[Cites 10, Cited by 0]
Bombay High Court
Jalaj Ashwin Dani vs Harish Narendra Motiwalla on 1 April, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-OS:7721
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
INTERIM APPLICATION (L) NO.1264 OF 2026
WITH
INTERIM APPLICATION NO.3267 OF 2024
IN
TESTAMENTARY SUIT NO.147 OF 2024
IN
TESTAMENATRY PETITION NO.1840 OF 2024
Ashwin Suryakant Dani alias Ashwin S. Dani
alias A. S. Dani alias Ashwin Dani alias A.
Suryakant Dani alias Dani Ashwinbhai Suryakant .. Deceased
Harish Narendra Motiwalla and Ors. .. Plaintiffs
Versus
Jalaj Ashwin Dani Defendant /
Applicant
.. (Orig. Caveator)
....................
Mr. Dinyar Madon a/w. Mr. Cyrus Ardeshir, Senior Advocates, Ms.
Poorva Garg and Mr. Simon Mascarenhas i/b Mulla & Mulla and
Craigie Blunt & Caroe, Advocates for Plaintiffs.
Mr. Fredun Devitre, Senior Advocate, Mr. Shyam Kapadia a/w Mr.
Manas Kotak, Ms. Rohini Jaiswal, Ms. Vidhi Basrani and Mr. Areez
Gzdar i/b. Veritas Legal, Advocates for Defendant / Applicant
(Original Caveator).
....................
CORAM : MILIND N. JADHAV, J.
DATE : APRIL 01, 2026.
P.C.:
1. Heard Mr. Madon, learned Senior Advocate for Plaintiff and
Mr. Devitre, learned Senior Advocate for Defendant - Applicant
(Original Caveator). Parties are referred to as "Plaintiff" and
"Defendant" for convenience
1 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
2. Briefly stated, Testamentary Petition No.1840 of 2024 was
filed for Probate of the Last Will and Testament of the deceased dated
27.05.2020 which comprises of a single continuous document
consisting of page Nos.1 to 6, however page Nos.3 to 6 are under the
title "Annexure". The entire document propounded to be the Last Will
and Testament of the deceased is duly signed and initialed by the
Testator and the attesting witnesses. Defendant being the son of
deceased and having caveatable interest opposed grant of Probate.
Defendant placed on record his opposition to grant of Probate by filing
Affidavit-in-Support of Caveat dated 04.06.2024. Affidavit-in-Support
of the Caveat is treated as Written Statement of the Defendant. By
order dated 21.06.2024, Testamentary Petition No.1840 of 2024 came
to be converted into a Testamentary Suit bearing No.147 of 2024.
3. Pursuant to which, this Court by order dated 28.11.2025
framed following issues in the Suit for adjudication and reserving right
in favour of parties to seek framing of any additional issue, if so
required. The said order is reproduced below for immediate reference:-
"1. Heard Mr. Madan, learned Senior Advocate for Plaintiff and Mr.
Kotak, learned Advocate for Defendant / Original Caveator.
2. The Stage of Testamentary Suit is for framing of issues. After
hearing the learned Advocate at the bar and perusing the draft
issues, the following issues are framed in the Suit for
adjudication:-
(i) Whether the Plaintiff proves that Will dated
27.05.2020 was duly and validly executed and attested in
accordance with law as the Last Will and Testament of the
deceased?
2 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
(ii) Whether the Plaintiff proves that the deceased was of
sound and disposing state of mind at the time of execution
of the said Will?
(iii) Whether the Defendant proves that the said Will is
forged, fabricated, fraudulent and/or that it was executed
by the deceased under any undue influence, coercion or
pressure?
(iv) What reliefs / orders?
3. Advocate for Plaintiff is directed to file Affidavit of Documents
alongwith List of Witnesses by the next date. A copy of Affidavit
of Documents shall be served in advance on Advocate for
Defendants within a period of four (4) weeks from today.
Advocate for Defendants shall take inspection of original
documents in the office of Advocate for Plaintiff within a period
of two (2) weeks thereafter. The Affidavit-in-lieu of examination-
in-chief of Plaintiff's witnesses shall be served on Advocate for
Defendant two weeks (2) before the next date.
