[Cites 15, Cited by 0]
Bombay High Court
Hoshang Jehangir Khan vs Khushroo Behramshaw Mogal on 5 January, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-OS:6
IA.1808.2024.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION NO. 1808 OF 2024
IN
CAVEAT (L) NO. 9320 OF 2024
IN
TESTAMENTARY PETITION NO. 3908 OF 2023
Hoshang Jehangir Khan and Ors. .. Applicants
IN THE MATTER OF
Hilla Homi Dady alias Hilla Homi Dadysett alias
Hila Dady alias Hilla Dadysett .. Deceased
Hoshang Jehangir Khan and Ors. .. Petitioners
Versus
Khushroo Behramshaw Mogal Caveator /
.. Proposed Defendant
....................
Mr. Dinyar Madon, Senior Advocate a/w. Ms. Ferzana
Behramkamdin, Ms. Kalyani Deshmukh, Ms. Sanskruti Hebalkar,
Advocates i/by FZB & Associates for Applicants and Mr. Vijay Payal,
Advocate i/by Sameer R Logade, Advocates for Petitioners.
Mr. Bhavesh Parmar a/w. Mr. Devmani Shukla, Mr. Rajesh Sahani
and Mr. Mohd. Riyaz, Advocates i/by G.L. Ghonge for Caveator.
....................
CORAM : MILIND N. JADHAV, J.
DATE : JANUARY 05, 2026.
JUDGMENT:
1. Heard Mr. Madon, learned Senior Advocate for Applicants /
Petitioners and Mr. Parmar, learned Advocate for Caveator.
2. This Interim Application is filed for seeking dismissal of
Caveat and Affidavit-in-support thereof filed by Caveator Mr. Khushroo
Behramshaw Mogal in Testamentary Petition No.3908 of 2023.
Petition is filed by Applicants in their capacity as Executor and
Executrix named in the Last Will and Testament dated 18.12.2015
1 of 27
IA.1808.2024.doc
alongwith the 4 Codicils (collectively hereinafter referred to as 'the
Will') of the deceased namely Hilla Homi Dady alias Hilla Homi
Dadysett alias Hila Dady alias Hilla Dadysett alias H.H. Dady alias H.H.
Dadysett alias Hilla H. Dady alias Hila H. Dadysett (for short 'the
deceased'). Testamentary Petition No.3908 of 2023 is filed on
17.10.2023 and is pending before this Court, inter alia, seeking
Probate of the Will of the deceased. Applicant No.1's father and
deceased's husband were cousins (maternal grandmother and
grandfather respectively were brother and sister).
3. Applicant No.1 has known deceased since the last 50 years.
It is averred in the Application that only surviving legal heir of the
deceased (deceased brother's son) requested the Applicants for copies
of the Will and Codicils of the deceased which were handed over by
Applicants to the said surviving legal heir on 24.07.2023. The said
legal heir of the deceased requested Applicants to make payment of his
bequest and by Affidavit dated 26.07.2023 consented to grant of
probate in favour of Applicants. Citation was issued vide order dated
19.12.2023 and published on 21.01.2024 in accordance with law.
Affidavit of service of general citation was filed on 06.02.2024.
4. According to Applicants on 14.03.2024, Mr. Khushroo
Behramshaw Mogal (Caveator) filed Caveat alongwith Affidavit-in-
support thereof dated 12.03.2024 in the Testamentary Petition
alongwith alleged Last Will and Testament dated 23.03.2023 allegedly
2 of 27
IA.1808.2024.doc
executed by deceased. Copy of the said alleged Will is appended at
Exhibit 'B' to the Affidavit-in-support of the Caveat. Thereafter on
26.03.2024, Advocates for Caveator served a copy of the Caveat and
Affidavit-in-support thereof on the Applicants' Advocates.
