: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.69 OF 2009 IN TESTAMENTARY SUIT NO.33 OF 2009 IN TESTAMENTARY PETITION NO.1022 OF 2008 Smt. Ushadevi wife of Umanath Kamath & Anr. .. Plaintiffs / V/s. Smt. Vidhya Dayananand Pai .. Defendants/ Caveators ..... Mr. D.D. Belosay for the plaintiffs Mr. Laxman Venkatesan for defendants Mr. P.M. Havnoor for respondent No.2 in TP 1022/08 and Caveator in TP 569/08. ..... CORAM : S.C. DHARMADHIKARI, J. DATE : 26th AUGUST, 2009. P.C. : 1. This is a notice of motion by the original petitioners for dismissal of the Caveat. 2. The petition is filed for probate of last Will and Testament of Smt. Malathi Umesh Shenoy widow of R. Umesh Shenoy who was at the relevant time residing within the jurisdiction of this Court. 3. It is stated in this notice of motion that after the probate petition was filed, necessary steps are taken to serve the citation. The caveat has been lodged which was : 2 : served upon the petitioners advocate. The caveator is Smt. Vidhya Dayanand Pai. 4. The petitioners states that upon perusal of the Caveat, it is apparent that the Caveator is not a heir and legal representative and / or in any manner related to the deceased. She has no caveatable interest in the matter. She has filed a caveat only to delay the proceedings. She has not challenged the execution of the Will. However, if it is her case that the deceased was not the absolute owner of the properties, then, her remedy is not to file the instant caveat but to institute appropriate proceedings. In such circumstances, the Caveat be dismissed. 5. My attention is invited by Mr. Belosay appearing in support of this notice of motion to the statements made in the affidavit filed on behalf of the petitioners and has urged that there are no denials of the same. In such circumstances, the caveat be dismissed. 6. On the other hand, it is urged by the Caveator that a Testamentary Petition being Testamentary Petition No.569 of 2008 has been filed by the Caveator in this Court praying for grant of probate of last Will and Testament dated 10 th April, 2008 of one Mizar Annappa Shenoy (deceased). The property that is bequeathed under this Will is one Pathan Chawal located near Kabutarkhana, Bhavani Shankar Road, : 3 : Dadar (W), Mumbai - 28. According to the Caveator, this property was owned by a partnership firm M/s. Laxmi Constructions in which along with the late Mrs. Malathi Umesh Shenoy, the said Mizar A. Shenoy was also partner. Both had 50% share each in the partnership firm, M/s. Laxmi Constructions. Therefore, this is a property of the firm and the only partners being entitled to a share therein, the caveat has been filed. 7. The entire basis of the Caveator is that Pathan Chawl forms part of the estate of late Malathi U. Shenoy so also Mizor A. Shenoy. The property being common, that is how the caveat has been filed in the instant petition. 8. After this matter was argued for some time and the attention of the advocate of the Caveator was invited to the fact that merely because the caveator is claiming to be entitled to the estate of the deceased Mizar Annappa Shenoy, how could she claim any rights in the estate of Malathi Shenoy, whose Will is subject matter of Testamentary Petition No.1022 of 2008 and now numbered as Testamentary Suit No.32 of 2009. Beyond stating that the firm is the owner of the properties and that in any event Mizar A. Shenoy had share in the one of the properties which forms the estate of the deceased Malathi Sheony, the Caveator s advocate could not point out to me anything. It may be that she as a caveator has instituted substantive : 4 : proceedings of her own. Those proceedings concern the Will of Mizar A. Shenoy. Those proceedings can go on unaffected by any orders that are passed in the notice of motion. Similarly, whether in the properties belonging to the firm and the parties to the instant proceedings have any right, title or interest therein are issues which can be agitated in appropriate proceedings. These issues can always be kept open. In such circumstances, I do not see any reason as to how the caveat at the instance of the caveator who admittedly is neither a heir or legal representative of deceased Malathi U. Shenoy nor in any way concerned with the estate, can be kept on the file of this petition. 9. In the light of the clear provisions in law and when there is no caveatable interest disclosed, there is no alternative but to dismiss the Caveat but with the clarification that the dismissal of the Caveat would not be in any manner affect the proceedings instituted by the caveator so also the right, title or interest, if any, in the properties of the firm M/s. Laxmi Constructions. With these clarifications, motion is made absolute in terms of prayer clause (a). However, there will be no order as to costs. (S.C. DHARMADHIKARI, J.)