ERUCH RUSTOM IRANI Vs. LIMJI KAIKASHROO PANDEY

JUDGEMENT

(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 fathers side or her husbands 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.