Case Note & Summary
The matter involved an interim application in testamentary proceedings before the Bombay High Court. The applicant, who was the original petitioner in Testamentary Petition No.1314 of 2021, sought rejection of a caveat filed by the respondent after an order directing issuance of probate had been passed. The underlying testamentary dispute concerned the probate of a Will dated 4 December 2020. The Additional Prothonotary & Senior Master of the Bombay High Court, by order dated 30 September 2024, allowed the probate petition and directed issuance of probate after recording compliance with legal formalities and verifying that no cross petition or caveat was filed as of that date. Another testamentary petition filed by Mukesh Nemichand Jain in respect of a later Will dated 14 January 2012 had been rejected on 6 February 2023 for non-removal of office objections. The respondent, claiming to be a joint beneficiary and co-executor of the Will dated 14 January 2012, filed a caveat on 11 October 2024 and an affidavit in support on 16 October 2024. The respondent also filed Testamentary Petition No.1605 of 2025 in February 2025. Subsequently, in April 2026, the testamentary petition was converted into a suit due to another caveat filed by Samir Abdul Rehman Patni on 12 February 2026. The applicant contended that the caveat was not maintainable under Rule 401 of the Bombay High Court (Original Side) Rules, 1980 because it was filed after the order directing issuance of probate. The respondent argued that the grant had not yet been issued and that paragraph 5 of the order dated 30 September 2024 required the office to verify whether any cross petition or caveat was filed before issuance, and that no citation had been served on the respondent. The court examined Rule 401, which requires a caveat to be filed within 14 days from service of citation or such shorter time as the Judge in Chambers may direct, and provides for extension of time only if the grant has not been issued. The court held that in an uncontested probate petition, only a general citation is required, and that no provision allows filing a caveat after an order directing issuance of probate has been passed. The proper remedy for a person aggrieved by a grant of probate is to file a petition for revocation of probate. The court also corrected the record by removing reference to the rejected Testamentary Petition (L) No.8768 of 2020 and correcting the year reference in the order dated 11 August 2026. The court rejected the caveat and affidavit in support and directed the Registry to issue probate based on the order dated 30 September 2024.
Headnote
A) Procedural Correction - Reference to rejected petition and year correction - Court corrected order dated 11 August 2026 to replace year 2020 with 2024 in paragraph 1 and removed reference to Testamentary Petition (L) No.8768 of 2020 which had been rejected for non-removal of office objections on 6 February 2023 - Held that reference be removed and read accordingly (Paras 1-3).
B) Testamentary Law - Caveat Filing - Rule 401 of Bombay High Court (Original Side) Rules, 1980 - Maintainability of caveat filed after order directing issuance of probate - Such caveat is not maintainable; only remedy is petition for revocation of probate - Held that no provision allows filing caveat after grant order; caveat and affidavit in support rejected and Registry directed to issue probate (Paras 8-13).
C) Testamentary Law - Citation Service - Rule 401 - In uncontested probate petition only general citation by fixation at Collector's Office and High Court is required; no personal service needed - Since only general citation required, absence of personal service to caveator did not extend time to file caveat; caveat filed after order remains invalid - Held that general citation was complied with and probate order can be acted upon (Paras 10-11).
D) Testamentary Law - Proper Remedy - Revocation of Probate - Where probate order already passed, aggrieved party should file petition for revocation rather than caveat; Registry's acceptance of late caveat and conversion to suit is erroneous - Held that caveat filed after order should be rejected and probate issued; rights to challenge by revocation remain (Paras 12-13, 15).
Issue of Consideration
Whether a caveat filed after an order directing issuance of probate is maintainable under Rule 401 of the Bombay High Court (Original Side) Rules, 1980; Whether the Registry was justified in accepting the caveat and converting the testamentary petition into a suit based on a caveat filed after the order of grant; Whether the caveator, not having been served with citation, could file a caveat after the order directing grant when the grant had not yet been issued
Final Decision
The High Court rejected the caveat and affidavit in support, and directed the Registry to issue probate in accordance with the order dated 30 September 2024, holding that a caveat filed after the order directing issuance of probate is not maintainable under Rule 401 of the Bombay High Court (Original Side) Rules, 1980. The proper remedy for the caveator was to file a petition for revocation of probate.
Law Points
- Rule 401 of Bombay High Court (Original Side) Rules
- 1980 requires caveat to be filed within 14 days from service of citation or as directed
- no caveat can be filed after order directing issuance of probate
- proper remedy is revocation of probate
- in uncontested probate petition only general citation is required
- absence of personal service does not extend time for caveat after grant order
- extension of time only if grant not issued and only by Judge in Chambers
Case Details
2026 LawText (BOM) (08) 100
Interim Application No. 3677 of 2024 in Caveat No. 205 of 2026 with Testamentary Suit No. 131 of 2026 in Testamentary Petition No. 1314 of 2021 with Testamentary Petition (L) No. 8768 of 2020
Rahul Soman, Sandeep Dhangar, Kinjal Kakkad, Jayesh Vyas, Aparna Wagle, Waquar Ahmad
Gulmmohammed Roshanali Lakhani
Mohammed Amin M. Shafi Qureshi
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Nature of Litigation
Interim application in testamentary proceedings seeking rejection of caveat filed after order granting probate and direction to Registry to issue probate.
