Notice of Motion No.22 of 2011,Testamentary Petition No.1172 of 2010

5th May, 2011

Petitioner Counsel: Mr. CHETAN KAPADIA, SHARAN JAGTIANI, Ms. SONIYA PUTTA,S. U. Lakdawala
Respondent Counsel: Mr. ASHISH KAMAT,M/s. Ranjit & Co.

JUDGMENT

JUDGMENT:- This notice of motion is taken out by the petitioners praying for dismissal of the caveat filed by the caveator i.e. Purshotam V. Raheja. By prayer clause (b) the petitioner has prayed that the probate be issued in favour of the petitioner without taking the cognizance of the said caveat in accordance with the provisions of law. After the service of this notice of motion upon the caveator, the parties herein have completed filing of affidavits.

2. The petitioners have filed this petition for probate in respect of the last Will and Testament said to have been executed by Shrichand V. Raheja. There are three next of kins of late Shrichand V. Raheja more particularly set out in para 9 of the petition. Out of these three persons, two persons have filed this probate petition and consent affidavit has been filed by the third next of kin i.e. Laxmi S. Raheja. In the normal course, this petition could have been treated by the office as uncontested petition and the office could have gone ahead. It is noticed that a caveat came to be filed by Purshotam V. Raheja (for short said caveator) on 10th January, 2011. Along with the said caveat, affidavit in support of caveat also came to be filed. It is noted that as said caveator was not the next of kin, citation was not served on him. This caveat dated 10th January, 2011 was processed by the office.

3. In the course of hearing of this notice of motion, learned Counsel Mr. Kamat appearing on behalf of the caveator informed the Court that upon an enquiry made in the office as regards progress of aforesaid probate petition, the officer concerned attached to the Testamentary Department orally informed the caveator that the caveat dated 10th January, 2011 is filed in improper format and it is necessary for the caveator to file a caveat as set out in the format provided under the Bombay High Court (Original Side) Rules (for short said Rules). It appears that on information received by the advocate for the caveator, the caveator filed a fresh caveat on 27th January, 2011 in a format which was considered by the office as proper format. The said caveat dated 27th January, 2011 coupled with affidavit dated 10th January, 2011 filed by the caveator in support of the caveat dated 10th January, 2011 was treated by the office as a proper caveat and proper affidavit in support of the caveat and office treated the objections raised by the caveator in terms of caveat dated 27th January, 2011 as good objections and passed order thereby converting the testamentary petition as contested petition and converted the said petition in the testamentary suit. The office informed Mr. S. U. Lakdawala, advocate for the petitioners by its letter dated 2nd February, 2011 as follows.

"Take notice that on the 10th day of January, 2011 an affidavit in support of the caveat was filed in my office in the above Petition by M/s. Ranjit & Co., Advocates for the abovenamed Caveator and that the above petition is converted into Suit on that date and has been numbered as Suit No.14 of 2011".

4. It is noticed that the petitioners were concerned about letter dated 2nd February, 2011 and this notice of motion came to be filed for setting aside the caveat i.e. caveat dated 10th January, 2011. It is seen that in the mind of the petitioners caveat dated 10th January, 2011 was the caveat which was required to be set aside because the petitioners were informed as regards the affidavit in support of the caveat dated 10th January, 2011. It is seen that the notice of motion is taken out by the petitioners without taking cognizance of events which took place on or after 27th January, 2011 namely filing of a new caveat in the proper format.

5. In view of this development at the stage of hearing of this notice of motion, I have given hearing to learned Counsel on both sides as regards course to be followed and as to how to attend the caveat dated 10th January, 2011 as also caveat dated 27th January, 2011. It is noted that the very fact that caveator filed a fresh caveat dated 27th January, 2011 the caveator accepted that the caveat dated 10th January, 2011 was filed in improper format and therefore the question is whether the Court should proceed to act on the basis of said improper caveat. The so called proper caveat came to be filed on 27th January, 2011. It is to be noted that there is no affidavit in support of the caveat filed on 27th January, 2011. The office notes as well as letter dated 2nd February, 2011 show that office treated affidavit dated 10th January, 2011 as the affidavit in support of the caveat dated 27th January, 2011 as good and proper and issued letter dated 2nd February, 2011. Hence, this Court is also required to see whether letter dated 2nd February, 2011 should be treated as a correct letter issued by the office or whether the contents of said letter are required to be set aside.