4. Admission and Denial statement of documents alongwith
reasons shall be conveyed by Advocate for Defendant to
Advocate for Plaintiff within a period of one (1) week thereafter.
5. On the next adjourned date, Affidavits of Plaintiff's witnesses
shall be filed in Court alongwith the Affidavit of Documents with
originals alongwith Admission and Denial of documents by
Defendant for the purpose of exhibiting the documents in
evidence and after hearing the parties.
6. Mr. Kotak informs the Court that leave and liberty be reserved to
Defendant to add any other issue if so required. If that is so,
additional issue shall be informed to Court on the next
adjourned dated so that Court can consider the same. If any
additional issue is desired to be included, the draft issue shall be
handed over to Advocate for Plaintiff. To be placed under the
caption "For Directions".
7. Stand over to 05th February 2026."
4. In view of the liberty so granted, Defendant filed present
Interim Application (L) No.1264 of 2026 dated 15.01.2026 thereby
seeking framing of an additional issue - "Whether the Annexure from
page Nos.3 to 6 attached to the Will dated 27.05.2020 is a
testamentary instrument capable of being probated as part of the
Will?" and for the limited purpose of seeking framing of such
3 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
additional issue, Defendant has by way of the present Interim
Application, prayed for reliefs in terms of prayer clauses "a" and "b"
thereby seeking liberty to amend or file additional Affidavit to the
Affidavit-in-Support of Caveat dated 04.06.2024.
5. It is the case of Plaintiffs that mere use of the term
"Annexure," in respect of page Nos.3 to 6 of the said Will does not
render the same as a separate document and is therefore the entire
document is capable of being probated under the common title being
"Will" of the deceased. It is the case of Defendant that particularly in
view of the settled position that probate can be granted only in respect
of a Will and not in respect of an Annexure, the framing of aforesaid
additional issue is necessary for proper determination of the real
controversy between the parties. It is Defendant's case that the
contents of the said Annexure are, inter alia, non-dispositive,
defamatory and detrimental to the case of Defendant and are likely to
prejudice the Court at the stage of trial. Further according to
Defendant the Annexure bears the signature of a living person namely
the wife of deceased and hence it cannot form part of disposition by
Will.
6. Hence, the present Interim Application (L) No.1264 of 2026
is filed by Defendant.
4 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
7. Mr. Devitre, learned Senior Advocate for Defendant -
Applicant would submit that Defendant is the son of deceased and has
a caveatable interest in the estate of the deceased. He would submit
that by way of amendment or for leave to file additional Affidavit to
Affidavit-in-Support of Caveat dated 04.06.2024, Defendant seeks
framing of an additional issue - Whether the document nomenclatured
as "Annexure" attached to the Last Will and Testament of the deceased
is capable of being probated as the said Will / alongwith the Will of the
deceased? He would submit that even if the same is proved, it is
incapable of being probated as a "Will" of the deceased or as a part of
the Will and therefore to address the real controversy between the
parties, he would propose framing of this additional issue to be proved
by Defendant to avoid any ambiguity at the stage of trial.
7.1. He would submit that if the present Interim Application is
allowed, it does not in any way alter or substitute the cause of action
originally stated in the Written Statement / Affidavit-in-Support of the
Caveat. He would submit that by grant of prayers in Interim
Application (L) No.1264 of 2026 Defendant has not introduced any
inconsistent or contradictory point of contention. He would submit that
as trial has not commenced till date allowing the present amendment
or granting leave to file the additional Affidavit will fully subserve the
ends of justice.
5 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
7.2. He would submit that under the Indian Succession Act,
1925, a testamentary Court can grant probate of a "Will" i.e. a
testamentary instrument containing testamentary dispositions. He
would submit that the last line of paragraph No.2 of the Will dated
27.05.2020 clearly states that the "Annexure" prepared by the
deceased and his wife reflect facts and their sentiments and are stated
only out of caution to protect the Will from being contested and it is
not a testamentary disposition. He would submit that this very
statement clearly supports the case of Defendant that a non-
testamentary and non-dispositive document is therefore not capable of
being the subject matter of grant of a Probate.
