Bombay High Court
Ashwin Bharat Khater vs Urvashi Bharat Khater on 14 January, 2026
2026:BHC-OS:1021
ial-37621-2024.doc
VISHAL IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SUBHASH
PAREKAR TESTAMENTARY AND INTESTATE JURISDICTION
Digitally signed
by VISHAL
SUBHASH
PAREKAR
Date: 2026.01.14
INTERIM APPLICATION (L) NO.37621 OF 2024
16:11:26 +0530
IN
TESTAMENTARY SUIT NO.143 OF 2018
IN
TESTAMENTARY PETITION NO.222 OF 2017
Ashwin Bharat Khater
Aged 47 Yrs.
R/o. Avi-n-Ash Bunglow No.1, Plot No. U-7,
...Applicant/
Gulmohar Cross Road No. 4, JVPD Scheme,
Vile Parle (w), Mumbai 49. Plaintiff
Versus
Urvashi Bharat Khater
Aged 72 Yrs. ...Respondent/
R/o. Avi-n-Ash Bunglow No.1, Plot No. U-7,
Defendant
Gulmohar Cross Road No. 4, JVPD Scheme,
Vile Parle (w), Mumbai 49.
------------
Mr. Rohan Cama a/w. Ms. Shaheda Madraswala, Ms. Rajiv Mehta i/b. M/s.
Vashi & Vashi, for the Applicant/Plaintiff.
Mr. Nausher Kohli a/w. Mr. Ashok Dhanuka, Mr. Hitesh Gupta, Mr. Nikhil
Sonar, Mr. Jehan Fauzdar, Ms. Anushka Bhosale, Ms. Sumati Gupta i/b. M/s.
W Three Legal LLP, for Respondent/Defendant.
CORAM : SHARMILA U. DESHMUKH
RESERVED ON : DECEMBER 5, 2025
PRONOUNCED ON : JANUARY 14, 2026
--------------
JUDGMENT :
1. By the present Application, the original Petitioner in the Testamentary Petition seeks dismissal of Caveat No. 248 of 2018 filed Vishal Parekar 1/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc by the Respondent, who is the mother of the Applicant. The Applicant is propounding the Will dated 18th November, 2016 of the Applicant's late father Bharat Vasudev Khater.
PLEADINGS:
2. The Application pleads that the Respondent has accepted the Will and acted in consonance thereof. Under Clause 8 of the Will of the deceased, the Respondent had been given life interest in the properties and the Respondent accepted the benefits under the Will and acted in consonance thereof by executing two Leave and License Agreements with Aditya Birla Nuvo Ltd and Tea4 Health Private Limited in respect of the properties. At the time of execution of license agreement with Aditya Birla Nuvo Ltd on 20th January, 2017, the Respondent had minor share in the property, which was thereafter gifted to the Applicant by gift deed dated 17th May, 2017 and in the property licensed to Tea4Health Private Limited, the Respondent had no ownership rights. In so far as the gift deeds are concerned, the Respondent has now challenged the gift deeds by filing complaint with senior citizens tribunal which matter travelled up to Supreme Court and the parties are directed to maintain status-quo.
3. The Respondent has acknowledged the Will in the Board Vishal Parekar 2/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc Resolution dated 13th July, 2017 recording transmission of deceased's share in Laxsons (India) Private Limited to the Applicant, and, in the Memorandum of Understanding dated 29 th May, 2018. The resolution as well as removal of the Respondent as Director of the Company was challenged by the Respondent before National Company Law Tribunal by filing Company Petition No 1017 of 2020, which came to be dismissed on 12th March, 2024.
4. It is further pleaded that Respondent had filed her consent affidavit dated 17th January, 2017 in the testamentary petition, which was admitted in the proceedings before NCLT and Hon'ble Supreme Court and has thereafter sought to dispute the affidavit as forged and fabricated. The Caveat has been filed on 6 th September, 2018 after delay of five months, which is beyond the prescribed period of fourteen days, without any application for condonation of delay.
