1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 81 OF 2008 IN TESTAMENTARY SUIT NO. 74 OF 2006 IN TESTAMENTARY PETITION NO. 619 OF 2005 Rajkumar Assudomal Gurbani......... Plaintiff/Petitioner versus Vijay Gulab Gurbani & anr........Defendants/respondents. Mr. A.L. Thakkar i/b. M/s. Thakkar & Co. adv. for the Plaintiff/petitioner Ms. Yasmin Bhansali i/b Yasmin Bhansali & Co. adv. For the Defendants/respondents. CORAM: A. P DESHPANDE, J. DATED : 7th July, 2009. P. C.: 1. This Notice of Motion is taken out by the Plaintiff/petitioner for discharge of the caveat lodged by the Caveators/Defendants. Few necessary, relevant facts need to be narrated so that the question of law raised can be properly addressed. One Gulab Gurbani, who happens to be the father of the Caveators, by name Vijay and Ramkumar expired on 16th May 2005. The petitioner who happens to be the nephew of the deceased filed a Testamentary Petition for obtaining probate of the last Will and testament of the deceased Gurbani. According to the petitioner his deceased uncle Gulab had executed a Will on 30-11-2004 and the said Will is claimed to be the last Will. Challenging the genuiness of the will the two sons of the deceased have filed caveat and on filing of the caveat the petition is converted into a suit. 2. By the present Notice of Motion the Plaintiff/petitioner is seeking discharge of the caveat. The beneficiary under the Will is the nephew of the deceased. Perusal of the affidavit in support of the Caveat reveals that the Caveators claim to be the sons of the deceased and further states that at the time of death of the deceased he had left behind two sons and their mother Savitribai. The Caveators have raised the following contentions for dismissal of the petition for probate and the same are summarized as herein below: 3. The signature of the testator/deceased is denied as not of the deceased. The execution and attestation of the Will is also denied. It is also denied that the Will is the last Will and testament of the deceased father of the Caveator. It is then contended that the deceased had share in the business of the partnership firm and had left behind various other assets. 4. After raising the objections as above it is stated that without prejudice to the above contentions, the statements in the Will are contradictory to the statements made by the deceased in his evidence before the District Court at Jaipur. In the concluding paragraph the following statement is made and the same reads thus: “It is denied that the deceased had power of disposition of the property of Jaipur bearing No.126 situated at Bhaskar Marg, Bani Park, Sindhi Society, Jaipur”. 5. The said statement is extracted above as the same is heavily relied upon by the learned counsel for the Plaintiff in support of his submission that anyone who is disputing the title of the deceased to the estate cannot maintain the caveat. In the submission of the learned counsel for the Plaintiff/petitioner four conditions need to be satisfied by the caveator for maintaining the caveat. i.e. 1. He must challenge genuineness of the Will. 2. He must claim an interest in the estate of the deceased. 3. He must not dispute the title of the deceased. 4. He must be a heir of the deceased. The submission is that unless the afore stated four conditions are complied with, a caveat would not be maintainable. It is undisputed that the Caveators comply with the condition nos.1 and 4. The submission is that the Caveators do not satisfy the test laid down at condition nos. 2 and 3 above, meaning thereby that the Caveators have not specifically claimed any interest in the estate left behind by the deceased and that they are disputing the title of the deceased to the estate. Touching these two purported non-compliance of the conditions, which according to the learned counsel for the Plaintiff/petitioner are necessary to be complied with prayer for discharge of he caveat is made. The learned counsel for the defendants in the first place submitted that there is no need for a heir apparent to make an express claim to the estate of the deceased. The requirement is that he need to have an interest in the estate according to law of Intestate Succession i.e. Personal Law, applicable to the parties. In so far as the condition no.3 is concerned, it is pointed out that the Plaintiff has not disputed the title of the testator in any manner whatsoever. It is tried to be contended that not only the Caveators have admitted the title of the deceased to the estate but they have also claimed that the deceased was the owner of other assets as well, which are not referred to in the will or the petition. Perusal of the concluding part of the caveat, which is reproduced herein above, in my opinion, does not go to and cannot be interpreted as a denial of the title of the deceased to the estate. What is being denied by the Caveator is the power of disposition of the deceased. The said statement is in the context of the condition of the health of the deceased at the time of execution of the Will. Hence it can safely be said that denial of the power of the deceased of disposition of the property is in relation to the conditions of his health and not in relation to the title of the deceased to the estate. 6. The law in regard to caveat and caveatable interest has been crystallized in the case of Krishna Kumar Birla Vs. Rajendra Singh Lodha reported in 2008(4) SCC 300. The legal position that emerges from the said judgment is summarized herein below: A. The person claiming any interest adverse to the testator or his estate cannot maintain any application before the Probate court and his remedy would be elsewhere. The caveatable interest is the interest in the deceased testators estate which may be affected by grant of a Probate. A person who could have succeeded in testators estate in case of intestate succession, would ordinarily have a caveatable interest whereas any other person must ordinarily show the said interest in the testators estate. A caveat would be entertained where the caveator can inherit the estate when probate is not granted, according to the law governing intestate succession. Ordinarily a caveator questioning the title of the testator would be disqualified from being caveator. 7. The jurisdiction of a Probate court is confined only to consider the genuineness of a Will though the judgment is in realm, it could not determine the question of title. Existence of property, construction of a Will relating to the right, title and interest of any person, are questions beyond the jurisdiction of a Probate court. 8. It can thus be seen that ordinarily a heir of the deceased who is bound to succeed in an intestate succession, would be presumed to have a caveatable interest. The observations of the Supreme Court in para 94 clinches the issue. “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 succession. 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.” 9. In the present case the beneficiary under the Will is the petitioner who is nephew of the deceased whereas the caveators are the sons of the deceased and thus having regard to the fact that under the Personal law, the caveators would take the entire estate to the exclusion of the present petitioner the caveators have a caveatable interest. 10. The learned counsel for the Caveator has also placed reliance on a judgment of the Supreme Court in Shanta G.Z. Mehta Vs. Sarla J. Mehta & ors reported in 2002 (10) SCC 730. In the said case by amending the caveat alternatively and without prejudice, a contention was raised by the heirs, dening the title of the testator and in that context upholding the order passed by the High Court, the Supreme Court held in favour of the caveator solely because the caveators were having an interest in the estate according to intestate succession and as the denial was without prejudice. Same is the situation in the present case, even if it is assumed that the caveators have denied the title of the testator which they have not. 11. Lastly reliance was also placed on a judgment of the learned Single Judge of this court reported in Sarla Kapur & anr. Vs. Sanjay Sudesh Kapur reported in 2009 (1) Mh.L.J. 389, to contend that a person who is the son of the deceased would be entitled to succeed to the estate or part of the estate of the deceased but for the will set up by the plaintiff, hence has a caveatable interest. Having regard to the facts and circumstances and the law in relation to the caveatable interest, I have no iota of doubt that the caveators in the present case have caveatable interest to maintain the caveat. 12. In the result, there being no merit, the Notice of Motion is dismissed. Hearing of the suit is expedited. (A. P. Deshpande, J.)