Whether existence of will can be challenged by person who was not legal heir of Testator ?

Citation: 2014(1)ALLMR118,2014(2)MHLJ135 Bom

IN THE HIGH COURT OF BOMBAY

Notice of Motion No. 178 of 2012 in Suit No. 28 of 2011 in Petition No. 1130 of 2010

Decided On: 02.09.2013

Appellants: Ashokkumar Krishnakumar Shukla alias Munna
Vs.
Respondent: Mr. Mohammed Rafiq Haji Usman Momin

Hon'ble Judges/Coram:R.D. Dhanuka, J.

Civil - Probate - By present motion, Petitioner was seeking declaration that Caveators' caveat petition were not maintainable as Caveators have neither locus standi nor caveatable interest in matter - Petitioner had filed probate petition for probate of last will and testament of Testator - Whether existence of will could be challenged by person who was not legal heir of Testator - Held, cleared from affidavit in support of caveat that Caveators were not legal heirs of deceased testator - If petition would be rejected and property would be devolved on intestacy, Caveators would not have claimed any right title or interest in property as per Succession Law applicable to parties - Genuineness of will could not be raised in affidavit in support of caveat - If genuineness of will would be raised by legal heirs of testator, situation would have been different - Probate of will granted - Caveators had no caveatable interest - Petition disposed of.

1. By this motion filed by the petitioner, petitioner seeks declaration that the caveat dated 21/1/2011 filed by the caveators is not maintainable as the caveator have neither locus standi nor caveatable interest in the matter. Petitioner has filed probate petition for probate of the last Will and testament of Krishnakumar. Names of the legal heirs of the said deceased are disclosed in paragraph 9 of the petition. It is not in dispute that none of the legal heirs whose names are disclosed in paragraph 9 of the petition have filed caveat disputing existence of the Will. Caveat has however, been filed by Mohd. Momon Partner of Minar Enterprises on whose caveat petition has been converted into suit. Mr. Vora, learned counsel for the petitioner invited my attention to the affidavit in support of the caveat. It is submitted that the caveator claims right, title and interest in the land bearing C.T.S. No. 210, 210/1 to 210/49 alleged to have been sold, assigned, transferred and conveyed in his favour. It is the case of the caveators that the deceased Krishnakumar during his life time had already sold the said property in favour of the caveator. It is the case of the caveators that the testator thus not having any right title and interest in the said property on the date of execution of the Will, could not have bequeathed the suit property in favour of the beneficiaries. There are certain proceedings filed between the parties referred to in the affidavit in support. In paragraphs 10 and 11 the caveator has alleged that the Will is a fabricated document and has disputed the genuineness of the said Will. The caveator has also denied the existence of the alleged Will and or any testamentary disposition of the suit property by the said deceased.

2. Mr. Vora, the learned counsel for the petitioner submits that the caveator is totally outsider and is not legal heir of the said deceased and is accordingly not cited in the petition. It is submitted that the caveator is setting up the title which is adverse to the interest of the testator and thus is not entitled to maintain the said caveat. It is submitted that all the legal heirs of the said deceased have filed consent affidavits in favour of the petitioner for grant of probate. Learned counsel placed reliance on the judgment of the Supreme Court in the case of Krishna Kumar Birla Vs. LodhaMANU/SC/1693/2008 : 2008 (4) SCC 300 in support of the submission that the person who sets up title adverse to the title of the deceased testator, is not entitled to maintain the caveat and in any event this court exercising testamentary jurisdiction cannot decide the title of the deceased.

3. In so far as allegations made in the affidavit in support of caveat disputing existence and genuineness of the Will is concerned, it is submitted by Mr. Vora the learned counsel for the applicant that the caveator not having any interest in the estate and he not being the legal heir or next of kin of the said deceased, is not entitled to make such allegations. It is submitted that even if probate is declined by this court for any reasons and even if the property of the deceased are devolved on intestacy, the caveators would not be entitled to get any share in such property and thus has no caveatable interest of any nature whatsoever. It is submitted that genuineness of the Will cannot be considered by this court at the instance of an outsider.