5. The reply Affidavit pleads that in the proceedings initiated under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 (Senior Citizens Act), this Court has come to a finding that the Applicant enjoyed fiduciary relationship with the Respondent and her deceased husband and by exercising coercion and undue influence obtained various instruments and the gift deeds came to be set aside by this Vishal Parekar 3/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc Court which issue is pending adjudication before the Hon'ble Apex Court. There are suspicious circumstances surrounding the preparation, execution and registration of the Will of the deceased, which requires evidence to be led. The Applicant used to obtain blanket signatures from the Respondent under coercion, pressure, undue influence without disclosing the nature of document. The Respondent was surprised to see her undated consent affidavit in the records of this Court in the testamentary petition, which she does not recollect signing.
6. The plea of the Applicant in the proceedings under the Senior Citizens Act is that that the parties were acting as per the family understanding and the Will of the deceased. In these proceedings, the Applicant is propounding the Will in order to usurp the entire estate of the deceased. As per the family settlement, the share of the deceased and Respondent was considered as one share and the Respondent has pre-existing right. The family settlement was only to separate the elder son Avinash from the family. The MOU dated 29 th May, 2018 was a settlement only between the Applicant and his brother Avinash and does not in any manner result in acceptance of the purported Will.
7. The Respondent and deceased husband were joint owners of the licensed properties and right from inception were receiving and Vishal Parekar 4/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc enjoying rental income for their own benefit and therefore the question of acting under the purported Will does not arise remotely. The compensation fees received from the licensed properties were utilised as per instructions of the Applicant. On execution of the document of family settlement, the Bharat Khater HUF came to be dissolved and therefore the Applicant was never appointed as Karta of Bharat Khater HUF.
8. It is pleaded that the Applicant is in wrongful possession of the properties and as per the judgment of the Senior Citizen Tribunal, the title deeds were required to be given to Respondent but have not yet been given. The Applicant has usurped all rental income generated from the estate of deceased and the properties of the Respondent and the deceased are either mortgaged or licensed by the Applicant. The challenge to the board resolution failed for the reason that the claim of the Applicant over the shares of the deceased husband in Laxsons (India) Private Limited will be decided in appropriate proceedings. SUBMISSIONS :-
9. Mr. Cama, learned counsel for the Applicant submits that accepting benefits under the Will constitutes an election to take under the Will drawing support from Section 187 and Section 188 of Indian Vishal Parekar 5/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc Succession Act, 1925. He would submit that there are 4 documents which shows acceptance of the Will by the Respondent. He submits that the execution of the Leave and License Agreement in the year 2017 by the Respondent is on the basis of ownership of the immovable properties of the deceased, which when read with clause (8) of the Will of the deceased would show that the Respondent has taken the benefit of life interest under the Will failing which the license agreements were required to be signed by all the legal heirs of the deceased. He submits that the Respondent had received compensation for the premises, which were licensed by her exclusively, of about 4.5 Crores. He would further point out that the resolution passed by the Board of Directors of Laxsons (India) Private Limited at a meeting held on 13 th July, 2017 which was signed by the Applicant and the Respondent as Directors of the Laxsons (India) Private Limited makes a reference to the certified copy of the Will of the deceased Bharat Khater pursuant to which the shares came to be transferred in the name of the Applicant. He submits that the said resolution was thereafter challenged by the Respondent before NCLT alleging fraud and transmission of the shares. He has taken this Court through the order of NCLT dated 12 th March, 2024 wherein NCLT has held that the Respondent was not only fully aware of the transfer but also played active part in the transfer exercise. Mr. Cama, learned counsel for the Plaintiff would submit that the NCLT Vishal Parekar 6/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc has come to a specific finding that no evidence has been brought on record to suggest that the Respondent's signature on the transfer deed and endorsement on the share certificate in favour of the Applicant was taken fraudulently.
10. He would further submit that MOU was executed between the Applicant, Respondent and Avinash Khater on 29 th May, 2018 where it was specifically stated that the deceased has expired leaving behind the Will and Testament dated 18th November, 2016 appointing the Applicant as the sole executor. He would submit that in so far as the MOU is concerned, the explanation given is that the MOU is only a settlement between two sons and does not result in acceptance of purported Will, which is unacceptable as the Respondent is one of the executants of the MOU.
11. He would further point out that in affidavit in reply there is no denial to the execution of leave and license agreements and there is no explanation as to the capacity in which the Respondent had executed the leave and license agreements. He submits that in so far as the board resolution is concerned the explanation given is that the challenge to the transfer of shares was dismissed by NCLT only on the ground that the claim will be decided in appropriate proceedings. He submits that Vishal Parekar 7/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc perusal of NCLT order would indicate that NCLT did not find any fraud in the transfer and transmission of shares.
