The court disposed of a Notice of Motion seeking discharge of a caveat, setting aside an administrative order, and prosecution for perjury and contempt in a testamentary suit, refusing to grant relief on merits as evidence was required.
Notice of Motion disposed of; prayers (a), set aside order, and prosecution rejected; stay refused.
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.
902-NMT12-15.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 12 OF 2015
IN
TESTAMENTARY SUIT NO. 56 OF 2012
IN
TESTAMENTARY PETITION NO. 57 OF 2010
Darius Kaikhushroo Soonawala…Plaintiff
Versus
Fredy Peshotan Khambata…Defendant
Mr. Darius K. Soonawala , Plaintiff in person. Ms. Nikita Gada , i/b M/s. Niranjan Lapashiya & Co., for the Defendant.
CORAM: G.S. PATEL, J DATED: 5th August 2015
PC:-
1.This is the Plaintiff’s Notice of Motion for discharging the
Caveat. The Notice of Motion also seeks to set aside an
Administrative Order dated 5th July 2012 passed by Shri Matkar,
Registrar, High Court at Bombay. A further prayer is made seeking
action be taken in perjury and contempt both against the Caveator
and his Advocate. Finally prayer (f) is for an order against the
1 of 3
902-NMT12-15.DOC
Caveator to deposit in this Court all the shares mentioned in the
schedule to the probate Petition.
2.As regards prayer (f), I have already today separately noted a
statement made by the learned Advocate, on instructions from the
Caveator to the effect that her client’s attempts to get the shares of
two companies have not been accepted and that her client has no
knowledge of the shares of the other companies. She also states that
none of these shares are in the Defendant’s physical custody and
possession. At this, the Plaintiff confirms that the original shares
(but not the bonus or splits) listed in Schedule I to the Petition are
in his possession. Consequently, having regard to the statement
made by the Defendant and accepted today, and the foregoing
acknowledgement by the Plaintiff, no further order is necessary in
terms of prayer clause (f).
3.As regards the prayer for discharge of the Caveat, it is seen
that an Affidavit in Support of the Caveat is already on record. That
Affidavit contains specific grounds are made challenging the Will.
Whether or not there is substance to these grounds will have to be
decided after evidence is taken. It is not possible to dismiss the
caveat in limine at this stage on this Notice of Motion. The grounds
urged for setting aside ex-facie demand an examination of the
correctness of the contentions in the Affidavit in Support of the
Caveat. It cannot be determined in a summary fashion whether
those contentions are, as the Plaintiff alleges, false or incrrect.
Prayer clause (a) is, therefore, rejected.
2 of 3
902-NMT12-15.DOC
4.Consequently, the prayer seeking to set aside the
Administrative Order dated 5th July 2012 also does not survive.
That merely notes that there is a caveat and an Affidavit in Support
already filed. The Plaintiff’s contention that the caveat and
Affidavit in Support were filed well beyond time is not one that I
can examine today. The Plaintiff ought to have opposed any
application for condonation of delay. Once the caveat is entered and
an Affidavit in Support is filed, I do not think it is possible to
dismiss the caveat on the ground that it was beyond time; if it was,
it ought never to have been taken on file in the first place.
5.As regards the prayer seeking prosecution for perjury and
contempt, these are not reliefs that can be granted at this stage.
They too demand an examination after evidence as to whether or
not the statements in the Caveat are correct.
6.The Notice of Motion No. 12 of 2015 is disposed of in these
terms. The Plaintiff applies for a stay. There is nothing in this order
than can be stayed. The application is refused. Separate directions
are issued for listing the suit for framing issues.
(G. S. PATEL, J.)
3 of 3
3 issues framed by the court
Whether the caveat challenging a Will can be dismissed in limine at this stage.
Whether the prayer to set aside the administrative order regarding the caveat should be allowed.
Whether prayers for prosecution for perjury and contempt can be granted at this stage.
Darius Kaikhushroo Soonawala
Fredy Peshotan Khambata
G.S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court