Notice of Motion No. 151 of 2012,Testamentary Suit No. 11 of 2011,Probate Petition No. 627 of 2001

16th July, 2013

Petitioner Counsel: Mr. SANJAY JAIN, Mr. P.V. PALAN
Respondent Counsel: Mr. ATUL DAMLE, BINA JARIWALA

Cases Cited:
Eruch Rustom Irani Vs. Limji Kaikashroo Pande, 1993(1) B.C.R. 340 [Para 4]
Venkatapathyd Krishna Murti Vs. V. Srinivasan, 2004(4) BCR 783 [Para 6]
Kaikhosrow Aspendiar Oshtori Vs. Dr. Meherji Aspendiar Oshtori and anr., Notice of Motion No. 122/2006, Testamentary Suit No. 33/2006, Dt.15/12/2006 [Para 7]

JUDGMENT

JUDGMENT :- By this notice of motion, plaintiff no.2 seeks dismissal of the caveat filed by defendant Mahendra Thakkar. Petitioners have filed petition for probate of last will and testament of Mr. Khimjee Thakkar. The names of the legal heirs of the said deceased are disclosed in paragraph 9 of the petition. Citation was served upon the legal heirs and representatives. The caveator who is defendant in the present proceedings, is son of Balbhadra Thakkar who was brother of the deceased. The deceased was bachelor. The said Balbhadra was one of the attesting witnesses of the Will of the said deceased. Along with petition, the said attesting witness has filed affidavit on 23rd August, 2001 stating on oath that he was present together with Dr. Madhukar Rele at the house of the deceased. The said attesting witness has also stated that he was witness to the signature of the said deceased on the Will and was present at the time of deceased affixing his signature on the said Will alongwith the other attesting witness. It is also stated in the said affidavit that at the time of the death of the said deceased, he was of sound mind and having disposing memory and understanding and published the same on his free will and pleasure. On 11th July, 2005 an amendment was carried out to the said affidavit dated 23rd August, 2001 filed by the said attesting witnesses. On such amendment having been carried out, the said affidavit was reaffirmed on 11th July, 2005 by the said attesting witnesses. On 3rd November 2010 the said attesting witness expired leaving behind the caveator herein as one of the legal heirs. Pursuant to the death of the said attesting witness who was also one of the legal heirs of the deceased, citation came to be served upon the caveator in response to which caveator filed caveat and affidavit in support thereof. Pursuant to the said caveat and affidavit in support filed by the caveator, Testamentary petition was converted into suit.

2. Petitioners have filed this Notice of Motion for dismissal of the caveat on various grounds.

3. Mr. Jain, learned counsel for the plaintiff submits that the caveator is claiming rights, if any through his father Balbhadra who was attesting witness to the Will and also had filed affidavit confirming the execution of the said will. He has also deposed in the said affidavit that the said deceased was of sound mind at the time of execution of the said will. It is submitted by Mr. Jain that merely because citation was served would not amount to the caveator having caveatable interest. It is submitted that the caveator did not have any claim independently to the estate of the deceased. My attention is invited to some of the paragraphs of the affidavit in support of the caveat filed by the caveator in support of plea that the caveator has set up title adverse to the title of the deceased in respect of the property. It is submitted that there are vague allegations of collusion and fraud made in the affidavit in support. It is submitted by the learned counsel that in view of the affidavit filed by the father of the caveator, the father of the caveator himself would not have any right in the estate of the deceased and accordingly the caveator who claims through the father also would not have any claim in the estate of the deceased directly or indirectly. It is submitted that the entitlement of the legal heirs in the estate of the deceased has crystalized on the date of the death of the deceased. It is submitted that when the said deceased expired, the present caveator did not have any right in the estate of the deceased and thus has no caveatable interest.