12. He would further submit that the Respondent had filed the consent affidavit in the testamentary petition and thereafter changed stand to say that the consent affidavit was not signed. He submits that in the proceedings before NCLT and Hon'ble Apex Court, the Respondent has admitted signing the consent affidavit. He would further submit that the Will of the Respondent is a mirror image of the Will of the deceased and was executed on the same date with the same witnesses, which shows that the Respondent was aware of the execution of the Will by the deceased.
13. He submits that under the Memorandum of Understanding, Avinash accepted the genuineness of the Will of the deceased and agreed not to challenge the Will and accordingly filed his Consent Affidavit in testamentary proceedings. He submits that having done so, Avinash is now trying to contest the Will through the Respondent and substantiates the contention by pointing out various correspondence between Avinash and erstwhile Advocates of the Respondent.
14. He submits that the present Caveat has been filed after gap of Vishal Parekar 8/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc five months beyond the prescribed period of 14 days without any application seeking condonation of delay, which itself is sufficient to dismiss the Caveat. In support he relied upon the following decisions:-
(1) Nanak S. Ghatalia vs. Swati Satishchandra Ghatalia1 (2) Mirzban Darabshaw Surti vs. Cedric Vaz and Anr.2 (3) Lyla Darius Jehangir vs. Bakhtawar Lentin and Ors.3 (4) Swati S. Ghatalia vs. Nanak S. Ghatalia4.
15. Per contra, Mr. Kohli learned counsel for the Respondent submits that the application seeking dismissal of the Caveat has been filed after a lapse of 6 years. He submits that considering the grounds of opposition in the Caveat, the same are triable issues warranting trial. He submits that the Respondent is the wife of the deceased and has a caveatable interest in the estate of the deceased husband. He submits that in any transaction between the parties involving fiduciary relationship, the burden of proving the absence of fraud, undue influence and misrepresentation is upon the person in dominant position and the onus is upon the Applicant to prove the existence and validity of the Will during the course of trial. He would further submit that there are suspicious circumstances surrounding the preparation, execution and registration of the Will which are set out in the reply which warrants consideration in trial.
1 2021 SCC OnLine Bom 9777.
2 2015(2) Mh.L.J. 184.
3 2007 (1) Mh.L.J. 545.
4 Bombay High Court, CHS No. 133/2014, Dt. 24/06/2015. Vishal Parekar 9/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 :::
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16. He would further point out that in the Testamentary Petition, the consent affidavit of the year 2018 is an undated, unsigned affidavit and there is other consent affidavit of the year 2017 containing the Respondent's signature but is undated. He would further submit that under the deed of family settlement dated 9 th January, 2015, all properties were considered as jointly owned properties, and the Respondent along with deceased husband was to receive one share of the entire estate. He submits that the Applicant seeks to enforce the family settlement and on the other hand seeks to usurp the entire estate of the deceased under the impugned Will. He would further submit that throughout the senior citizen proceedings, the stand adopted was that the parties are acting under the family settlement, however after a period of 6 years, the stand has been changed to state that the family members were acting under the alleged Will.
17. He would further submit that the deceased and the Respondent were the joint owners of Bharat Bhuvan and certain units owned by the Bharat Khater, HUF and therefore there is no question of Respondent acting under clause (8) of the Will. He submits that the Respondent in her capacity as co-owner of Bharat Bhuvan was receiving rental income even prior to the impugned Will. After execution of the leave and license agreement as co-owner, all monies were being routed by the Vishal Parekar 10/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc Applicant to his companies for personal gain. He would further submit in so far as board resolution dated 13 th July, 2017 is concerned, the issue of transmission of share of the deceased was kept pending for adjudication and there was no adjudication before this Court and no trial took place before NCLT which left the issue to be decided by this Court. He would further submit that as far as MOU dated 29 th May, 2018 is concerned, after the demise of the deceased, the Respondent went into depression and the Applicant has taken undue advantage of her mental state. He would further submit that the settlement was between the two sons and cannot constitute an acceptance of the Will by the Respondent.
