ORAL JUDGMENT :

1. This notice of motion is taken out by the petitioners praying for dismissal of the caveat filed by the caveator i.e. Purshotam V. Raheja. By prayer clause (b) the petitioner has prayed that the probate be issued in favour of the petitioner without taking the cognizance of the said caveat in accordance with the provisions of law. After the service of this notice of motion upon the caveator, the parties herein have completed filing of affidavits.

2. The petitioners have filed this petition for probate in respect of the last Will and Testament said to have been executed by Shrichand V. Raheja. There are three next of kins of late Shrichand V. Raheja more particularly set out in para 9 of the petition. Out of these three persons, two persons have filed this probate petition and consent affidavit has been filed by the third next of kin i.e. Laxmi S. Raheja. In the normal course, this petition could have been treated by the office as uncontested petition and the office could have gone ahead. It is noticed that a caveat came to be filed by Purshotam V. Raheja (for short said caveator) on 10th January, 2011. Along with the said caveat, affidavit in support of caveat also came to be filed. It is noted that as said caveator was not the next of kin, citation was not served on him. This caveat dated 10th January, 2011 was processed by the office.

3. In the course of hearing of this notice of motion, learned Counsel Mr. Kamat appearing on behalf of the caveator informed the Court that upon an enquiry made in the office as regards progress of aforesaid probate petition, the officer concerned attached to the Testamentary Department orally informed the caveator that the caveat dated 10th January, 2011 is filed in improper format and it is necessary for the caveator to file a caveat as set out in the format provided under the Bombay High Court (Original Side) Rules (for short said Rules). It appears that on information received by the advocate for the caveator, the caveator filed a fresh caveat on 27th January, 2011 in a format which was considered by the office as proper format. The said caveat dated 27th January, 2011 coupled with affidavit dated 10th January, 2011 filed by the caveator in support of the caveat dated 10th January, 2011 was treated by the office as a proper caveat and proper affidavit in support of the caveat and office treated the objections raised by the caveator in terms of caveat dated 27th January, 2011 as good objections and passed order thereby converting the testamentary petition as contested petition and converted the said petition in the testamentary suit. The office informed Mr. S.U. Lakdawala, advocate for the petitioners by its letter dated 2nd February, 2011 as follows.

“Take notice that on the 10th day of January, 2011 an affidavit in support of the caveat was filed in my office in the above Petition by M/s. Ranjit & CO., Advocates for the abovenamed Caveator and that the above petition is converted into Suit on that date and has been numbered as Suit No.14 of 2011”.

4. It is noticed that the petitioners were concerned about letter dated 2nd February, 2011 and this notice of motion came to be filed for setting aside the caveat i.e. caveat dated 10th January, 2011. It is seen that in the mind of the petitioners caveat dated 10th January, 2011 was the caveat which was required to be set aside because the petitioners were informed as regards the affidavit in support of the caveat dated 10th January, 2011. It is seen that the notice of motion is taken out by the petitioners without taking cognizance of events which took place on or after 27th January, 2011 namely filing of a new caveat in the proper format.

5. In view of this development at the stage of hearing of this notice of motion, I have given hearing to learned Counsel on both sides as regards course to be followed and as to how to attend the caveat dated 10th January, 2011 as also caveat dated 27th January, 2011. It is noted t