Petition No.70 of 2009,Petition No.71 of 2010

18th February, 2010

Petitioner Counsel: TEJAS VORA,D. R. MISHRA,Mrs. BINA S. SHIVHARE

JUDGMENT

JUDGMENT :- Learned counsel appearing on behalf of the petitioners are challenging the objection raised by the office in respect of the service of citation. The learned counsel appearing on behalf of the petitioners submitted that in the past the procedure which has followed by the office for service of citation was to issue a notice to the legal heirs and next-of-kin of the deceased and if the heirs could not be served by the said process nor could be served through post, in that event, the heirs were served by publication of the citation into newspapers. It is submitted that the citation and process are to be served in the same manner, in view of the provisions of Rules 397 to 400 of the Bombay High Court (Original Side) Rules and also in accordance with Rule 445. It is further submitted that the provisions of Rule 1, Order 49, Civil Procedure Code also would be applicable to the Chartered High Court and this Court being Chartered High Court, service of citation could also be made in accordance with the said Rule 3, of Order 49, Civil Procedure Code. It is submitted that in view of provisions of Rule 398, citation is also a process issued by this Court and therefore the provisions of Rule 445 were clearly applicable for the service of process and as such even citation could be served in accordance with procedure laid down in Rule 445. On the other hand, the first Assistant Master, High Court Bombay has filed a note on the subject of issuance of citation. In the note, it is stated that Rules 397 to 400 of the Original Side, 1980 describes rules for issuance of citation.of notices in all applications for probate, letters of administration and succession certificate and lays down the procedure, it is to be adopted for the service of citation. It is submitted that only two modes of service of citation is prescribed under Rules 399 and 400 and therefore a citation has to be served personally on the person concerned and if it is not possible, then by publication of the citation in the newspaper. It is further stated that Rule 1 of Order 49 will not be applicable in respect of service of citations, in view of the fact that the provisions of High Court Original Side Rules overwrites (overrides) Code of Civil Procedure and therefore the said provision of Rule 1, Order 49 would not be applicable in this case. It is also stated in the said note that Hon'ble Justice A. S. Oka has directed the office that in all testamentary matters citation/notice was served and affixed through the bailiff and Sheriff of Bombay has further directed to put appropriate notice in that regard and accordingly notice also has been issued pursuant to the said directions which had given by learned Single Judge.

2. After having heard the learned counsel appearing on behalf of the petitioner and having gone through the note submitted before the office, in order to decide the said controversy, it would be necessary to go through the relevant provisions of the Indian Succession Act, High Court Original Side Rules and provisions of Code of Civil Procedure. Section 122 of the Code of Civil Procedure gives power to Chartered High Courts to frame its own rules and the rules of the High Courts to that extent will be applicable in respect of procedure which has to be followed. The provisions accordingly of the Original Side have been made and therefore the provisions prescribed in the rules framed by the High Court would prevail over the provisions of the Code of Civil Procedure. This being the legal provision, in my view, the provisions of Order 49, will not be attracted, since specific rules have been framed by this Court for the purpose of service of citations and process of this Court.

3. The word citation is used in the sections 229 and 283 of the Indian Successions Act. The word citation has been defined in the Advanced Law Lexicon as under :

"Citation.- A reference to a legal precedent or authority such as statute.

Citation is a summons to appear and answer or do something. It was applied particularly to processes in the spiritual Court, but is more recently adopted in Civil Procedure from the canon and civil law. It is an official call or notice to appear in Court, the act of quoting authorities, and sometimes an authority quoted. (Abbott L. Dict)"

Citation therefore essentially with reference to the provisions of Indian Succession Act is summons to appear unserved defendants. It is a notice to the party to appear in the Court Rule 398 of Original Side Rules states that processes and citations should be issued and be made returnable in the same manner as processes in suits on the original side of the Court. Chapter 26 of the said rules deals with the procedure which is to be followed in testamentary and intestate jurisdiction of this Court. Rule 397 states that in all applications probate, letters of administration succession certificate, notice has to be given to all heirs and next-of-kin of deceased mentioned in the petition except those whose consent has been filed in the proceedings. Sections 399 and 400 lay down the procedure which has to be followed for service of citation. However, Chapter 28 deals with the office of Sheriff of Bombay and Rule 445 prescribes the manner in which the Sheriff has to serve and execute processes. In my view, since Rule 398 specifically states that all processes and citations are to be served in the same manner as processes in suits on the Original Side of the Court and Rule 445 lays down on the procedure for the Sheriff to serve and execute the process, the said rule namely Rule 445 will have to be read with Rules 399 and 400.

4. The purpose of service of citation is to ensure that all heirs and next-to-kin of deceased whose consent has not been filed in the proceedings should be served, so that after service if probate or letters of administration are granted, a grievance should not be made that he was not properly served. Rule 399 therefore lays down that the citations should be served personally when possible and the manner in which the service has to be affected also mentioned in the said rule namely that the personal service has to be affected by leaving a true copy of the citation with the party cited and taking his acknowledgment on the original. Rule 400 states that where citations cannot be served personally, they shall be served by publishing the same in such local newspapers as Prothonotary and Senior Master may direct. In my view, it would also be open for the petitioner to serve the citation, if it cannot be served personally by following the procedure laid down under Rule 445. Rule 445 reads as under :

"R.445. Sheriff to serve and execute process.- The Sheriff shall execute the process of the High Court. He shall serve such process within the local limits of the Ordinary Original Civil Jurisdiction of the High Court by his bailiff or if the party so desires by registered post pre-paid for acknowledgment. Where the process is to be served beyond the said limits, the Sheriff shall serve the same by registered post pre-paid for acknowledgment.

The Sheriff shall not be compellable to go in person or by his bailiff beyond the said limits for the purpose of serving or executing any process, unless so directed by the Court or the Judge in Chambers."

The Rule clearly stipulates that where the party is residing within the jurisdiction of the High Court, then he could be served by his bailiff or by a registered post pre-paid for acknowledgment, if the party so desires and where the process is to be served beyond the limit, the Sheriff shall serve by registered post pre-paid for acknowledgment. Therefore, in my view, the said citation should be served, in same manner as processes in the suit can be served in the manner laid down in Rule 398 and therefore if the citation is not served personally, then it can be served through the Sheriff by his bailiff and additionally the party may serve by registered post pre-paid for acknowledgment. Even if after following this procedure, citation is not served, then in that event, the procedure laid down in Rule 400 will have to be adopted namely by serving by publication in such local newspapers as the Prothonotary and Senior Master may direct. In my view, the office cannot read Rules 399 and 400 in isolation with the other rules namely Rules 398 and 445. Similarly the office also cannot insist that the Sheriff of Bombay should send the citation to the District Court and the District Court should then serve with through that Court. Since such procedure is not prescribed either in Rules 399 and 400 or 445. In this view of the matter, the objection raised by the office therefore is overruled and the office may follow the prescribed procedure as laid down and clarified by this Court. Office is therefore directed to take necessary steps. Similarly, it is clarified that in respect of affixing the citation on the conspicuous part of the court house and also in the office of Collector of Bombay, as provided in Rule 2 of Rule 397, the said procedure of affixing the citation can be carried out by the Clerk of the Advocate on record, since, there is no provision in the rules that the Sheriff of Bombay alone should carry out the procedure of affixing of citation. Needless to state these directions are to be followed in all testamentary matters.

Ordered accordingly.