: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION TESTAMENTARY SUIT NO.61 OF 2007 IN TESTAMENTARY PETITION NO.721 OF 2007 WITH NOTICE OF MOTION NO.108 OF 2007 WITH CHAMBER SUMMONS NO.91 OF 2009 Sohanraj Pukhraj Chhajed & Anr. .. Plaintiffs / Petitioners V/s. Madhuri Gaurang Doshi .. Respondent/ Caveator ..... Mr. S.H. Karim for the plaintiffs Ms. Firdaus Moosa i/by Prakash Mahadik for Caveatrix / respondent ..... CORAM : S.C. DHARMADHIKARI, J. DATE : 23rd SEPTEMBER, 2009. P.C. : 1. This is a Notice of Motion for dismissal of a caveat. 2. The plaintiffs petitioners are Executors under the last Will and Testament of the Deceased, Vinod A. Doshi. The deceased was a resident of Mumbai and it is stated that he has left a Will dated 15th August, 2005, probate of which is sought in these proceedings. So far as the grant is concerned, the same is not opposed by the son and two Daughters of the deceased. : 2 : 3. The affidavits of the consenting have been filed. However, when the citations were served, a caveat has been lodged by Madhuri Gaurang Doshi, wife of Gaurang V. Doshi, son of the deceased. She states that having married Gaurang and being a daughter in law of the deceased, she has a caveatable interest and her caveat cannot be dismissed. More so, when she has specifically urged that the Will is not genuine but forged. 4. It is stated on behalf of the caveatrix that she has filed an application / suit under Section 18 of the Hindu Adoption and Maintenance Act, 1956 against the husband claiming maintenance including right of residence in a flat at Peddar Road, Bombay. Further, she has instituted a Civil Suit in the City Civil Court at Bombay to protect her possession of the matrimonial home and her eviction therefrom, except by due process of law. She states that both proceedings are pending. Once she is a daughter in law of the deceased, having married his son Gaurang and the marriage being subsisting and valid, then, on the basis of the law laid down by the Hon ble Supreme Court in (2008) 4 SCC 300 Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors., it can be safely stated that she has caveatable interest and her caveat cannot be dismissed. : 3 : 5. On the other hand, it is contended on behalf of the plaintiffs that the caveatrix cannot oppose the grant. She is claiming to be the daughter-in-law of the deceased. Her claim for maintenance is against the husband. Her Civil Suit is on the basis that the residence, which was allotted to her husband and where she was staying alongwith her husband and in-laws, is her matrimonial home. That controversy has nothing to do with the present proceedings. This is a Court of limited jurisdiction. Once all heirs of the deceased including the husband of the caveatrix have given their consent in favour of the grant, then, the daughter-in- law cannot claim any higher status or right. Her limited rights do not in any manner mean that she has caveatable interest in so far as the grant is concerned. 6. My attention was invited by Mrs. Moosa appearing on behalf of the caveatrix to several decisions of the Supreme Court so also of the Madras High Court and it is urged by her that maintenance includes provision of residence. An estranged wife cannot be denied the right to reside and remain in possession of the matrimonial house. On the basis of grant in favour of the plaintiffs, the caveatrix has an apprehension that her rights in the matrimonial house are being adversely : 4 : affected. She has set out the caveatable interest which must be adjudicated. It is urged that any interest in the estate in respect of which the deceased is alleged to have executed the Testament, must entitle the beneficiary of the interest to oppose the probate. Mrs. Moosa contends that the latest Supreme Court decision in the case of Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors. (Supra), does not in any manner deviate from this settled position nor does it expressly overrule the decisions of the Madras High Court, brought to my notice. 7. On the other hand, reliance is placed upon this very decision by Mr. Karim to urge that the caveatable interest is not synonymous with a contention. The observation to the effect that anybody and everybody cannot be found entitled to enter a caveat and oppose the grant would clearly apply in this case. 8. Having heard learned Counsel appearing for both sides and perused with their assistance the record of this case and the decisions brought to my notice, I am of the opinion that this Court while considering the request of the plaintiffs petitioners to grant the probate of the Will cannot enter into the controversy with regard to the caveatrix right to maintenance : 5 : including residing at the Peddar Road flat, alleged to be her matrimonial home. Whether the property of the father-in-law in which her husband and caveatrix were residing as husband and wife being termed as a Matrimonial home is not something which will entitle her to oppose the grant in this case. Suffice it to note that in this case, the caveatrix has already approached the Court of competent jurisdiction. 9. The decisions relied upon by the caveatrix herself make it clear that the probate Court cannot decide any dispute with regard to title. In paras 86,92,109,110,111 of the decision in K.K. Birla Vs. R.S. Lodha & Ors. (Supra) the Hon ble Supreme Court observes 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 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 : 6 : can effectively be adjudicated therein. 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 Chuder Sil to Radharaman Chowdhuri Vs. Gopal Chandra Chakravarty so as to hold that a caveat would be 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. 