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HuseIn Abdul Karim Panju Vs. Mariambai Abdul Rahim - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberPetition No. 555 of 1970 and Suit No. 20 of 1971
Judge
Reported inAIR1973Bom175; (1972)74BOMLR840
ActsCode of Civil Procedure (CPC), 1908 - Sections 141 and 151 - Order 6, Rule 5; Bombay High Court (O. S.) Rules, 1957 - Rule 710
AppellantHuseIn Abdul Karim Panju
RespondentMariambai Abdul Rahim
Appellant AdvocateA.H. Mehta, ;M.J. Mistree and ;M.B. Rele, Advs.
Respondent AdvocateC.N. Daji, Adv.
Excerpt:
the court held that rule 5 of the civil procedure code did not apply to probate proceedings - - the plaintiff has thereafter taken out the present chamber summons for further and better particulars of several statements contained in the affidavit filed by the defendant in support of the caveat. for further and better particulars applies to an affidavit filed in support of a caveat on the testamentary side of this court. 673 and 674. there can be no doubt that the procedure by way of application for further and better particulars would be clearly applicable to pleadings in the nature of a statement of claim or a reply or a counter-claim, as the case may be, but the difficulty that arises in this country is that there is no procedure by way of the filing of a statement of claim or a.....order1. this is a chamber summons under order 6 rule 5 of the civil procedure code taken out by the plaintiff-petitioner for particulars of several statements and allegations contained in the affidavit dated 11th may 1971 filed by the defendant in support of the caveat dated 12th april 1971. the testamentary petition out of which the present application has arisen relates to the estate of one esmail abdul karim panju who died in bombay on the 12th day of february 1965 leaving a will dated 29th june 1953 under which the plaintiff was appointed sole executor. the plaintiff filed this petition for the grant of probate on the 19th of august 1970 and a caveat and an affidavit in support of the caveat having been filed by the defendant the proceedings were numbered as a suit in accordance with.....
Judgment:
ORDER

1. This is a Chamber Summons under Order 6 Rule 5 of the Civil Procedure Code taken out by the Plaintiff-Petitioner for particulars of several statements and allegations contained in the affidavit dated 11th May 1971 filed by the defendant in support of the caveat dated 12th April 1971. The testamentary petition out of which the present application has arisen relates to the estate of one Esmail Abdul Karim Panju who died in Bombay on the 12th day of February 1965 leaving a will dated 29th June 1953 under which the plaintiff was appointed sole executor. The plaintiff filed this petition for the grant of probate on the 19th of August 1970 and a caveat and an affidavit in support of the caveat having been filed by the defendant the proceedings were numbered as a suit in accordance with the provision of Rule 710 of the Rules (O.S.) of this Court. For the sake of completing the facts it may be stated that I have already recorded on 2nd February, 1972 the evidence of Mr. Aibara the solicitor who prepared and attested the will in question. The plaintiff has thereafter taken out the present Chamber Summons for further and better particulars of several statements contained in the affidavit filed by the defendant in support of the caveat. It may be mentioned that the plaintiff is the brother of the deceased and the caveatrix is the daughter of the deceased.

2. The first question that arises on this Chamber Summons is whether the procedure by way of an application under Order 6, Rule 5 of the Civil P. C. for further and better particulars applies to an affidavit filed in support of a caveat on the Testamentary Side of this Court. It was strongly contended by Mr. A. H. Mehta on behalf of the plaintiff in support of his application that that procedure is applicable in regard to an affidavit filed in support of a Caveat, and that unless that was so it would not be possible for the plaintiff to know what is the case which he is called upon to meet in the testamentary suit. Mr. Mehta relied in support of his contention on (1) the concluding sentence of Rule 710 of the Rules (O.S.) of this Court. (2) Section 141 of the Code of Civil Procedure, and (3) the English practice which he pointed out from standard works. It was frankly admitted by Mr. Mehta at the very outset of his argument before me yesterday that there is not a single decision of an Indian Court, nor a single decision of an English Court, bearing directly on the point which has arisen before me, which is, therefore, what is popularity called, a maiden point.

