A caveator must demonstrate a legitimate interest in the estate that could be prejudiced by the grant of Probate; mere contingent claims do not suffice.

ORDER :

1. The petitioner has preferred this application to reject the Caveat in TP/2121/2021.

2. Shorn of superfluities, the background facts necessary for the determination of this application can be stated as under:

(a) This petition is filed for grant of Probate of the purported last Will and testament dated 14th April, 2014 of Dhruva Kumar Makharia (the deceased). The petitioner claims to have been appointed as the sole executor under the said Will. The petitioner is the nephew of the deceased.

(b) In the petition it is averred that the deceased had left behind the heirs and next-of-kin mentioned in paragraph 7 of the petition. All the heirs of the deceased have filed affidavits giving consent for the grant of Probate. Under said Will, the deceased had inter-alia bequeathed his 30% interest in a building to be constructed and developed on the land bearing Plot No. A14 CTS No. 685 of Oshiwara Taluka, Andheri, admeasuring 1021.02 Sq. Mtrs. (the subject property).

(c) Mr. Pramod Kumar Makharia, the Caveator, is the brother of the deceased. The Caveator has lodged the Caveat on 17th September, 2021. The substance of the Caveat is that the Caveator also had an interest in the subject property. A Family Arrangement was executed between the deceased, Caveator, other siblings and the mother of the Caveator. As disputes arose, the Caveator filed Suit No. 2743 of 2007 against his mother, the deceased (D2), another brother and legal representatives of a deceased sibling, as well as their firms and entities. Consent Terms were filed in the said suit on 5th December, 2007. The said Consent Terms, inter-alia, provided that defendant Nos. 2 to 4 therein would discharge several liabilities of various banks and settle the claims of Mr. Gaurav Gupta.

(d) The Caveator alleges, defendant Nos. 2 to 4 did not discharge the said liabilities, as undertaken. Execution applications were filed by the Caveator. Reference is made to the award passed in Arbitration Case No. 52 of 2010 in favour of City Financial Consumer Finance India Ltd. one of the creditors, whose debt was liable to be discharged by defendant Nos. 2 to 4, and the liability towards Bank of India.

(e) An additional affidavit has been filed on behalf of the Caveator, wherein there is reference to the alleged liabilities incurred by the deceased with regard to the subject property to revenue and other entities. It is, inter-alia, contended that the subject property belonged to M/s. Energy Bakery and Foods (India) Pvt. Ltd. of which the deceased was a Director. Thus, the deceased could not have bequeathed the interest in the subject property. In these circumstances, the grant of Probate of the Will in question would cause grave prejudice to the Caveator as it would affect the interest of the Caveator irretrievably.

3. The petitioner has preferred this application with the assertion that the Caveator is not one of the legal heirs of the deceased. Thus, the Caveator has no caveatable interest. It is contended that the deceased had complied with the stipulations in the Consent Terms to the fullest. The Caveator has filed the Caveat with intent to delay the grant of Probate as the endeavour of the Caveator to reopen the said issue by resorting to various proceedings has not yielded any result.

4. I have heard Mr. Goel, the learned Counsel for the applicant - petitioner and Mr. Agarwal, the learned Counsel for the Caveator, at some length. With the assistance of the learned Counsel for the parties, I have perused the pleadings and material on record.

5. Mr. Goel strenuously submitted that the Caveat has been filed with a view to create an impediment in the grant of Probate. It is not the claim of the Caveator that he would be entitled to succeed to the estate of the deceased in the event of intestacy. Nor the Caveator had questioned the due execution and attestation of the Will by the deceased. The alleged interest claimed by the Caveator in the subject property is non-est as the consent decree passed