5. Applicants have filed the present Interim Application seeking
dismissal of the Caveat on 15.05.2024 on the following grounds:-
(i) That the Caveator is claiming to be sole beneficiary of
only a part of the estate of the deceased on the basis a
fabricated and forged Will appended at Exhibit 'B' to the
Affidavit-in-support of the Caveat;
(ii) That the signature on the alleged Will dated 23.03.2023
is not that of the deceased;
(iii) That Caveator has no caveatable interest, neither he is a
legal heir nor a relative of the deceased let alone an heir
as per the provisions of the Indian Succession Act, 1925
as applicable to Parsis since the deceased was a Parsi;
(iv) That in view of the relationship of Applicants with the
deceased and her predeceased husband, Applicants are /
were not aware about or knew who the Caveator or his
father 'Behramshaw Rustomji Mogal' was and whether
they were known to the deceased since it is claimed by
the Caveator that the deceased allegedly mentioned the
Caveator to be 'just like my son' or 'my nearest person'
3 of 27
IA.1808.2024.doc
in the alleged Will;
(v) That there is no reason and explanation as to why the
Caveator approached his Advocate after almost one year
of the death of the deceased if he claimed interest under
the Will of the deceased in respect of a valuable
property allegedly bequeathed to him;
(vi) That the Last Will and Testament of the deceased and
the 4 Codicils made by the deceased do not even
remotely mention the name of the Caveator or his father
either as beneficiary or nominee much less as persons
close to the deceased in respect of any of the several
assets of the deceased much less the Bungalow which is
claimed to be allegedly bequeathed to the Caveator
under the Will propounded by him;
(vii) That the Caveator has not specified how he is known to
the deceased as her nearest person so as to make him
the sole beneficiary of only a part of the estate of the
deceased;
(viii) That there is no mention of the Will and the 4 Codicils
made by the deceased in the alleged Will propounded by
the Caveator;
(ix) That the deceased had made her intention very clear
right from the year 2015 for a period of more than 8
4 of 27
IA.1808.2024.doc
years prior to the alleged Will propounded by the
Caveator about her share in the Bungalow property
which she desired to be sold and proceeds thereof were
to be used towards charity as per her Will and there was
no reason for the deceased to change her mind within a
period of 24 days from 27.02.2023 (date of last Codicil)
to the date of the alleged Will dated 23.03.2023
propounded by the Caveator and decide to give her
share in the Bungalow to the Caveator who is a totally
unknown and unrelated person to the deceased;
(x) That despite the Caveator propounding the Will dated
23.03.2023, he did not file any Petition for Probate or
Letters of Administration with Will annexed until such
objection was raised by the Applicants for a period of
over one year; and
(xi) That the conduct of the Caveator and his credentials are
such that the alleged Will propounded by the Caveator
was never in existence on the date of the death of the
deceased and has been subsequently prepared by the
Caveator in conspiracy with others with a clear view to
usurp the estate of the deceased and in that attempt
blackmail and extort monies from Applicants to settle
the matter with Caveator, who has no rights of any
5 of 27
IA.1808.2024.doc
nature whatsoever in the property and credits of the
deceased.
6. Mr. Madon, learned Senior Advocate appearing on behalf of
Applicants would at the outset submit that on making enquiries with
the the Parsi community about the Caveator's credentials, it has been
learnt that the Caveator has filed Suit No.1905 of 2006 against this
own family members wherein the Caveator's own mother has filed
written statement stating that the Caveator is a mischievous person
and has always tried to extort money by blackmailing persons and
deriving benefit for himself.
6.1. He would submit that in the same proceedings the Caveator's
stepfather and brother have also filed written statement and have set
out therein about the Caveator's several illegal and criminal acts and
criminal complaints filed against the Caveator in various police
stations. He would submit that averments in those pleadings by the
family members of the Caveator prima facie show that the Caveator
has filed proceedings to blackmail and extort monies from the
Caveator's stepfather and Caveator's own mother and he has also
duped his wife by selling her father's house and usurping the amounts
from his pension account and has made a false and forged Will and
documents, due to which civil and criminal proceedings have been
filed against the Caveator by his brother-in-law in the Metropolitan
Magistrate Court at Girgaon and the Bombay City Civil Court which are
6 of 27
IA.1808.2024.doc
pending.
6.2. He would submit that on perusal of the alleged Will
propounded by the Caveator it is prima facie seen that the signature
made on the said Will is not that of the deceased as on mere
comparison with the naked eye the signatures of the deceased as
appearing on the Will and Codicils propounded by the Applicants are
completely different. He would submit that neither the Applicants nor
any person associated with the deceased are aware about the fact that
the Caveator was known to the deceased at any point of time during
her lifetime or that he was her nearest person or deceased treated him
just like her son as claimed by the Caveator. He would submit that this
is based on the fact that Applicants shared a very close personal
relationship with the deceased since they been related to her and most
importantly name of Applicant No.2 was added by the deceased to her
bank account as joint holder and the deceased had nominated
Applicant No.1 as nominee in respect of all her investments and assets
and if this is the fact, then the alleged claim of the Caveator that he
was "just like her son" to the deceased would have been known to the
Applicants.
