2013 Supreme(Bom) 1654

HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Daya Subhash Tiwari
Versus
Kashinath Lalta Tiwari & Others
Notice of Motion No. 166 of 2012 In Suit No. 13 of 2007 In Probate Petition No. 948 of 2006
Decided On : 23-08-2013

Headnote:Succession Act, 1925 - Section 63 - Execution of Will. - Non-probation of Will for any reason, entitled caveator to have share in estate of deceased on intestacy. - The caveator did not have any interest in the estate of the deceased and it was not case of the caveator that if the alleged will was not proved, on intestacy the caveator would have share in the property. In the facts of this case, the caveator was brother of the said deceased. The deceased died issueless. The parties are governed by the provisions of Hindu Succession Act. If the will is not probated for any reasons whatsoever, the caveator would have share in the estate of the deceased on intestacy. On the demise of the caveator, the defendants who are legal heirs and representatives of the caveator, would also have share in the estate of the said deceased through the caveator.

       Succession Act, 1925 - Section 63 - Will. - At stage of notice of motion, entire affidavit cannot be discarded even if some of objections raised in affidavit in support of caveat found untenable. - It is also held that the caveator had also disputed the Will on various other grounds and if this Court comes to the conclusion at the time of trial, that some of the objections raised by the caveator in affidavit in support which has to be treated as written statement are not tenable, obviously the Court will reject such objections made in the affidavit in support of caveat. Merely because some of the objections raised in the affidavit in support of the caveat would be found untenable and contrary to law, the entire affidavit in which various other objections are required to be adjudicated upon, cannot be discarded at the stage of notice of motion. The matter will have to be proceeded with for trial.

       Succession Act, 1925 - Section 63 - Will. - Failure of plaintiff to raise issue of ownership of property bequeathed to nephew of testator, cannot be a ground for dismissal of caveat. - The caveator had not disputed the title of the said deceased completely but had pleaded that the said property which are alleged to have been bequeathed to the said deceased was property of the Hindu Undivided Family and the testator could not have executed any Will in respect of the entire property. The senior counsel is right in his submission that the plaintiff did not raise any such issue in the affidavit in support of his notice of motion for dismissal of caveat alongwith affidavit in support of the ground that caveator had set up title adverse to the title of the deceased in the property. The plaintiff not having raised such plea in the affidavit in support of notice of motion, the caveat and affidavit in support cannot be dismissed on that ground raised across the bar.

       Succession Act, 1925 - Section 63 - Civil Procedure Code, 1908, Order VI, Rule 4 - Burden to prove execution of Will. - Once caveator to probate petition disputed execution of Will, onus lies on propounder to prove execution and attestation of Will. - The allegations of forgery made by the caveator in the affidavit in support in respect of the Will in question are totally vague and without particulars. Reliance is placed on Order VI Rule 4 of the Code of Civil Procedure, 1908 in support of his submission that the person alleging the fraud, fabrication and or undue influence has to give particulars and details in support of such plea and if any such allegations are general in nature and are insufficient, such averments would not be considered as averment of fraud and or fabrication and the Court cannot take notice of such allegations. The senior counsel that the allegations of fraud and/or fabrication has to be with particulars and details and cannot be general in nature.

       On perusal of the affidavit in support of the caveat it is clear that the execution of the alleged Will is disputed by the caveator. In that context, the caveator had made allegation of alleged fabrication. Even if averments made in affidavit in reply filed by the defendants are not considered for the purpose of deciding this notice of motion, in view of the dispute raised by the caveator in the affidavit in support of caveat, disputing the alleged Will and alleging forgery of documents, these allegations can not be brushed aside at the stage of notice of motion and caveat cannot be dismissed at this stage. Whether the Will is executed or not, once execution thereof is disputed, onus will be always on the propounder of the Will and or executor to prove due execution of such propounded Will. At the same time, the caveator who has alleged forgery, the onus to prove such forgery would be on the caveator or the person claiming through him. All these facts are matter of evidence and thus cannot be decided conclusively at the stage of Notice of Motion.