Misc. Petn. No. 16 of 1993

9th December, 1993.

Petitioner Counsel: U. J. Makhija
Respondent Counsel: V.K. Merchant, Kishore Thakordas

JUDGMENT

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2. The circumstances being sequel to the presentation of the Petition are adverted to hereinbelow.

3. One Bhagibai Hotchand Bhatija since deceased presented the Petition being No. 32/92 seeking for issuance of probate of the last Will and testament dated 24th August 1976 of Hotchand Mulchand Bhatija - her husband who died on 18th August 1991. (Hereinafter for brevity's sake the Original Petitioner is referred to as deceased Bhagibai and Hotchand as deceased Hotchand).

4. . 4. Certain dates will be necessary to be mentioned in order to properly appreciate the reliefs as claimed in the Misc. Petition herein.

5. The deceased Bhagibai presented the Petition No. 32/92 in January 1992 and on 28th February 1992 citation issued therein was served upon the Petitioner. On 3rd March 1992 the Petitioner caused the appearance filed in this Court through her Advocate Shri C. K. Jaisinghani who died on 20th March 1993 (hereinafter referred to as the 'deceased Advocate' for the sake of brevity). The said deceased Advocate wrote a letter to the Advocate of deceased Bhagibai for furnishing copy of the Petition. On 14th March 1992 the said deceased Advocate sought to file the Caveat on behalf of the present Petitioner but same was not accepted as being beyond time.

6. Therefore, the Petitioner made application being Chamber Summons No. 420/92 for condonation of delay which came to be disposed of on 3rd July 1992 by passing conditional order as under :

"Delay in filing of the caveat and affidavit in support of the caveat shall stand condoned provided the caveat and affidavit in support thereof both are filed in Court by 3 p.m. on 7th July 1992. A copy of the caveat and the affidavit in support of the caveat must be served on advocate for the petitioner by 5 p.m. on 7th July 1992. No order as to costs."

7. It will be noticed that by the above order, the delay in filing the Caveat and affidavit in support was condoned and the present Petitioner was allowed to file the affidavit in support of the Caveat within stipulated time as above i.e. on or before 7th July 1992 by 3 p.m.. It is the case of the Petitioner that accordingly her Advocate Mr. Jaisinghani by praecipe dated 6th July 1992 filed her affidavit in support of the Caveat as per order and also furnished the copy thereof to the Respondent's Advocate on the same day i.e. 6th July 1992. It may be stated that the fact that Respondent's Advocate received the said copy on 6th July 1992 is not in dispute. It may further be stated that said Praecipe of deceased Advocate Jaisinghani dated 6th July 1992 is in the Record and Proceedings.

8. Continuing the sequence of events in chronological order, it is stated that in March 1993 Mr. Jaisinghani unfortunately suddenly died. It appears that the office of the Prothonotary and Senior Master issued two memos to the said Advocate Jaisinghani as according to the office the affidavit of the Petitioner so filed was not in order. It appears that the Advocate Jaisinghani did not attend to the matter and therefore, it is further noticed that on 27th May 1993 the Prothonotary and Senior Master proceeded to issue the Probate in the said Petition on the basis that the said Petition was uncontested.

9. Continuing the narration of further sequence and course of events the original Petitioner said Bhagibai died on 31st May 1993 barely week after issuance of grant and the present Respondents are the legal heirs and representatives of the deceased Bhagibai. It may be stated that now the parties in the Misc. Petition i.e. the Petitioner herein as well as the Respondents are the brothers and sisters being the children of deceased Bhagibai and deceased Hotchand.

10. The Petitioner had filed the present Petition on 11th June 1993 inter alia contending that pursuant to the order dated 3rd July 1992 she had filed her affidavit within stipulated time in this Court in the main Petition and therefore as a result of compliance the said Petition should have been treated as contested matter. However, the matter has been processed and proceeded with by the Prothonotary and Senior Master as uncontested matter, notwithstanding her filing the Caveat as mentioned hereinabove. She asserts that she had filed her affidavit in support of the Caveat within the stipulated time as ordered by the Court on 3rd July 1992 and therefore to issue a grant in the main Petition in ignoring her said affidavit is not proper and therefore the same be set aside and the matter be heard and worked out on merits.