7.3. He would submit that the objections raised by Plaintiffs on
framing of issue on the ground that there is no pleading to that effect
in the Affidavit-in-Support dated 04.06.2024 to the Caveat filed by
Defendant is incorrect as it is settled law that Court has the power to
frame issues as Order XIV of the Civil Procedure Code, 1908 (for short
"CPC") which contains provisions in this regard and refers to material
from which issues can be framed. He would submit that Order XIV
Rule 1 of CPC clearly provide that issues arise when a material
proposition of fact or law is affirmed by one party and denied by the
other. He would submit that in this context "affirmation" by one party
and "denial" by other party is not confined to the pleadings of the
parties. In support of his above submissions, he has referred to the
6 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
decision of the Calcutta High Court in the case of Snow White Food
Product Pvt. Ltd. Vs. Sohanlal Bagla and Others.1 and relied upon
paragraph Nos.9 and 11 of the said decision to contend that under
Order XIV Rule 3 of CPC it is clear that the Court may frame issues on
the basis of various material apart from the pleadings including the
contents of documents produced by either party.
7.4. He would submit that it is settled law that issues under
Order XIV Rule 1(4) of CPC can be of two types, issues of fact and
issues of law. He would submit that under Order XIV Rule 1(5)of CPC
the Court may ascertain on which material proposition of fact or law
the parties are at variance after hearing the parties or their Advocates.
He would submit that under Order XIV Rule 5 of CPC the Court may
amend the issues or frame additional issues at any time before passing
a decree on terms as it thinks fit and all such amendments or
additional issues as may be necessary for determining the matters in
controversy between the parties shall be so made or framed. He would
therefore submit that objections raised by Plaintiffs in framing
additional issue on the ground that there is no pleading in respect of
the proposed issue therefore cannot be accepted.
7.5. He has drawn my attention to Rule 385 of Chapter XXVI of
Testamentary and Intestate Jurisdiction of the Bombay High Court
(Original Side) Rules, 1980 which is reproduced below for immediate
1 1964 SCC OnLine Cal 1
7 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
reference:-
"385. Production of deed, paper, etc., referred to in will.
- If a will contains a reference to any deed, paper,
memorandum, or other document of such a nature as to
raise a question whether it ought not to form a constituent
part of the will, such deed, paper, memorandum or other
document shall be produced, with a view to ascertain
whether it is entitled to probate, and if not produced, its
non-production shall be accounted for."
7.6. He would submit that the "Annexure" appended to the Will
squarely falls under Rule 385 and it also raises a question whether it
ought not to form a constituent part of the deceased's Will and in that
case it is clear that the same is to be ascertained whether it is entitled
to probate. He would submit that as the "Annexure" is non-
testamentary and non-dispositive in nature, in that view of the matter
it is clear that if a Will contains a reference to any document of any
such nature then the same has to be ascertained by the Testamentary
Court whether it is entitled to probate or no. He would therefore
submit that the reliefs prayed for by Defendant in the Interim
Application deserve to be allowed in the interest of justice.
7.7. He would submit that Affidavit-in-Support thereof be
regarded as Written Statement of Defendant however principle of filing
an additional Written Statement or amendment of Written Statement
would be applicable to the filing of a further Affidavit-in-Support of the
Caveat or amendment of such an Affidavit which has already been
filed. He would refer to and rely upon the decision of this Court in the
8 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
case of Sarla Kapur and Another Vs. Sanjay Sudesh Kapur 2 wherein
this Court has held that no pleading subsequent to a Written Statement
shall be presented except with the leave of the Court and the said
principle applies to the Affidavit in opposition as the Affidavit is to be
treated as a Written Statement. He would submit that in the said
decision since the additional Affidavit-in-Support of the Caveat was
filed prior in point of time without the leave of the Court it was
therefore not taken on record. He would submit that in the present
case leave for filing the additional Affidavit-in-Support is therefore
sought for by Defendant by way of this Interim Application.