18. He would further submit that the Interim Application speaks of the Respondent having minor share in the ownership of the licensed property and it is specifically pleaded in paragraph 31 of the reply affidavit that the Respondent and the deceased husband are joint owners of the licensed properties and therefore the question of acting under the purported Will does not arise. He would further submit that in the recital to the deed of the family settlement dated 9 th January, 2015 it is specifically stated that the properties are co-owned and enjoyed by all the four parties/members of the Khater family prior to the execution to the deed of family settlement. He submits that in the Arbitration Vishal Parekar 11/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc Petition in respect of Bharat Bhuvan property, the Applicant had urgently applied for permission to give the premises on leave and license basis in and the order records that both the parties i.e. Petitioner therein Fullerton India Credit Company Limited and the deceased both had claimed ownership in the said premises and it was directed that the proposed leave and license agreement shall be executed by Applicant and Respondent herein jointly. He submits that the Respondent is claiming co-ownership in the property which has been recognized in various proceedings. In support of, he relied upon the following decisions:-
(1) Daya Subhash Tiwari vs. Kashinath Lalta Tiwari and Ors. 5 (2) Laxman vs. Basavanni and Anr.6 (3) Yash Vardhan Mall vs. Tejash Doshi7 (4) Krishna Mohan Kul and Anr. vs. Pratima Maity and Ors.8
19. In rejoinder Mr. Cama would submit that the issue as regards the fiduciary capacity is contrary to the burden which is cast in testamentary matters. He would further submit that even on co-ownership, the Respondent's case is of one share jointly along with the deceased and even if the Respondent is the co-owner, in event the deceased died intestate, the sons would be entitled to a share in the share of the deceased, whereas leave and license agreements have been executed 5 2013 (6) Mh.L.J. 535.
6 ILR 2019 KAR 2035.
7 (2018) 11 SCC 792.
8 (2004) 9 SCC 468.
Vishal Parekar 12/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 :::
ial-37621-2024.doc by the Respondent claiming to be the absolute owner of the property which was as per the Will of the deceased. He submits that that where the title of testator is contested, the Caveat is liable to be dismissed. REASONS AND ANALYSIS :-
20. The issue arising for consideration is whether the Caveat is required to be dismissed at the threshold paving the way for grant of probate of the Will of the deceased Bharat Vasudev Khater.
21. The testamentary petition was filed by the Applicant to which the consent affidavits of the elder son Avinash and the Respondent were annexed. The consent affidavit of the Respondent filed with the testamentary petition is a notarized document dated 17 th January, 2017 and bears the signature of the Respondent. In the affidavit in support of caveat, the stand taken by the Respondent in the context of the consent Affidavit is (a) No such consent Affidavit has been signed by her (b) At the time of taking inspection for filing caveat, the consent affidavit on record was undated. (c) during the subsequent inspection, there were drastic alterations in the consent affidavit as the date, the words "identify by me", the endorsement of Adv Poonam Gandharva were added to the consent affidavit and (d) the consent affidavit was not filed alongwith the petition as the original index did not mention the Vishal Parekar 13/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc consent affidavit which was inserted subsequently at Sr no 3A of the index. In the Affidavit filed before NCLT, the stand of the Respondent is that the Applicant gave her the consent affidavit and threatened her to sign which she signed under undue influence and coercion. In the proceedings arising out of Senior Citizens Act, before the Hon'ble Apex Court, the Respondent has stated on affidavit that the Applicant though manipulation compelled the Respondent to submit her consent affidavit in support of the probate petition.
22. There is specific admission in the affidavits filed by the Respondent before NCLT and the Hon'ble Apex Court of the consent affidavit being signed albeit under coercion. In the present proceedings the Respondent seeks to disown the consent affidavit contending that the affidavit has not been signed by her,which is contrary to her own pleadings before NCLT and Hon'ble Apex Court. The Respondent cannot be heard to say that she became aware of the consent affidavit only when she took inspection of the testamentary proceedings in the year 2018 and that it has not been signed by her. The pleadings show that before the NCLT and Hon'ble Apex Court, the Respondent has admitted signing the consent Affidavit and the appropriate course would have been to adopt proceedings for withdrawal of her consent affidavit, which application would have been tested on its own merits. Instead the Vishal Parekar 14/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc Respondent has sought to deny the execution of the consent affidavit itself. In view of the varying stands adopted by Respondent in different proceedings, it is difficult to accept that the consent affidavit was not signed by the Respondent or that the Respondent was coerced into signing the consent Affidavit. The relevance of the consent affidavit in the present issue is the context of acceptance by the Respondent of the execution of the Will of the deceased. It is pertinent to note that the elder son Avinash has also signed the consent affidavit accepting the genuineness of the Will of the deceased.