11 The application is opposed with great vehemence by and on behalf of the Respondents. In the first instance it is asserted that the application made is misconceived, not maintainable as the same is not tenable under the statute as no case or grounds have been made out justifying the reliefs of this application of revocation of the probate.

12. The second challenge is directed against the conduct of the Petitioner. Inasmuch as, it is pointed out that she was late in filing the Caveat in original Petition and she was required to move the Court with application for condonation of delay by way of Chamber Summons the reference of which is already made hereinabove. It is further pointed out that the Petitioner had not satisfactorily proved that as directed and stipulated in the order dated 3rd July 1992 she filed the affidavit in the Court in support of the Caveat within time. Further it is pointed out that office of the Prothonotary and Senior Master issued two Memos to the learned Advocate on record for the Petitioner but no response. It is therefore contended that no case has been made out seeking revocation of the Probate already granted.

13. By and large the learned Counsel appearing for the respective parties made submissions on the basis of respective pleadings of the parties as indicated hereinabove.

14. On behalf of the Respondent it was contended that the application seeking the relief is not maintainable under section 263 of the Indian Succession Act (hereinafter referred to as the Said Act). Inasmuch as it is contended that to justify the reliefs as claimed in the application seeking the revocation of the Probate already granted the case must fall within the ambit of the provisions of the said Act and must fall in one of the categories and as provided in sub-clauses (a) to (e) of the said section. It is asserted that no case has been made out as per said provisions of the statute and therefore the application is not maintainable.

15. In support of the said contention a reference is made to following decisions by the learned Counsel for the Respondents :

1. In the case of George Anthony Harris vs. Millicent Spencer, reported in 1932 BLR Page 708. 2. In the case of Promode Kumar Roy vs. Sephalika Dutta, reported in AIR 1957 Cal. Page 631.

16. On careful consideration of the submissions across the bar and the grounds in support and against in the present Petition, in my view the matter is required to be considered having regard to the practice prevalent in the prosecution of the proceedings of the nature in this Court in the context of provisions and the rules framed as far as this Court is concerned. I shall refer to the relevant rules governing the testamentary proceeding as contained in Chapter XXVI of the Original Side Rules of this Court. The relevant rules are Rule No. 399 which provides for issuance and service of citations. Rule 401 provides entering of the Caveat by a person interested in opposing the grant of probate which is to be done within 14 days of service of citation. Then filing of the affidavit by the Caveator in support of the said Caveat is provided under Rule 402 which is to be done within 8 days thereafter. Then Rule 403 which inter alia provides :

"403. (i) Upon the affidavit in support of the caveat being filed, the petition shall be numbered as a suit in which the petitioner shall be the plaintiff and the caveator shall be defendant. Notice of the fact that the petition has been numbered as a suit shall be given by the Prothonotary and Senior Master to the petitioner or his Advocate on record. The Notice shall be in Form No. 117. The petition shall be treated as the plaint and the affidavit in support of the caveat shall be treated as the written statement of the caveator. The procedure in such suit shall, as nearly as may be, be according to the procedure, applicable to civil suits on the Original Side of the Court.

(ii) Where there are two or more caveators and each of them has filed an affidavit in support of his caveat, separate suit numbers shall not be given to the petition, but all the caveators shall become party defendants in one suit."

17. Thus, it would be noticed by reading Rule 403 that moment the Caveat supported with the affidavit is filed the matter namely the Petition seeking issuance of Probate is treated as contentious matter and is to be treated as Suit and the Caveator is to be described as the defendant. Rest of the provisions are not necessary to refer to.