7.8. Next, he would specifically refer to and rely upon paragraph
No.9 of the above decision in the case of Sarla Kapur and Another
(supra) wherein it is held that Testamentary Court has power to
permit a Caveator to amend the Affidavit-in-Support of the Caveat. In
this regard, he would submit that the present Interim Application
cannot be rejected on the ground of alleged delay. He would submit
that Interim Application was filed essentially in view of Plaintiffs'
opposition in framing the additional issue on the ground of absence of
pleadings. He would therefore urge the Court to extend the time for
filing the Additional Affidavit-in-Support of the Caveat or for
amendment of the same in the interest of justice.
2 (2009) 1 MhLJ 389
9 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
7.9. He would submit that the testamentary Court cannot grant
probate of a document as a Will specifically when it is jointly signed by
the testator and a person who is alive. He would submit that such a
document cannot be regarded as a testamentary disposition. He would
submit that the document being an "Annexure" purports to be a joint
statement of the Testator and his wife (second signatory) i.e. mother of
Defendant and it purports to be jointly signed by both. He would
submit that wife of the deceased (second signatory) being alive,
probate cannot be granted of a document claiming it to be a Will
wherein one of the person signing it is still alive.
7.10. He would further submit that the "Annexure" to the Will
contains offensive and scandalous allegations against Defendant which
are purely defamatory in nature. He would submit that there is a
strong possibility that the deceased was under undue influence while
executing the said Will. He would therefore urge the Court to allow the
Interim Application in the interest of justice.
7.11. In support of his submissions, he has further referred to and
relied upon the decisions of various Courts:-
(i) Hormasji Kharsetji Sethna Vs. Dhanjishaw Ratanji Lalcaca3 ;
(ii) H.P.S. Chawla Vs. Dr. N.P.S. Chawla and Others.4 ; and
(iii) Bai Gangabai and Others Vs. Bhugwan Das Valji and Others 5
3 (1910) 12 Bom LR 569
4 2005 (84) DRJ 516
5 IRL (1905) 29 Bom 530
10 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
8. PER CONTRA, Mr. Madon, learned Senior Advocate
appearing for Plaintiff would draw my attention to the Affidavit-in-
Reply dated 28.01.2026 filed by Plaintiff No.1 - Harish Narendra
Motiwalla and would submit that Interim Application filed by
Defendant seeking framing of additional issue regarding the
"Annexure" to the Will and thereby seeking liberty to amend the
Affidavit/Written Statement and/or filing of an additional Affidavit to
the Affidavit-in-Support of the Caveat is wholly misconceived and
untenable in law.
8.1. He would submit that the Will of the deceased constitutes a
single, continuous and integrated testamentary instrument comprising
of six pages each bearing a common header and duly signed and
initialled by the Testator as well as the attesting witnesses. He would
submit that the mere nomenclature of the term "Annexure" does not
render it as a separate or independent document. He would submit
that the entire Will, including the said Annexure was read over,
understood and duly executed in the presence of attesting witnesses.
He would submit that the execution is further substantiated by a video
recording, inspection whereof was given to Defendant in furtherance to
which Affidavits of the attesting witnesses have already been served
and are on record. He would submit that paragraph No.2 of the Will
expressly clarifies that "Annexure" merely records the circumstances
and sentiments of the Testator and does not constitute a separate
11 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
testamentary disposition. He would submit that the said clarification
unequivocally establishes that the Will is a composite document
incapable of severance.
8.2. He would submit that in view of Section 64 of the Indian
Succession Act, 1925 any document referred to in a duly executed Will
and expressing the intention of the Testator is deemed to form part of
the Will. He would submit that the "Annexure" squarely falls within
the ambit of the said provision. He would submit that Section 85 of
Indian Succession Act, 1925 mandates that the Will must be read as a
whole and all its parts must be construed together, thereby prohibiting
any artificial segregation of "Annexure". He would submit that Section
87 of Indian Succession Act, 1925 requires that effect be given, as far
as possible, to the intention of the Testator. He would submit that the
"Annexure" contains the reasons and surrounding circumstances
forming an integral part of the testamentary scheme and hence in such
circumstances probate of an incomplete or truncated Will is
impermissible in law.