23. The deceased and the Respondent executed their respective Wills which were registered on the same day with the same witnesses. In the reply, the Respondent has not denied the execution of her Will, which when perused is mirror image of the Will of the deceased. The bequests in the Will of the deceased and that of Respondent are identical with life interest being given to the spouse and the rest and residuary to the Applicant by excluding Avinash. The Will of the deceased is not stated to be forged or fabricated but opposed on the ground of being executed under undue influence and coercion. The issues which would arise, should the matter proceed to trial, is as regards the deceased's physical and mental state and whether the Will was executed under undue influence and coercion. I am not inclined to accept the submission of Vishal Parekar 15/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc the burden of proof being cast upon the Applicant to prove the absence of fraud, undue influence or coercion. The burden is upon the Applicant to prove that the Will was duly and validly executed in accordance with law, that the testator was of sound and disposing state of mind, memory and understanding and to remove all suspicious circumstances surrounding the execution of the Will. The burden to prove undue influence and coercion is upon the Respondent. (See Surendra Pal & Ors vs Saraswati Arora & Ors.9. The decision of Krishna Mohan Kul alias Nani Charan Kul (supra) was rendered in context of contractual relationship in different factual scenario and does not assist the Respondent. In any event, the merits of the opposition is not an issue in these proceedings. What this Court is tasked is to determine whether the contentious proceedings should be terminated at the threshold and the petition should proceed for grant.
24. The application is premised on the ground that the Respondent having accepted the Will in several documents and having accepted the bequest under the Will cannot challenge the Will under which the bequest has been received. Under the Will propounded by the Applicant, the Respondent is bequeathed life interest in the immovable properties and is solely, exclusively and absolutely entitled to use and enjoy the income/ profits including inter alia as licensor thereof and that
9 1974 AIR 1999.
Vishal Parekar 16/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 :::
ial-37621-2024.doc she will be entitled to give the same on leave and license basis with the restriction on creating any other rights. In so far as the bequest to the Applicant is concerned, the Applicant was bequeathed all the residuary interest viz all right title and interest in all properties including shares, debentures, securities, bonds, share in assets of partnership firms /companies etc in which deceased was partner/member etc.
25. The deceased expired on 10 th December, 2016. The Respondent has executed two leave and license agreements on 20 th January, 2017 and 7th December, 2017 of portions of building known as Bharat Bhuvan as absolute owner thereof. The family settlement dated 9 th January, 2015 was executed by the deceased, Respondent, the Applicant and the other son Avinash and speaks of the joint ownership of the properties at Annexure "A" which includes the property of Bharat Bhuvan. Under the family settlement, the deceased and the Respondent took one share, the Applicant one share and Avinash one share. The family settlement allots certain properties to Avinash and sets out that all other moveable/immoveable properties shall be allotted to deceased, the Respondent and Applicant and be shared amongst themselves. The Bharat Bhuvan is not part of the property allotted to Avinash. The execution of the family settlement is not disputed by the Respondent and it is stated that the Respondent has pre-existing right in the entire Vishal Parekar 17/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc estate. Considering the family settlement, the Applicant would be entitled to a share in the properties and upon intestacy, the Applicant would be entitled to a share in the share of the deceased in the property of Bharat Bhuvan. The leave and license agreements have been executed by the Respondent in her capacity as absolute owner thereof and not as co-owner of the licensed premises. Under the Will of the deceased, the Respondent was bequeathed life interest in the immovable properties and to enjoy the income/profits of all the immovable properties and give the same on leave and license basis. The Respondent had executed gift deed dated 17 th May, 2017 in respect of Bharat Bhuvan property in favour of the Applicant and at the time of execution of leave and license agreement with Tea4Health Private Limited on 7th December, 2017, the Respondent had already gifted her share in the licensed premises.
