats. In the result, the Notice of Motion is made absolute in terms of prayer clause (a) with no order as to costs. (V.C. (V.C. (V.C. DAGA, J.) DAGA, J.) DAGA, J.)