3. Turning first to the English practice relied upon by Mr. Mehta it is stated in Tristram and Coote's Probats particulars of every defence, on whatever ground, in a probate action must may order a party to serve on any other party particulars of any defence stated in the pleading or in an affidavit which has been ordered to stand as a pleading. Mr. Mehta also relied on the statement that is to be found in Supreme Court Practice, 1970, Vol. I Part I, p. 261, that the procedure in regard to particulars is the same in all Divisions of the High Court of Justice in England. The practice in England in regard to testamentary proceedings is however so different that I am afraid no assistance can be derived from the English practice in regard to the furnishing particulars on which Mr. Mehta has relied. I have in my decision in the case of Maneklal V. Shah v. Jagdish C. Shah. : (1970)72BOMLR719 pointed out (at p. 722) what that procedure is and how it differs from the Side of this Court. As pointed out in my judgment in the said case, a caveat filed to have force after the expiry of six months from the date on which it was entered, unless a fresh caveat is filed before the expiration of that period, or proceedings are commenced by writ citation or motion while it is in force. After that caveat is filed a warning is issued against the caveator by the party whose application for grant has been stopped and the appearance to such warning by the caveator is required to disclose, inter alia, the interests of the respective parties in the estate of the deceased. With that information, it is open to either party, if their interests conflict to commence an action against the other for the purpose of establishing his own claim and the proceedings that ensue take the form either of a probate action, or of citation proceedings, or of a Motion. Parties to a probate action are described as plaintiffs, defendants, interveners, and parties cited. Moreover, a Statement of Claim has to be filed and a Statement of Defence, and in appropriate cases a counter claim, by the parties to a probate action, as is pointed out in the Supreme Court Practice, 1970, Vol. I. Part I at a p. 1102, and in Tristram & Coote's Practice, 23rd End. at pp. 673 and 674. There can be no doubt that the procedure by way of application for further and better particulars would be clearly applicable to pleadings in the nature of a Statement of Claim or a reply or a counter-claim, as the case may be, but the difficulty that arises in this country is that there is no procedure by way of the filing of a statement of claim or a reply or a counter-claim as there is in England. Mr. Mehta who has made considerable research and has placed the entire legal position before me with great industry has fairly pointed out to me that the practice that prevails in our Court even to-day is the practice which was in force under the Rules of the Supreme Court (Ecclesiastical) prevailing in England as far back as the year 1895. This was stated in the case of Chotalal Chunilal v. Bai Kabubai, ILR (1898) Bom 261 . Rule 483 of the Ecclesiastical Rules then prevailing in England is a combination of a part of our present Rule 708 and our present Rule 710. The said Rule 483, however, did not make provision in regard to the numbering of testamentary proceedings as a suit, nor did it lay down that the procedure applicable would be that which would be applicable to a suit. I must, therefore, proceed to decide the present Chamber Summons without reference to the English practice on the point which cannot afford any assistance to me on the question which I have to decide on this Chamber Summons. In my opinion, in order to ensure proper control of testamentary suits it would be advisable to amend our procedure and bring it in line with the present English Procedure so as to provide for the filing of a plaint, written statement, counter-claim (if any) and a reply to counter-claim in the same manner as in a suit, so that all the provisions applicable to a suit could be applied to the same.

4. Rule 708 of the Rules (O.S.) of this Court requires an affidavit in support of a caveat to be filed within 8 days, and what is important for the purpose of this order is that it provides that such affidavit must contain 'the right and interest of the caveator, and the grounds of the objections to the application.' Rule 710 lays down that upon the affidavit in support of the caveat being filed, the petitioner for probate or letters of administration is called upon by notice to take out a summons and the proceedings are then numbered as a suit in which the petitioner is to be the plaintiff and the caveator the defendant. The said Rule lays down in the concluding sentence thereof that 'that procedure in such suit shall as nearly as may be according to the provisions of the Code of Civil Procedure.' Another provision to which reference may be made is Section 141 of the Code of Civil Procedure which enacts that the procedure provided in the said Code in regard to suits must be follows 'as far as it can be made applicable.' in all proceeding sin any Court of civil jurisdiction.