26. It is in the year 2020, that the Respondent approached the Senior Citizen's Tribunal seeking cancellation of the gift deed. The Respondent was aware at the time of execution of the leave and license agreement with M/s Tea4Health Pvt Ltd that she has already gifted her share to the Applicant. The only way that the Respondent could execute the leave and license agreement with M/s Tea4Health Pvt Ltd was by accepting the benefits under Clause 8 of the Will of the deceased. Vishal Parekar 18/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 :::
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27. Even accepting that under the family settlement, the Respondent and the deceased were entitled to independent share, the Respondent could not claim absolute ownership of the licensed premises, which benefit could be claimed by the Respondent only under the Will. Absent the bequest, the Respondent would have a share alongwith the Applicant, who gets a share under the family settlement and also under intestacy upon death of the deceased and there could be no grant of license as sole owner thereof. The license agreement in that case was required to be executed by the Applicant and Respondent jointly.
28. By virtue of Clause 8 of the Will, the Respondent was granted a right to take all benefits from the immovable properties and to give the same on leave and license basis. The Respondent's act of giving the immovable properties on leave and license basis as sole owner thereof constitutes an act in consonance with the terms of the Will. Though it is stated that right from inception, the Respondent and deceased were receiving and enjoying rental incomes and therefore the question of acting under the purported Will does not arise, there is no material produced on record to substantiate the contention of the immovable properties being licensed during lifetime of the deceased and that the leave and license agreements executed after death of the deceased was a continuation of the said arrangement.
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29. At this stage, it would be appropriate to make a reference to Section 187 and Section 188 of the Succession Act, 1925 which reads as under:
Section 187: When acceptance of benefit given by Will constitutes election to take under Will. Acceptance of a benefit given by a Will constitutes an election by the legatee to take under the Will, if he had knowledge of his right to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives inquiry into the circumstances. Section 188: Circumstances in which knowledge or waiver is presumed or inferred.
(1) Such knowledge or waiver of inquiry shall, in the absence of evidence to the contrary, be presumed if the legatee has enjoyed for two years the benefits provided for him by the Will without doing any act to express dissent.
(2) Such knowledge or waiver of inquiry may be inferred from any act of the legatee which renders it impossible to place the persons interested in the subject-matter of the bequest in the same condition as if such act had not been done.
30. In Mirzban vs Cedric Vaz (supra), the Co-ordinate Bench of this Court held in paragraph 15, 16 and 17 as under:
15. It is, I think, a well-settled principle that a person who accepts a benefit under an instrument must accept it in its entirety. He cannot accept the benefit and repudiate its other provisions. This is a very old principle, enunciated by Lord Cairns L.C., in Codrington v Codrington1 thus:
"Where a deed or will professes to make a general disposition of property for the benefit of a person named in it, such person cannot accept a benefit under the instrument without at the same time confirming to all its provisions, and renouncing every right inconsistent with them."
16. His acceptance of the benefit is a renunciation of every right inconsistent with the provisions of that instrument. This is a rule based on the well-known principle of approbation and reprobation. No one may affirm and disaffirm the same transaction, i.e. affirming Vishal Parekar 20/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc it to the extent of the benefit received and disavowing it to the extent that it prejudices. In a very large number of decisions it has been held that a person cannot take under and against the same instrument. In Ramakottayya v. Viraraghavayya3 Coutts Trotter, CJ observed that the principle is often put in another form: a person cannot approbate and reprobate the same transaction. As the Supreme Court held in Beepathumma, the principle is:
"That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it.
17. Faced with legacies and bequests, the Defendants have a choice. They may elect to receive those legacies and bequests, in which case they cannot assail the document under which they do so. In other words, on their acceptance of those legacies, they make an election and renounce all rights inconsistent with those legacies. On the other hand, it is, and was, always open to them to renounce the legacies and continue their challenge to the Will. But what no Defendant can do is to simultaneously accept a legacy that only accrues as such and challenge the testamentary instrument by which he or she receives it. The only exception to this is where the amount or item received would come to the recipient even on intestacy, or is less than what he or she might receive if the challenge to the will succeeds. It is only in that situation that no question of an election would arise. Where, however, the recipient takes a specific legacy and that legacy or bequest is not one that would follow on intestacy, the recipient cannot, having accepted the legacy, impugn or impeach the document under which it is made.
