1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.85 OF 2009 IN NOTICE OF MOTION NO.121 OF 2008 IN SUIT NO.14 OF 2003 IN PETITION NO. 654 OF 2002 Ashok Kumar Khetan .. Appellant V/s Rajkumari Ramnath Harlalka & Anr. .. Respondents Mr.Zal Andhyarujina i/by M/s.Dave Girish & Co. for the Appellant. Mr.Burgis Colabawala with Mr.Sachin Kudalkar i/by M/s.Madekar & Co. for Respondent No.2. CORAM : D.K.DESHMUKH & R.G.KETKAR, JJ. DATE : 6TH OCTOBER, 2009. P.C.: 1. Admit. Heard finally by consent of the parties. This appeal challenges the order dated 8.12.2008 passed by the learned Single Judge in the Notice of Motion No.121 of 2008 in Suit No.14 of 2003. In Suit No.14 of 2003 the relevant facts are that the probate petition No.654 of 2002 was filed by the present Respondent No.2 seeking probate of the Will left behind by Smt.Bhagwatibai Khetan, who was the mother of present Respondent No.2, hereinafter referred to as the petitioner. The 2 present appellant who is the brother of the petitioner filed caveat opposing the grant of probate. Because of probate, the probate petition was converted as a suit and was registered as Suit No.14 of 2003. 2. The Notice of Motion No.121 of 2008 was taken out by the petitioner for striking out the caveat because according to the petitioner, the caveator had not challenged the legality and validity of the Will. The learned Single Judge upheld this contention and struck out the caveat. This appeal is directed against that order. 3. The learned counsel for the appellant pointed out that in paragraph 3 of the affidavit filed by the caveator, the caveator had stated that the deceased testator had died at the age of 87 years and that she was under the control of the petitioner; that she had no free will of her own and the Will was vitiated by fraud and coercion. The learned counsel submits that these allegations were enough to maintain his caveat. 4. The learned counsel for the Respondents on the other hand relies on the judgment of the learned Single Judge of this Court (D.K.Deshmukh,J.) dated 15.12.2006 passed in the Notice of Motion No.122 of 2006 in Testamentary Suit No.33 of 2006 (in the case of Mr.Kaikhosrow Aspendiar Oshtori V/s.Dr.Meherji Aspendiar Oshtori), 3 and the judgment of the Division Bench of this Court dated 12.2.2007 passed in Appeal No.64 of 2007 in Notice of Motion No.122 of 2006 whereby the order of the learned Single Judge was upheld. The learned counsel for the Respondents submits that merely making allegations in the affidavit filed in support of the caveat that the Will is vitiated by fraud, is not enough and that when the allegations are made the particulars are required to be given. 5. In the light of the rival submissions, if the record is perused, it becomes clear that the caveator had made pointed allegation “that the deceased Smt.Bhagwatibai B.Khetan who died at the age of 87 years was under the control of the executor Rajkumar Khetan and had no free will of her own. This will was caused by fraud and coercion. The will is prepared, executed in favour of the executor himself. As such under section 61 of the Indian Succession Act, 1925 the will is void. Therefore the probate should not be granted on this will”. Thus, the caveator was claiming that when the Will was excecuted by the testator she was under the control of the petitioner, and therefore she had not signed the Will of her own free will. The caveator was also claiming that by the Will the property is bequeathed in favour of the executor, the Will is invalid. 6. Perusal of the judgment of the Division Bench shows that in that case a bare allegation was made that the Will is vitiated by fraud and is not 4 enforceable in law. No reason was given. No allegation was made either that the testator lacked capacity to dispose of the property. It was also not alleged that because of bequest in favour of the executor the Will is invalid. At the stage when the caveat is to be considered, whether ultimately the caveator will succeed in proving what he has alleged is not to be considered. What is to be considered is whether he has challenged the validity of the Will. The learned counsel for the Respondents relied upon the observations found in paragraph No.6 of the order of the Division Bench where the Division Bench has held that when the allegation of fraud is made, the particulars on which such allegations are based are required to be given as per the Civil Procedure Code. In our opinion, in so far as the present case is concerned, the caveator states that according to him the testator was not in a position to dispose of the property because of her age and she did not sign the Will of her own free will because she was under the control of the petitioner. If the affidavit filed in support of the caveat can be treated as written statement and if the allegations are found to lack the particulars, the Court can require the caveator to give particulars. Even the caveator can himself seek amendment of this written statement and give particulars. In view of the allegations made particularly in paragraph No.3 of the affidavit in support of the caveat, it cannot be said that the allegations that the Will is not validly made are not made. 5 7. In our opinion, taking overall view of the matter, the order of the learned Single Judge cannot be sustained. In the result, appeal succeeds and is allowed. Order dated 8.12.2008 passed by the learned Single Judge in the Notice of Motion No.121 of 2008 is set aside and that motion is dismissed. (D.K.DESHMUKH,J.) (R.G.KETKAR, J.)