4. Mr. Jain placed reliance on the judgment of this court in the case of Eruch Rustom Irani Vs. Limji Kaikashroo Pande 1993(1) B.C.R. 340 in support of his plea that the person who sets up title adverse to that of testator is not entitled to sustain any interest in the estate of the deceased and is thus not entitled to file caveat. Reliance is placed on Paragraph 7 and 8 of the said judgment which read thus :

"7. The procedure laid down in the OriginalSide Rules of this High Court in respect of such a petition and caveat to be filed challenging the grant of probate may be noted at this stage. Chapter XXVI of the Original Side rules pertains to testamentary and intestate jurisdiction of this Court. Rule 401 provides for filing caveats in petitions for probate etc. and reads thus :

"Any person intending to oppose the grant of probate or letter of administration shall file a caveat in Form No. 116 within fourteen days from the service of the citation upon him or within such shorter time as the Judge in Chambers may direct. Notice of the filing of the caveat shall be given by the Prothonotary and Senior Master to the petitioner or his advocate on record. The Judge in Chambers may extend the time to file a caveat, provided the grant has not in the meantime been issued."

Then comes Rule 402 which provides that the affidavit to be filed in support of the caveat shall state the right and interest of the caveator and the grounds of the objections to the application it provides :

"402. An affidavit in support of a caveat shall be filed within eight days from the date of the filing of the caveat, notwithstanding the Court vacations. Such affidavit shall state the right and interest of the caveator, and the grounds of the objections to the application. A copy of the said affidavit shall be served by the caveator on the petition or his advocate on record. If such affidavit be not filed within the prescribed time, the caveat shall not prevent the grant of probate or letters of administration. No such affidavit shall be filed after the expiry of the said eight days without an order of the Judge in Chambers."

The aforesaid two Rules indicate the limited class of persons who can file a caveat. It is abundantly clear therefore that the citation is to be served or notice in respect of the application for probate is to be given to all the heirs and next of kin of the deceased. That suggests that the caveat can only be filed by such party who has an interest in the estate of the deceased.

8. With the aforesaid position under the Rules, turning now to the facts, it is neither claimed by the caveator nor it is the case of the petitioner that the caveator is an heir or next of kin of the deceased and his claim is derived from or thought the deceased or any person claiming through the deceased. Therefore, the caveator is not a person holding any interest in the property of the deceased which is bequeathed under the Will in question which entitled him to put in the caveat. He has no interest in the estate of the deceased. There indeed is a dispute over the title of the property inas much as the caveator denies the title of the deceased and claims the title in himself. He has no interest in the estate to be derived from the deceased in inheritance or otherwise. He having set up a title adverse to that of the testator it is not sufficient to sustain any interest of his so as to be entitled to file the caveat. It is obvious that the grant of probate to the petitioner will not in any manner displace the right which the caveator is pleading namely his won title. He is therefore not an interested party. The affidavit in support of the caveat does not disclose any right or interest which is required to be disclosed under Rule 402. I draw support for the above view which I have taken from the judgment of the Division Bench of this court (Desai & Parekh, JJ), in Appeal No. 1050 of 1986 in Testamentary Suit No. 22 of 1985 dated 911987 (unreported)."

5. Relying upon this judgment, it is submitted that it is the case of the caveator in the affidavit in support of the caveat that the property of the deceased were not his individual properties but were ancestral properties which would amount to setting up the title adverse to the title of the deceased and thus the caveator is not entitled to file caveat.

6. Mr. Jain also placed reliance upon the judgment of this court in the case of Venkatapathyd Krishna Murti Vs. V. Srinivasan, 2004(4) BCR 783 in support of his plea that merely because citation is served by the person, it does not create interest nor it predicates the existence of any interest any time in the estate of the deceased. Reliance is placed on paragraph 15 of the said judgment in the case of Venkatapathyd (supra) which reads thus :

"15. It must, therefore, be held that the mere issuance of a citation to a person neither creates an interest in nor predicates the existence of any interest in him in the estate of a deceased. In fact the right to file a caveat predicates the existence in the caveator of an interest in the estate of the deceased. In other words, the existence of an interest in the estate of the deceased is a sine qua non to the right of a person to file a caveat. This interest must be in the nature of a valid right; in or to the estate of the deceased, either existing or which may arise if the caveator succeeds in his challenge to the grant of the probate or letters of administration."

