Single Judge allowed a Defendant's caveat application in a testamentary cause to amend their affidavit to challenge the will's execution, while clarifying that title disputes lie beyond the Probate Court's remit.
Chamber Summons made absolute permitting amendment of Affidavit in Support of Caveat before 23rd March 2015.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
20-CST-272015.DOC
ars
IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION CHAMBER SUMMONS NO. 27 OF 2015
IN
TESTAMENTARY PETITION NO. 1203 OF 2013
IN
TESTAMENTARY SUIT NO. 1 OF 2014
Sammeer Sheth…Applicant
In the matter between
Jitendra Amritlal Shah…Deceased
Dr. Mahesh Balsekar & Ors....Plaintiffs
Versus
Sammeer Sheth & Ors.…Defendants
Mr. Shyam Dewani, i/b Dewani & Asso., for the Plaintiffs.
Mr. Shardul Singh, a/w Mr. Ashish Rao, i/b M/s. M & M Legal
Ventures, for the Defendants
CORAM: G.S. PATEL, J DATED: 9th March 2015
PC:-
1.This is a Chamber Summons by Defendant No.1 seeking
leave to amend the Affidavit in Support of the Caveat. The 1st
Defendant contends that the Caveat and the Affidavit in Support
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20-CST-272015.DOC
were filed before a copy of the Petition was served on him. Now
that the Petition has been served with all its annexures, it is
necessary, Mr. Shardul Singh, learned Advocate for Defendant No.
1 says, that the amendment be permitted in order that the 1st
Defendant can fully put forward his case.
2.I have heard Mr. Singh and Mr. Dewani, learned Advocate
for the Plaintiffs, and considered the draft amendments. Although
Mr. Dewani is correct in his submission that the amendment seeks
to introduce assertions as to the testator’s title to certain properties,
matters that lie completely beyond the remit of the Probate Court,
it is not possible at this stage to segregate individual statements and
assertions in the draft amendments. It is sufficient to note that in a
testamentary action seeking probate, the 1st Defendant cannot be
permitted to raise for determination questions of title to any
property, movable or immovable, or whether or not the testator had
any right, title and interest in any of it. These are matters that
cannot be decided in Probate proceedings and for which the 1st
Defendant must file a substantive suit, if not already done. The
limited purpose of the amendment would be to facilitate the 1st
Defendant to more accurately formulate his challenge to the
testamentary writing and to its due execution, and nothing further.
3.With these observations, the Chamber Summons is made
absolute in terms of prayer clause (a). Amendment to be carried out
on or before 23rd March 2015. A copy of the amended Affidavit
shall be served on the advocate for the Plaintiff on or before that
date.
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4.Suit to be listed for framing issues on 30th March 2015.
(G. S. PATEL, J.)
3 of 3
3 issues framed by the court
Whether leave to amend an affidavit in a testamentary proceeding is granted when it involves assertions about the testator's title to property.
Whether questions of title to property can be raised in probate proceedings.
Whether the amendment should be limited to challenging the testamentary writing and its execution.
Sammeer Sheth
G. S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court