Chamber Summons Nos.52 of 2007,Chamber Summons No.80 of 2007,Suit No.19 of 2007,Petition No.998 of 2006

17th April, 2008

Petitioner Counsel: D. D. MADON,Mr. MANJIRI SHAH , Ms. SHEETAL S. SHAH
Respondent Counsel: RAJIV NARULA,DAS GUPTA

Cases Cited:
Husein Abdul Karim Panju Vs. Mrs. Mariambai Abdul Rahim, AIR 1973 SC 175 [Para 5,9]
Krishna Kumar Birla Vs. Rajendra Singh Lodha, 2008 ALL SCR 1143 [Para 6]
Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon, AIR 1969 SC 1267 [Para 9]

JUDGMENT

JUDGMENT :- Chamber Summons No.52 of 2007 is taken out by the plaintiff (in the testamentary suit) for dismissal of the caveat dated 12th March, 2007 filed by the defendant opposing the grant of probate to the alleged Will dated 4th April, 2005 of Mr. Sudesh Kapur. Chamber Summons No.80 of 2007 is taken out by the defendant (in the testamentary suit) for taking on record the additional affidavit in support of his caveat or in the alternative to allow the amendment to the affidavit in support of his caveat dated 12th March, 2007.

2. The relevant facts briefly stated are that on 5th July, 2006 Mr. Sudesh Kapur (hereinafter referred to as "the deceased") died leaving behind him the plaintiff as a widow and the defendant as his son. According to the plaintiff, the deceased has left behind him his last Will and testament dated 4th April, 2005.

3. On 9th October, 2006, the defendant filed a suit bearing Suit No.3020 of 2006 in this Court for administration of the estate of the deceased alleging that the deceased had died intestate. On 7th December, 2006, the plaintiff filed a petition bearing Testamentary Petition No.998 of 2006, for grant of probate to the alleged last Will of the deceased dated 4th April, 2005. On service of the notice of the testamentary petition, on 12th March, 2007 the defendant filed a caveat opposing the grant or probate and on the next day, i.e. on 13th March, 2007, filed an affidavit setting out the grounds of opposition for the grant of probate. On 6th July, 2007, the defendant filed an additional affidavit setting out additional grounds of opposition for the grant of probate. On 7th September, 2007, the defendant filed the Chamber Summons No.80 of 2007 seeking leave to take the additional affidavit dated 13th July, 2007 on record or in the alternative to permit him to amend the affidavit by setting out additional grounds of opposition for the grant of probate. In the meanwhile, on 16th July, 2007, the plaintiff has taken out Chamber Summons No.52 of 2007 for dismissal of the caveat of the defendant on the ground that his affidavit dated 13th March, 2007 does not specifically set out any ground of opposition for the grant of probate.

4. Rule 401 of the Bombay High Court (Original Side) Rules, 1980 (for short "the Rules") provides that any person intending to oppose the grant of probate or letters of administration shall file a caveat within 14 days of the service of the citation upon him or within such shorter time as the Judge in chambers may direct. The Judge in chambers may extend the time to file the caveat provided that the grant has not in the meanwhile been issued. Rule 402 of the Rules provides that an affidavit in support of the caveat shall be filed within 8 days from the date or the filing of the caveat. Such affidavit shall state the right and interest of the caveator and the grounds of objections to the application for grant of probate/letters of administration. Rule 402 further provides that no affidavit shall be filed after the expiry of the period of 8 days without an order of the Judge in chambers. Rule 403 of the Rules provides that upon the affidavit in support of the caveat being filed, the petition for grant of probate/letters of administration shall be numbered as a suit in which the petitioner shall be the plaintiff and the caveator shall be the defendant. Rule 403 further provides that petition shall be treated as a plaint and the affidavit in support of the caveat shall be treated as written statement of the caveator and the procedure in the suit shall, as nearly as may, be according to the procedure applicable to civil suits on the Original Side of the Court.

5. As regards the defendant's chamber summons for taking additional affidavit on record, it may be stated that there is no provision in the Rules for filing of an additional affidavit. In fact, the affidavit in support of the caveat is required to be filed within 8 days of the filing of the caveat. Though, as held by this Court in Husein Abdul Karim Panju Vs. Mrs. Mariambai Abdul Rahim, AIR 1973 SC 175, the provisions of the Code of Civil Procedure do not in terms apply, the broad principles laid down therein cannot be excluded. The principle laid down in Order 8, Rule 9 of the Code of Civil Procedure that no pleading subsequent to the written statement shall be presented except with the leave of the Court does, in my opinion, apply even to the affidavit in opposition as the affidavit is to be treated as the written statement. Additional affidavit was tendered in the Court without leave of the Court. Therefore, the additional affidavit cannot be treated as pleading or written statement as contemplated by Rule 403 of the Rules and cannot be taken on record.

