By this notice of motion, plaintiff no.2 seeks dismissal of the caveat filed by defendant Mahendra Thakkar. Petitioners have filed petition for probate of last will and testament of Mr. Khimjee Thakkar. The names of the legal heirs of the said deceased are disclosed in paragraph 9 of the petition. Citation was served upon the legal heirs and representatives. The caveator who is defendant in the present proceedings, is son of Balbhadra Thakkar who was brother of the deceased. The deceased was bachelor. The said Balbhadra was one of the attesting witnesses of the Will of the said deceased. Along with petition, the said attesting witness has filed affidavit on 23rd August, 2001 stating on oath that he was present together with Dr. Madhukar Rele at the house of the deceased. The said attesting witness has also stated that he was witness to the signature of the said deceased on the Will and was present at the time of deceased affixing his signature on the said Will alongwith the other attesting witness. It is also stated in the said affidavit that at the time of the death of the said deceased, he was of sound mind and having disposing memory and understanding and published the same on his free will and pleasure. On 11th July, 2005 an amendment was carried out to the said affidavit dated 23rd August, 2001 filed by the said attesting witnesses. On such amendment having been carried out, the said affidavit was reaffirmed on 11th July, 2005 by the said attesting witnesses. On 3rd November 2010 the said attesting witness expired leaving behind the caveator herein as one of the legal heirs. Pursuant to the death of the said attesting witness who was also one of the legal heirs of the deceased, citation came to be served upon the caveator in response to which caveator filed caveat and affidavit in support thereof. Pursuant to the said caveat and affidavit in support filed by the caveator, Testamentary petition was converted into suit.

2. Petitioners have filed this Notice of Motion for dismissal of the caveat on various grounds.

3. Mr. Jain, learned counsel for the plaintiff submits that the caveator is claiming rights, if any through his father Balbhadra who was attesting witness to the Will and also had filed affidavit confirming the execution of the said will. He has also deposed in the said affidavit that the said deceased was of sound mind at the time of execution of the said will. It is submitted by Mr. Jain that merely because citation was served would not amount to the caveator having caveatable interest. It is submitted that the caveator did not have any claim independently to the estate of the deceased. My attention is invited to some of the paragraphs of the affidavit in support of the caveat filed by the caveator in support of plea that the caveator has set up title adverse to the title of the deceased in respect of the property. It is submitted that there are vague allegations of collusion and fraud made in the affidavit in support. It is submitted by the learned counsel that in view of the affidavit filed by the father of the caveator, the father of the caveator himself would not have any right in the estate of the deceased and accordingly the caveator who claims through the father also would not have any claim in the estate of the deceased directly or indirectly. It is submitted that the entitlement of the legal heirs in the estate of the deceased has crystalized on the date of the death of the deceased. It is submitted that when the said deceased expired, the present caveator did not have any right in the estate of the deceased and thus has no caveatable interest.

4. Mr. Jain placed reliance on the judgment of this court in the case of Eruch Rustom Irani Vs. Limji Kaikashroo Pande 1993(1) B.C.R. 340 in support of his plea that the person who sets up title adverse to that of testator is not entitled to sustain any interest in the estate of the deceased and is thus not entitled to file caveat. Reliance is placed on