[Cites 1, Cited by 0]
Bombay High Court
Mohammed Yusuf Gulam Hussain Khatri . vs Late Gulam Hussain Abdul Karrim Khatr on 25 March, 2026
2026:BHC-OS:7262
IA (L) 6687-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION (L) NO. 6687 OF 2023
IN/WITH
CAVEAT NO. 111 OF 2021
[CAVEAT (L) NO. 3724 OF 2020]
IN
TESTAMENTARY PETITION NO. 3197 OF 2019
Late Gulam Hussain Abdul Karim Khatri ... Deceased.
And
Mohammed Yusuf Gulam Hussain Khatri ... Applicant/Petitioner.
Versus
Gulam Mustafa Gulam Hussain Khatri ... Caveator.
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Mr Arshad Shaikh, Senior Advocate a/w Mr Anuj Jhaveri, Ms Vinsha Acharya,
Mr Ranjit Agashe and Mr Mihir Modi for the Applicant-Petitioner.
Mr Zain Shroff a/w. Ms Shaista Pathan and Mr Dev Mistry i/by YNA Legal LLP
for the Defendant in TS/81/2022 and for the Caveator in CTS/405/2023.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : March 09, 2026
Pronounced on : March 25, 2026
ORDER :
1. Interim Application has been preferred seeking rejection of the
Caveat(L) No.3724 of 2020 dated 25th September, 2020 filed by the
Respondent, who is the brother of the Applicant.
2. The present Applicant had filed the testamentary petition on
13th November, 2019 seeking grant of letters of administration to the
estate of the deceased who was the father of the Applicant and the
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IA (L) 6687-2023.doc
Respondent. The Caveator had filed a consent affidavit in the
testamentary petition consenting for grant of letters of
administration without service of citation which affidavit was affirmed
before a Notary. The Testamentary Registrar vide order dated 21 st
September, 2020 directed issuance of letters of administration and
thereafter, the caveat and affidavit in support of the caveat came to
be filed.
3. The present application seeking dismissal of the caveat
contends that the allegation in the affidavit in support of the caveat is
that the applicant has fraudulently dealt with the properties of the
deceased which is not supported by any evidence and no ground has
made out by the Caveator to oppose the grant of letters of
administration.
4. In the reply to the application, the Caveator contends that the
Testamentary Petition is already converted into suit and therefore the
application has become infructuous as it is not possible to turn the
clock back. The Applicant had not revealed anything about the filing
of the Testamentary Petition to the Caveator and the Caveator was
made to sign on several documents. On 10 th August, 2023, the
caveator has executed a deed of cancellation of power of attorney
given by him in favour of the applicant.
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IA (L) 6687-2023.doc
5. Mr. Shaikh, learned Senior Advocate appearing for the Applicant
would submit that the caveat filed does not disclose any grounds of
opposition. He submits that the Caveator is convent educated and had
filed the joint affidavit along with the widow and other sons of the
deceased and consented to the grant without service of citation and
hence the citation was not served. He would point out that the
ground of opposition is that the Petitioner has not revealed about the
filing of the caveat and had refused to show documents and papers of
the present Petition to the Caveator. He would submit that though
the Caveat states that the Applicant has fraudulently dealt with the
properties of the deceased, the Caveator has executed power of
attorney in favour of the Applicant for managing the immovable and
movable properties. He submits that the Applicant has sought grant
of letters of administration and not for exclusion of other legal heirs.
He would further point out that after the caveat was filed in the year
2020, the Caveator had executed power of attorney in favour of the
Applicant to deal with the properties which is recorded in the order of
this Court dated 26th February, 2024.
6. Per contra, learned counsel appearing for the Caveator would
submit that the petition is already converted into suit and therefore
clock cannot be set back, seeking dismissal of the caveat. He would
submit that the signature on consent affidavit has been obtained by
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fraud.
7. Rival contentions now fall for determination.
8. Section 284 of the Indian Succession Act, provides for filing of
the caveat against the grant of letters of administration. The caveat
must show cogent reason for opposing the grant of letters of
administration and objection must be relatable to the issuance of
grant. In the present case, the ground of opposition as set out in the
Caveat is that the Applicant has not revealed anything about the filing
of the petition and submission is that the consent affidavit has been
obtained by fraud.
9. In the testamentary Petition, there is no stand alone consent
affidavit of the Caveator and a joint consent affidavit has been filed by
the cited legal heirs. The consent affidavit has been signed in English.
The Caveat has also been signed by the Caveator in English and the
contents have not been interpreted, which evidences the Caveator's
knowledge of English language. In the affidavit in support of the
caveat, there is no pleading that the consent affidavit has not been
signed by the Caveator. The Applicant has also placed on record the
extract from the Notary's register which shows that the consent
affidavit has been notarised in presence of Caveator. The submission
of Mr. Shroff that the signature on consent affidavit has been
sa_mandawgad 4 of 6
IA (L) 6687-2023.doc
obtained fraudulently is not the pleaded case in the Caveat. It is
therefore evident that the Caveator was aware of the contents of the
consent affidavit and had given his consent for grant without service
of citation upon him. The contents of consent Affidavit make specific
reference to the proceedings and the Caveator cannot claim to be
unaware of the same.
10. The other ground for opposition of grant is that the Applicant
has fraudulently dealt with the properties of the deceased. The caveat
has been filed on 19th September, 2020 and subsequent to the filing of
the Caveat, the Caveator has executed special power of attorney
dated 11th April, 2022 in favour of the Applicant authorising the
Applicant to manage and maintain the immovable and movable
properties of the family and also to represent the family in pending
proceedings.
11. The material on record indicates that the only intention of the
Caveator is to delay the proceedings of grant of letters of
administration. There is no cogent ground made out in the
caveat/affidavit in support of the caveat for opposition of grant of
letters of administration. The objection that are germane in
testamentary petition are those that concern the issuance of grant.
There is no material to show that the estate will be adversely affected
by the grant as the Caveator has executed power of attorney in favour
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IA (L) 6687-2023.doc
of Applicant to deal with the estate. The Petitioner seeks grant of
Letters of Administration and claims to be entitled to 7/24th share in
the estate left by the deceased and therefore the grant is not the
exclusion of the other legal heirs. The argument that as the
testamentary petition has been converted into suit and therefore the
Caveat cannot be dismissed in unacceptable as there is no statutory
embargo on dismissal of Caveat if there are no sustainable grounds of
opposition.
12. In light of the above discussion, the Application is allowed.
Consequently, the Caveat stands dismissed. The suit is reconverted
into Testamentary Petition and the Petition to proceed for grant.
[Sharmila U. Deshmukh, J.]
sa_mandawgad 6 of 6
Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 25/03/2026 20:25:13