Remedy Sought
Interim Applicant (original petitioner) sought rejection of caveat and affidavit in support, and direction to Registry to issue probate based on order dated 30 September 2024.
Filing Reason
Caveator filed caveat after order directing issuance of probate, allegedly in violation of Rule 401 of Bombay High Court (Original Side) Rules, 1980; caveator claimed no citation served and that grant not yet issued.
Previous Decisions
Additional Prothonotary & Senior Master granted probate of Will dated 4 December 2020 in Testamentary Petition No.1314 of 2021 vide order dated 30 September 2024; Testamentary Petition (L) No.8768 of 2020 was rejected on 6 February 2023 for non-removal of office objections; caveat filed on 11 October 2024 and affidavit on 16 October 2024, but prayer mentions caveat dated 7 October 2024 and affidavit dated 15 October 2024; Testamentary Petition No.1605 of 2025 filed in February 2025; petition converted to suit in April 2026 due to another caveat by Samir Abdul Rehman Patni dated 12 February 2026.
Issues
Whether a caveat filed after an order directing issuance of probate is maintainable under Rule 401 of the Bombay High Court (Original Side) Rules, 1980.
Whether the Registry was justified in accepting the caveat and converting the testamentary petition into a suit based on a caveat filed after the order of grant.
Whether the caveator, not having been served with citation, could file a caveat after the order directing grant, when the grant had not yet been issued.
Submissions/Arguments
Caveator argued that caveat was filed in line with Rule 401 because although order directing issuance of probate was passed on 30 September 2024, grant had not been issued; paragraph 5 of order provided for office to issue probate after verifying any cross petition or caveat; caveat filed on 11 October 2024 and affidavit on 16 October 2024; thereafter petition converted to suit in April 2026 due to another caveat by Samir Abdul Rehman Patni dated 12 February 2026; since no citation was served on caveator, there was no time limitation; caveat filed within 14 days of learning of order.
Applicant argued that caveat filed after order dated 30 September 2024 which directed issuance of probate after considering compliances and cross petition rejection; paragraph 5 meant caveats filed as on 30 September 2024, not after; under Rule 401 caveat must be filed within 14 days from service of citation or shorter time; since petition was uncontested, only general citation required, no personal service; no provision for filing caveat after order of grant; extension of time only if grant not issued and only by Judge in Chambers; proper remedy is revocation petition; caveator referred to Will dated 14 January 2012 whereas probate based on Will dated 4 December 2020; registry erroneously accepted caveat and converted to suit based on another caveat filed almost one year five months after order.
Ratio Decidendi
Under Rule 401 of the Bombay High Court (Original Side) Rules, 1980, a caveat must be filed within the prescribed time from service of citation or as directed by the Judge in Chambers; no caveat can be filed after an order directing issuance of probate has been passed. The proper remedy for a person aggrieved by a grant of probate is to file a petition for revocation of probate. In an uncontested probate petition, only a general citation is required, and the absence of personal service does not extend the time to file a caveat beyond the order of grant.
Judgment Excerpts
the Caveat has been filed in line with Rule 401 of the Bombay High Court (Original Side) Rules, 1980 (the “High Court Rules”) as although the order directing issuance of the probate was passed on 30 th September 2024, the grant had not been issued and also that paragraph 5 of the said order clearly provides for the office to issue probate after verifying whether any Cross Petition or Caveat is filed.
since the Petition for probate was an uncontested one only a general citation was required to be served which is by way of fixation at the Collector’s Office and in the High Court.
that there is no provision for filing of Caveat after the order of grant is passed.
the proper course of action for the Caveator would have been to file a Petition for revocation of the Probate rather than file a Caveat and affidavit in support which has not only been erroneously accepted by the Registry but also erroneously converted into a Suit based on another Caveat dated 12 th February 2026 filed almost one year and five months after the order dated 30 th September 2024.
accordingly this Court may reject the Caveat dated 7 th October 2024 and the affidavit in support dated 15 th October 2024 and direct the Registry to issue the grant on the basis of the order dated 30 th September 2024 of the Additional Prothonotary & Senior Master.
Procedural History
Testamentary Petition No.1314 of 2021 was filed by the applicant seeking probate of Will dated 4 December 2020 (Will No.528 of 2021). Another Testamentary Petition (L) No.8768 of 2020 was filed by Mukesh Nemichand Jain in respect of Will dated 14 January 2012, which was rejected on 6 February 2023 for non-removal of office objections. On 30 September 2024, the Additional Prothonotary & Senior Master allowed Testamentary Petition No.1314 of 2021 and directed issuance of probate after verifying no cross petition or caveat. Caveator filed caveat on 11 October 2024 and affidavit in support on 16 October 2024. Caveator also filed Testamentary Petition No.1605 of 2025 in February 2025. In April 2026, petition was converted to Testamentary Suit due to another caveat by Samir Abdul Rehman Patni dated 12 February 2026. Interim Application No.3677 of 2024 was filed seeking rejection of caveat and direction to issue probate. On 11 August 2026, court passed an order, later corrected on 18 August 2026 to remove reference to Testamentary Petition (L) No.8768 of 2020 and correct year references.
Acts & Sections
- Bombay High Court (Original Side) Rules, 1980: Rule 401, Form 116
