Soumen Sen,J. - (1.) The Court: This is an application filed by the caveator for amendment of the affidavit in support of the caveat. The caveatable interest of the applicant has been decided by the Hon'ble Supreme Court by reversing the judgment of the Hon'ble Division Bench which had affirmed the view of the learned Single Judge in holding that although the applicant has caveatable interest but the applicant has failed to disclose any cogent ground for which he should be allowed to contest the probate proceeding.
(2.) In the earlier proceeding between the parties, Tejash Doshi, the plaintiff in the suit, filed an application for discharge of the caveat on the ground that the applicant has no caveatable interest. The learned Single Judge was of the view that the caveator has no caveatable interest in the matter and even if it is assumed that the applicant may have a caveatable interest but the affidavit in support of the caveat does not disclose legal grounds of objections to the grant of probate which is essential under Rule 25 of Chapter 35 of Original Side Rules. The Hon'ble Division Bench in affirming the said view has held that although the appellant had caveatable interest to object to the grant of probate of the second Will propounded by the plaintiff, in the light of the affidavit in support of the caveat not disclosing any cogent ground to doubt due execution of the Will dated 22nd April, 2013, the matter does not call to be set down as a contentious cause.
(3.) Both the decisions were reversed by the Hon'ble Supreme Court on the ground that once the High Court has come to a finding that the plaintiff has a caveatable interest, it was incumbent upon the Court to allow the proceeding to continue. The relevant observation of the Hon'ble Supreme Court is in paragraph 7 which reads :- "7. After holding that the Appellant has a caveatable interest to object to the grant of probate of the Will dated 22.04.2013, the High Court refused to interfere with the order of the learned Single Judge on the basis that the affidavit filed in support of the caveat did not doubt the execution of the Will. As per Rule 25, the right and interest of the caveator and the grounds for objection to the application have to be mentioned n the affidavit filed in support of the caveat. The right and interest of the caveator as the executor of the rival Will dated 01.03.2013 have been mentioned in the affidavit filed in support of the caveat and the High Court rightly upheld the contention on behalf of the Appellant that he has caveatable interest. The grounds for objection to the application for grant of probate have also been mentioned in the affidavit. On a detailed scrutiny of the affidavit filed in support of the caveat, we are satisfied that the Division Bench went wrong in not permitting the Appellant to contest the proceeding of probate of the Will dated 22.04.2013, especially after holding that he has a caveatable interest. It is relevant to mention that the petition filed by the Appellant for grant of probate of the Will dated 01.03.2013 was rejected by the District Judge, Alipore on the ground that the application for probate of the Will dated 22.04.2013 was pending and that the Appellant had lodged a caveat in that proceeding. It was further held in the said order passed by the District Judge on 17.04.2017 that the Appellant will have sufficient opportunity to prove his allegations against the Respondent in the said proceeding." ;