6.3. He would submit that neither the Applicants nor any other
person close to the deceased had ever heard or known or even seen the
Caveator during the lifetime of the deceased. He would submit that
7 of 27
IA.1808.2024.doc
deceased has bequeathed to her nephew Mr. Yezdi only a sum of
money and therefore there would be no reason whatsoever for her to
give the Caveator who is a completely unknown stranger and unrelated
person, her share in the Bungalow which she has bequeathed to charity
under her Will and Codicils propounded by Applicants.
6.4. He would submit that if the names of the witnesses to the
Wills and Codicils propounded by Applicants are perused by the Court,
it would be evident that those witnesses were all known to the
deceased whereas the witnesses to the alleged Will propounded by the
Caveator are totally unknown persons and most importantly those
witnesses have signed on a separate page altogether appended to the
alleged Will which prima facie raise suspicion that the alleged Will is
forged and fabricated.
6.5. He would submit that in order to overcome the reason for
not filing any Petition for probate, it is only after the Applicants
pointed out the same in their Interim Application that the Caveator has
filed his Testamentary Petition to propound the alleged Will in this
Court. He would submit that from reading of the alleged Will, it is
prima facie clear that the alleged Will did not exist on the date of
death of the deceased and the Caveator has somehow unlawfully and
surreptitiously procured the copy of the Will and 4 Codicils
propounded by Applicants and has forged and fabricated the alleged
8 of 27
IA.1808.2024.doc
Will and filed his Caveat with a view to blackmail and extort monies
from the Applicants. He would submit that a clear attempt is made by
Caveator to usurp a valuable property of the deceased which the
deceased has otherwise through her Will and 4 Codicils bequeathed to
charity to the exclusion of her only surviving legal heir and the act of
the Caveator is with clear malafide and ulterior motives. He would
submit that if at all the deceased had prepared the alleged Will, the
bonafides of the Caveator would have been proved if, he had
approached the Court immediately or within a reasonable time for
seeking probate of the alleged Will after the demise of the deceased,
but it is only after the Applicants filed the Testamentary Petition
seeking probate of the Last Will and Testament and 4 Codicils of the
deceased and when the said proceedings were pending in this Court
and after citation was issued, the Caveator has somehow got hold of
the papers and has prepared the alleged Will in conspiracy with other
people to claim an illegal benefit out of the property of the deceased.
6.6. He would submit that the most intriguing fact is that the
alleged Will bequeaths only the share of the deceased in the Bungalow
to the Caveator, on the premise that he was just like her son and the
nearest person to the deceased while leaving out several other
properties and credits belonging to the estate of the deceased.
9 of 27
IA.1808.2024.doc
6.7. After taking me through the proceedings and the Last Will
and Testament of the deceased alongwith the 4 Codicils and
comparing the same with the alleged Will propounded by the
Caveator, on the basis of the aforesaid reasons it is urged that the
Caveat (L) No.9320 of 2024 and the Affidavit-in-support dated
12.03.2024 filed by the Caveator be dismissed and Interim Application
No.1808 of 2024 be allowed with costs.
6.8. Additionally in support of his above submissions, Mr. Madon,
has placed on record the decision of this Court passed in Interim
Application No.1809 of 2024 in the present Testamentary Petition.
This Application was filed by Applicants under Section 340 read with
Section 195 of the Criminal Procedure Code, 1973 (for short 'Cr.PC')
seeking criminal enquiry against the Caveator. He would submit that
the said Interim Application has been allowed and by virtue of the
aforesaid order the Prothonotary and Senior Master through his
representative has been directed by this Court to take appropriate steps
and file complaint against the Caveator before the jurisdictional
Magistrate in respect of the offenses punishable under Bharatiya Nyaya
Sanhita, 2023 and Indian Penal Code, 1860 including under Sections
196, 199, 200, 463 and 471 of the Indian Penal Code for preparation
and use of the alleged Will propounded by the Caveator.
10 of 27
IA.1808.2024.doc
7. PER CONTRA, Mr. Parmar, learned Advocate appearing on
behalf of the Caveator has at the outset drawn my attention to
averments made in the twin Affidavits filed by the Caveator dated
26.04.2024 which is the Affidavit-in-support of Caveat dated
12.03.2024 and additional Affidavit-in-Reply dated 08.12.2025. He has
also referred to and relied upon the order dated 14.10.2025 passed by
the Additional Registrar (O.S.)/Additional Prothonotary and Senior
Master in the Third Party Application (L) No.24410 of 2025 filed by
the Caveator seeking issuance of certified copy of the entire
proceedings of the present Testamentary Petition having been rejected
by the learned Officer in view of the order dated 14.10.2025 passed in
Interim Application No.1809 of 2024.