7. Mr. Jain also placed reliance upon an unreported judgment of this court delivered on 15th December, 2006 in Notice of Motion No. 122 of 2006 in Testamentary Suit No. 33 of 2006 in the case of Kaikhosrow Aspendiar Oshtori Vs. Dr. Meherji Aspendiar Oshtori and anr. and another in support of his plea that the affidavit filed in support of the caveat must give rise to the issue between the parties. It is submitted that except making some vague allegations of fraud and collusion, no particulars in support of such vague allegations are given by the caveator in the affidavit in support. Relince is placed on paragraph 3 of the said judgment in the case of Kaikhosrow (supra) which 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 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 due 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."

8. Mr. Damle, learned counsel for defendant/caveator submits that on the death of the father of the caveator who was legal heir of the said deceased and had interest in the estate of the deceased, caveator will also have interest in the estate of the deceased. It is submitted that on the date of death of the father, the caveator would be entitled to make claim in the estate of the said deceased testator and accordingly would have interest in the estate of the said deceased testator. It is submitted that merely because father of the caveator did not challenge the Will, it would not affect the rights of the caveator. The caveator is entitled to claim share in the estate of the deceased independently after demise of his father. It is submitted by Mr. Damle that in affidavit in support of the caveat petitioner has though taken a plea that the property of the deceased was ancestral property, it would not mean that the other objections raised by the caveator in the affidavit in support has to be ignored. Attention of this court is invited to paragraph no. 7 of the affidavit in support of the caveat to demonstrate that the caveator has disputed execution of Will itself on the ground that the testator was blind on the date of execution of the said Will.

9. It is not in dispute that the father of the caveator was attesting witness to the Will and has filed affidavit which was annexed to the petition in which affidavit the attesting witness has deposed that he was one of the attesting witness and was present at the time of execution of the Will. He has also deposed that the deceased was of sound mind at the time of execution of the said will. It is not in dispute that after demise of the father of the caveator, citation came to be served upon the caveator in response to which affidavit in support has been filed by the caveator claiming rights independently. It is not in dispute that the probate has not been issued by this court and the testamentary petition filed by the petitioner has been converted into suit. In my view, merely because the father of the caveator who was also legal heir of the said deceased had filed affidavit confirming attestation of Will, it would not put an end to the caveatable interest of the son of attesting witness/beneficiary on his demise. The present caveator is entitled to independently contest the Will by raising objections permissible in law. If during the life time of the father of the caveator, if any evidence would have been led, the situation would have been different. In my view, if the executor of the Will is unable to prove the execution of Will of the testator for any reasons, the caveator will have right in the estate of the deceased testator. In my view, thus ceveator has caveatable interest and is entitled to challenge the said Will.

10. In so far as the issue raised by Mr. Jain that in the affidavit in support of the caveat, the caveator has set up title adverse to the title of the deceased and thus not entitled to maintain his caveat is concerned, on perusal of the affidavit in support of the caveat, it is apparent that the caveator has set up title contrary to the interest of the deceased. However, on perusal of the affidavit, it is also clear that the caveator has also disputed the Will on various other grounds including the ground that the deceased was blind at the time of execution of the Will. If this court comes to the conclusion that at the time of the trial that some of the objections raised by the caveator in affidavit in support which has to be treated as written statement are not tenable, obviously court will reject such objections made in the affidavit in support of the caveat. In my view merely because one of the objections raised in the affidavit in support of the caveat is untenable and contrary to law, this court cannot discard the entire affidavit at this stage. In my view, the matter will have to be proceeded with for trial and thus caveat filed by the caveator cannot be dismissed at this stage. There is no dispute in the proposition of law enunciated in the judgments relied upon by Mr. Jain, learned counsel for the plaintiff.

11. In my view, no case is made out for dismissal of the caveat. Notice of Motion is accordingly dismissed. There shall be no order as to costs. Place the Testamentary suit on board for framing issues on 29th July, 2013. Parties are directed to exchange the draft issues within one week from today.

Notice of motion dismissed.