Bombay High Court
Eruch Rustom Irani vs Limji Kaikashroo Pandey on 16 November, 1991
Equivalent citations: 1993(1)BOMCR340, (1992)94BOMLR351
ORDER M.G. Chaudhari, J.
1. The petitioner-plaintiff Eruch Rustom Irani prays by this notice of motion that the caveat filed in the above petition on 26-4-1991 by the caveator-defendant be dismissed and the office be directed to proceed with the Testamentary petition (594 of 1990) for issuance of the probate of the last Will and testament of Mrs. Najamai K. Jainawalla, deceased having effect throughout India, as uncontested matter. The deceased died at Bombay on 7th February 1989 leaving the Will dated 12th January 1989. The petition was filed on 20-11-1990 by the petitioner (plaintiff). The petitioner has been named the sole executor under the will. It is stated in the petition that the deceased left no surviving heir or next of kin according to the Indian Succession Act 1925 as applicable to the Parsis. It is further stated that the deceased died as a widow and issueless and her parents had predeceased her. The deceased left no heirs from her father's side or her husband's side. The Will is produced at Ex. A. Supporting affidavit of one of the attesting witnesses Sudhir S. Phadke, Advocate has been annexed to the petition. The property and credits left behind by the deceased are set out in schedule at Ex. B. Under the will the deceased has bequeathed all her properties to the petitioner who thus apart from being the executor is also the beneficiary under the Will.
2. One Limji K. Panday has filed a caveat opposing the grant of probate on 28-4-1991. Before I turn to the contentions raised in the affidavit in support of the caveat it may be mentioned that the petitioner has now applied for dismissing the said caveat on the grounds stated in the affidavit in support of the motion which are inter alia as follows. According to the petitioner the caveator has no locus standi in the matter and the caveat is therefore liable to be dismissed. It is contended that under the Succession Act and High Court Rules only a person who has interest in the estate of the deceased can oppose the application for grant of probate and that since the caveator is no way related to the deceased he is not entitled to any share or interest in the estate of the deceased. Reference then is made to the suit filed by the caveator-defendant in the Bombay City Civil Court being Suit No. 7728 of 1990 against the petitioner in respect of the immovable property being survey No. 320, plot No. 1-184, plot No. 2-185 and plot Not. 3-C.R. No. C/98/C/99 at Bandra and to A.O. No. 222 of 1991 and Writ Petition No. 2766 of 1986. It is contended that in view of the said proceedings and even otherwise the question of title cannot be raised in the testamentary Court or in the probate proceedings and apart from it the caveator has made out no case for challenging the Will. It is, further contended by the petitioner that the present caveat has been filed with mala fide intention and the caveator had not served affidavit in support of the caveat upon the petitioner within 14 days after lodging of the caveat but nearly after 6 months. Thus the conduct of the caveator according to the petitioner shows that the caveat has been filed just to delay the grant of probate to the petitioner. It is also pointed out that in paragraph 7 of the affidavit in support of the caveat the caveator has stated that the property belongs to him. In sum according to the petitioner since the caveator denies the title of the deceased to the property bequeathed under the Will that does not afford him a ground to oppose the probate proceedings and therefore, he has no locus stands to file the caveat. The caveator has filed affidavit in reply in which inter alia he contends that the notice of motion is not maintainable in asmuch as the question of maintainability of the caveat cannot be decided by way of notice of motion and the same should be decided in the suit, that the Will is a fabricated document by the plaintiff to initiate and perpetuate litigation in respect of the property, that even a person remotely affected can oppose the grant and therefore he has locus standi to file the caveat. He has referred to City Civil Court suit. Ultimately he prays for dismissal of the notice of motion. He has also sought to rely on affidavit filed in support of the caveat. The petitioner has filed a rejoinder to deny the allegations made in the reply. In the affidavit in support of the caveat the caveator defendant has inter alia contended that the property involved in Suit No. 7728 of 1990 being CTS No. 98 and 99 (part) Bandra, is the property belonging to him and he is the owner of the said property and as such he is in exclusive possession thereof. That suit is pending. As the same property is mentioned in the petition he has filed the caveat. He has referred to A.C. 222 of 1991 arising in that suit and Writ Petition No. 2766 of 1986 filed in this Court. He contends that the property bequeathed did not belong to the deceased and the deceased could not have disposed of the said immovable property by any Will or testament as the said property belongs to him, that the right title and interest in the said property also belongs to him and therefore he has every right, to oppose the grant of probate of the Will. It may be mentioned that under the Will the property bearing Survey No. 184(P) and Survey No. 185(P) CTS Nos. 98 and 99 of Bandra have been bequeathed to the petitioner. The deceased thus treated that property as belonging to him.