6. Learned Counsel Mr. Kapadia appearing on behalf of the petitioners submitted that in the normal course, the petition should have been treated as petition without any objections, however, on account of filing of the caveat, the same was converted into a suit. Learned Counsel appearing on behalf of the petitioner had to concede that the notice of motion dated 8th February, 2011 was taken out solely on the basis of letter dated 2nd February, 2011 without noticing caveat dated 27th January, 2011 and purely on the ground that the caveator had no caveatable interest and that office could not have converted the testamentary petition into testamentary suit behind back of the petitioners and without giving any opportunity to the petitioners to say why the petition should not be converted into the suit.

7. Learned Counsel Mr. Kamat appearing on behalf of the caveator submitted that the caveator no doubt filed the caveat dated 10th January, 2011 in a particular format and because the concerned Officer attending to the matter told the advocate for the caveator that caveat dated 10th January, 2011 is in the improper format and the caveator should file a caveat in the proper format the caveator through the advocate filed a fresh caveat dated 27th January, 2011. Learned Counsel Mr. Kamat further submitted that the caveator totally depended upon the information given by the concerned Officer and acted in the bonafide manner. Learned Counsel Mr. Kamat further submitted that on account of filing of the new caveat dated 27th January, 2011 in the proper format and treating testamentary petition as contested petition, no prejudice is going to be caused to the petitioners as the caveator has raised justifiable points. He submitted that if the caveat filed on 27th January, 2011 is negatived, it is the caveator who would suffer injustice.

8. Learned Counsel Mr. Kamat submitted that filing a particular document in a proper format or not is the matter of procedure and this Court should treat caveat dated 27th January, 2011 as amendment to the caveat dated 10th January, 2011 and therefore order dated 2nd February, 2011 passed by the office converting testamentary petition into a suit should be treated as a good order and the Court should proceed to deal with the matter as it stands today by taking into consideration caveat dated 27th January, 2011.

9. I have perused the entire record. It is to be noted that in this matter the caveator has not been served with the citation. The caveator did file the caveat on 10th January, 2011. Caveator by way of abundant caution filed affidavit in support of the said caveat on 10th January, 2011. The very fact that the caveator filed a fresh caveat on 27th January, 2011 clearly goes to show that caveat dated 10th January, 2011 was filed in improper format. In so far as this aspect is concerned, I am inclined to observe that it is noted that Rule 401 of the Bombay High Court (Original Side) Rules (hereinafter referred to as the said Rules) provides Form 116 for filing of the caveat. This will mean that if a caveat is filed not in the prescribed form i.e. Form 116, it cannot be acted upon by the Court. On account of this, I am inclined to hold that the caveat dated 10th January, 2011 cannot be treated as a good caveat. It cannot be acted upon and therefore there is no question of converting the testamentary petition into a testamentary suit based on said caveat dated 10th January, 2011. The argument advanced by learned Counsel Mr. Kamat that filing the caveat in an improper format and then filing a fresh caveat so as to comply with the requirement of said Rules is a matter of procedure, cannot be accepted. If the rules provide filing of a caveat in a proper format, caveat filed in any other format cannot be considered as a good caveat.

10. As stated earlier the caveator has filed caveat in proper format on 27th January, 2011. Even if caveat dated 27th January, 2011 is treated for the sake of argument as a good caveat, it was necessary for the caveator to file affidavit in reply of the caveat within a period of 8 days from the filing of the caveat dated 27th January, 2011 as per Rule 402 of said Rules. Today, the record shows that affidavit in support of the caveat is not filed in respect of the caveat dated 27th January, 2011. Caveat dated 27th January, 2011 filed in the proper format is without any affidavit in support of the caveat as per the provisions of Rule 402 of the said Rules and therefore that caveat also cannot be treated as proper caveat on which office can act.

11. The argument advanced by learned Counsel Mr. Kamat for the caveator that caveat dated 27th January, 2011 was treated by the office as an amendment to the caveat dated 10th January, 2011 and this Court also should treat it as an amendment to the caveat dated 10th January, 2011. This submission is required to be rejected. In my view, if a caveat is to be filed in a particular form, there is no question of filing a new caveat by way of an amendment to a caveat earlier filed in a improper format. The caveat dated 27th January, 2011 cannot be considered as a caveat by way of amendment to caveat dated 10th January, 2011. Hence, caveat dated 27th January, 2011 will have to be treated as a new and independent caveat.

