1. By this motion filed by the petitioner, petitioner seeks declaration that the caveat dated 21/1/2011 filed by the caveators is not maintainable as the caveatorhave neither locus standi nor caveatable interest in the matter. Petitioner has filed probate petition for probate of the last Will and testament of Krishnakumar. Names of the legal heirs of the said deceased are disclosed in paragraph 9 of the petition. It is not in dispute that none of the legal heirs whose names are disclosed in paragraph 9 of the petition have filed caveat disputing existence of the Will. Caveat has however, been filed by Mohd Momon Partner of Minar Enterprises on whose caveat petition has been converted into suit.

2. Mr. Vora, learned counsel for the petitioner invited my attention to the affidavit in support of the caveat. It is submitted that the caveator claims right, title and interest in the land bearing C.T.S. No. 210, 210/1 to 210/49 alleged to have been sold, assigned, transferred and conveyed in his favour. It is the case of the caveators that the deceased Krishnakumar during his life time had already sold the said property in favour of the caveator. It is the case of the caveators that the testator thus not having any right title and interest in the said property on the date of execution of the Will, could not have bequeathed the suit property in favour of the beneficiaries. There are certain proceedings filed between the parties referred to in the affidavit in support. In paragraphs 10 and 11 the caveator has alleged that the Will is a fabricated document and has disputed the genuineness of the said Will. The caveator has also denied the existence of the alleged Will and or any testamentary disposition of the suit property by the said deceased.

3. Mr. Vora, the learned counsel for the petitioner submits that the caveator is totally outsider and is not legal heir of the said deceased and is accordingly not cited in the petition. It is submitted that the caveator is setting up the title which is adverse to the interest of the testator and thus is not entitled to maintain the said caveat. It is submitted that all the legal heirs of the said deceased have filed consent affidavits in favour of the petitioner for grant of probate. Learned counsel placed reliance on the judgment of the Supreme Court in the case of Krishna Kuamr Birla Vs. Lodha 2008 (4) SCC 300 in support of the submission that the person who sets up title adverse to the title of the deceased testator, is not entitled to maintain the caveat and in any event this court exercising testamentary jurisdiction cannot decide the title of the deceased.

4. In so far as allegations made in the affidavit in support of caveat disputing existence and genuineness of the Will is concerned, it is submitted by Mr. Vora the learned counsel for the applicant that the caveator not having any interest in the estate and he not being the legal heir or next of kin of the said deceased, is not entitled to make such allegations. It is submitted that even if probate is declined by this court for any reasons and even if the property of the deceased are devolved on intestacy, the caveators would not be entitled to get any share in such property and thus has no caveatable interest of any nature whatsoever. It is submitted that genuineness of the Will cannot be considered by this court at the instance of an outsider.

5. Mr. Godbole, learned senior counsel on behalf of the caveators on the other hand submits that the deceased himself had no right title and or interest of any nature whatsoever to bequest the plot in question on the date of execution of the will. The same was already transferred in favour of his brother who in turn had transferred the said property to the caveator. Mr. Godbole also invited my attention to the bequest made by the deceased testator to demonstrate that though even according to testator he had sold part of the property described in the Will, petitioner has claimed probat