7.1. Mr. Parmar would contend that the Affidavit-in-Reply has
been filed without the Caveator having the benefit of doubt of perusing
the Will and the 4 Codicils of the deceased propounded by the
Applicants. However since this grievance was made before me and
since the Applicants have referred to and relied upon the Will and the
4 Codicils in support of their submissions on the suggestion made by
the Court, Mr. Madon has in his usual fairness handed over copies of
the Last Will and Testament alongwith 4 Codicils to Mr. Parmar on the
previous date of hearing so that it would enable the Caveator to meet
the case of the Applicants.
11 of 27
IA.1808.2024.doc
7.2. He would submit that the Will and all 4 Codicils relied upon
by Applicants have been prepared by the same Solicitor's office namely
Maneksha and Sethna which is prima faice seen from the dockets
appended thereto. He would submit that the full signature of the
deceased on the Will and 4 Codicils if juxtaposed and compared would
prima facie differ from each other in all the 4 documents. He would
submit that even the initials of the deceased made on the said
documents prima facie differ. He would submit that perusal of the Will
and 4 Codicils show that each and every page of the said documents
have not been initialed by the deceased as only alternate pages are
initialed and therefore doubt is created with respect to the genuinity of
the same. He would submit that on the last page of the Will dated
18.12.2015 the initials of the deceased are made from a different ink
of a pen whereas a full signature of the deceased is from a different ink
of a pen even though both the inks are of blue colour.
7.3. He would submit that the Caveator expresses grave doubt
and suspicion on the tenability of the Last Will and Testament and the
4 Codicils propounded by Applicants on the ground that those
documents were dealing with substantial immovable and movable
properties running into hundreds of crore belonging to the deceased.
He would submit that when the last Will dated 18.12.2015 was made
by the deceased, she was 92 years old and thereafter until 2023 for a
period of 8 years until she turned 100 years old, 4 Codicils were
12 of 27
IA.1808.2024.doc
prepared by her from time to time. He would submit that Applicant
No.2 who has been named as one of the Executor and Trustee is an
Advocate and Solicitor of a renowned law firm in Mumbai and she is
also a beneficiary under the Will of the deceased. He would submit
that the bequest made to Applicant No.2 is substantial not only in
terms of money but also ornaments, artefacts as also the fact that she is
a nominee of all bank accounts, shares, mutual funds etc. alongwith
Applicant No.1 and has been named as a Trustee of the Trust
established on 29.01.2016 by the deceased. He would submit that the
closeness of the Applicants with the deceased even prior to she making
the Will or before her demise will have to be gone into by the Court as
there is no disclosure forthcoming from the Applicants in that regard.
He would submit that Applicant No.1 who is named as one of the
Executor and Trustee is also a beneficiary under the Will of the
deceased in respect of not only substantial amounts, but immovable
property running into crores of rupees as also movables properties. He
would submit that there is no explanation or reason forthcoming from
the deceased in any of the documents namely her Last Will and
Testament and the 4 Codicils propounded by Applicants as to why no
member of her family was made the Executor or Trustee or beneficiary
thereunder. He would submit that relationship and nexus with
Applicant No.1 has been shown differently in the Will and third Codicil
wherein Applicant No.1 is referred to him as the relative of her
13 of 27
IA.1808.2024.doc
deceased husband in the Will dated 18.12.2015, but no explanation is
given about the said relation. Further he would submit that Applicant
No.1 is also referred to as a friend at a different place in the Will dated
18.12.2015, but curiously he is referred to as nephew of the Testatrix's
deceased husband in the 3rd Codicil dated 18.09.2019. He would
submit that if the names of the witnesses who have appended their
signatures on the Will and 4 Codicils is seen, save and except their
name, no other details regarding their address, identification or mobile
number has been stated. He would submit that the names of the
witnesses appearing on the Will and 4 Codicils are different and made
at different points of time, thus arousing grave suspicion about the
authenticity of the Will and 4 Codicils having been prepared by
Applicants as being suspicious and doubtful.