3. Apart from the above contention, the defendant has also contended that the Will is a false, forged, fabricated, bogus and got up document brought into existence by the petitioner and that the signature of the testator appearing on the alleged Will also does not appear to be genuine when compared with his two signatures on the deed of transfer dated 20-3-1957. He has also contended that the deceased had a daughter Perin and therefore the statement in the petition that he died issueless is false. It is however, explained by Mr. Makhija that Perin had pre-deceased the testator and there is no false statement made in the petition.
4. The narrow question that falls for consideration in the light of above noted pleadings is as to whether the caveator defendant has the locus standi to challenge the Will on any of the grounds raised by him.
5. After referring to the relevant provisions of law and High Court Rules made under the Indian Succession Act Mr. Makhija, the learned Counsel for the petitioner, submitted that the caveator not being any way related to the deceased nor a being person entitled to any share in her property and he not thus being a person interested he is not entitled to maintain the caveat. He pointed out that defendant has not been mentioned in the petition as an heir or next of kin of the deceased and no notice was served upon him but he on his own has come forward after the citation was published by affixing. The learned Counsel further submitted that indeed the caveator has set up title adverse to the deceased in respect of the property bequeathed under the Will and since he does not claim to derive title from the deceased he is not person interested and competent to maintain the caveat. He further submitted that the contention of the caveator raises a question of title which can not be the basis of adjudication in a probate proceeding. According to the learned Counsel the ground sought to be urged by the defendant that the Will is a forged and fabricated document also is not open to be gone into in this petition as the caveat itself is not maintainable. He therefore submitted that the caveat must be dismissed as it is not maintainable and consequently probate may be directed to be issued treating the petition as a non-contentious proceeding.
6. Mr. Jain, the learned Advocate for the defendant, however submitted that having regard to the relevant provisions of the Succession Act and the rules framed by the High Court the defendant is entitled to maintain the caveat and it is not necessary to show that he is a person related to the deceased or could claim any right, title or interest in the property of the deceased either by succession or otherwise. According to the learned advocate the right to file a caveat is not confined to any particular class of persons and since the defendant is likely to be adversely affected if probate is granted to the petitioner he is entitled to maintain the caveat. Mr. Jain also submitted that if probate is granted to the petitioner unopposed that will result in multiplicity of proceedings inasmuch as the defendant will have to fight litigation on the question of title with the petitioner which otherwise he would not be required to do. The defendant thus will be compelled against his own wish to litigate with the petitioner and in order to prevent such an eventuality and to safeguard his right, title and interest in the property which he claims to be of his own and which is also the subject matter of a Civil Suit the caveat filed by him is perfectly maintainable and therefore the suit should be tried on merits. Thus according to the learned Advocate, the notice of motion is liable to be dismissed.
7. The procedure laid down in the Original-Side 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 inasmuch 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 9-1-1987 (unreported).
9. Mr. Jain sought to argue that Rule 401 does not limit the category of persons who are qualified to file a caveat and the words "any person" go to show that even a person who claims to be interested in safeguarding his rights in respect of the property can file a caveat. According to him neither Rules 402 nor 403 provides anything contrary to the above proposition. It support of this submission he also referred to Rule 397. That Rule provides :
"397.(1) In all applications for probate, letters of administration and succession Certificate, notice of the application shall be given to all the heirs and next of kin of the deceased mentioned in the petition except to those whose consent has been filed in the proceedings.
(2) In all applications for probate and letters of Administration the citation shall be affixed on some conspicuous part of the Court house and also in the office of the Collector of Bombay.
(3) In all applications for succession certificate, notice of the application shall be affixed on some conspicuous part of the court house.
(4) No grant of probate, letters of administration or succession certificate shall be made until after the expiry of fourteen clear days from the date of the service of the citation or notice, and from the publication thereof in newspapers, if any, and from the affixing thereof on the Court house and in the Collector's office as the case may be, unless the Judge in Chambers otherwise directs.