18. As far as statutory provisions are concerned, section 268 of the said Act makes the provisions of the Code of Civil Procedure applicable, when it provides :

"268. Proceedings of District Judge's Court in relation to probate and administration. - The Proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908".

19. The next relevant provision is as contained in section 295 of the said Act which is reproduced as :

"295. Procedure in contentious cases. - In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant."

20. By reading the provisions as contained in sections 268 and 295 reproduced hereinabove, it becomes plain that when the Caveat is filed the Probate proceedings become contentious and then Proceedings are to be processed further and prosecuted as if the contested Suit by applying the provisions of the Code of Civil Procedure. Thus read with the provisions as contained in the relevant rules framed by this Court mentioned hereinabove and relevant statutory provisions, it will be noticed that for all purposes the Probate Petition assumes the character of the Suit. The Petitioner becomes the Plaintiff and the Caveator becomes the Defendant.

21. As far as the matter in hand is concerned, the fact that the Petitioner had filed the Caveat followed by the filing of the affidavit is not in dispute. Inasmuch as, as noticed earlier, this Court has allowed the Petitioner to do so after condoning the delay caused in filing the supporting affidavit.

22. The controversy is sought to be raised that the affidavit in support of the Caveat which the Petitioner says was filed on 6th July 1992 pursuant to the order dated 3rd July 1992 on her Chamber Summons was in fact not filed within the stipulated period i.e on or before 7th July 1992. The praecipe accompanying the Affidavit of the learned Advocate Jaisinghani since deceased which is on record bears the date as 6th July 1992. It is also undisputed position that the Advocate of the Respondents was furnished with the copy of the Petitioner's Affidavit on 6th July 1992. The affidavit filed by the caveator which is in the Record and Proceedings has been affirmed on 6th July 1992 which corresponds with the date as mentioned on the praecipe tendering the said affidavit in this Court.

23. Since the Advocate Jaysinghani is not alive, the Petitioner is handicapped in getting say of her said former Advocate. Therefore the Court has to consider the circumstances as are available in the matter. As stated earlier the date on which the affidavit is affirmed is 6th July 1992 which is also the date on the praecipe addressed by late Mr. Jaysinghani to the Prothonotary and Senior Master tendering the affidavit in the office of this Court. As stated, it is on the same date i.e. 6th July 1992 copy of the said affidavit was furnished to the Respondent's Advocate. Therefore, if all these circumstances are taken into consideration, it would be legitimate to infer that the same must have been filed by late Mr. Jaysinghani in the office of the Court on 6th July 1992 i.e. one day before the deter line of 7th July 1992. The furnishing copy of the affidavit to the Advocate of the Respondents on 6th July 1992 is also important factor in the context.

24. It is pointed out that although the affidavit was filed, the office did not accept the said affidavit as being filed in accordance with the order dated 3rd July 1992. Much can be said about the said stand of the office. It is not made clearly known the exact date when the office of the Court received praecipe dated 6th July 1992, accompanied by the affidavit. On preponderance of probabilities it is held that the Caveat and supporting affidavit were duly filed within the time.

25. The fact that the Petition came to be disposed of as an uncontested matter is not in dispute. It is no one's case that the Petitioner herein was heard or was present when the grant came to be issued. Therefore, the Petition has been disposed of as far as Petitioner is concerned ex parte.

26. The nature of present application and the reliefs claimed, in my view, will have to be treated as an application made by recourse to the provisions of Order IX, Rule 13 of the Code of Civil Procedure. As noticed earlier the provisions of Civil Procedure Code are made applicable to the Testamentary Proceedings. Therefore, the only question that falls for consideration is whether the Petitioner has made out a sufficient cause in support of the present application.

27. While giving resume of the facts, I have already adverted to the course and also the sequence of events by giving various dates. As held above the Caveat as also affidavit in support was filed within the time and as a result thereof the Petition herein should have been treated as contentious matter and so proceeded with. But instead the Prothonotary and Senior Master has proceeded to dispose of the same as if it is uncontested matter.