7.4. He would vehemently submit that the aforesaid suspicion
clearly arises in view of the advanced age of the deceased / Testatrix
when she made the Will dated 18.12.2015 and the 4 Codicils
thereafter upto 2023 between the age of 92 - 100. He would submit
that even though the Caveator has filed Testamentary Petition No.3160
of 2024, Applicants have not filed their Caveat in the said Petition and
this conduct of Applicants needs to be noted by the Court. He would
submit that the order dated 14.10.2025 passed by this Court in Interim
Application No.1809 of 2024 filed by Applicants seeking relief under
Section 340 of the CrPC records that as per settled law the Caveator
14 of 27
IA.1808.2024.doc
does not have a right of audience and hearing and therefore the
observations and findings which are sought to be referred to and relied
upon against the Caveator on the basis of the pleadings and
contentions made by Applicants therein cannot be held against the
Caveator in the present proceedings to dismiss the Caveat of the
Caveator.
7.5. He would submit that the Caveat has been filed on the basis
of the Will of the deceased dated 23.03.2023 and the same will have to
be decided and taken to its logical conclusion in trial if it is to be
objected upon by Applicants. He would submit that the findings
returned in the order dated 14.10.2025 cannot be held against the
Caveator for dismissing the Caveat since the allegations made therein
are yet to be investigated and tried before the concerned appropriate
Trial Court in accordance with law. He would submit that unless and
until the alleged wrong and illegalities are investigated and tried and
concluded in accordance with law, Caveator cannot be held guilty and
cannot be deprived of the benefit of the basic rule of law of having
been held guilty without trial. He would submit that dismissing the
Caveat at this stage would infact amount to holding the Caveator guilty
without the same having been tried by the appropriate Court as
directed vide order dated 14.10.2025. He would submit that under
Chapter 21 of the Rules of the High Court of Judicature at Bombay,
there is no provision in law which provides setting aside of the Caveat
15 of 27
IA.1808.2024.doc
and as per Rule 403 upon the Caveat and the Affidavit-in-support
having been lodged, the Testamentary Petition No.3908 of 2023 has to
be automatically converted into a Suit proceeding and tried in
accordance with law at trial. He would submit that it is only in the
Testamentary Suit proceedings that the Caveator will get an
opportunity to lead evidence and prove his case to the contrary from
what is alleged by Applicants. He would submit that if the Caveat is
dismissed, it would amount to denying and depriving a valuable right
of contest to the Caveator on merits in Testamentary Petition No.3908
of 2023.
7.6. He would submit that ideally Testamentary Petition No.3908
of 2023 filed by the Applicants and Testamentary Petition No.3160 of
2024 filed by the Caveator are required to be heard and tried together
since both the Petitioners are propounding separate Wills prepared by
the deceased. He would submit that since the Caveator has filed his
Caveat and questioned the authenticity and ingenuity of the Will and
the 4 Codicils propounded by Applicant and has also propounded the
Will prepared by the deceased in his favour, the right course of action
would be to try both the proceedings together at trial by converting
them into Testamentary Suits in accordance with law. He would
therefore submit that Interim Application No.1808 of 2024 be
dismissed on the aforesaid grounds.
16 of 27
IA.1808.2024.doc
8. I have heard Mr. Madon, learned Senior Advocate for
Applicants/Petitioners and Mr. Parmar, learned Advocate for Caveator
and with their able assistance perused the entire record of the case.
Submissions made by both the Advocates at the bar have received due
consideration of the Court.
9. At the outset, the preliminary objection taken by Mr. Parmar
that in view of Caveat filed by the Caveator, the Testamentary Petition
has to be automatically converted into a Testamentary Suit
proceedings and parties have to be given an opportunity to lead
evidence in respect of their claim needs to be dispensed with. It is
argued by the Caveator that there is no provision in Chapter XXVI
pertaining to Testamentary and Intestate Jurisdiction in the Bombay
High Court Original Side Rules 1980 for dismissal of Caveat at the
threshold and therefore the Interim Application filed by Applicants /
Petitioners deserves to be dismissed in limine. This submission of the
Caveator is unacceptable and not tenable in law. If such a submission
is countenanced about all Testamentary Petitions to be converted into
a Suit proceeding upon filing of Caveat and the Affidavit-in-support
thereof, it would lead to disastrous consequences. It will open the
floodgates for opposing the Will of the deceased on filing the Caveat by
any person and on any ground whatsoever. Mr. Parmar has
vehemently relied on Rule 403 in support of his aforesaid submission
but the same rule refers to the procedure applicable to Civil Suits on
17 of 27
IA.1808.2024.doc
the Original Side of the Bombay High Court. That apart Rule 436
pertains to practice and the procedure provided by the aforesaid
Chapter XXVI and states that in the cases not provided in the aforesaid
Chapter or by the Rules or procedure laid down in the Indian
Succession Act 1925 or by the Civil Procedure Code, 1908, the Judge
may follow the practice and procedure of the Probate Division of the
High Court of Justice in England so far as they are applicable and not
inconsistent with the Rules in Chapter XXVI, Indian Succession Act
1925 and the Civil Procedure Code, 1908.
