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Maneklal V. Shah Vs. Jagdish C. Shah - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai High Court
Decided On
Case Number O.C.J. T. and I.J. Petition No. 157 of 1969 and Suit No. 12 of 1969
Judge
Reported in(1970)72BOMLR719
AppellantManeklal V. Shah
RespondentJagdish C. Shah
DispositionAppeal allowed
Excerpt:
.....for neither the testamentary department, nor even the court, has the power to refuse to take a caveat on file merely because a caveat has already been filed by some other person. therefore, no order of the court is necessary to be obtained by a subsequent caveator, and no chamber summons need be taken out by him at all.;pirojshah bikhaji v. pestonji merwanji (1910) i.l.r. 34 bom. 459 : s.c. 12 bom. l.r. 366, rustomji v. mrs avabai (1956) testamentary suit no. 9 of 1955, decided by tendolkar j., on april 2, 1956 (unrep.), banku b. das v. kashi n. das [1963] a.i.r. cal. 85 and mathradas gokuldas v. thakersey tokersey (1969) testamentary suit no. 27 of 1968. order passed on june 20, 1969, referred to.;where several caveats arc filed, each proceeding takes the form of a separate suit..........it to the applicant with an endorsement 'please take out a chamber summons as there is already a caveat filed in this matter.' it may be mentioned that on june 16, 1969, the affidavit in support of the earlier caveat was filed. the applicant then took out the present chamber summons on june 19, 1969 for the reliefs already set out above.3. it appears that the testamentary department has recently been following the practice of not taking more than one caveat on file in regard to the same petition for grant of probate or letters of administration, without an order of the court being obtained by the party concerned on a chamber summons, and it was pursuant to that practice that the caveat sought to be filed by the present applicant was refused to be taken on file without orders of the.....
Judgment:

Vimadalal, J.

1. This is a Chamber Summons taken out by the daughter of the deceased one Parsanba for an order that the caveat dated June 12, 1969, which the applicant sought to be filed, but which the Testamentary Department of this Court refused to take on file, be directed to be taken on file, as well as for a consequential order that the time to file the affidavit in support of the caveat be extended to a suitable date.

2. The short facts necessary for the purpose of disposing of this application are that a petition was filed on January 27,1969 for the grant of probate of the will of Parsanba, by her son and daughter-in-law, and a citation was served on the applicant in the ordinary course. On June 10, 1969, a grandson and grand-daughter of the deceased filed a caveat. On June 12, 1969, the applicant filed a caveat, but the Testamentary Department refused to take the same on file and returned it to the applicant with an endorsement 'Please take out a Chamber Summons as there is already a Caveat filed in this matter.' It may be mentioned that on June 16, 1969, the affidavit in support of the earlier caveat was filed. The applicant then took out the present Chamber Summons on June 19, 1969 for the reliefs already set out above.

3. It appears that the Testamentary Department has recently been following the practice of not taking more than one caveat on file in regard to the same petition for grant of probate or letters of administration, without an order of the Court being obtained by the party concerned on a Chamber Summons, and it was pursuant to that practice that the caveat sought to be filed by the present applicant was refused to be taken on file without orders of the Court being obtained by her. It is the contention of Mr. Nariman for the applicant that if any party served with a citation desires to file a caveat the same must be taken on record by the Testamentary department and no order of the Court is necessary for that purpose. The second contention of Mr. Nariman is that on a Chamber Summons being thereafter taken out by a person who has filed a caveat subsequent to the first caveat, the Court may order such person to be added as party-defendant to the testamentary suit of the first caveator. Though there are orders passed by testamentary Judges in regard to the questions which arise on the present Chamber Summons, these interesting points which are of frequent occurrence have not been settled by any considered decision of the Court. .As I thought it desirable to have the matter fully argued, it was adjourned for that purpose, and after a full argument, I reserved orders.

4. Section 283(1)(c) of the Indian Succession Act, 1925, empowers the Court to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration, and Section 284(1) lays down that 'caveats' against grant of probate or administration may be lodged with the Court. Mr. Nariman has relied strongly on the use of the plural 'caveats' in Section 284(1) in support of his contention that the filing of a caveat is a matter of right on the part of any person interested in the estate of the deceased, and any number of caveats may be so filed. In my opinion, that contention of Mr. Nariman is right. Mr. Nariman has pointed out that, as stated in Tristram and Coote's Probate Practice (22nd Edn.) pp. 511 and 512, a caveat is nothing more than a notice in writing to the Court that no grant is to be made without notice to the party who has entered the caveat. Indeed, that is precisely what Section 285 of the Indian Succession Act lays down, and the same is also borne out by the form of the caveat prescribed by form No. 131 of the Rules (O.S.) of this Court. It is the contention of Mr. Nariman that a caveat being merely a notice to the Court, any person interested has a right to give that notice and the testamentary department cannot refuse to receive or take such notice on file, or require an order of the Court for that purpose. In my opinion, that contention of Mr. Nariman is also correct and must be accepted. To complete reference to the relevant sections of the Act, it may be mentioned that Section 295 of the Act lays down that in any case in which there is contention, the proceedings are to take, as nearly as may be, ' the form of a regular suit' according to the provisions of the Code of Civil Procedure, in which the petitioner for probate or letters of administration is to be the plaintiff, and the person who has appeared to oppose the grant is to be the defendant.