6. As regards chamber summons No.80 of 2007 by the defendant for dismissal of the caveat, reference may be made to the decision of the Supreme Court in Krishna Kumar Birla Vs. Rajendra Singh Lodha, Civil Appeal No.2270 of 2008 decided on 31st March, 2008 - unreported so far (since reported in 2008 ALL SCR 1143). Therein the Supreme Court has considered what is "caveatable interest" within the meaning of Indian Succession Act, 1925. In para 89 of the decision, the Supreme Court has laid down the law in the following words :

"89. The propositions of law which in our considered view may be applied in a case of this nature are :

(i) To sustain a caveat, a caveatable interest must be shown.

(ii) The test required to be applied is: does the claim of grant of probate prejudice his right because it defeats some other line of succession in terms whereof the caveator asserted his right.

(iii) It is a fundamental nature of a probate proceeding that whatever would be the interest of the testator, the same must be accepted and the rules laid down therein must be followed. The logical corollary whereof would be that any person questioning the existence of title in respect of the estate or capacity of the testator to dispose of the property by Will on ground outside the law of succession would be a stranger to the probate proceeding inasmuch as none of such rights can effectively be adjudicated therein."

7. The defendant is the son of the deceased. Undoubtedly, he would be one of the heirs of the deceased entitled to succeed to a part of the estate of the deceased but for the Will set up by the plaintiff. Being a son entitled to share in case of intestacy, the defendant has a caveatable interest. Since the defendant has caveatable interest, in my view, the caveat cannot be dismissed.

8. Submission of Mr. Madon that the caveat is liable to be dismissed as the defendant has not specifically denied in his affidavit the existence, legality and validity of the Will dated 4th April, 2005 cannot be accepted. It may be noted that even before the plaintiff filed the testamentary petition for grant of the probate of the alleged Will of the deceased, the defendant has filed the Suit bring No.302 of 2006 for letters of administration to the estate of the deceased on the ground and allegation that the deceased had died intestate. The defendant in his suit has specifically stated : "he believes that the deceased died intestate". The defendant has thus impliedly, if not expressly, denied the existence of any valid Will. In my view, since the defendant has a caveatable interest and since he has denied the existence of any legal and valid Will left by the deceased, his caveat cannot be dismissed and he cannot be prevented from contesting the Will.

9. As regards the prayer of the defendant for permission to amend the affidavit, Mr. Madon submitted that though Rule 403 of the Rules provides that the procedure of the suits, as nearly as may be, shall apply to the testamentary suits, this Court in Husein Abdul Karim Panju Vs. Mrs. Mariambai Abdul Rahim (supra) has held that Code of Civil Procedure (for short "the Code") is not applicable. Therefore, there is no question of granting permission to amend as there is no power in the Court to allow amendment in the absence of Order 6, Rule 17 of the Code. In my view, the power of the Court to permit a party to amend its pleadings where the provisions of the Code do not in terms apply, is not restricted by the Code. Of course, the broad principles laid down by the Courts while deciding an application for amendment under Order 6, Rule 17 of the Code would have to be followed while considering the question whether an amendment should be allowed. In the present case, the amendment seeks to elaborate the grounds on which the grant of probate is opposed. It may be noted that a decision of the Court granting probate is a judgment in rem. The Court is required to consider whether the Will set up by a person as the last Will of the deceased was made by the deceased out of his free will in accordance with law and is legal and valid. In doing so, the Court cannot shut out, by technical rules of procedure, the real defence of a person having a caveatable interest. Long ago in Jai Jai Ram Manohar Lal Vs. National Building Material Supply, Gurgaon, AIR 1969 SC 1267, the Supreme Court while allowing an amendment of the plaint held that rules of procedure are handmaid to the administration of justice. If a person having a caveatable interest is entitled to show that the alleged Will is not the last Will of the deceased validly made in accordance with the provisions of law, then he must be allowed a reasonable opportunity of so doing and his defence cannot be shut out on the ground that he had not initially pleaded elaborately the grounds of opposition. He can be permitted to make an amendment to the affidavit which is regarded as written statement under Rule 403 of the Rules if there is otherwise no valid objection to do so. In my view, therefore, the defendant can be permitted to amend his grounds of opposition. Hence, I pass the following order.

10. Chamber Summons No.80 of 2007 is allowed in terms of prayer clause (b) which reads as follows :

"(b) In the alternative to prayer (a), this Hon'ble Court be pleased to permit the Defendant to amend the affidavit in support of the Caveat dated 12th March, 2007 as per Schedule-I annexed hereto."

Chamber Summons No.52 of 2007 is dismissed. However, the request of the counsel for the plaintiff for expeditious hearing of the testamentary suit is granted. Liberty to mention for fixing a date of hearing.

11. At the request of the learned counsel for the plaintiff, the operation of this order is stayed for a period of 4 weeks. The amendment shall be carried out within 3 weeks of the expiry of 4 weeks of stay.

Chamber Summons dismissed.