Case Note & Summary
The case involves a probate petition filed by the executors of the last Will and testament of Khimjee Thakkar, a bachelor. The Will was attested by Balbhadra Thakkar, the brother of the deceased, who filed an affidavit on 23 August 2001 confirming that he witnessed the deceased sign the Will and that the deceased was of sound mind. Balbhadra Thakkar died on 3 November 2010, leaving behind the caveator, Mahendra Thakkar, as one of his legal heirs. The caveator filed a caveat and affidavit in support, leading to the conversion of the probate petition into a testamentary suit. The plaintiffs (executors) filed a notice of motion seeking dismissal of the caveat on the ground that the caveator had no caveatable interest. The court examined the facts and found that the attesting witness had voluntarily attested the Will and affirmed it on oath. The caveator, being the son of the attesting witness, could not claim any interest adverse to the Will. The court held that the caveator lacked any caveatable interest and dismissed the caveat, allowing the probate petition to proceed.
Headnote
A) Succession Law - Caveatable Interest - Attesting Witness - Indian Succession Act, 1925, Sections 283, 284 - The court considered whether a caveator who is the son of an attesting witness to a Will has any caveatable interest to oppose the grant of probate. The court held that the attesting witness had voluntarily affirmed the Will and the caveator, being his son, cannot claim any interest adverse to the Will. The caveat was dismissed as the caveator lacked any caveatable interest. (Paras 1-3)
Issue of Consideration
Whether the caveator, being the son of an attesting witness who had voluntarily attested the Will, has any caveatable interest to challenge the probate.
Final Decision
Notice of Motion allowed. Caveat filed by defendant Mahendra Thakkar dismissed. Probate petition to proceed.
Law Points
- Caveatable interest
- Attesting witness
- Probate
- Succession Act
- 1925
- Section 283
- Section 284