5. As far as the Rules of the Court (O.S.) are concerned, Rule 698 provides for the mode of serving citations issued under Section 283(1)(c), and the form of such citation is prescribed by Form No. 106. It requires all persons who claim to have any interest in the estate of the deceased to come and see the proceedings if they think fit before the grant is made. Rule 707 states that any person intending to oppose the issue of a grant of probate or letters of administration, must lodge a caveat in the Registry in the prescribed form to which I have already referred. Rule 708 lays down that in every case in which a caveat is filed, an affidavit in support of that caveat must be filed within eight days, stating the right and interest of the caveator and the grounds of the objection to the application. It further lays down that if the affidavit is not filed within that time, the caveat will not prevent the grant of probate or letters of administration, but provides for an affidavit to be taken on file after the expiration of the said period of eight days by order of the testamentary Judge. Rule 710 states that upon the affidavit in support of the caveat being filed, the petitioner for probate or letters of administration must be called upon by notice to take out a summons, which must be a writ of summons and the proceedings are to be 'numbered as a suit' in which the petitioner is to be the plaintiff, and the caveator the defendant, and the procedure in such suit is, as nearly as may be, to be according to the provisions of the Code of Civil Procedure. This Rule is in accordance with the provisions of Section 295 of the Act to which I have already referred.

6. In my opinion, Mr. Nariman is clearly right when he states that use of the word 'caveats' in the plural in Section 284, taken together with the very nature and form of a caveat, and the absence of any provision in the Act or the Rules to indicate that only one caveat can be filed as a matter of right, clearly show that any number of caveats can be filed by persons interested in the estate of the deceased concerned, as a matter of right, and the Court must take the same on record. In fact, though when the matter first came up for hearing before me this contention of Mr. Nariman was sought to be opposed by Mr. A. H. Mehta, at the adjourned hearing, after considering the legal position, Mr. Mehta very fairly admitted that he could not contest that position. This view is supported by the fact that as far back as the year 1910, four caveats were filed in the case reported in Pirojshah Bikhaji v. Pestonji Merwanji I.L.R. (1910) Bom. 459 : 12 Bom. L.R. 366, and as many as fifteen caveats appear to have been filed in a case in which Tendolkar J. passed an order for the issue of probate in Bustomjee v. Mrs. Avabai (1956) Testamentary Suit No. 9 of 1955, decided by Tendolkar J., on April 2, 1956 (Unrep.). Two caveats were also filed in the case reported in Banku B. Das v. Kashi N. Das : AIR1963Cal85 but in none of these cases was the point which has been canvassed in this case either raised or decided. The point has now arisen in view of the recent practice of the Testamentary Department of this Court not to take any caveats subsequent to the first one on file without an order of the Court being obtained on a Chamber Summons. For the reasons stated above, I hold that practice to be erroneous. I have myself very recently passed an order in Mathradas Gokuldas v. Thakersey Tokersey (1969) Testamentary Suit No. 27 of 1968. Order passed on June 20, 1969 dismissing a Chamber Summons for precisely the same reliefs as the present Chamber Summons, but the point was not argued before me in the said case and that order of mine cannot therefore be considered to be a precedent contrary to the view which I am now taking, I hold that any number of caveats to the grant of probate or letters of administration to the same estate can be filed in respect of a petition for such grant, that the Testamentary Department of the Court must take all of them on file, and that neither the Testamentary Department, nor even the Court, has the power to refuse to take a caveat on file merely because a caveat has already been filed by some other person. I also hold that no order of the Court is necessary to be obtained by a subsequent caveator, and no Chamber Summons like the present one need be taken out by him at all.