5. The difficulty in the way of granting the relief sought on this Chamber Summons lies in the very nature and form of a petition for the grant of probate as well as of the affidavit in support of the caveat. Rule 710 advisedly does not say that the petition for a testamentary grant is to be regarded as a plaint, or that the affidavit filed in support of the caveat is to be regarded as a written statement, though it does in terms, lay down that the 'petitioner shall be the plaintiff and the caveater shall be the defendant.' It has been laid down by the Division Bench of this Court in this case of Tulsidas Khimji v. Jeejeebhoy : AIR1961Bom277 that a petition is not a plaint and I am bound by that view in preference to the view expressed by Mody J. sitting as a single Judge in the case of Consolidated Foods Corpn. v. Brandon & Co. : (1960)62BOMLR799 . Mr. Mehta has drawn my attention to the affidavit filed in support of the caveat in the present case. It no doubt contains denials of statements made in several of the paragraphs of the petition for probate but in my opinion, there can be no doubt that such an affidavit is not intended in be an affidavit in reply to the petition. It is, as its very liable signifies an affidavit which is intended to support the caveat and in such an affidavit it is not really necessary to deny the statements in the petition in the manner in which a written statement denies the averments in a plaint. In that respect Rule 708 affords very valuable guidance in so far as it lays down in the clearest possible terms what an affidavit in support of the caveat should contain. The said Rule states that such affidavit must state the right and interest of the caveator and 'the grounds of the objections to the application.' In stating the interest of the caveator and the ground so objection to the application for probate it would not be necessary to have denials or the nature of denials in a written statement, nor would it be necessary to set out in any detail the prospective case of the caveator. As Mr. Daji has rightly pointed out, once a caveat as well as an affidavit in support of the caveat are filed, it is for the petitioner-plaintiff to make out a case which would satisfy the conscience of the Court, and the inquiry in such a testamentary suit would, therefore, not be strictly limited to the grounds of the objections raised by the caveator. If one bears in mind the very nature of the affidavit in support of the caveat as indicated by me above, it would be quite clear that there would be no scope for invoking the machinery by way of further and better particulars in regard to such an affidavit. It is precisely in order to meet such a situation that the concluding sentence of R. 710 places a limitation in so far as it provides that the procedure in a testamentary suit is 'as nearly as may be' to be in accordance with the provisions of the Code of Civil Procedure. I have held in my decision in the case of Maneklal Manchersha v. Phiroze. : (1970)72BOMLR21 that a petition on the Testamentary Side even when it becomes sententious is not a suit in the real sense of the term, but is only to be numbered as a suit. Where from the very nature of a particular step which is required to be taken or a particular document which is required to be filed, the procedure in regard to a suit cannot be made applicable, there is nothing in Rule 710 which would make it incumbent on the Court to apply the same. As far as Section 141 of the Code of Civil Procedure is concerned, the Legislature has provided same sort of limitation when it has enacted that the procedure provided in the Code in regard to suits is to be followed 'as far as it can be made applicable' in all proceedings in any court of civil jurisdiction. In my opinion, there is no difference at all between the effect of the words 'as nearly as may be' in R. 710 and the words 'as far as it can be made applicable' in Section 141, and whether one or the other of those provisions is applied it would make no difference to the decision of the present Chamber Summons. No question, therefore, arises as to whether Rule 710 would prevail or Section 141 would prevail, but it may be pointed out that since the Rules (O. S.) of this Court have been framed under Section 129 of the Code of Civil Procedure, if there were to be such a conflict, it is the Rules of the High Court which would prevail over the sections of the Code of Civil Procedure. In view of the fact that there is no difference between Rule 710 and Section 141 of the Code of Civil Procedure, it is also not necessary for me to consider the question as to whether it is Section 141, Civil P. c. that would apply prior to the stage when the affidavit in support of a caveat is filed and the proceeding is numbered as a suit and it is after that stage that Rule 710 becomes applicable. It is sufficient for the purpose of the present Order to hold that having regard to the very nature and form of an affidavit in support of a Caveat, an application for further and better particulars under Order 6, Rule 5 of the Code of Civil Procedure does not lie.

6. Mr. Mehta strongly impressed upon me that great hardship would be caused to the plaintiff in a testamentary suit if no particulars are given of the grounds on which a grant of probate is sought to be resisted, in so far as the plaintiff would not know what case he is called upon to meet and could be taken by surprise at any stage of the proceedings. Whilst I appreciate the difficulty pointed out to me by Mr. Mehta, an argument based on inconvenience cannot, in my opinion, affect the decision of a point like the present one which as already stated above, is based on the very nature and form of the proceeding initiated by a petition for probate and resisted by a filing o a caveat and an affidavit in support of the caveat.

7. Mr.Daji also sought to contend that before the provisions of O. 6, R.2 or R. 4 are applied, it must be shown that the document to which they are sought to be applied is a 'pleading' within the terms of Order 6, Rule 1 enacts that the term 'pleading' means plaint or written statement and that according to Mr. Daji, contains an exhaustive definition of the term 'pleading', at any rate, as far as the said order is concerned. I am, however, not prepared to go so far as to say that none of the Rules in Order 6, Rule 2 can apply by reason of the definition of the term 'pleading' contained in Order 6, Rule 1, nor is it necessary for me to go that far. I should also not be taken to have decided by this Order that particulars cannot be asked for of any affidavit at all as I am confining my decision to and basing it solely on the nature and form of the affidavit that is required to be filed in support of a caveat. I also do not propose to express any opinion on the question as to what would be the consequence at the hearing of a testamentary petition of sufficient particulars not having been given in the affidavit filed in support of the caveat.