109. It is in that backdrop the question which is required to be posed is: Did the Calcutta High Court or the other High Court opine that even a busybody or an interloper having no legitimate concern in the outcome of the probate proceedings would be entitled to lodge a caveat and oppose the probate? The answer thereto, in our opinion, must be rendered in the negative. If anybody and everybody including a busybody or an interloper is found to be entitled to enter a caveat and oppose grant of a probate, then, Sections 283(1) (c) and 284 of the 1925 Act would have been differently worded. Such an interpretation would lead to an anomalous situation. It is, therefore, not possible for us to accede to the submission of the learned counsel that caveatable interest should be construed very widely. 110. A caveatable interest is not synonymous with the word contention . A Contention can be raised only by a person who has a caveatable interest. The dictionary meaning of contention , therefore, in the aforementioned context cannot have any application in a proceeding under the 1925 Act. : 7 : 111. While interpreting the provisions of a statute, we must also bear in mind the admitted legal position that a probate proceeding should not be permitted to be converted into a title suit. It should not be permitted to become an unchartered filed to be trespassed into by persons even if he is not affected by testamentary disposition. 10. Although reliance is placed on the decision reported in AIR 2005 SC 986 (B.P. Achala Anand Vs. S. Appi Reddy & Anr.) as far as the concept of Matrimonial Home , it must be noticed that the Supreme Court itself clarifies that a Hindu wife is entitled to be maintained by her husband. She is entitled to remain under his roof and protection. Right to residence is a part and parcel of wife s right to maintenance. The Right cannot be defeated by the husband executing a Will to defeat such a right. These observations are made in the backdrop of a case where the Husband was a Tenant of the Residential premises. He deserted the wife, residing therein with him. The issue was whether the deserted wife had any independent right to defend the eviction proceedings instituted against her husband-Tenant by the landlord. Before me, the issue of caveatrix s rights as a Hindu wife, against her husband are not in issue. 11. The caveatrix has approached the Court for maintenance so also she has approached the City Civil Court, wherein she has impleaded all family members. : 8 : That Civil Suit is stated to be pending. However, an application for interlocutory reliefs made therein by her was rejected. It is common ground that during the pendency of these proceedings, a copy of the Will of the deceased was produced and the correspondence thereof is to the knowledge of the caveatrix. She filed an Appeal against the rejection of interlocutory relief and even that Appeal was rejected by this Court. However, she has carried the matter to the Hon ble Supreme Court and by an order dated 16th April, 2008, the Supreme Court has granted interim protection to the extent that the property cannot be disposed off by the husband so also the widow of the deceased. The main petition is pending before the Hon ble Supreme Court. 12. In my view, in the peculiar facts of this case expressing any opinion on the issue as to whether the residential premises where the cavetrix was residing with her husband constitutes her matrimonial home or whether any right is created in her husband s favour during the lifetime of the deceased and the widow of the deceased is something which must be decided in the proceedings, which have been instituted by the caveatrix. In this case, merely because the plaintiffs have applied for a grant of probate as executors of the Will, does not mean that the grant puts an end to all : 9 : issues and controversies raised by the caveatrix in her substantive proceedings. Even if, she is allowed to put in a caveat in these proceedings the issues that have been raised on her behalf cannot be resolved in the limited jurisdiction of this Court. She will have to adopt independent proceedings. If she has already adopted them and they are stated to be pending, then, interest of justice would be sub-served by disposing off this Notice of Motion by passing the following order. ORDER a) The caveat filed by the caveatrix is dismissed but keeping open the issues as to whether the residential premises at Peddar Road constitute her matrimonial home and whether denial of the right to reside therein would constitute any violation of her rights as a Hindu wife to seek Maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956. b) All contentions of both parties in that behalf are kept open. Further, this order will not in any manner preclude the City Civil Court and the Court of competent jurisdiction where maintenance proceedings are pending from recording such findings and conclusions as are permissible in law. All contentions can be gone into by these Courts and they shall not be influenced by the : 10 : grant of probate in favour of the plaintiffs. All pleas as raised before me by the caveatrix in the affidavit in support of the caveat and in her affidavit in reply to the instant application are also kept open. c) Since the caveat of the sole caveatrix is dismissed, office to proceed and treat these proceedings as uncontested and issue the grant, as prayed. However, it is clarified that the grant shall not preclude the caveatrix from pursuing her independent proceedings. Further, this order and grant shall not be construed as any expression of opinion on the merits of the controversy in pending proceedings between the caveatrix and her husband so also between caveatrix and the family members of the deceased. Since the caveat is dismissed and the notice of motion succeeds to that extent, the chamber summons does not survive and is disposed off accordingly. (S.C. DHARMADHIKARI, J.)