31. The Co-ordinate Bench noted the interpretation of Section 187 and Section 188 of Succession Act by the Hon'ble Division Bench of this Court in Lyla Darius Jehangir vs Bhkhtawar Lentin and Ors (supra) following the Hon'ble Apex Court in C. Beepathuma and ors vs Velasari Shankaranarayana Kadambolithaya10, that one who accepts a benefit under a deed or Will or other instrument must adopt the whole 10 (1964) 5 SCR 836.
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ial-37621-2024.doc contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it. The principle is often put in another form that a person cannot approbate and reprobate the same transaction.
32. In case of Swati S Ghatalia In the matter between Nanak S. Ghatalia vs Swati S Ghatalia (supra), the Co-ordinate Bench refused to condone the delay in filing the caveat on the ground of her bonafide as the applicant's case therein was that she is entitled to receiver her share of bequests to her and at the same time maintain a challenge to the Will under which those bequests came to her.
33. The settled position as deduced from the judicial pronouncements is that law frowns upon permitting a party to accept the bequests under the Will and at the same time to challenge the Will by applying the principle of approbation and reprobation. Applying the same principles, a party cannot be permitted to act in consonance with the Will which constitutes an acceptance of the Will and thereafter maintain a challenge to the very Will.
34. The Will of the deceased bequeaths the shares, debentures etc to the Applicant. In furtherance of the bequest under the Will, the Vishal Parekar 22/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc Applicant applied to Laxsons India Pvt Ltd in which the deceased was a shareholder and the Applicant and the Respondent were Directors to transfer of the shareholding of the deceased in favour of the Applicant by virtue of the Will of the deceased. The company passed a resolution which was signed by the Respondent as Director resolving to transmit the share of the deceased in favour of the Applicant. The resolution makes specific reference to the Will of the deceased dated 18 th November, 2016. Subsequently, the shares were duly transferred in favour of the Applicant and share certificate issued bearing the endorsement of the Respondent.
35. The transmission of the shares and removal of the Respondent as Director was challenged before the NCLT, Mumbai and came to be dismissed. The NCLT has rendered a specific finding that the Respondent herein was fully aware of the transfer and had played active part in such transfer exercise and there is no evidence to show that her signature on the transfer deed and endorsement on share certificate in favour of Applicant herein was taken fraudulently. The NCLT, however, made the claim of the Applicant to the shares of the deceased father subject to the decision in the title suit pending before this Court. The NCLT has kept the issue of authenticity of the Will under which the Applicant claims a right to the shares subject to the decision in present Vishal Parekar 23/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc proceedings. The findings of NCLT in respect of the Respondent's act of transmission of shares assumes significance as it denotes that the Respondent acted in consonance with the Will of the deceased while transmitting the shares.
36. There is yet another document which shows acceptance of the Will of the deceased, not only by the Respondent, but also by the elder son Avinash. The Applicant, Respondent and the said Avinash executed a Memorandum of Understanding dated 29th May, 2018 which is subsequent to the filing of the testamentary petition by the Applicant. The MOU was executed in view of further settlement between the parties and makes a reference to the earlier family settlement of 9 th January, 2015. Recital E of the MOU specifically refers to the Will of the deceased dated 18th November, 2016. Clause (3) of the MOU reads as under:
"(3) Avinash accepts the genuineness, authenticity and validity of the said Last Will dated 18th November, 2016 of Late Mr. Bharat Khater and undertakes that he shall not challenge the said Will of Late Mr. Bharat Khater dated 18th November, 2016, in favour of Sole Executor - Ashwini and consenting thereto and further that no Citation or other proceedings are required to be served upon Avinash and further Avinash undertakes not to file a Caveat in the said Testamentary Petition and Avinash further undertakes to to otherwise sign all other requisite Documents, required to give effect to the same. Avinash confirms that Avinash shall not challenge the Will of Urvashi and Avinash shall also not challenge the Wills of Ashwin and Ms. Ruchi Ashwin Khater and/or claim any right, title or interest, share, claim, demand in the Estates of Urvashi, Ashwin and Ms. Ruchi Ashwin Khater for any reason and under any circumstances and/or any grounds, whatsoever." Vishal Parekar 24/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 :::
