Bombay High Court
Archana Bhavesh Gadkar And Anr vs Rishali Santosh Shrivastav And 2 Ors on 24 July, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
2024:BHC-OS:11319
903 IA 1855 OF 2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION NO.1855 OF 2022
IN
TESTAMENTARY SUIT NO.108 OF 2021
IN
TESTAMENTARY PETITION NO.1387 OF 2021
Archana Bhavesh Gadkar ... Applicants/Petitioners
and
Chandramohan Mohanlal Shrivastav ... Deceased
versus
Rishali Santosh Shrivastav and Ors. ... Respondents/Defendants
Mr. Yatin Shah, for Applicants.
CORAM: N.J.JAMADAR, J.
DATE : 24 JULY 2024
P.C.
1. Heard the learned Counsel for the Applicants.
2. The applicants-petitioners in Testamentary Suit No.108 of 2021 have preferred this application to reject the Caveat filed by the Respondents-Defendants.
3. The facts are few and simple. The Petitioners, who are the daughters of late Chandramohan Mohanlal Shrivastav (deceased), have filed Testamentary Petition for grant of Probate in respect of the last Will and Testament of the deceased dated 27 March 2006. In the Petition, it is averred that apart from the Petitioners, the deceased has left behind another married daughter, Anita and the Respondents who are the wife and children of Santosh, a predeceased son of the deceased, particulars of whom are SSP 1/5 903 IA 1855 OF 2022.doc furnished in the table at paragraph 9 of the Petition.
4. The Respondents-Caveators have filed a Caveat. In the affidavit in support of the Caveat, it is alleged that the disposition in the purported Will of the deceased is unnatural and the Will has been obtained by exercising undue influence. In fact, the deceased wished to bequeath the major estate i.e. Flat situated at A/75, Kamal Pushpa CHS, 7th Floor, Krishna Chandra Marg, Bandra (W), Mumbai - 400 050 to the deceased's son.
5. The Petitioners have preferred this application for rejection of the Caveat on the ground that in TP No.1177 of 2020 for Letters of Administration filed by the Caveator-Respondent No.1 in respect of the estate of Santosh, the predeceased son of the deceased, it was specifically stated that the Respondents-Caveators were entitled to 1/4th share in the subject flat. In the Will in question, the deceased had bequeathed 25% interest to each of his children. Yet, the Respondents - Caveators have alleged that the disposition in the Will is unnatural and contested the Will.
6. No affidavit in reply has been filed on behalf of the Respondents- Caveators, despite adequate opportunity.
7. Mr. Shah, learned Counsel for the Applicants, would urge that the stand of the Caveators that the disposition in the will is unnatural, is explicitly contrary to the stand of the caveators in TP No.1177 of 2020 for Letters of Administration in respect of the estate of Santosh, the predeceased son of the deceased. In the said SSP 2/5 903 IA 1855 OF 2022.doc Petition, the Respondent No.1 has claimed that late Santosh had 1/4th share in the said property. Therefore, there is no substance in the Caveat which has been filed with a view to delay the disposal of the Testamentary Petition.
8. I am afraid to accede to the aforesaid submission. Indisputably, the Respondents-Caveators being the wife and children of late Santosh, the predeceased son of the deceased, are the Class I heirs of the deceased. Section 283 of the Indian Succession Act, 1956, confers discretion upon the Court to invite some persons to watch the proceedings. Such persons must have interest in the estate of the deceased. Such interest is called a caveatable interest. Interest claimed by the caveator must satisfy the test that there exists an interest in the estate of the testator and the same is not adverse thereto.
9. In the case of Krishna Kumar Birla V/s. Rajendra Singh Lodha and Ors.1 the Supreme Court enunciated the propositions as under :
"86. The propositions of law which in our considered view may be applied in a case of this nature are :
(i) To sustain a caveat, a caveatable interest must be shown.
(ii)The test required to be applied is : Does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right ?
(iii) It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the 1 (2008) 4 SCC 300 SSP 3/5 903 IA 1855 OF 2022.doc estate or capacity of the testator to dispose of the property by will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein."
10. Applying the aforesaid test to the facts at hand, incontrovertibly, the Respondents-caveators being the Class I heirs of the deceased have a caveatable interest. An endeavour was made by Mr. Shah to draw home the point that since the Respondents-Caveator have taken a stand that the disposition of the Will is unnatural and it has been got executed by exercising undue influence, which is contrary to the claim of the Respondents that the deceased has 1/4th share in the subject flat, which is the only valuable estate left behind the deceased, the caveat deserves to be rejected.
11. I have perused the Will. Apart from the said flat, the deceased had professed to bequeath a number of movable properties. Mr. Shah urged that all other movable properties have already been distributed. Thus, since the deceased had bequeathed 1/4th share to each of his children, including late Santosh, there is no propriety in entertaining the caveat. I am not inclined to accede to this submission. First and foremost, the Respondents-caveators having an indisputable caveatable interest are entitled to oppose the grant of letters of Administration with Will annexed, on the premise that there was no lawfully executed and attested Will. Secondly, apart from the subject flat, the testator has made a number of bequeaths, may be of small amounts to the legatees.
12. In this view of the matter, the caveat cannot be rejected on the ground SSP 4/5 903 IA 1855 OF 2022.doc that the Respondents-Caveators have no caveatable interest. The contention of the applicant that in the Petition for Letters of Administration, the Respondent No.1 had claimed that the deceased had ¼th interest in the subject flat, does not detract materially from the claim of the Respondents-Caveators as it does not appear that they have set up any other testamentary instrument of the deceased. If they claim on the basis of intestacy, they cannot claim share in excess of the one to which late Santosh was otherwise entitled to.
13. Hence, the application for rejection of the Caveat, stands rejected.
14. No costs.
( N.J.JAMADAR, J. ) SSP 5/5 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 01/08/2024 10:40:31