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Ladulal and anr. Vs. Mahendra Kumar and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. Nos. 642 of 1971 and 329 of 1972
Judge
Reported inAIR1973Raj238; 1973()WLN3
ActsSuccession Act, 1925 - Sections 299
AppellantLadulal and anr.
RespondentMahendra Kumar and anr.
Appellant Advocate A.K. Bhandari, Adv. (for No. 1) and; S.K. Keshote, Adv. (for No. 2)
Respondent Advocate P.C. Bhandari, Adv. (for No. 1),; N.M. Kasliwal and; S.R
DispositionApplications dismissed
Cases ReferredGansadas v. Moolchand
Excerpt:
rajasthan high court rules, 1952 - rules 777, 778 & 780--succession act--affidavit not filed in support of caveat--held, period of 14 days is not mandatory.;the period of fourteen days prescribed for filing the affidavit under rule 778 was not mandatory.;the trial court should consider whether it would be just to deprive the caveator of his permanent rights, if any, on account of his failure of the lawyer to be conversant with the rules in a directory matter. - - on account of the failure of his lawyer to be conversant with the rules in a directory matter......this court revision applications were filed against the orders discharging the caveats for not filing affidavits. in these revision applications stay orders were passed staying proceedings in the trial court. before these affidavits were considered by the trial court, orders staving the further proceedings were issued by this court. 6. it will be for the trial court to decide whether or not the fact that the above rules which have been madp applicable to the subordinate courts have not been incorporated in the general rules (civil) 1952 is sufficient to accept the affidavits which have now been filed after the presentation of the present revision applications.7. the trial court should consider whether it would be just to deprive the caveator of his permanent rights, if anv. on.....
Judgment:
ORDER

Jagat Narayan, C.J.

1. These are connected revision applications against the orders passed by the District Judges of Ajmer and Jaipur City respectively discharging caveats filed by the petitioners on the ground that an affidavit in support of the 'caveat as prescribed by Rule 778 of the Rajasthan High Court Rules. 1952 was not filed. The following are the relevant rules contained in the High Court Rules :--

'777. Anv person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his advocate file a caveat in the Court in the prescribed form. Notice of the filing of the caveat shall be given by the Court to the petitioner or his Advocate (form prescribed).

778. Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, the affidavit or affidavits in support shall be filed within fourteen davs of the caveat being lodged. Such affidavit shall state the right and interest of the caveator, and the ground of the obiections to the application.

780. Where the caveator fails to file any affidavit in support of his caveat, in compliance with Rule 778 or in compliance with the notice issued under Rule 779 the caveat may be discharged by an order to be obtained on application to the Court.'

The above rules are made applicable to proceedings under Succession Act in the subordinate Courts also by Rule 785 of the High Court Rules, which runs as follows :--

'785. The rules contained in this Chapter shall so far as may be and with necessary modifications and adaptations also apply to proceedings under the Act in subordinate Courts.'

2. The consequence of not filing an affidavit within fourteen davs was first considered by a Division Bench of this Court in Kalyan Singh v. Mst. Gaind Kanwar, 1961 Rai LW 143. The observations made in Paras 6, 7 and 8 run as follows :--

'6. The next question that falls for consideration is whether the provisions of Rule 778 are mandatorv. We do not feel called upon to express any considered opinion on this auestion; for it is unnecessary to do so for the purposes of the present appeal.

7. This brings us to a consideration of Rule 780 of the Rules. The relevant Portion of this rule is :--

'Where the caveator fails to file any affidavit in support of his caveat in compliance with Rule 778.....the caveat may be discharged by an order to be obtained on application to the court.' The respondents did file an application to the court below that the obiection filed by the appellant here had not been supported by an affidavit as reauired by Rule 778. Thereupon the Court discharged the caveat. We will assume for the purposes of this appeal that the court below could in a proper casp have allowed the filing of an affidavit even after the time prescribed by Rule 778: though as we have said above, we do not express any final opinion on this point.