12. It is seen that the office did not note that in support of the caveat dated 27th January, 2011, there is no affidavit in support of the caveat as per Rule 402 of said Rules. Office wrongly treated affidavit dated 10th January, 2011 as an affidavit in support of the caveat dated 27th January, 2011 as a good affidavit and passed the order converting the testamentary petition into testamentary suit and communicated the said fact to the petitioner by letter dated 2nd February, 2011. I am saying this because the language of letter dated 2nd February, 2011 refers to the caveat in support of the caveat dated 10th January, 2011. In my view, it was totally wrong on the part of the office to treat affidavit in support of the caveat dated 10th January, 2011 as affidavit relating to caveat dated 27th January, 2011. Once this finding is recorded, conversion of the testamentary petition in testamentary suit is also illegal.

13. For the reasons mentioned aforesaid in the aforesaid matter, I am recording following findings:

(a) Caveat dated 10th January, 2011 having been filed in the improper format i.e. not as per Form No.116 (as observed by the office) cannot be considered as good caveat and it cannot be acted for further action in the testamentary petition.

(b) Caveat dated 27th January, 2011 is not supported by affidavit in support of the caveat as per the requirements of Rule 402 of said Rules. The affidavit dated 10th January, 2011 cannot be considered as affidavit in support of the said caveat because what is required to be filed first in point of time is caveat and affidavit in support of the caveat has come on record at later point of time. Hence, as of today caveat dated 27th January, 2011 cannot treated as proper caveat and it cannot be used in this testamentary petition.

(c) Order passed by the office thereby converting testamentary petition in testamentary suit namely Suit No.14 of 2011 in terms of letter dated 2nd February, 2011 is illegal.

14. Learned Counsel Mr. Kamat submitted that in the affidavit in support of the notice of motion and in the pleadings filed by the petitioners, in this motion there is no reference to the institution of a caveat dated 27th January, 2011 and other aspects of the matter. I have already observed that the petitioners had filed this Notice of Motion without noting the fact that new caveat dated 27th January, 2011 was filed. It is clear that petitioners had filed this Notice of Motion on facts which emerged on the basis of caveat dated 10th January, 2011, affidavit in support of caveat dated 10th January, 2011 and letter dated 2nd February, 2011 referred to above. I am sure if the petitioners would have noted caveat dated 27th January, 2011 they would have referred to it in this Notice of Motion. I had perused the entire record. I had drawn attention of learned Counsel on both sides to the office record and I had given chance to both the sides to advance their submissions as to why the two caveats should not be treated as good caveat and as to why decision of the office to convert testamentary petition into testamentary suit should be treated as illegal. In my view, having recorded finding that caveat dated 10th January, 2011 and 27th January, 2011 cannot be acted upon by office there is no need as of today to discuss the various points raised by petitioners in this Notice of Motion. In fact on account of the findings recorded above this Notice of Motion does not survive.

15. In view of the aforesaid discussion, following order is passed.

ORDER

(i) Caveat dated 10th January, 2011 cannot be acted upon by the office as it is not filed in the proper format.

(ii) Caveat dated 27th January, 2011 cannot be acted upon as it is not supported by affidavit as per Rule 402 of the Bombay High Court (Original Side) Rules.

(iii) Order passed in terms of letter dated 2nd February, 2011 converting Testamentary Petition No.1172 of 2010 in Testamentary Suit No.14 of 2011 is set aside.

(iv) As of today, office shall treat Testamentary Petition No.1172 of 2010 as a Petition which can be taken ahead as uncontested petition. Office to process Testamentary Petition No.1172 of 2010 in accordance with the provisions of law.

(v) In view of the aforesaid orders, notice of motion taken out by the petitioners has become infructuous and is disposed of with no order as to costs.

(vi) In the peculiar facts and circumstances, there shall be no order as to costs.

16. Learned Counsel Mr. Kamat appearing on behalf of the caveator prays for stay of the operation of the order. In the facts and circumstances of the case, there is no question of staying the operation of the order. Request is rejected.

17. After the aforesaid order is passed, learned Counsel Mr. Kamat appearing on behalf of the caveator prayed for liberty to adopt appropriate proceedings to protect the interest of the caveator. In my view, there is no need to grant specific liberty to adopt appropriate proceedings. A person who is interested in protecting his right is free to adopt appropriate proceedings.

Ordered accordingly.