8.3. He would submit that the issues have already been framed
by this Court, particularly those pertaining to testamentary capacity,
due execution and allegations of undue influence, coercion, fraud or
fabrication which adequately cover the entire scope of Defendant's
challenge. He would submit that the proposed additional issue is
12 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
wholly redundant and not germane to the facts of the present case. He
would submit that framing such an issue would erroneously suggest
that "Annexure" is a separate document, which is factually and legally
incorrect. He would submit that Plaintiffs, as Executors are required to
prove the Will in its entirety, including "Annexure" and that no
separate issue can be framed in respect thereof.
8.4. He would submit that Defendant had full knowledge of the
entire Will, including "Annexure" since October 2023 and received the
Probate Petition in March 2024 and thereafter filed a Caveat and
Affidavit in June 2024 without raising any such contention. He would
submit that inspection of the video recording was given to Defendant
on 15.01.2025 and even thereafter no objection was raised. He would
therefore submit that the present Interim Application being filed after a
period of more than one and a half years is grossly belated and a
complete afterthought. He would submit that the allegation that the
contents of the "Annexure" are offensive, defamatory or scandalous has
been raised for the first time in the present Application and is clearly
intended to delay the trial.
8.5. He would submit that Defendant has at no point denied the
contents or veracity of the "Annexure" and has merely taken a vague
plea that it does not form part of the Will. He would submit that even
in the present Interim Application no specific issue has been sought to
13 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
be framed with regard to any alleged defamatory content. He would
submit that Defendant's own pleadings wherein it is alleged that the
Will is executed under undue influence, demonstrate that the Testator
had anticipated such a challenge and hence recorded reasons in the
"Annexure". He would submit that the present attempt to exclude the
"Annexure" is a complete afterthought and tactic to dilute and weaken
the evidentiary value of the Will.
8.6. He would submit that the contention of Defendant that
probate can only be granted if a document is executed by persons who
are no longer alive and not where it bears signatures of living persons,
is wholly misconceived and unsupported by the provisions of the
Indian Succession Act, 1925 or settled law. He would submit that
Section 63 of the Indian Succession Act, 1925 mandates attestation of
a Will by two or more witnesses, and therefore, a Will presented for
probate would necessarily bear signatures of living persons, i.e., the
attesting witnesses. He would submit that acceptance of Defendant's
contention would lead to an absurdity whereby probate could not be
granted so long as witnesses are alive which defeats the legislative
intent.
8.7. He would submit that the law recognizes joint Wills executed
by two Testators and if Defendant's contention is accepted, probate
would have to await the demise of both testators even in cases of
14 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
reciprocal bequests. In support of his above submissions he has
referred to and relied upon the decision of this Court in the case of Raj
Kumar Mittal and Others Vs. Rajesh Venkateshwar Somani 6 and
specifically on paragraph No.13 of the said decision wherein Court has
rejected a similar contention addressed by a party and found such a
submission without merit. He would therefore submit that such
contention cannot be accepted in the interest of justice.
8.8. Next, he would submit that Section 64 of Indian Succession
Act, 1925, provides that where a duly attested Will refers to any other
document as forming part of the Testator's intention then such a
document shall be deemed to form part of the Will and that attestation
is required only for the Will or Codicil and not for such document. He
would submit that Section 3(18) of the General Clauses Act, 1897
defines "document" in the widest terms to include any matter
expressed or recorded by letters, figures, or marks and therefore such
document may be signed by the Testator, by third parties, by both, or
even be unsigned and need not be independently attested.
8.9. He would submit that in the present case, the "Annexure"
clearly records and forms part of the testamentary intention of the
deceased which has been signed by the deceased and his wife in the
presence of the attesting witnesses who have signed/initialed the same
and therefore constitutes an integral part of the Will and is liable to be
6 (2017) 6 Bom CR 548
15 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
read as such for the purposes of probate. He would therefore submit
that the amendments sought are not germane to the controversy and
are intended solely to delay the proceedings. He would submit that the
judgments relied upon by Defendant are clearly distinguishable on
facts and are inapplicable to the present case. He would therefore
submit that the present Interim Application does not raise any bona
fide or necessary issue and constitutes an abuse of the process of the
Court and deserves to be dismissed with costs without framing any
additional issue.