10. It is in this view of the matter that the Interim Application
filed for dismissal of the Caveat cannot be dismissed at the threshold.
It will have to be considered on its own merits and strengths according
to the procedure applicable to Civil Suits on the Original Side of this
Court under the inherent powers of the Court to prevent misuse of the
due process of law.
11. With the able assistance of Mr. Madon and Mr Parmar, I
have perused the record of the case. After juxtaposing the copy of Will
dated 18.12.2015 together with the 4 Codicils and copy of the alleged
Will dated 23.03.2023, I must say that the case of the Caveator does
not inspire the confidence of the Court from more than one reason as
underlined hereunder.
18 of 27
IA.1808.2024.doc
12. It is seen that Applicant / Petitioners have had a very close
relationship with the deceased rather they are related to the
predeceased husband of the deceased. It is further seen that the
relationship of Applicants has been translated into a fiduciary
relationship over the years because the Applicant No. 2 was added by
the deceased as a joint holder in her bank accounts and Applicant No.
1 was made as nominee in respect of all investments / assets / shares
by the deceased during her lifetime. When such was the relationship of
the Applicants with the deceased then the word of the Applicants
would prima facie carry weight when they would say that during the
lifetime of the deceased and their close association with the deceased
neither the Caveator nor his father Behramshaw Rustomjee Mogal
were known, were heard about or ever seen with the deceased much
less the Caveator having been considered just like son of the deceased
or nearest person to the deceased. In the alleged Will propounded by
the Caveator the two phrases used therein by the deceased qua the
Caveator are "just like my son" and "my nearest person". It is on the
basis of these two phrases Caveator claims that the deceased prepared
her Will dated 23.03.2023 and bequeathed one immovable property
out of her entire estate to him.
13. It is shocking that after the deceased expired on 22.05.2023
the Caveator filed his Caveat on 14.03.2024 after a period of 9 months
and 22 days without offering any explanation whatsoever for the
19 of 27
IA.1808.2024.doc
delay. Though the delay may not be fatal to filing of Caveat generally
but it would be dependent on the facts and circumstances of each case
and the facts in the present case are extremely gross on the face of
record. Admittedly, the Caveator has not caveatable interest in the
property or credits of the deceased neither he is a legal heir nor a
relative or was in any manner whatsoever associated with the
deceased. This fact is prima facie evident from the alleged Will
propounded by the Caveator himself. Neither there is any explanation
offered in the Affidavit-in-support of the Caveat. This fact gets further
fortified on reading of the Will dated 18.05.2015 and there 4 Codicils
thereafter executed by the deceased between 18.12.2015 and
27.02.2023. If indeed the alleged Will propounded by the Caveator
was prepared on 23.03.2023 then there was no reason for the
Caveator to wait for the aforesaid period of 9 months and 22 days for
approaching the Court for seeking the Probate or Letters of
Administration with Will annexed. It is seen that it is only when
Applicants / Petitioners raised this objection after filing of the Caveat,
the Caveator realized that he ought to have filed his Testamentary
Petition which he filed thereafter. Neither is there any reason or
explanation given by the Caveator as to why he waited for almost 1
year after the demise of the deceased if a valuable property rather
valuable immovable property had been bequeathed to him under the
alleged Will. The case of Caveator is completely silent as to how he
20 of 27
IA.1808.2024.doc
knew the deceased because apart from the alleged Will propounded by
him there is no other prima facie evidence of his acquaintance with the
deceased. Further if the Will dated 18.12.20215 and the 4 Codicils are
perused, the intention of the deceased therein is consistent about sale
of her share in the bungalow and to donate the proceeds thereof to
charity which she conceptualized in 2025 itself. It is seen that the Will
dated 18.12.2015 and the 4 Codicils are clearly consistent and
executed in the presence of known, trusted witnesses as opposed to the
2 witnesses in the alleged Will propounded the Caveator who are
completely unknown strangers. The most intriguing part is that these
two unknown witnesses have appended their signature as witnesses on
a separate page altogether which appears to have been annexed to the
alleged Will propounded by the Caveator, thus further casting doubt
on its authenticity.
