The main legal point established is that the grounds of objection raised in a testamentary petition must concern the testamentary capacity of the testator or the due execution of the will, as per the relevant legal provisions.

1. The present notice of motion is taken out in a testamentary petition for probate. The motion prays for dismissal of a caveat and affidavit in support thereof filed in the petition and grant of probate after such dismissal.

2. The testamentary petition is filed by the Petitioners, claiming as executors of the last will, codicil and testament of Venkateshwar Onkarmal Somani, for probate of the last will, codicil and testament. The Respondent to the notice of motion is a caveator, who has filed a caveat dated 22 July 2016 and an affidavit of the same date in support of the caveat, in the testamentary petition. Upon filing of the caveat and affidavit in support thereof, the petition has been converted into a testamentary suit. That was without reference to the Petitioners/Applicants. The Petitioners/Applicants have now taken out the present notice of motion on the ground that the Respondent/caveator has not made out any single ground of objection to the grant of probate. It is accordingly prayed that the caveat should be dismissed and the conversion of the testamentary petition into a suit be revoked and probate be granted to the Petitioners.

3. The brief facts of the case, which are necessary to consider the present notice of motion, may be noted as follows:

A mutual will was executed by the deceased Venkateshwar Onkarmal Somani with his wife Leela Venkateshwar Somani on 2 March 2009. The deceased had also executed a codicil to this mutual will on 6 March 2014 along with his co-testator, i.e. his wife, Leela Venkateshwar Somani. The deceased died at Mumbai on 19 June 2015. The Petitioners, as executors of the last will, codicil and testament of the deceased, seek probate through the present testamentary petition. On 22 July 2016, the Respondent filed a caveat and an affidavit in support thereof. It is the case of the Respondent in his affidavit in support of the caveat that he is the son of the deceased and as such, has a caveatable interest in the matter. It is submitted that the present petition for probate is not maintainable, since it seeks probate of a joint and mutual will during the lifetime of the co-testator. The second objection of the Respondent/caveator is that the bequest contained in the last will, codicil and testament is inter alia in respect of the alleged right, title and interest of the deceased in immovable properties, which include properties owned by Shreeniwas Cotton Mills Ltd. It is submitted that an agreement to sell shares of Shreeniwas Cotton Mills Ltd. dated 2 July 2007 was entered into by the deceased with M/s. Lodha Group and as a consideration, the deceased had received payment of about Rs.12.52 crores together with 11000 sq.ft. built-up area in the premises to be constructed on the land of Shreeniwas Cotton Mills Ltd. It is submitted that this payment and consideration were derived from inheritance and not earned out of any self acquired property of the deceased.

4. The present application for dismissal of the caveat is on the footing that none of the two objections raised by the caveator bears on the question, which this court has to consider as a Probate Court in the present testamentary petition. It is submitted that the only grounds of objection that are germane in a testamentary petition are those that concern either the testamentary capacity of the testator or the due execution of the will. It is submitted that since the grounds of objection in the present case do not concern either of these aspects, there is no relevant ground of objection, which this court is called upon to consider in opposition to the probate petition. It is submitted that since no relevant ground of objection is disclosed by the caveat, it should be dismissed and the matter should be treated as an uncontested matter and the probate applied for should straightway be granted.

5. In opposition to the present application, it is submitted by the Respondent / caveator that under the relevant provisions of law, the mome