SHANTA G Z MEHTA Vs. SARLA J MEHTA

JUDGEMENT

(1.) Record depicts that a notice of motion was taken out by the appellants herein for a direction to treat the probate proceedings as non- contentious proceedings with an additional prayer to grant probate, as prayed for. The factual score further depicts that the appellant-plaintiff being the widow of the deceased testator, had filed the present appeal for probate of the will executed by her husband, Jhaverchand Mehta. According to the appellant, her husband who executed the Will dated 10th March, 1989 died on 16th March, 1989 and she, being the sole legatee under the Will, prayed for grant of the probate. The respondents who happened to be the widowed daughter-in-law and grand daughters of the plaintiff, did file caveat opposing the grant of probate. Their main defence been denial of execution of the Will by the deceased.

(2.) Subsequently, however, as record depicts, the respondents took out a chamber summons for amendment of their affidavit in support of the caveat so as to take an alternative plea that the deceased did not have the competence to execute the will since the properties happened to be joint family properties. It is at this stage, the appellant had taken out a notice of motion that by reason of the specific stand denying the title of the testator and assertion made about the factum of the property being joint family property in nature, the caveator had no right to file the caveat and hence the caveat ought to stand rejected and the proceedings should also be treated as non-contentious. It is on this score that the learned single Judge dealt with the matter in extenso regarding his reasons for rejection of the same. For convenience sake paras 5 and 6 of the decision as rendered by the learned single Judge are set out hereinbelow so as to appreciate the reasonings :

(3.) Be it placed on record that the notice of motion was dismissed and as against thereto the appeal by the present appellant before the High Court also stood dismissed. The Appellate Bench of the High Court, in our view, very rightly recorded that for the reasons recorded by the learned single Judge, no interference was called for. The reasons stated by the learned single Judge, as noticed hereinabove, are not assailable and we also do feel it expedient to record our concurrence therewith. During the course of hearing, the learned advocate appearing in support of the appeal placed very strong reliance on three several decisions. Firstly, however, reliance was placed on Ramyad Mahton v. Ram Bhaju Mahton I. L. R. (1931) Patna, Vol. X, 812, wherein the decision of the Calcutta High Court in Abhiram Dass v. Gopal Das (1889) I.L.R. 17 Cal. 48 has been taken recourse to. There was, however, a specific finding that since the objector had no interest in the estate of the deceased, question of any locus standi to participate at the probate proceeding would not arise. There cannot possibly be any dispute as regards the proposition of law as settled therein. But the situation presently under consideration does not so reflect and as such the decision does not lend any support to the contentions raised in the matter. Similar is the situation in the second and the third decisions vide Mahanth Ram Das v. Prem Das ILR (1931) Patna, Vol. X, P. 817 and in re N. Narasimhan and another, AIR 1975 Madras 330. The decisions, thus, in our opinion are of no relevance in the contextual facts and as such no reliance had also be placed thereon.