Case Note & Summary
The Plaintiff, Balan Alias Balendu Jayant Sawant, filed a Testamentary Petition (No.67 of 1998) seeking probate of the last Will and Testament dated 7.1.1998 of late Chandrabai Nair (the testator), who died on 13.5.1997. The Will disposed of two lots of shares (950 shares and 2415 shares) and 80 debentures held in Indian National Press (Bombay) Ltd. (INP Ltd.). The Defendant, I.K. Agencies Pvt. Ltd., filed a caveat on 18.9.2004 opposing the grant of probate, claiming that the shares originally belonged to the testator's husband, Mr. Appat B. Nair, who had sold them to the Defendant during his lifetime, and thus the testator had no right to bequeath them. In view of the caveat, the Testamentary Petition was converted into Testamentary Suit No.40 of 2004. Meanwhile, the Plaintiff filed another suit, Suit No.170 of 2001, on the Original Side of the Bombay High Court, claiming ownership of the same 3365 shares of INP Ltd. In that suit, consent terms were arrived at between the Plaintiff, the Defendant, and other parties, whereby the Plaintiff gave up his claim to the shares in consideration of certain payments and agreed to delete those shares from the list of assets covered under the Will. The Plaintiff subsequently took out a Motion to set aside the consent terms, which was pending. The Plaintiff then filed the present Notice of Motion No.20 of 2010 seeking dismissal of the caveat dated 18.9.2004. The Defendant opposed the motion, arguing that it was not maintainable in view of the consent terms and interim orders dated 11.12.2009 and 15.1.2010. The Court, per D.G. Karnik, J., held that since the Plaintiff had signed and filed the consent terms after the caveat was filed, the Plaintiff could not object to the caveat or pray for its dismissal, as the consent terms acknowledged the Defendant's interest. The Court dismissed the Notice of Motion.
Headnote
A) Testamentary Law - Caveat - Maintainability of Motion to Dismiss - Indian Succession Act, 1925, Sections 283, 284 - The Plaintiff filed a Notice of Motion seeking dismissal of the caveat filed by the Defendant in a probate suit. The Defendant opposed the motion on the ground that the Plaintiff had entered into consent terms in a related suit (Suit No.170 of 2001) whereby the Plaintiff gave up claim to the shares that were the subject matter of the Will and agreed to delete those shares from the list of assets covered under the Will. The Court held that the consent terms, which were signed and filed after the caveat was filed, effectively barred the Plaintiff from challenging the caveat, as the Plaintiff had acknowledged the Defendant's interest in the shares. The Court dismissed the Notice of Motion. (Paras 1-5)
Issue of Consideration
Whether the Plaintiff's Notice of Motion for dismissal of the caveat filed by the Defendant is maintainable in view of the consent terms entered into by the Plaintiff in a related suit.
Final Decision
The Notice of Motion is dismissed.
Law Points
- Caveat in probate proceedings
- Maintainability of motion to dismiss caveat
- Effect of consent terms on caveat
- Testamentary jurisdiction
