: 1 : TS-51-92=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION TESTAMENTARY SUIT NO.51 OF 1992 IN TESTAMENTARY PETITION NO.247 OF 1991 Melvin Morris .. Plaintiff v/s. Jerry Morris .. Defendant ......... Mr. Clive D’Souza for the plaintiff Mr. Mihir Desai for defendant no.1. ......... CORAM : R.Y.GANOO, J. DATE : 16th JULY, 2010. P.C. : 1. This petition came to be filed by the petitioner for the purposes of seeking probate of Will purported to have been executed Mrs. Ina Morris dated 14th August, 1982. The citation was served upon Mr. Jerry Morris in accordance with the provisions of law. Said Jerry Morris had filed the caveat and had filed affidavit in support of the caveat dated 5th November, 1993. : 2 : TS-51-92=.sxw The matter was pending at the stage of framing of issues. Today the matter was called out for framing of issues and in order to frame the issues, it was necessary for the Court to go through the text of the affidavit in support of the caveat and ascertain whether there are any facts in issue and if so, proper issues can be framed. 2. With the assistance of learned Counsel appearing for both sides and in particular learned Counsel Mr. Mihir Desai appearing on behalf of the defendant Mr. Jerry Morris, I have perused the text of the affidavit in support of the caveat. Learned Counsel Mr. Mihir Desai took me through the entire affidavit and in particular following lines to contend that these lines constitute opposition to the Will and constitutes defence and, therefore, the Will is required to be duly proved and the issues are required to be framed. The relevant lines are as under. “I do not admit that the deceased left a writing which is her last Will and testament as alleged and put the plaintiff to strict proof thereof. I do not admit that the Will was duly executed at Bombay on 14th August, 1982 as alleged.” : 3 : TS-51-92=.sxw 3. In reply to the arguments advanced by Mr. Desai, learned Counsel appearing for the plaintiff Mr. Clive D’souza took me through the provisions of Order 8 Rule 3 and pointed out that the provisions of law require that denials should be specific and each and every allegation must be specifically dealt with. He also took me through the text of Order 8 Rule 4 which deals with evasive denials. According to him, the portion of para 9 quoted by learned Counsel are outside the scope of the provisions of Order 8 Rule 3 and 4 and do not constitute denials or does not constitute facts pleading defence so as to say that the Will propounded by the plaintiff is disputed by the caveator. He, therefore, prays that as of today, there are no facts in issues and, therefore, there is no need to frame the issues and office can be directed to process the probate petition in accordance with the provisions of law after dismissing the suit. 4. After having considered the text of the affidavit in support of the caveat and the provisions of Order 8 Rule 3 and 4, I hold that the portion quoted above r/w text of the petition do not give rise to facts in issue. The portion mentioned by learned Counsel : 4 : TS-51-92=.sxw Mr. Mihir Desai are in the nature of general denials / evasive denials and the said portion cannot be considered in line in the provisions of Order 8 Rule 3 and 4. As such so far as the Will which is sought to be propounded by the plaintiff, there are no facts in issue. Hence, there is no need to frame issues and the suit will have to be now dismissed with observation that there was no need to convert the probate petition into the suit. Needless to mention that in such a situation, the probate petition will have to be taken ahead in accordance with the provisions of law. 5. It was lastly contended by learned Counsel for the defendant that the plaintiff will have to prove the Will in accordance with the provisions of law. Certainly, when the plaintiff has propounded a particular document as a Will of the deceased Mrs. Ina Morris, the plaintiff will have to prove the said Will in accordance with the provisions of law. Plaintiff cannot get any concession in that behalf. : 5 : TS-51-92=.sxw 6. In view of the aforesaid discussion and looking to the record before the Court, there are no facts in issue involved. The present plaintiff petitioner will have to prosecute the probate petition. Office will process the probate petition and decide the probate petition in accordance with the provisions of law. The probate petition which was converted into the testamentary suit need not continue as a Suit and the suit stands disposed of in view of the aforesaid observation. Hence, I pass following order. ORDER (i) The conversion of testamentary petition in the Suit is revoked. Office to process the probate petition in accordance with the provisions of law and grant probate if all office objections are attended to. (R.Y.GANOO, J.)