1 APP1017/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION APPEAL NO.1017 OF 2010 IN SUIT NO.53 OF 2001 IN PETITION NO.983 OF 2001 Veena C. Melwani ...Appellant v/s Girdhari N. Melwani and others ...Respondents Ms Manjiri Shah i/b M/s Thakore Jariwalla and Associates for Appellant. Mr A.G. Damle for Respondents. CORAM : D.K. DESHMUKH AND ANOOP V. MOHTA JJ. DATE : 7TH MARCH 2011. 2 APP1017/10 P.C. :- 1] By this appeal, the appellant, who was the caveator, challenges the judgment and order of the learned Single Judge issuing probate of the will, which is a registered will. The learned counsel appearing for appellant first submitted that the probate petition has not been filed within the period of limitation. She relied on the judgment of the Supreme Court in the case of Kunvarjeet Singh Khandpur v/s Kirandeep Kaur and others, reported in (2008) 8 SCC 463. Perusal of that judgment shows that the Supreme Court has approved the judgment of this Court in the case of Vasudev D. Sadarangani v/s Sajni Prem Lalwani, reported in AIR 1983 Bom. 268. Perusal of that judgment shows that the Supreme Court has approved paragraph 16 of this Court s judgment which reads thus :- 16(c) such an application is for the Court s permission to perform a legal duty created by a will or for recognition as a 3 APP1017/10 testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; The learned Single Judge has examined the aspect of delay in filing petition and has held that it cannot be said that there is undue delay in filing probate petition. The learned counsel then submits that the attesting witnesses have not proved their own signatures on the document of will. The will is a registered document. The Sub-Registrar, who has registered the will, has certified on the document itself that the will was signed in his presence by the testator and the attesting witnesses have also signed in his presence. Both the attesting witnesses have been examined as witnesses and they have deposed as to the signature of the testator on will. In our opinion, considering that it is a registered document, that the property has 4 APP1017/10 gone to the son of the testator and that attesting witnesses have been examined as witnesses and they have proved signature of the testator, no interference in the order impugned is called for. It is no doubt true that the signatures of the testator and attesting witnesses have to be proved, but the whole purpose is to prove that the will was executed by the testator in normal circumstances. The fact that it is a registered document goes a long way to show that. Considering that there is no unnatural bequest and evidence on record, in our opinion, no interference is called for. It was submitted that the learned Single Judge has recorded a finding on title to the property, therefore we should interfere with the order impugned in the appeal. The Testamentary Court does not deal with title to the property which may be subject matter of the will of which probate is claimed. Therefore, in any proceedings that may be instituted by the appellant, it can always be proved by the appellant that title to the property did not vest in the testator. Appeal is rejected. 5 APP1017/10 At this stage, a request is made for stay of the order. By the order impugned in appeal, only probate of the will has been granted. The property involved admittedly is a flat which is occupied by the appellant and the beneficiary in the will has filed a suit for decree of possession. That suit is still pending. Therefore, there is no need to grant stay of the order. The request is rejected. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. ( JUSTICE D.K. DESHMUKH ) ( JUSTICE ANOOP V. MOHTA )