8.10. Mr. Devitre, learned Senior Advocate for Defendant
would draw my attention to the Affidavit-in-Rejoinder dated
03.02.2026 filed by Defendant and would submit that Plaintiffs'
contentions regarding the nature and legal effect of the "Annexure" to
the Will are wholly misconceived. He would submit that the
"Annexure" does not form an integral part of the Will as exclusion of
"Annexure" from the grant of probate would be in accordance with law
and would not affect the bequests in the Will. He would submit that
the allegations in the Affidavit-in-Reply pertain to the merits of the
proposed amendment and additional Affidavit and that such issues
cannot and ought not to be adjudicated at this stage. He would submit
that the correctness of Defendant's case must be determined only in
trial after evidence is led. He would submit that the allegation that
Defendant seeks to consent to probate of a part of the Will and
16 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
confines his challenge only to the "Annexure" is false and contrary to
the record.
8.11. He would submit that Plaintiffs' contention that the
deceased's holding of high corporate positions negates any challenge to
testamentary capacity is wholly misconceived. He would submit that
Defendant has already demonstrated and shall establish that the
deceased was under the control and influence of his younger son
during the execution of the Will. He would submit that the legal
consequences of these facts must be determined by this Court only in
trial and not at this interlocutory stage. He would submit that the
allegation that Defendant is unable to prove his case is false. He would
submit that the contention that the said Interim Application is barred
by delay is incorrect. He would submit that there is no deliberate or
blameworthy delay on the part of the Defendant and that the
Application is not intended to delay the trial.
8.12. He would submit that Plaintiffs have unreasonably opposed
the framing of an additional issue relating to the "Annexure" despite
the same arising from the record. He would submit that any delay, if at
all, is attributable to Plaintiffs' conduct and in any event deserves to be
condoned in the interest of justice. He would submit that in view of
the order dated 28.11.2025 granting liberty to suggest additional
issues, the present Interim Application is necessary and maintainable.
17 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
He would submit that the framing of final issues is still pending and
that the additional issue sought is required for proper adjudication,
particularly in light of Plaintiffs' opposition.
8.13. He would submit that the allegations of prejudice to
Defendant's mother are misconceived and are denied. He would
submit that the deceased had during his lifetime, made substantial
financial provision for his wife by transferring assets and funds of
considerable value. He would submit that the suggestion that she is
facing financial hardship or prejudice on account of the present
proceedings is incorrect and unfounded. He would submit that the
issues raised in the said Interim Application are legal and arise from
the material already placed on record. He would submit that the
amendment and/or additional Affidavit is sought out of abundant
caution to formally place the grounds of challenge on record and to
avoid technical objections at a later stage. He would submit that the
present Interim Application is bona fide, raises substantial and
necessary questions for adjudication and is essential for determining
the real controversy between the parties. He would submit that the
Interim Application does not alter the nature of the defence nor does it
cause any prejudice to Plaintiffs. He would therefore submit that in
the aforesaid circumstances the said Interim Application deserves to be
allowed in the interest of justice.
18 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
8.14. I have heard Mr. Madon, learned Senior Advocate for
Plaintiff and Mr. Devitre, learned Senior Advocate for Defendant -
Applicant (Original Caveator) and with their able assistance perused
the record of the case. Submissions made by both the learned Senior
Advocates at the bar have received due consideration of the Court.
9. At the outset, it is seen that the present Interim Application
is filed by Defendant seeking framing of an additional issue in
opposition to the grant of probate of the document propounded as the
Last Will and Testament of the deceased dated 27.05.2020. Defendant
has also sought liberty to file an Additional Affidavit-in-Support of the
Caveat and/or to amend the Affidavit-in-Support of the Caveat dated
04.06.2020. Testamentary Petition has already been converted into a
Testamentary Suit and by Order dated 28.11.2025 passed by this Court
issues have been framed wherein liberty was granted to suggest
additional issues, if required.
10. It is clarified that Court is not called upon at this stage to
adjudicate upon the merits of the rival contentions advanced by the
parties in relation to the nature, character or legal effect of the
document described as "Annexure" to the said Will. The controversy as
to whether the said "Annexure" forms an integral part of the Will or is
a non-testamentary, non-dispositive document incapable of being
probated in my opinion involves mixed questions of fact and law which
19 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
would necessarily require appreciation of pleadings, documents and
evidence in trial. Any conclusive determination summarily merely on
the basis of arguments advanced at this interlocutory stage would
therefore be premature.
