2024:BHC-OS:9803 Santosh IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION INTERIM APPLICATION NO. 332 OF 2023 SANTOSH IN SUBHASH KULKARNI CAVEAT (L) NO. 21133 OF 2021 Digitally signed by SANTOSH SUBHASH IN KULKARNI Date: 2024.07.05

19:38:37 +0530 TESTAMENTARY PETITION NO. 2121 OF 2021 Surya Prakash S. Makharia ...Applicant In the matter between Surya Prakash S. Makharia ...Plaintiff Versus Pramod Kumar Makharia …Defendant Mr. Vikram Goel, i/b Ashok Goel, for the Applicant - Plaintiff.

Mr. Jitesh Agarwal, for the Caveator.

CORAM: N. J. JAMADAR, J.

DATED: 4^th JULY, 2024 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 14^th 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 17^th 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 5^th 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 creditor’s, 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