The High Court of Bombay, TestAMENTARY & INTESTATE JUDICATURE, dismissed a Notice of Motion seeking dismissal of a Caveat filed by trustees of a charitable trust. The Court refused to decide the caveatable interest question ex parte to avoid dismissing another pending uncontested substantive petition filed by the same Caveators.
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.
910-NMT127-15.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 127 OF 2015
IN
TESTAMENTARY SUIT NO. 81 OF 2011
IN
TESTAMENTARY PETITION NO. 614 OF 2007
Aparna Prabhat Khot…Applicant
In the matter between
Aparna Prabhat Khot...Plaintiff
Versus
Asim S. Shah & 4 Ors.…Defendants
Mr. B. G. Saraf, for the Applicant/Plaintiff.
Mr. Ajay Panicker, i/g M/s. Ajay Law Associates, for the Defendants.
CORAM: G.S. PATEL, J DATED: 6th April 2016
PC:-
1.The Motion seeks dismissal of the Caveat filed by five
persons, all claiming to be the trustees of one Bhartiya Arogya
Nidhi, a registered Charitable Trust that runs a hospital at Juhu.
The trustees, in that capacity (not in their personal capacities), are
not in any way related to the deceased Arun Madhavrao Khot or to
the Petitioner, his sister-in-law, Aparna Khot.
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910-NMT127-15.DOC
2.Mr. Saraf submits that the Caveat is not maintainable
because the trustees are not heirs of the deceased. This might have
been a submission of some consequence but for the fact that the
trustees’ Caveat is filed on the footing that they are legatees of the
same deceased under a previous Will dated 15th March 1996, one
that that is even registered. The Executor of that earlier Will, one
Suresh H. Mody had filed Testamentary Petition No. 113 of 2007.
Mr. Mody died on 26th March 2010. The Caveators/Trustees then
filed a Chamber Summons No. 151 of 2010 seeking to continue that
action and to have it amended as one for a Petition for Letters of
Administration with Will annexed. This was permitted by an order
dated 8th February 2011. That order has attained finality as it has
not been carried in Appeal.
3.Even more curious is the fact that the present Petitioner,
Aparna Prabhat Khot in Testamentary Suit No. 81 of 2011, who
propounds a later Will of the deceased, has not filed a Caveat in the
previous Testamentary Petition No. 113 of 2007 now being pursued
by the Trustees. The Trustees’ Petition is, therefore, uncontested.
4.It is true that the Trustees are not the heirs of the deceased
and would not succeed to any part of this estate on intestacy but
that is not their claim. They claim as, and only as, legatees under
the previous Will. Had that claim remained merely as a defence set
up to the present probate action brought by Aparna Khot, I might
have considered the question of whether these Trustees can sustain
such a Caveat. It would not be enough to merely set up a previous
Will in defence. But the Trustees have gone further. They have
actually taken active steps and are now Petitioners in an as yet
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uncontested Petition for Letters of Administration, i.e.,
Testamentary Petition No. 113 of 2007. This is a substantive
proceeding.
5.Given this, I do not see how it is possible to dismiss their
Caveat opposing the grant of probate to the later Will propounded
by Aparna Khot. Allowing her application for dismissal of the
Trustees’ caveat will result in several immediate consequences.
First, the present application by Aparna Khot would become
uncontested. Second, and as an immediate consequence, the
Trustees’ Testamentary Petition No. 113 of 2007 would stand
defeated, be rendered infructuous and would have to be dismissed.
6.In other words, allowing Mr. Saraf’s application has a
cascading effecting, including automatic dismissal of a substantive
proceeding filed by the present Caveators/Trustees and which is so
far uncontested.
7.I do not see how in equity or law the present Notice of
Motion can possibly be sustained.
8.I am not deciding the question of whether the Caveators in
the later Probate Petition have a caveatable interest or not. All
contentions in that behalf are expressly kept open to the final
hearing of the Suit. In the meantime, this Notice of Motion is
dismissed with no order as to costs.
(G. S. PATEL, J.)
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2 issues framed by the court
Whether the trial court erred in dismissing the Notice of Motion seeking to quash the Caveat annexed to a caveat petition.
Whether the dismissal of the application would defeat an unrelated, pending substantive petition for Letters of Administration with Will annexed filed by the Caveators.
Aparna Prabhat Khot
Asim S. Shah
G. S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court