MEHERJI ASPENDIAR OSHTORI Vs. KAIKHOSROW ASPENDIAR OSHTORI

JUDGEMENT

(1.) ADMIT . The learned Advocate for the respondent waives service. By consent, heard forthwith.

(2.) THE appellant challenges the order dated 15-12-2006 passed in Notice of Motion No.122 of 2006 in Testamentary Suit No.33 of 2006 whereby the learned single Judge has held that the caveators/appellants have not challenged the validity and legality of the Will and that therefore are not entitled to maintain the caveat.

(3.) PERUSAL of the impugned order discloses that after referring to the said para, the learned single Judge in that regard has observed that the affidavit in support of the caveat, apart from making the said submission, nowhere discloses any factual matrix which could help the Court to decide the issue regarding the legality and validity of the Will. Indeed, mere submission that the Will is invalid, illegal and fraudulently prepared and not enforceable in law would not be sufficient to raise the dispute regarding the legality and validity of the Will. For the purpose of consideration of issue regarding the legality and validity of a Will, it is necessary for the caveator to disclose the basic facts, which could lead to the conclusion about the illegality or invalidity of the Will. Undisputedly, the affidavit in support of the caveat does not disclose any such fact, which could reveal the Will to have been obtained fraudulently, or the Will to be invalid or illegal. Being so, no fault can be found with the impugned order wherein it has been held by the learned single Judge that the caveators, apart from making mere submission, have not actually disputed that the Will was duly signed and attested and that the attestor was in the right frame of mind to make the Will.