Notice of Motion No.20 of 2010,Testamentary Suit No.40 of 2004,Testamentary Petition No.67 of 1998

19th March, 2010

Petitioner Counsel: Mr. PRANAV SAMPAT a/w Ms. PUSHPA THAPA i/b. Ms. I. M. KOPARKAR
Respondent Counsel: Mr. SHAILESH SHAH a/w Ms. SAUMYA SRIKRISHNA and Mr. VINOD SOLANKI i/b. RKM

JUDGMENT

JUDGMENT :- By this Notice of Motion, the Plaintiff prays for dismissal of the caveat dated 18.9.2004 filed by the Defendant.

2. The Plaintiff filed a Testamentary Petition (Test. Petn. No.67 of 1998 which has been renumbered as Testamentary Suit No.40 of 2004) for probate of the last Will and Testament dated 7.1.1998 of late Chandrabai Nair who died on 13.5.1997. By the said Will Smt. Chandrabai Nair (hereinafter referred to as 'the testator'), inter alia, disposed of two lots of shares viz. lot no.1 of 950 shares and lot no.2 of 2415 shares as also 80 debentures, all held in the company known as "Indian National Press [Bombay] Ltd." (hereinafter referred to as "INP Ltd.").

3. According to the Defendant the shares originally belonged to Mr. Appat B. Nair, the husband of the testator, who during his lifetime had sold the shares to the Defendant and therefore the testator was not the owner and consequently had no right to bequeath the shares of INP Ltd. by her Will dated 7.1.1998. The Defendant therefore filed a caveat opposing for grant of probate. In view of the caveat, the Testamentary Petition bearing No.67 of 1998 was converted into the Testamentary Suit No.40 of 2004.

4. In the meanwhile, the Plaintiff filed another suit, bearing Suit No.170 of 2001, on the Original Side of this Court claiming ownership of 3365 shares (comprising of two lots viz.lot no.1 of 950 shares and lot no.2 of 2415 shares) of INP Ltd. In the said suit, consent terms were arrived at between the Plaintiff, the Defendant and some other parties to the suit whereby the Plaintiff gave up the claim for ownership of 3365 shares of INP Ltd. by receiving certain consideration. It also appears that by the said consent terms the Plaintiff agreed to delete the said shares in INP Ltd. from the list of assets of the deceased testator covered under the Will dated 7.1.1998. I am, however, informed at the Bar that the Plaintiff has taken out a Motion for setting aside the consent terms and the same is still pending. In the meanwhile, the Plaintiff has taken out the present Motion for dismissal of the caveat dated 18.9.2004 filed by the Defendant/Respondent in the Testamentary Suit.

5. Mr. Shah, learned counsel appearing on behalf of the Defendant submits that the present Motion is not maintainable in view of the two interim orders passed by this Court on 11.12.2009 and 15.1.2010. Mr. Shah further submits that the caveat was filed in September 2004 and the consent terms in Suit No.170 of 2001 were signed and filed on 1.11.2004. Since the Plaintiff had signed and filed the consent terms in second suit after the Defendant had filed the caveat, the Plaintiff cannot object to the caveat filed by the Defendant and cannot pray for its dismissal as by the consent terms he has given up the claim of ownership of 3365 shares of INP Ltd..

6. It is settled principle in law that the Testamentary Court is not required to go into the question of ownership or title to the property which forms the subject matter of bequest under the Will. The Testamentary Court is only required to see whether the deceased had the capacity to make the Will and whether the Will has been made in accordance with the provisions of law. Testamentary Court only considers whether the Will is the last testamentary instrument of the deceased, whether the deceased was in sound state of mind when he made the Will and whether the Will was made in accordance with, law that is to say whether it was properly executed and attested as per law. The Testamentary Court is not required to see whether the deceased was the owner of the property which he sought to bequeath under the Will. The decision of the Testamentary Court granting the probate does not confer any title to the property on the legatee if the deceased had none. Issue of title, if raised, is required to be decided by the Court of competent jurisdiction.

7. I, as a Testamentary Judge, am not concerned with the title to 3365 share of INP Ltd. Indeed, I cannot decide upon the title to the said shares. If valid settlement has taken place between parties in the Suit No.170 of 2001, the parties would be governed by the consent decree unless the consent decree/settlement is set aside by the Court of competent jurisdiction.

8. The Defendant is a Private Limited Company incorporated under the Companies Act. Admittedly, it is not an heir of the testator Chandrabai Nair. It is not the case of the Defendant that the Will of which Probate is sought is not the last Will and testamentary instrument of the deceased or that she has bequested the said shares in INP Ltd. or any other property whatsoever to it. The claim of hostile title which the Defendant has set up to the shares of INP Ltd. which are the subject-matter of the Will, cannot be decided by the Testamentary Court. The hostile claim would not give rise to a caveatable interest in the Defendant. The Defendant does not have any cavetable interest in opposing grant of Probate to the Will.

9. Rule 401 of the Bombay High Court (O.S.) Rules provides for filing of a caveat. In my view, Rule 401 does not empower a person who does not have any caveatable interest to file a caveat and to oppose grant of probate. As stated hereinabove, the Defendant does not have any caveatable interest in the property of the deceased. As such the Defendant does not have right to file the caveat. Irrespective of any objection of the Plaintiff and irrespective of any concession made by the Plaintiff that he would delete the shares of INP Ltd. from the list of assets of the deceased the Court has to find out whether the Defendant has any caveatable interest. In the present case, as the Defendant has no caveatable interest, his caveat has to be dismissed.

10. In view of the above, the Caveat dated 18.9.2004 filed by the Defendant is dismissed.

11. The Notice of Motion is accordingly allowed in terms of prayer clause (a).

Ordered accordingly.