8. The question still arises whether the Court below or for that matter this Court in appeal should allow the affidavit to be filed after the prescribed time. We need hardlv say that all discretions by courts of law have to be exercised on sound iudicial principles and not by mere whim or canrice. The auestion. therefore, at once arises whether the appellant has disclosed any grounds to entitle him to get the indulgence he seeks from us-The answer to this auestion must be in the negative: for, no reasons whatever have been brought to our notice which should rightly induce us to allow the ap-pellant any extension of the time prescribed under the Rules. Thp memorandum of appeal does not contain any such reasons nor are thev contained in the affidavit. We are, therefore of the opinion that assuming that we have the power to extend the period prescribed under R- 778 in an appropriate case, no reasons have been adduced in the present case to induce us to grant any such extension.'

3. The next casp on the point is an unreported case-- Girdhari v. Shivna-rain. Civil Misc. Appeal No. 39 of 1962 decided on 29-9-1962 (Rai). In that case an application for amendment of the petition had been reiected by the learned District Judge and a miscellaneous appeal had been filed. The case was not decided by the lower court on the ground that no affidavit was filed in support of their objections by the respondents in accordance with the High Court Rules. Mv attention was, however, drawn to this fact while deciding that casp and the following observation was made by me :--

'It appears from the record that the respondents did not file an affidavit in support of their objections in accordance with the rules framed by the High Court. They should be permitted to file an affidavit now.'

The implication of the above observations Was that the period of fourteen davs Prescribed for filing the affidavit under Rule 778 was not mandatory.

4. The above decision was followed in Praveen Kumar v. Shyamdasji, Civil Revn. No. 351 of 1971 decided on 8-12-1971 (Rai). In that case the caveat was dismissed on the ground that an affidavit was not filed within fourteen davs as reauired by Rule 778 of the High Court Rules. An affidavt was filed subseauentlv and it was praved that the delay in filing it may be condoned. The delav was condoned.

5. The next case in which this point directly arosp was Gansadas v. Moolchand ILR (1971) 21 Rai 4. In that case it was observed as follows :--

'A reading of Rule 780 goes to show that the filine of an affidavit is mandatory but the period of 14 davs prescribed under Rule 778 is not mandatory. The conseguencp of not filine an affidavit is given in Rule 780. There is no mention of the neriod in that Rule. The affidavit is to be filed in compliance with the Rule 778 no doubt. Stress has been laid on filing the affidavit and penalty has been provided for not filing the affidavit at all. If the filine of the affidavit within 14 days had been intended to be mandatory, then Rule 780 would have run as follows :--

'Where the caveator fails to file any affidavit in support of his caveat in compliance with Rule 778 within 14 days of the caveat being lodged & c. & c.' In the two cases before this Court revision applications were filed against the orders discharging the caveats for not filing affidavits. In these revision applications stay orders were passed staying proceedings in the trial Court. Before these affidavits were considered by the trial Court, orders staving the further proceedings were issued by this Court.

6. It will be for the trial Court to decide whether or not the fact that the above rules which have been madp applicable to the subordinate Courts have not been incorporated in the General Rules (Civil) 1952 is sufficient to accept the affidavits which have now been filed after the presentation of the present revision applications.

7. The trial Court should consider whether it would be just to deprive the caveator of his permanent rights, if anv. on account of the failure of his lawyer to be conversant with the rules in a directory matter. Proceedings for grant of probate or letters of administration are proceedings in rem and the findings in these proceedings are binding on the parties in all subseauent litigation about the property.

The above two aspects of the matter were not brought to the notice of the Division Bench in Kalyan Singh's case, 1961 Rai LW 143.

8. No order has vet been passed on those affidavits. Further, under Section 299 of the Succession Act every order passed by the District Judge is appealable. The present revision applications are, there-fore, not maintainable. They are accord-ingly dismissed.

9. The trial Court is directed to hear both parties and pass orders on the affidavits which have now been filed in support of the caveats in the light of the observations made above.


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