8. Mr. Mehta has cited a large number of decisions before me in which, by virtue of the provisions of Section 141 of the Code of Civil Procedure, some other provision of that Code has been made applicable to proceedings which are not proceedings in the nature of a suit, but I do not think it necessary to refer to them for a simple reason that that is a proposition which cannot be disputed and has in fact not been disputed by Mr. Daji. I may, however, just record the reference in respect of some of the authorities in : [1952]1SCR218 . It may be mentioned that none of these cases relates to testamentary suits at all.

9. Mr.Mehta also cited before me cases in which various provisions of the Code of Civil Procedure were made applicable to testamentary proceedings, as for instance, the case reported in AIR 1936 Lah 863 where Order 9, Rule 9 was applied, the decisions in ILR (1894) Bom 237 and in AIR 1928 Mad 486 where pauper procedure was made applicable. ILR (1893) Bom 388 where O. 40 was made applicable and : AIR1943Cal19 where Section 10 of the Civil Procedure Code was made applicable. I am afraid none of these decisions can however be of any assistance to Mr. Mehta as far as the present Chamber Summons is concerned, in so far as they were not cases in which any question in regard to the nature and form of a petition for probate or of the affidavit filed in support of the caveat arose at all. They were all cases in which the question of applying the provisions of the Code of Civil Procedure arose at a stage subsequent to the filing of the affidavit in support of the caveat and had nothing to do with the same.

10. Mr. Mehta has also referred me to the decisions of the Supreme Court in the case of Ram Chandra v. State of U. P., : 1966CriLJ1514 and to the decision of the Privy Council in the case of Thakur Pershad v. Sheokh Fakir-Ullah, (1895) 22 Ind App 44) and has pointed out to me that Section 141 applies to all proceedings in Civil Courts and, according to the view now taken by the Supreme Court in the former case, such a proceeding need not even be an original proceedings. Mr. Daji has however referred to the distinction that is drawn in the case of Indrajitsinghji v. Rajendrasinghji, : AIR1956Bom45 and in several other cases between the procedural provisions of the Civil Procedure Code, and provisions relating to substantive rights and disabilities in the same Code and has pointed out that the procedural provisions of the Code have been applied but not those relating to substantive rights or disabilities, to proceedings which are not proceedings in the nature of a suit. It is not necessary for me to go into that question for the simple reason that the concluding sentence of Rule 710 itself limits the applicability of the Civil Procedure Code only to those provisions of it which are of a procedural nature. There can be no doubt that an application for further and better particulars under Order 6, Rule 5 would be an application which is of procedural nature but as already held by me above. I hold the same to be inapplicable in view of the nature and form of an affidavit in support of caveat.

11. In the last resort, Mr. Mehta sought to rely on the inherent powers of the Court under Section 151 of the Code of Civil Procedure and he has referred me to the decision of this Court in the case of Laxmi Investment Co. Pvt. Ltd. v. Tarachand, : AIR1968Bom250 where an application under Order 9, Rule 9 to set aside the dismissal of a suit for default was itself dismissed for default, and it was held that a further application to restore that application could be entertained under Section 151 of the Code of Civil Procedure. In order to invoke the inherent powers of the Court under Section 151 it must, however be shown that resort to such a power is necessary for the ends of justice or to prevent abuse of the process of the Court. In the view which I have taken above, viz. that it would not be proper to apply the procedure by way of an application for further and better particulars to an affidavit in support of a caveat, it can hardly be said that it would be necessary for the ends of justice to entertain such an application under Section 151. In any event, having regard to the fact that Rule 710 deals in specific terms with the applicability of the procedural provisions of the Code of Civil Procedure to a testamentary suit and sets a limitation thereon by incorporating the words 'as nearly as may be' therein, there would be no scope for resorting to the inherent powers of the Court under Section 151 of the Code of Civil Procedure. It is well settled that resort cannot be had to inherent powers where there is a specific provision which deals with the particular matter : AIR1962SC527 . In the result, I hold that the present application for particulars does not lie in regard to the affidavit filed by the defendant in support of the caveat and, on that ground alone. I would dismiss this Chamber Summons.

12. Petition dismissed.


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