According to Mr. Jain persons similarly situated as persons described in Rule 402 are entitled to file caveat and that is the combined effect of the various rules when read together. Relying on Rule 397 he submitted that notice is not only to be served on the persons who are mentioned in the petition as heirs and next of kin of the deceased but the citation is also required to be affixed on some conspicuous part of the Court house and in the office of the Collector of Bombay. That according to him shows that the publication of the citation enures to the benefit of all persons like the present caveator who may be interested in showing that the Will is not genuine and is someway likely to be affected by the grant of probate of such a Will and in this context the words "Any person intending to oppose the grant" occuring in Rule 401 must be liberally construed. To limit the class of persons entitled to oppose the grant would be inconsistent with Rule 397. In the submission of the learned counsel sub-rule (1) and sub-rule (2) of Rule 397 prescribed the modes of service of notice and publication of citation separately and cumulatively they cover all persons intending to oppose the grant within the ambit of Rule 401. According to Mr. Jain to hold otherwise would amount to denial of opportunity to a person like the present caveator to show that the Will is not genuine and would drive him to unnecessary and avoidable litigation and also Will lead to multiplicity of proceedings. To buttress the above line of argument he also relied on section 283 and 284 of the Indian Succession Act. According to the learned advocate the intention of the legislature is to permit a person to appear before the Court and show that the Will is not genuine if he is likely to be affected in some way in respect of his own property. According to Mr. Jain, the caveator here is a person who intends to show that the Will is not genuine on the grounds urged in the caveat and that calls for decision on merits hence he may be given an opportunity by proceeding with the petition as a suit after dismissing the notice of motion.
10. Mr. Makhija, the learned Counsel for the petitioner rejoined by submitting that a person to be entitled to file a caveat must be a person who claims to derive some interest from the deceased and a stranger like the present caveator has no such right. The learned Counsel further submitted that since the caveat could not be maintainable as the caveator has no locus standi to oppose the grant there does not arise any question of trial on merits on the grounds raised in support of the caveat.
11. I find it difficult to agree with the submissions of Mr. Jain noted above in view of the Division Bench judgment of this Court in Appeal No. 1050 of 1986 (supra). Their Lordships have clearly held in that judgment that the caveator has no right to file a caveat where he does not disclose any right or interest which is required to be disclosed under Rule 402. Mr. Jain tried to argue that all the aspects of the Rules as urged by him do not appear to have been placed before the Division Bench and as in the affidavit in support of the caveat filed in that case necessary averments do not seem to have been contained the instant case would be distinguishable from that case and therefore in view of the submissions urged by him the caveat may be held maintainable. For the reasons already discussed I find it difficult to accept this argument.
12. Mr. Jain next argued that the question of locus standi of the caveator to oppose the grant and the maintainability of the caveat are questions needing adjudication and can only be tried as issues at the trial of the suit and these cannot be decided in the notice of motion. It is submitted that with the filing of the caveat the petition is already required to be tried as a suit and therefore no question arises of throwing out the caveat in the interlocutory proceedings of notice of motion. Mr. Makhihja however submitted that the question of maintainability of the caveat can be decided in the notice of motion. Now identical question had arisen for consideration before the Division Bench in Appeal No. 1050 of 1986 (supra). The question raised was whether the notice of motion taken out by the petitioner (in that case) was appropriate remedy and whether the issue of the maintainability of the caveat could only be decided as a preliminary issue in the suit. After examining the position arising under the various provisions of law and rules and after noticing the nature of a caveat and of a notice of motion. Their Lordships eventually held that the petitioner was entitled to the order sought for on the motion as well as for the consequential reliefs. Following that ratio, with respect, I hold that the questions under consideration are open to be decided in this proceeding although it is taken out by way of notice of motion.
13. In the light of the above discussion I hold that the petitioner is entitled to the orders sought for on the notice of motion and for consequential reliefs namely that on the caveat being set aside the testamentary proceedings Will cease to be considered as contested suit and will be disposed of as a petition simplicitor. The caveat filed by the defendant thus will not be regarded as a real or valid objection or obstruction to the grant of probate to the petitioner with the Will annexed.
14. In the result the notice of motion is made absolute in terms of prayers (a) and (b). The caveat of the defendant-caveator stands discharged. The testamentary petition will proceed as non contentious proceeding. The office is directed to proceed with the testamentary petition for issue of probate as prayed. No order as to costs.