((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.135 OF 2007 IN TESTAMENTARY SUIT NO.10 OF 2006 IN TESTAMENTARY PETITION NO.950 OF 2005 Mrs.Dollyben Nautamlal Udani Plaintiffs/ Petitioners versus Dhairybala Arvind Halakia and another Defendants/ Caveators Cyrus Ardeshir a/w Prasanna Tarey and Ms.Kamlesh Rajwani i/by Vigil Juris for plaintiffs. Mangal S. Bhandari a/w N.M.Shah for defendants. CORAM : A.S.OKA, J. DATE : 12th December 2008 PC : 1. I have heard learned counsel appearing for the petitioner-plaintiff in support of the Notice of Motion. I have heard the learned counsel appearing for the defendats-caveators. The prayer in this Notice of Motion is for quashing and setting aside the Caveats dated 4th February 2006 and 7th February 2006 filed by the first and second defendants respectively. ((-2-)) 2. The plaintiff has filed a petition for probate in respect of the last Will and Testament dated 19th March 1998 of late Smt.Chandraben Himatlal Shah (hereinafter referred to as "the deceased"). The first defendant filed a caveat on 6th February 2006. The second defendant filed a caveat on 7th February 2006. Identical affidavits were filed in support of both the caveats. In paragraph 2 of the affidavit in support it was stated by the defendants that they were not aware or were not having knowledge of any will being executed by the deceased. The said defendants craved leave to file additional affidavit giving reasons in support of the caveats. 3. It will be necessary to refer to the order dated 20th August 2008 passed by this Court on the present Notice of Motion. At the time of hearing of the Notice of Motion it was submitted by the petitioner-plaintiff that no cause of action is disclosed in the affidavits in support of the caveats. It was contended by the defendants that in the affidavits in support of the caveats, a leave was already sought to file additional affidavits. By the ((-3-)) said order, this Court granted leave to the caveators to file additional affidavits in support of the caveats filed by them. Accordingly, additional affidavits have been filed. 4. The learned counsel appearing for the plaintiff-petitioner has invited my attention to the additional affidavits dated 11th September 2008 and 12th September 2008 filed by the first and second defendants respectively as well as original affidavits in support of the caveats filed by them. He also invited my attention to Rules 401 and 402 of the Bombay High Court Original Side Rules. He relied upon a judgement and order dated 15th December 2006 passed by the learned Single Judge of this Court in Notice of Motion No.122 of 2006 in Testamentary Suit No.33 of 2006 (Kaikhosrow Aspendiar Oshtori vs. Dr.Meherji Aspendiar Oshtori and anr.). He submitted that there are vague statements in the affidavits in support of the caveats. He pointed out that in the first set of affidavits filed by the defendants in support of their respective caveats, the execution of the will by the deceased has not been denied. He invited my attention to the ((-4-)) additional affidavits filed by the defendants. He pointed out that only a vague allegation has been made therein that the will is fabricated, bogus and forged. He submitted that no caveatable interest is disclosed from such vague allegations. He submitted that no particulars or details in support of the said vague allegations are set out by the caveators. He submitted that the affidavit filed in support of the caveat must give rise to an issue between the parties and such vague allegations do not give rise to any issue between the parties. He submitted that in none of the affidavits the caveators have disclosed the basic facts which could lead to the conclusion about illegality or invalidity of the will. He submitted that as the said basic facts are not disclosed in the original affidavits as well as in the additional affidavits, the caveats filed by the defendants deserve to be quashed and set aside and the probate deserves to be granted. 5. The learned counsel appearing for the defendants has invited my attention to the assertions made in the additional affidavits and submitted that the very execution of the ((-5-)) will has been disputed by the defendants by filing caveat. He, therefore, submitted that the caveats cannot be dismissed. 6. I have given careful consideration to the submissions. It will be necessary to refer to the order dated 15th December 2006 in Notice of Motion no.122 of 2006 relied upon by the learned counsel appearing for the plaintiff. The said Notice of Motion was taken out for removal of the caveats. The learned counsel appearing for the plaintiff has relied upon paragraph 3 of the said order. The relevant part of paragraph 3 reads thus :- "3. I have heard the learned counsel appearing for both sides. The purpose of filing the caveat in a probate petition is to challenge the validity of the Will. The consequence of filing of a caveat is that the caveator is added as a defendant and the probate petition is converted into testamentary suit. The affidavit filed in support of the caveats is treated as a written statement filed by the Defendant- caveator. Obviously, therefore, the affidavit filed in support of the caveat must give rise to an issue between the parties. In a probate petition the only issue that can be raised and that can be decided by the court is whether the Will of which the probate is sought is legal and valid Will. Therefore, it is absolutely necessary for maintaining the caveat in a probate petition to dispute the validity and legality of the Will in the affidavit filed in support of the caveat. In paragraph 4 of the affidavit filed in ((-6-)) support of the caveat, the caveator says that the Will of which the probate is sought is invalid, illegal and fraudulently prepared and is not forcible in law. No where in the affidavit filed in support of the caveat, the caveator says that when the Will supposed to have been signed by the deceased testator, he was not in right frame of mind to dispose of his property, that the testator has not signed the Will, that it is not attested as per law. Merely making a vague statement that the Will is invalid and illegal will not amount to challenging the validity of the Will. Perusal of paragraph (5) of the affidavit filed in support of the caveat, on the contrary, shows that both the caveators have acted pursuant to the Will. In paragraph (6), they have stated that after the Will was disclosed a meeting of the members of the family was held on 22-2-2005 and the memorandum of understanding was arrived at between the members of the