11. The limited question which arises for adjudication before me
is whether Defendant ought to be permitted to place such contentions
on record by way of an additional Affidavit-in-Support of the Caveat?
It is settled law that in testamentary proceedings, the Affidavit-in-
Support of Caveat is treated as a Written Statement and therefore the
principles governing amendment of pleadings and filing of additional
pleadings under the CPC would apply. In this context, the reliance
placed on the principles underlying Order VIII Rule 9 of the CPC is
apposite which mandates that no pleading subsequent to a Written
Statement shall be filed except with the leave of the Court. Hence
while exercising such discretion it is required to adopt a liberal
approach so as to ensure that all necessary pleas are brought on record
for a complete adjudication, particularly where the trial has not yet
commenced.
12. Attention is drawn to the decision of the Calcutta High Court
in the case of Snow White Food Product Pvt. Ltd. (supra). Relevant
paragraph Nos.9 and 11 of the said decision are reproduced below for
immediate reference:-
20 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
"9.......That "holding out" has not been pleaded in the plaint is true.
But the materials which the Court presses into service for framing
issues do not consist of pleadings alone. The allegations made in
the pleadings form but one class of such materials. Allegations in
answers to interrogatories delivered in the suit furnish another
class. Indeed, cl. (b) of Rule 3 of Order 14 of the Procedure Code
contains these two classes of materials from which the Court may
frame issues. Clause (c) 'ibid' prescribes one more class of
materials: the contents of documents produced by either party.
Clause (a) 'ibid' contemplates still another class of materials:
allegations made on oath by the parties, or by any persons present
on their behalf, or made by the pleaders of such parties. There are
thus so many materials or classes of materials from all or any of
which the Court may frame issues. Mr. Roy does not therefore
appear to be right when he wants me to confine myself only to
pleadings for the purpose of fixing issues. I have the complete
freedom to look to, and draw upon, other materials listed in Rule 3
of Order 14, a rule which Order 49 does not keep away from this
side of the Court.
10. xxxxxx
11. So, what is really Mr. Roy's grievance about? I have not
overstepped the limits of the law in doing what I have done. The
technical rules of pleading which Mr. Roy stresses are no doubt
good. But what subserves the ends of Justice is better still. This is
why Rule 3 of Order 14 is there, enabling the Court to add
materials other than those to be had in the pleadings, in order to
get at the proper issues on which depends so much a full and fair
adjudication."
13. With regard to the above mentioned, it is seen that under
Order XIV Rules 1, 3 and 5 of the CPC issues arise when a material
proposition of fact or law is affirmed by one party and denied by the
other and the Court is empowered to frame issues not only on the basis
of pleadings but also on the basis of documents and other material
placed on record. Further, under Order XIV Rule 5 of CPC the Court
may amend or frame additional issues at any stage prior to passing of a
decree if the same are necessary for determining the real questions in
controversy between the parties. Thus, the statutory framework itself
contemplates a flexible and pragmatic approach in the matter of
21 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
pleadings and framing of issues.
14. Upon perusal of the record, I am of the opinion that the
additional grounds sought to be introduced by Defendant are in
continuation of and ancillary to the existing challenge to the Will as set
out in the Affidavit-in-Support of Caveat. I am of the considered
opinion that if a person having cavetable interest is entitled to show
that the alleged Will is not the last Will of the deceased validly made in
accordance with the law then he must be allowed a reasonable
opportunity of so doing and his defence cannot be shut on the ground
that he had not initially pleaded elaborately the grounds of opposition.
The Defendant has already disputed the validity of the Will on grounds
including undue influence, lack of testamentary capacity and other
vitiating factors. The contention relating to the "Annexure" is an
additional facet of such challenge and cannot be said to introduce a
wholly new or inconsistent defence. The apprehension expressed by
Plaintiffs in this regard is therefore misplaced.