7. The next point that has been canvassed before me is, whether on several caveats being filed, each proceeding takes the form of a separate suit, or all the caveators must be jointed as party defendants to the testamentary suit of the first caveator. As far as that question is concerned, the Rules referred to by me above show that once an affidavit in support of the caveat is filed, a notice must be issued by the Court requiring the the petitioner for probate or letters of administration to take out a writ of summons; and once a writ of summons is taken out by the petitioner pursuant to that notice, the proceeding must automatically be numbered as a suit as laid down by Rule 710 and take the form of a suit as laid down by Section 295 of the Act. It may be mentioned that these provisions do not actually make the proceeding a suit in the real sense of the term, as held by me in Manekji Manchersha v. Phiroze (1969) 72 Bom. L.B. 21 in which I held that no question of the right to sue surviving on the death of the executor arises in such a case. I do not accept the contention of Mr. Nariman that in a case in which several caveats are filed, all the caveators become defendants to one suit. I interpret Section 295 of the Indian Succession Act and Rule 710 of the Rules of this Court (O.S.) as meaning that the proceeding in respect of each caveat takes the form of a separate suit. I am aware that there have been precedents in which a number of caveators have been made defendants to one suit as e. g. in the case before Tendolkar J., to which I have already referred above, or in which subsequent caveators on obtaining an order of the Court on a Chamber Summons have been added as party-defendants to the suit of the first caveator. The latter course was adopted by my brother Tulzapurkar in Goolbanoo Pirojshah Pavri v. Hormasji Framroze Pavri (1968) T. & I. J. Suit No. 29 of 1968. Order passed on November 29, 1968. In none of those cases, however, was this point raised or considered. In my opinion, with respect to the learned Judges whose Orders have been referred to above, both these courses are erroneous. Section 295 of the Act and Rule 710 of the Rules lay down clearly that once the machinery is triggered off by the filing of an affidavit in support of the caveat, the issue of a notice, and the service of a writ of summons, the proceeding initiated by the filing of a caveat must, in each case, automatically, 'take the form of a suit' and 'be numbered' accordingly. That process cannot be prevented or brought to a halt by joining the subsequent caveator as party-defendant to the testamentary suit of the earlier caveator. Even it such an order is made, the independent suit of the subsequent caveator still survives and will have to be disposed of though, no doubt, certain points might be concluded by the decision in the suit of the earlier caveator to which the subsequent caveator was made a party-defendant. As far as English law and practice on the points which I am now considering are concerned, I am afraid the same did not afford any assistance to me in the present case, as the procedure in England in regard to the same appears to be entirely different. A reference to Tristram & Coote's Probate Practice (22nd Edn.) shows that a caveat filed in the probate registry in England ceases 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 the caveat is filed, what happens in England is that 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. The proceedings which 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 The whole procedure in England is, there-forego different from the procedure prevailing in our country that learned Counsel on both sides are agreed that they are not able to derive any assistance from the same, as far as the present case is concerned. Having regard to the fact that the judgment of the probate Court in the testamentary suit of the first caveator would be a judgment in rem under Section 41 of the Evidence Act (Surinder Kumar v. Gian Chand : [1958]1SCR548 , it would no doubt be desirable and fair that the hearing of all testamentary suits in respect of the same estate should be consolidated on the application of the petitioners for probate or letters of administration, or even suo motu by the Court. The possibility of the first caveator colluding with the petitioners cannot also be ruled out. It is well-settled that the Court has inherent power to make an order for consolidation so long as it does not conflict with an enactment like Court-fees Act (Maharaja of Venkatagir, In re. I.L.R. (1929) Mad. 248) and the Court may do so even without the consent of the parties (Harinarain v. Ram Asish : AIR1957Pat124 ). In my opinion, such an order for consolidation should ordinarily be made in proceedings for a testamentary grant. Unless that is done, the individual proceedings in the form of suits in respect of the several caveats cannot be got rid of merely by the process of joining those caveators as party-defendants to the suit of the first caveator. There is, however, a lacuna in the Rules (O.S.) in so far as no time limit is laid down for the filing of a caveat, with the result that a person may file a caveat even after the consolidated hearing of the testamentary suits of the several caveators is concluded, in which case he will have no opportunity of contesting the will. The decision in the earlier testamentary suit, the hearing of which was consolidated, being a judgment in rem, such caveat will, for all practical purposes, be futile. It is, in my opinion, very necessary to lay down a time limit for the filing of a caveat with a suitable provision for extending the same by special leave of the testamentary Judge in a proper case. It would also be desirable to make the provisions of Rule 246 which relate to administration suits applicable, mutatis mutandis, to the consolidated hearing of testamentary suits.

8. In the view which I have taken above, viz., that the applicant is entitled as of right to have her caveat taken on file, no order need be made by me on this Chamber Summons, and there is no need to extend the time fixed under Rule 708 for the filing of an affidavit in support of the caveat by the applicant, as her caveat has not yet been taken on file and the time fixed by that Rule has not yet commenced running. Having regard to the fact that this Chamber Summons was in the nature of a test case, I make no order with regard to the costs thereof.


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