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37. The execution of the MOU is not disputed by the Respondent and the response is that the MOU is a settlement between the two sons. Under the MOU, Avinash agrees not to file caveat in the said testamentary petition which shows that at the time of execution of the MOU, the testamentary petition was already filed which was to the knowledge of all the executants of the document including the Respondent. The Respondent has claimed in her Affidavit in support of the caveat that the Applicant handed over a consent affidavit for her signature in or about April, 2018 and did not furnish a copy of the Petition and threatened her on multiple occasions. It defies reason that despite this position, the Respondent executed the MOU on 29 th May, 2018 accepting the Will of the deceased. In compliance with his undertaking under the MOU, Avinash has not opposed the grant of probate and filed his consent affidavit. The MOU imposes an obligation on Avinash to accept the genuineness of the Will and not to contest the same. Can the Respondent who is the executant of the MOU impose an obligation on Avinash not to question the authenticity and genuineness of the Will dated 18th November, 2016 of the deceased and thereafter turn around and challenge the same Will. The answer is in the negative. The principle of approbation and reprobation prohibits the Respondent from taking such a stand. The Respondent cannot be permitted to challenge the Will having prevailed upon Avinash to accept the Vishal Parekar 25/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc genuineness and authenticity of the Will. It is no answer to say that the Will was a settlement between the two sons. The Respondent being one of the executant of the document is presumed to be aware of the contents of the document and is bound by the same. The Respondent by prevailing upon Avinash not to challenge the Will impliedly demanded the implementation of the Will of the deceased.
38. The execution of the leave and license agreements accepting the benefits under the Will and executing the board resolution to transmit the shares to Ashwin constitutes acts in furtherance of the wishes of the deceased under the Will and amounts to acceptance of the Will. The filing of consent affidavit is yet another act showing acceptance of the Will. The question of the Respondent having caveatable interest does not arise for consideration and the obstacle in the Respondent's way was the acceptance of the Will in several documents and acting in consonance with the Will, which the Respondent has not been able to overcome. The material on record clearly shows acceptance of Will of the deceased by the Respondent and having done so, the Respondent cannot be permitted to approbate and reprobate.
39. In Daya Subhash Tiwari (supra) the question which arose for consideration was whether the allegations made by the Caveator in the Vishal Parekar 26/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc affidavit in support of Caveat alleging fabrication are general in nature or are sufficient for not dismissing the Caveat at threshold. It is in these facts that the Court considered the dispute raised by the Caveator as regards the forgery of the documents to hold that these allegations cannot be brushed aside. The facts therein are distinguishable as there was no acceptance of the Will by the Caveator prior to the filing of the caveat.
40. The decision in the case of Laxman vs. Basavanni (supra) holds that once the proceedings become contentious, it is not open for the Court to proceed in the matter in a summary way and allow the parties to prove the Will in common form. The said decision deals with the procedure laid down in Section 278 of the Indian Succession Act, 1925 governing the Petition for Letters of Administration, the citations which are required to be issued and the procedure to be followed in contentious cases under Section 295. In that case, the Court had failed to follow the mandatory legal procedure which was held to have vitiated the grant. The said decision is rendered in a different factual scenario and does not assist the Respondent.
41. The decision of Yash Vardhan Mall (supra) dealt with the issue of existence of a caveatable interest in the context of Rule 25 of the Vishal Parekar 27/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 ::: ial-37621-2024.doc Calcutta High Court Rules. The Court held that the affidavit in support of the Caveat demonstrated the caveatable interest and fulfilled the requirement of the rule. The decision is clearly inapplicable to the present case.
42. In light of the above discussion, the Interim Application is allowed in terms of prayer clause (a) and (b). Caveat No 248 of 2018 stands dismissed. Testamentary Petition No 222 of 2017 to proceed for grant.
(SHARMILA U. DESHMUKH, J.)
43. At this stage, request is made for stay of the judgment for the period of eight weeks. The request is opposed by the learned counsel appearing for the Applicant.
44. In my view, considering that the application is for dismissal of Caveat which has been allowed by this Court, the judgment is stayed for a period of eight weeks to enable the Respondent to challenge the same.
(SHARMILA U. DESHMUKH, J.) Vishal Parekar 28/28 ::: Uploaded on - 14/01/2026 ::: Downloaded on - 14/01/2026 21:03:37 :::