15. Insofar as the objection of delay is concerned, the same
cannot be accepted as a ground to non-suit the Defendant at this stage.
It is pertinent to note that liberty was expressly granted by this Court
by order dated 28.11.2025 to suggest additional issues. The present
Inteirm Application has been filed in furtherance of such liberty and
also in view of Plaintiffs' objection that there is an absence of specific
22 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
pleadings with regard to the proposed issue. The explanation offered
by Defendant therefore cannot be said to be lacking in bona fides. It is
well settled law that delay by itself is not a ground to refuse
amendment or additional pleadings unless it results in serious
prejudice to the opposite party which is not demonstrated in the
present case.
16. With regard to submission advanced on behalf of the
Defendant with reference to Rule 385 of Chapter XXVI of the Bombay
High Court (Original Side) Rules, 1980, the said Rule provides that
where a Will contains a reference to any deed, paper, memorandum or
other document raising a question as to whether it ought not to form a
constituent part of the Will, such document is required to be produced
to enable the Court to ascertain whether it is entitled to probate. The
contention of the Defendant that the "Annexure" raises precisely such a
question cannot be said to be without substance at this stage. The
applicability and effect of Rule 385 itself reinforces the necessity of
permitting the Defendant to raise the said contention on record.
17. It is seen that rival submissions are founded on the
provisions of the Indian Succession Act, 1925, including Sections 63,
64, 85 and 87 thereof. Section 63 deals with the execution and
attestation of an unprivileged Will, Section 64 of the Indian Succession
Act, 1925 provides for incorporation of documents referred to in a
23 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
Will, Section 85 of the Indian Succession Act, 1925 mandates that the
Will is to be read as a whole and Section 87 of the Indian Succession
Act, 1925 requires that effect be given to the intention of the Testator
as far as possible. The interplay of these provisions, particularly in the
context of the present controversy relating to the "Annexure" appended
or said to be part of the Will would necessarily require detailed
examination at the stage of trial. At this stage, it would be suffice to
observe that the contentions sought to be raised by the Defendant
cannot be said to be ex facie barred or untenable in law.
18. With regard to the aforesaid, I am of the considered opinion
that Mr. Devitre, learned Senior Advocate appearing on behalf of the
Defendant has made out a case for grant of leave to file an Additional
Affidavit-in-Support of the Caveat. It is pertinent to note that
permitting such filing would subserve the ends of justice by ensuring
that all relevant and necessary contentions are placed on record,
thereby enabling a complete and effective adjudication of the disputes
between the parties.
19. Insofar as the rival submissions on the legal character of the
"Annexure", its alleged defamatory nature, its probative value and its
effect on the grant of probate are concerned, no opinion on the merits
of the matter is expressed thereof at this stage. The Defendant may
succeed or fail in his endeavour. The burden will then shift on the
24 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
Plaintiffs to establish to the contrary that the "Annexure" is an integral
part of the Will.
20. All contentions of parties are expressly kept open to be
adjudicated at the stage of trial upon evidence being led by the parties.
21. In view of the aforesaid, I am of the opinion that the present
Interim Application is bona fide, raises substantial questions which
require consideration and no prejudice of such nature would be caused
to Plaintiffs so as to warrant rejection of the Application. On the
contrary, refusal of such leave may result in curtailing Defendant's
right to fully contest the proceedings.
22. Accordingly, the Interim Application is allowed in terms of
prayer clause (b). Defendant is permitted to file Additional Affidavit-in-
Support of the Caveat within a period of four (4) weeks from today.
Plaintiffs shall be at liberty to file further Affidavit-in-Reply thereto
within period of four (4) weeks thereafter.
23. It is clarified that all rival contentions of the parties on
merits, including those relating to the validity, effect and admissibility
of the "Annexure" to the Will, are kept expressly open to be decided at
the trial.
24. Interim Application (L) No.1264 of 2026 is allowed in the
above terms.
25 of 26
IA(L).1264.2026+IA.3267.2024+TS.147.2024.doc
25. Stand over to 6th May, 2026. To be placed under the caption
"For Compliance".
[ MILIND N. JADHAV, J. ]
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2026.04.01
12:23:38 +0530
26 of 26
