Dismissed

Amar Brijkishore Gupta v. Ashok Gupta

Bombay HC26 Sept 2016TS/24/2015

Case brief

AI extract

What is this about?

The Court held that an executor who filed a caveat challenging the Will's authenticity could not continue as executor. After discharging the caveat upon withdrawal by the executor, the petition proceeded as uncontested without requiring a citation for renunciation.

What did the court decide?

Notice of Motion dismissed; Caveat discharged and dismissed; Executor removed; Petition allowed to proceed expeditiously as uncontested.

Amar Brijkishore Gupta Vs Ashok Gupta — Succession and Inheritance | Bombay HC (2016)

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31-TS24-15+.DOC

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SHEPHALI

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY SUIT NO. 24 OF 2015

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IN

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TESTAMENTARY PETITION NO. 926 OF 2013

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WITH

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NOTICE OF MOTION NO. 162 OF 2016

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WITH

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NOTICE OF MOTION (L) NO. 263 OF 2016

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Amar Brijkishore Gupta
Versus
Ashok Gupta

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…Plaintiff

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…Defendant

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Mr. Denzil D’Mello, a/w Ms. Geeta Sonawane, for the
Petitioner/Applicant in NMT/162/16 and for Respondent in
NMTL/263/16.

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Mr. B. G. Saraf, a/w Aniruddha Lad, i/b Benny Joseph Law Offices,
for the original Defendant/Applicant in NMS/263/16 and for the
Respondent in NMT/162/16.

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CORAM: G.S. PATEL, J DATED: 26th September 2016

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PC:-

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1.This is one of those cases where the Respondent has done
almost everything except the right thing.

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Page 1 of 6
26th September 2016

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2.I have before me two Notices of Motion. Notice of Motion
No. 263 of 2016 is filed by one Mr. Ashok Gupta, who is personally
present in Court. Notice of Motion No. 162 of 2016 is filed by one
Mr. Amar Gupta.

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3.The Petition was originally filed for probate of the Will of
Meharchand Laburam Gupta by his son Baldev Meharchand Gupta.
The Will appoints Baldev Gupta and Ashok Gupta as executors.
Ashok Gupta did not join in the application for probate. His rights
were reserved to him to come in and apply for probate at a later
stage.

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4.Ashok was not only a named executor but also a beneficiary
under the Will. He was, therefore, served with a regular citation.
Perhaps unmindful of it dual capacity, Ashok Gupta went ahead and
filed a Caveat. I will come to the contents of this Caveat shortly. In
the meantime, Baldev Gupta passed away and one Amar Brijkishore
Gupta also claiming to be a beneficiary under the deceased’s Will
filed Chamber Summons No. 27 of 2016 seeking impleadment as a
Petitioner and for conversion of the Petition into one Letters of
Administration with Will annexed. I allowed that Chamber
Summons on 20th June 2016.

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5.This is something of a dilemma. Ashok Gupta wears two hats,
one as an executor and one as a beneficiary. So long as he was an
executor without renunciation, he would surely be entitled to
continue the Petition for probate. The difficulty was that he had
already filed a Caveat although he was an executor. The 20th June

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Page 2 of 6

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26th September 2016

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2016 order therefore allowed the conversion of the Petition into one
for Letters of Administration with Will annexed.

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6.Ashok Gupta now says that he has withdrawn or seeks to
withdraw his Caveat. He now accepts the Will. In his Notice of
Motion No. 263 of 2016 he says that it is he who should be made the
Plaintiff/Petitioner and that the Petition should be reconverted into
one for probate. Amar Gupta, on the other hand, the present
Petitioner/Plaintiff in what is now a Petition for Letters of
Administration with Will annexed, seeks firstly the discharge of
Ashok Gupta’s Caveat; secondly, a declaration of his having
renounced executorship; third, the dispensation of service of a
special citation to accept or renounce executorship on Ashok Gupta;
and of course finally, that the Petition then be allowed to be as an
uncontested one.

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7.In order to address this, I must have a look at what it is that
Ashok Gupta has said in his Caveat. If there is indeed a challenge to
the Will in that Caveat, then, obviously, Ashok Gupta cannot be
allowed to continue as an executor. It is of little consequence what
Ashok Gupta now says he intended by that Affidavit. The Caveat in
a Testamentary Petition is obviously meant to oppose the grant of
probate. It opposes proof of the Will in its solemn form. This is the
only purpose of a Caveat.

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8.Mr. Saraf for Ashok Gupta submits that there is no challenge
to the Will in the Caveat but Ashok Gupta only wanted to bring to
the notice of the Court that the original Petitioner Baldev Gupta had

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Page 3 of 6

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26th September 2016

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dealt with some property without his consent. It this is so, the filing
of a Caveat was singularly ill-advised and a complete misadventure.
But the Affidavit in Support of the Caveat does not stop at that. In
paragraph 9, Ashok Gupta says this:

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“I say and submit that the entire Will as sought to be
propounded is based on the false contentions and
premises and I submit that the same is totally false and
contrary to facts.”

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In paragraphs 10 (g) and (h), he says this:

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“10(g)With reference to paragraph 1 and 2 of the
Affidavit in Support of the said Petition, I say and submit
that though there was persons witnessed the said
execution of the Will it is not amply clear that the
Petitioner and the Dr. Shahrukh Aspi Golwalla were
present hence I put the Petitioner to the strictest proof
thereof.

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(h)With reference to paragraph 3 of the
Affidavit in Support of the said Petition, I deny the
contents thereof and I cannot identify the signature of the
said person Dr. Shahrukh Aspi Golwalla and put the
Petitioner to the strictest proof thereof.”

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9.Taken together, this is the clearest possible challenge to the
Will sought to be propounded. He disputes its authenticity and its
due execution.

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Page 4 of 6
26th September 2016

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10.There is no question of Ashok Gupta, therefore, being
permitted to continue as an executor of the Will or of granting him
probate. The fact that he has taken inconsistent and shifting stands
is enough to dislodge him. First, he did not join in the application
for Probate. He claims he was never asked. Even if that is so, when
served with a citation, he could have come forward with just such an
application to be joined as a co-Petitioner. Instead, he opposed the
Petition for probate by filing a Caveat. In the Affidavit in Support in
support of that Caveat, he made the statements that I have extracted
above. These statements not only affect and speak to the contents of
the Will but also its due execution. There is no question of accepting
Ashok Gupta’s application for impleadment as a Petitioner for
dislodging Amar Gupta as the present Petitioner or for reconverting
the Petition to one for probate.

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11.Ashok Gupta’s Notice of Motion No. 263 of 2016 is
dismissed.

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12.At this stage, Mr. Saraf for Mr. Ashok Gupta makes a
statement that since he is a beneficiary to the Will, he withdraws the
Caveat. The Caveat is discharged and dismissed as withdrawn.

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13.Ashok Gupta is removed as an executor of the Will in view of
his having filed a Caveat and in the circumstances mentioned above.
There is, therefore, no question of serving him with a special
citation to accept or renounce executorship.

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Page 5 of 6

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26th September 2016

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14.In view of the withdrawal of his Caveat, the Petition is
uncontested and will proceed expeditiously as such.

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15.In view of the above, the Notice of Motion No. 162 of 2016
does not survive and is disposed of as infructuous.

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(G. S. PATEL, J.)

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Page 6 of 6
26th September 2016

Amar Brijkishore Gupta v. Ashok Gupta

Case brief

What is this about?

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Amar Brijkishore Gupta v. Ashok Gupta

Case brief

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