14. The aforesaid factual incidents which are emanating from
the record clearly and strongly suggest that the alleged Will
propounded by the Caveator did not exist at the time of date of the
deceased. If the Caveator was treated to be just like the son of
deceased or her nearest person his name would have been reflected
either in the Will dated 18.12.2015 or the 4 Codicils prepared
thereafter in 2016, 2018, 2019, 2023. From perusal of the above it is
seen that the deceased has given her own nephew (sole legal heir) only
a sum of money as opposed to the claim of the Caveator who is a
21 of 27
IA.1808.2024.doc
complete stranger and third party having no nexus of any nature with
the deceased. The Caveator has failed to explain his acquaintance and
nexus with the deceased altogether.
15. On the prima facie merits of the matter and a close scrutiny
of the Wills and Codicils they clearly show that the signature of the
deceased on the alleged Last Will and Testament dated 23.03.2023
appears to be completely different than the signature on the Will dated
18.12.2015 and the 4 Codicils. The said change is clearly evident to the
naked eye. The writing of the first name of the deceased "Hilla" on the
propounded Will dated 23.03.2023 as compared to the name written
in the Will dated 18.12.2015 and the 4 Codicils virtually gives away
the case of the Caveator. In the Will dated 18.12.2015 and 4 Codicils
all witnesses have signed immediately below the signature of the
deceased whereas in the Will propounded by the Caveator signature of
two witnesses is on a new / completely different page altogether.
Though it was vaguely argued by Mr. Parmar that the deceased had
only in the 4th Codicil bequeathed the property namely the share in the
bungalow to charity but however it is not so. The intention of the
deceased is gathered from a combined reading of the Will and 4
Codicils together.
16. It is seen that in 2015 itself the deceased had made her
intention clear about the Trust namely the HA and HH Dady Public
22 of 27
IA.1808.2024.doc
Charitable Trust which is stated in Clause 8 of the Will dated
18.12.2015 and clarified further in the Codicil. That apart it is seen
that the deceased has bequeathed several movable bequests to persons
who were very close to the deceased and who either worked for her or
were known to her, therefore in this background and for over 8 years
between 2015 and 2023 considering the intention of the deceased
being consistent all throughout as also regarding bequeathal of her
share in the bungalow to be donated to charity, there is virtually no
conceivable reason for a change of her mind within 24 days between
27.02.2023 (date of the 4th Codicil) and 23.03.2023 (date of the
alleged Will) to prepare the alleged Will propounded by the Caveator.
It is further seen that the alleged Will does not name any Executor
neither it makes any provision for the residue of the Estate of the
deceased which is substantial in nature and this fact is clearly
inconsistent with the deceased's prior practice and intent over a period
of 8 years.
17. From the above it is clearly discernible that the alleged Will
propounded by the Caveator did not exist at the time of the date of
the deceased and the conduct of the Caveator strongly suggests that he
has somehow managed to obtain the papers in the Testamentary
Petition filed by the Applicants and has subsequently fabricated the
alleged Will dated 23.03.2023 by using the information from the
papers and material in the Testamentary Petition and claiming it to be
23 of 27
IA.1808.2024.doc
a genuine Will.
18. It is seen that the Aadhaar Card and the Death Certificate
appended to the Affidavit-in-Support of the Caveat is not
independently procured by the Caveator but is a photocopy of the
Aadhaar Card and Death Certificate appended to the Testamentary
Petition itself. This is prima facie evident when one looks at the
manner in which the said xerox / photostat copy has been prepared on
the face of record since the download date is the same. This clearly
shows that the documents have been clearly lifted from the
Testamentary Petition itself which gives away the case of the Caveator.
The description of the property i.e. bungalow in the alleged Will
appears to be directly lifted verbatim from the description in the Will
propounded by the Applicants.
19. There is one more strong reason to not only accept the above
suspicion but to fortify the same. It is seen that conduct of the Caveator
even otherwise has been dubious which is exemplified by certain facts
which have been placed on record. The execution of the alleged Will
propounded by the Caveator within 24 days after the date of the last
Codicil is highly suspicious. This Court in paragraph Nos.12 to 15 in
the Judgement dated 14.08.2025 passed in Interim Application No.