family for implementation of the Will on 23-12-2005. Paragraph (6) of the affidavit read as under :- "6. I say that after the deliberation on the Will between the beneficiaries and executors/ beneficiaries, the memorandum of understanding was arrived at and duly signed by all the present in presence of each other. A copy of which was given to each other of the above present." It will also be necessary to refer to paragraph 4 of the said order, the relevant part of which reads thus :- "4. It is, thus, clear from the affidavit filed in support of the caveat that not only the caveator did not dispute that the Will is duly signed and attested, that the testator was in right frame of mind to make the Will, but they have actually acted pursuant to the Will ((-7-)) and have taken steps to implement the Will. Perusal of the documents filed with the affidavit in support of the caveat shows that one of the caveators Dr.Meherji Aspendiar Oshtory in fact signed the letter as executor of the Will." The learned Single Judge, therefore, proceeded to reject the caveat. 7. The learned counsel for the plaintiff has also placed reliance on an order made by the Division Bench in Appeal against the said order dated 15th December 2006. The Division Bench confirmed the order of the learned Single Judge of this Court rejecting the caveat. Reliance has been placed by the learned counsel for the plaintiff on what is held in paragraph 4 of the decision of the Division Bench which reads thus:- "Perusal of the impugned order discloses that after referring to the said para, the learned Single Judge in that regard has observed that the affidavit in support of the caveat, apart from making the said submission, nowhere discloses any factual matrix which could help the Court to decide the issue regarding the legality and validity of the Will. Indeed, mere submission that the Will is invalid, illegal and fraudulently prepared and not enforceable in law, would not be sufficient to raise the dispute regarding the legality and validity of the Will. For the purpose of consideration of issue regarding the legality and validity of a Will, it is ((-8-)) necessary for the caveator to disclose the basic facts which could lead to the conclusion about the illegality or invalidity of the Will. Undisputedly, the affidavit in support of the caveat does not disclose any such fact which could reveal the Will to have been obtained fraudulently or the Will to be invalid or illegal. Being so, no fault can be found with the impugned order wherein it has been held by the learned single Judge that the caveators, apart from making mere submission, have not actually disputed that the Will was duly signed and attested and that the attestor was in the right frame of mind to make the Will." 8. It must be noted here that from paragraphs 3 and 4 of the order dated 15th December 2006 it appears that in the case before this Court it was shown that the caveators had acted pursuant to the will. In paragraph 4 of the said order this Court held that not only the caveator did not dispute that the will is duly signed and attested but the caveators actually acted pursuant to the will and had taken steps to implement the will. In paragraph 3 of the judgement of the Division Bench referred to above it was found that the case made out in the affidavit in support was that the will was invalid, illegal and fraudulently prepared. The Division Bench observed that the affidavit does not disclose the particulars of fraud or the grounds on which the will is alleged to be ((-9-)) invalid or illegal. The Division Bench proceeded to observe that the submission that the will is invalid, illegal and fraudulently prepared would not sufficient to raise the ground of illegality and invalidity of the will and it was necessary that the caveator should disclose the basic facts which could lead to the conclusion about the illegality or invalidity of the will. 9. Considering what is held by the learned Single Judge and Division Bench, it will be necessary to refer to the facts of the present case. In the first affidavit filed by the caveators, paragraph 2 reads thus :- "... ... I say that as I am not aware or have knowledge of any will being present or executed by the deceased in view of the same I may be permitted to file additional affidavit giving reasons after inspection and verification of documents, after service of True copy of Petition and proceedings as required." 10. In terms of the leave granted by this Court, the defendants have filed additional affidavits. The order dated 20th August 2008 granting leave to the defendants to file additional affidavits has not been challenged by the plaintiff. In paragraph 2 of both the ((-10-)) additional affidavits it is stated that the will is fabricated, bogus and forged. In paragraph 3 it is stated that the will is fabricated and bogus. In paragraph 4 the caveators have contended that this Court be pleased to appoint a handwriting expert to assess the genuineness of the signatures/ initials of the deceased and/or the fabrication of the will and/or compare the signatures/initials on the alleged will with the admitted signatures. Conjoint reading of paragraphs 2 to 4 of the additional affidavits clearly shows that the defendants have disputed the execution of the will. That is the reason why the defendants have prayed for an appointment of handwriting expert to investigate into the genuineness of the signatures/initials of the deceased after comparing the same with the admitted signatures/initials of the deceased. The said paragraphs clearly disclose that the execution of the will has been disputed by the defendants by filing the said additional affidavits. This is not a case where a fraud is pleaded by the defendants. The plea of fraud will certainly require disclosure of factual particulars leading to the alleged fraud. This is not a ((-11-)) case where there is only a bald allegation that the will is invalid and illegal. In the present case, a clear dispute is raised as regards execution of the will in dispute. The will is alleged to be fabricated. In the decisions relied upon by the plaintiff the execution of will was not disputed and in fact the caveator had acted pursuant to the will. 11. In the circumstances, the decisions relied upon by the plaintiff are of no help to the plaintiff. Hence, the prayer made for rejection of the caveats cannot be acceded to. 12. The Notice of Motion is accordingly dismissed. The suit shall be fixed for framing issues on 9th January 2009. In the meanwhile, the parties will exchange draft issues. (A.S.OKA, J.)