ORDER

Record depicts that a notice of motion was taken out by the appellants herein for a direction to treat the probate proceedings as non-contentious proceedings with an additional prayer to grant probate, as prayed for. The factual score further depicts that the appellant plaintiff being the widow of the deceased testator, had filed the present appeal for probate of the Will executed by her husband, Jhaverchand Mehta. According to the appellant, her husband who executed the Will dated 10th March, 1989 died on 16th March, 1989 and she, being the sole legatee under the Will, prayed for grant of the probate. The respondents who happened to be the widowed daughter-in-law and grand daughters of the plaintiff, did file caveat opposing the grant of probate. Their main defence being denial of execution of the Will by the deceased.

2. Subsequently, however, as record depicts, the respondents took out a chamber summons for amendment of their affidavit in support of the caveat so as to take an alternative plea that the deceased did not have the competence to execute the Will since the properties happened to be joint family properties. It is at this stage, the appellant had taken out a notice of motion that by reason of the specific stand denying the title of the testator and assertion made about the factum of the property being joint family property in nature, the caveator had no right to file the caveat and hence the caveat ought to stand rejected and the proceedings should also be treated as non-contentious. It is on this score that the learned single judge dealt with the matter in extenso regarding his reasons for rejection of the same. For conveniene sake paras 5 and 6 of the decision as rendered by the learned single judge are set out here in below so as to appreciate the reasonings:

5. There is a dispute about the question of law that the caveator who denies the title of the testator has no right to contest the Will and his remedy is to approach the civil court to agitate the question of title. The learned counsel for the plaintiff invited my attention to a number of decisions on this point, where it has been uniformly held that the caveator who denies the title of the testator has no right to contest the probate proceedings. He has relied on A.I.R. 1932 Patna 89 (Ramyad Mohton v. Ram Bhaju Mahton) : 1993 (1) Bombay C.R. 340 (Eruch Rustom Irani v. Limji Kaikashroo Panday); A.I.R. 1941 Patna 475 (Kashi Nath Singh v. Dulhin Gulzari Guer); and some other decisions where it has been uniformly held that if the caveator disputes the title of the testator, he has no right to lodge the caveat and the caveat has to be rejected. As already stated, there cannot be any dispute about this proposition of law.

6. It may also be noted that in most of the cases cited above, the caveator had no personal interest in the property as an heir. In the present case the respondents are daughter-in-law and grand children of the deceased testator. If the Will is not in existence or the Will is proved to be not genuine then there can be no dispute that the respondents are entitled to a share in the property of the testator. Therefore, the respondents being heirs are directly interested in challenging the execution of the Will.

As could be seen from the affidavit filed in support of the caveat, the respondents have taken number of pleas challenging the execution of the Will.

It is only recently they have amended an affidavit to take one more plea that the testator had no competence to execute the Will in respect of the joint family property. It may be that the testamentary court has no jurisdiction to go into the question of title. A mere fact that the caveators have taken an alternative plea and that too "without prejudice" to other contentions their caveat cannot be rejected as contended on behalf of the plaintiff. In none of the decisions relied on by the learned counsel for the plaintiff, there is a case similar to the one before us, where the main defence