Allowed

Pradeep M Shahani v. Rajendrakumar Shahani and Nanik H.Mirchandani and Anr.

Bombay HC10 Mar 2005APP/910/2003

Case brief

AI extract

What is this about?

The High Court of Bombay allowed the appeal dismissing a caveat filed by caveators who challenged the title to property bequeathed to the appellant in the deceased's will. The Court held that the Probate Court cannot decide challenges to title and the caveat was impermissible.

What did the court decide?

The caveat filed by Respondent Nos.1 and 2 is dismissed with no order as to costs.

Pradeep M Shahani Vs Rajendrakumar Shahani and… — Succession and Inheritance | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 ORDINARY ORIGINAL CIVIL JURISDICTION

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 APPEAL NO.910 OF 2003
 IN
 CHAMBER SUMMONS NO.235 OF 2003
 IN
 PETITION NO.222 OF 1993
 IN

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 SUIT NO.54 OF 1993

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 Pradeep Manek Shahani ....Appellant

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 V/s.

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 Rajendrakumar Shahani ....Respondent
 Ori.Pet.
 And

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 Nanik H. Mirchandani & Anr. ....Respondent
 Ori.Caveators & Defts.

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 Mr.Robin Jaisinghania i/b Basant Tilokani & Co. for
 the Appellant.

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 Mr.H.V. Chande for Respondent No.1.

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P.C. :

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 1. By consent the Appeal is admitted and taken
 up for final hearing.

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 2. The Appeal is filed against the order of the
 learned single Judge rejecting the Appellant’s

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 application dismissing the caveat filed by Respondent
 Nos.1 and 2. Respondent No.1 filed the above Petition
 for probate of the last Will and Testament of one
 Smt.Ruki Mirchandani alias Ruki G. Mirchandani dated
 7th December, 1988. The Appellant is the sole
 beneficiary under the said Will.

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 3. The Appellant is the son of the brother of
 the deceased. Respondent Nos.1 and 2, the caveators
 are the children of the brother of the husband of the
 deceased.

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 4. Respondent Nos.1 and 2 filed the caveat and
 an affidavit in support thereof which we shall
 shortly refer to. Respondent No.1/original Petitioner
 took out the above Chamber Summons No.235 of 2003 for
 an order discharging the said caveat.

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 5. It is settled law that in a Petition for

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 probate the Court is not concerned with the title to
 the properties mentioned therein. In Ishwardeo Narain
Singh v. Kamta Devi, A.I.R. 1954 S.C. 280. The
 Supreme Court held as under :-

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 "2. The dismissal of the
 application for probate on the
 ground that the disposition in
 favour of Thakurji is void for

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 uncertainty can on no principle be
 supported and indeed learned counsel
 appearing for the respondent has not
 sought to do so. The Court of
 Probate is only concerned with the
 question as to whether the document
 put forward as the last will and
 testament of a deceased person was
 duly executed and attested in
 accordance with law and whether at
 the time of such execution the
 testator had sound disposing
 mind.The question whether a
 particular bequest is good or bad is
 not within the purview of the
 Probate Court. ...................."

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 6. The only contention raised in support of the
 caveat is that the husband of the deceased was the
 owner of a property known as "Gurdasmal Mansion"
 situated at Bandra, Mumbai. The deceased and her
 husband had no children. It is further alleged that
 Gurdasmal during his life time has executed a Will
 dated 8th December, 1957 wherein he had bequeathed the
 said property in favour of the caveators and that the
 deceased had only a right of residence during her life
 time and that she was also entitled for cash and
 moveable property and rent and income of the above
 immovable property.

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 7. Even assuming that the case of the caveators
 in this regard is correct, it would make no difference
 so far as the present proceedings are concerned.
 Suffice it to note that there is no challenge

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 whatsoever to the Will of the deceased. We have gone
 through the entire affidavit in support of the caveat.
 The only question raised is the power of the deceased
 to bequeath the said property. This is an issue which
 cannot be decided for the reason that it pertains to a
 challenge to the title, which cannot be decided in the
 present case.

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 8. The learned single Judge refused to discharge
 the caveat on the ground that the caveators have
 contended that the deceased could not have willed away
 the property in favour of the Petitioner in view of
 the aforesaid Will. The learned single Judge held
 that in view of the said contention, it cannot be said
 that there is no challenge to the Will with regard
 thereto. We are unable to agree. The challenge to
 the Will is a matter which different from a challenge
 to the capacity of the deceased to bequeath the
 properties referred to therein.

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 9. Needless to add that the discharge of the
 caveat or even grant of the probate, if any, will not
 affect the title of the caveators, if any. Nor will
 it affect the rights of the caveators to contend that
 the deceased had no title to the said property.

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 10. In the circumstances, the Appeal is allowed.
 Caveat filed by Respondent Nos.1 and 2 is dismissed
 with no order as to costs.

Pradeep M Shahani v. Rajendrakumar Shahani and Nanik H.Mirchandani and Anr.

Case brief

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What did the court decide?

Pradeep M Shahani v. Rajendrakumar Shahani and Nanik H.Mirchandani and Anr.

Case brief

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What did the court decide?

What the court decided

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