1809 of 2024 has noted as under:-
"12) Mr. Dinyar Madan, learned Counsel for the Applicants
submits that the Caveator is attempting to mislead this Court by
24 of 27
IA.1808.2024.doc
relying upon the purported Will dated 23rd March 2023, falsely
claiming it to be genuine, despite being fully aware that it is
false and fabricated. Upon inquiries within the Parsi community,
it was discovered that the Caveator's own mother has filed a
written statement in Suit No. 1905 of 2006 filed by the Caveator
against his own family members, describing him as a
mischievous person who has habitually attempted to extort
money by blackmailing individuals for personal gain.
13) It has further come to light that the Caveator's stepfather
and brother have also filed a written statements alleging that
the Caveator has committed several illegal and criminal acts,
and that criminal complaints have been filed against him in
various police stations. His own family members have stated
that the Caveator has initiated proceedings against his
stepfather and mother with intent to blackmail and extort
money from them.
14) It has also been discovered that the Caveator defrauded
his wife by selling her father's house and misappropriating sums
from his pension accounts. He is alleged to have fabricated Wills
and other documents in addition to the present one, and civil
and criminal proceedings have been initiated against him by his
brother-in-law in the Girgaon Court and the City Civil Court.
15) The Caveator has also allegedly instigated another
woman-whom he claims to be his wife to file a Suit No. 1285 of
2004 against her own family. These facts, it is submitted,
demonstrate that the Caveator has a criminal disposition and is
known to unlawfully usurp estate of others."
20. Attention in this regard is invited to paragraph Nos.121 and
122 of a recent decision of the Division Bench of this Court in the case
Myra Philomena Collaco Vs. Lilian Coelho and Ors. 1 which are relevant
in the present context and read thus:-
"121. Similarly, in Ram Piari vs. Bhagwant & Ors. 24; in
paragraph 23, the Supreme Court held that when suspicious
circumstances exist, the Court should not be swayed by due
execution of the Will alone. In Indu Bala Bose & Ors. vs.
Manindra Chandra Bose & Anr. 25 the Supreme Court held that
every circumstance is not a suspicious circumstance. Paragraph
8 of the said judgment reads thus: -
8. Needless to say that any and every
circumstance is not a "suspicious" circumstance. A
circumstance would be "suspicious" when it is not
normal or is not normally expected in a normal
situation or is not expected of a normal person."
1 Appeal No.574 of 2003 in TS No.33 of 1999 - Decided on 30.12.2025.
25 of 27
IA.1808.2024.doc
122. The Supreme Court in the Privy Council's decision in
Hames v. Hinkson (supra) is now referred to, the relevant
portion of which reads thus:-
17............where a Will is charged with suspicion,
the rules enjoin a reasonable scepticism, not an
obdurate persistence in disbelief. They do not
demand from the Judge, even in circumstances of
grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to
the truth."
21. From the above it is seen that the Caveator has a criminal
disposition and is known to unlawfully usurp the estate of others. It is
seen that this is not the first instance of he having alleged to have
fabricated Wills and other documents. The Caveator has not even
spared his own wife and there are criminal proceedings initiated
against him by his brother in law in Girgaon Court and Bombay City
Civil Court. The Judgment dated 14.08.2025 passed in IA 1809 of
2024 has directed the Prothonotary and Senior Master of the this Court
to lodge an appropriate complaint against the Caveator before the
Jurisdictional Magistrate in accordance with Sections 340(1)(b) and
(c) read with Section 340(3) of the Code of Criminal Procedure, 1973.
22. From the above observations and findings, it is clearly
derived that the Caveator who is a completely unrelated third party /
stranger to the deceased has made a concerted attempt to usurp the
estate of the deceased and once the intention of the Caveator is fairly
revealed on the basis of the facts and circumstances, emanating from
the record itself which are alluded to herein above, in my opinion,
26 of 27
IA.1808.2024.doc
Applicants have made out a very strong case for dismissal of the Caveat
filed by the Caveator. Thus in view of the above the Interim
Application stands allowed in terms of prayer clauses "a" and "b".
23. In my opinion, this is a fit case for enquiry as to how the
Caveator got hold of the papers of the Testamentary Petition and
whether any person working in the Testamentary Department of this
Court has colluded with the Caveator in supplying him with the said
documents. Such a possibility cannot be ruled out. The Prothonotary
and Senior Master of this Court shall look into this aspect and conduct
an internal probe at his level to ensure that all systems are in check to
ensure that Testamentary proceedings once filed in Court are not
leaked or fall into the wrong hands.
24. Resultantly, Interim Application is allowed and disposed in
the above terms.
[ MILIND N. JADHAV, J. ]
Ajay
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date:
2026.01.05
12:33:30 +0530
27 of 27