28. Furthermore, on the date when the grant came to be issued the affidavit in support of the Caveat was very much in the Record and Proceedings and still no notice thereof has been taken or the said affidavit considered. It is equally important to note that the Advocate of Respondents was furnished with the copy of the said affidavit of the Petitioner in support of the Caveat, but it appears the said fact was also not brought to the notice of the Prothonotary and Senior Master who, proceeded to grant the Probate. It was least expected that the Respondents in fairness brought the said fact to the notice of the Prothonotary and Senior Master. Taking into consideration, all these facts and circumstances as mentioned hereinabove, in my view the Petitioner satisfactorily and convincingly makes out the case in support of the reliefs of the Petition, as it is obvious that the matter has been proceeded with by the Court on erroneous and wrong assumption as indicated hereinabove. In the interest of justice, even otherwise, in view of the facts and circumstances that exist, the order passed cannot be sustained and justified.

29. Considering the legal submissions made by and on behalf of the Respondents as noticed hereinabove, in my view the line of argument proceeds on erroneous assumption of the provisions of the law. It is true that section 263 of the Indian Succession Act provides the grounds upon whichthe Probate once granted can be revoked. If one reads the provisions as contained in the said section, it would clearly show that the same would apply to those cases of Probate which have been granted by the Court by compliance and observance of the rules, procedures and the statutory provisions and of course the merits of the case. In the facts and circumstances of this case, as pointed out hereinabove this is not the case. Inasmuch as, notwithstanding the affidavit in support of the Caveat being in the Record and Proceedings the Court has proceeded to pass the order totally ignoring the same and without considering the same.

30. The various authorities in particular the Judgment of this Court and the Calcutta High Court referred to by and on behalf of the Respondents, in my view, would not be applicable to the facts and circumstances as obtained in the matter herein as explained hereinabove. On the contrary, I am fortified by the decision of the High Court of Calcutta which is a recent one in the case of Bimla Kanta Sengupta vs. Sarojini Koner, reported in AIR 1985 Cal. 275, which is a decision of the Division Bench and directly on the point as involved in the matter herein. There, in the said decision the question was whether the provisions of Order IX of the Code of Civil Procedure were applicable to the Testamentary Proceedings or not and after reviewing and examining the various Judgments of the various High Courts on the point the Division Bench has ruled that the provisions of Order IX in particular Order IX, Rule 13 are very much applicable. The said Judgment also refers to the another decision of the Division Bench of the same Court i.e. Calcutta in the case of Anima Dutta vs. Bhanumati Dutta reported in 1984 (I) Calcutta HN Page 182. The question in both these cases as to whether the provision of Order IX, Rule 13 of the Code of Civil Procedure would be applicable to the Testamentary Proceedings and the Court held in affirmative.

31. This being the position, the only point that was necessary for this Court to consider, whether the Petitioner has made out the case explaining her absence on the day in question or not, as pointed out hereinabove. She has thus made out the case convincingly beyond any shadow of doubt.

32. In the circumstances, the Petition has to be allowed and the relief claimed therein has to be granted.

33. Hence the following order :

(i) The Misc. Petition is made absolute in terms of Prayer (a) and the main Petition No. 32/92 is revived for disposal on merits as contested matter.

(ii) The Caveat and supporting affidavit filed by the Caveator to be treated as a proper Caveat filed in the Petition.

(iii) The Petitioner to take steps to get the same numbered as a suit.

Both, the Petitioner as also the respondents in the Misc. Petition waive service or any process if required to be issued or served as a result of the order as (i) and (ii) above and conversion of the Petition into a Suit.

(v) Both the parties are directed to file affidavits of documents if so desired and complete inspection within four weeks from today after exchange of copies thereof.

(vi) Petition be placed on board for hearing and final disposal on 2nd February 1994.

(vii) As far as this application is concerned, no order as to costs.

(viii) Issuance of certified copy is expedited.

Order accordingly.