4. Mr. Godbole, learned senior counsel on behalf of the caveators on the other hand submits that the deceased himself had no right title and or interest of any nature whatsoever to bequest the plot in question on the date of execution of the will. The same was already transferred in favour of his brother who in turn had transferred the said property to the caveator. Mr. Godbole also invited my attention to the bequest made by the deceased testator to demonstrate that though even according to testator he had sold part of the property described in the Will, petitioner has claimed probate in respect of the entire property by disclosing the same in the schedule annexed to the petition. If such probate is granted, it would affect the right, title and interest of the caveators. It is submitted that since the legal heirs are not disputing the existence of the Will, the caveators who claim right in the property is entitled to bring to the notice of the court the incorrect description of the property made by the petitioner which includes property of the caveator. Mr. Godbole, also invited my attention to the judgment of the Supreme Court in the case of Jagjit Singh MANU/SC/0160/2010 : (2010) 5 SCC 157 in support of his submission that in view of the difference in opinion of the Supreme Court in the case of Krishnakumar Birla Versus Rajendra Singh Lodha and Ors.MANU/SC/1693/2008 : (2008) 4 SCC 300 and in the case of G. Gopal Vs. C. Baskar and Ors. MANU/SC/8047/2008 : (2008) 10 SCC 489, the Supreme Court in the said judgment has referred the issue of caveatable interest to larger bench.

5. On perusal of the affidavit in support of the caveat, it is clear that the caveators are not the legal heirs of the said deceased testator. The caveators claim right, title and interest in the property of the deceased testator in the affidavit in support. It is the case of the caveators that during the life time of the deceased and even before execution of the Will, the testator had already transferred the said property in favour of his brother who in turn conveyed the said property to the caveators. In catena of decisions of the Supreme Court and this court, it has been held that the court exercising testamentary jurisdiction cannot decide the title of the testator or third party in respect of the property. If any party who claims any interest adverse to the interest of the testator such party is not entitled to maintain caveat and his remedy would be to file independent suit for adjudication of the title in respect of the suit property.

6. As far as allegations made in the affidavit in support of the caveat and disputing execution and genuineness of the Will is concerned, it is not in dispute that the legal heirs of the said testator have not disputed the existence of the Will and have filed consent affidavits in favour of the petitioner. The question that arises for consideration of this court is whether an outsider who is not legal heir can dispute the existence of Will who would not have any claim in the property of the deceased, in case probate is not issued by this court and on the basis of the intestacy.

7. In my view, since the caveators are not one of the legal heirs, even if the petition would have been rejected for any reasons and the property of the deceased would have been devolved on intestacy, the caveator would not have claimed any right title or interest in the property as per Succession Law applicable to the parties. Such allegations of fabrication and disputing the genuineness by the third party in my view cannot be raised in the affidavit in support of the caveat. If such allegations would have been made by the legal heirs of the deceased testator, situation would have been different.

8. As far as submission of Mr. Godbole, learned counsel that in the schedule to the probate petition, petitioner has inter alia prayed for probate in respect of the larger property contrary to the legacy bequeathed by the testator under the will is concerned, in my view even if this court while exercising testamentary jurisdiction grants probate as claimed as per schedule of assets and properties, the court would not decide the title in respect of the deceased testator in respect of such properties described in schedule to the petition. If executor or beneficiary applies for implementation of probate, in respect of the property belonging to third party, such third party can apply for revocation of grant under section 263 of the Indian Succession Act or can file independent suit for adjudication of his title. The grant of probate by this court would not conclude the title of the testator in the property described in the Will or schedule to the probate petition.

9. There are no other objections raised by the caveators in the affidavit in support of caveat.

10. In my view, the caveator has no caveatable interest. Objection regarding title raised by the caveators cannot be decided by this court exercising testamentary jurisdiction. The caveat thus filed by the caveator deserves to be dismissed. Notice of motion made absolute in aforesaid terms.

11. The Prothonotary is directed to proceed with grant of probate on the basis of the uncontested suit expeditiously. Drawn up order dispensed with. No order as to costs. On oral application of Mr. Godbole, the learned counsel for the caveators, implementation of this order is stayed for the period of four weeks from today.

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