Bombay High Court
Ketan Vrajlal Vasani vs Piyush Pratapbhai Athama on 3 July, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-OS:10424
IA-2409-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION NO. 2409 OF 2023
IN
TESTAMENTARY PETITION NO. 3784 OF 2022
Ketan Vrajlal Vasani ...Applicant
Versus
Piyush Pratapbhai Athama ...Respondent
***
Ms. Yogita Deshmukh for the Applicant.
Ms. Hansa Manubhai Asher for Respondent in IA and Petition in
TP.
***
Digitally signed
by ETHAPE
ETHAPE DNYANESHWAR
DNYANESHWAR ASHOK
ASHOK
Date: 2024.07.18
10:47:18 +0530
CORAM : N. J. JAMADAR, J.
DATE : 3rd JULY 2024
PC.:
1. Heard the learned Counsel for the parties.
2. This application is preferred for condonation of delay in
filing the Caveat in Testamentary Petition No. 3784 of 2022.
3. The Respondent Nos.1 and 2 have filed Testamentary
Petition No.3784 of 2022 for grant of Probate of Last Will and
Testament of Hemlata Vrujlal Vasani @ Hemlata Vrajlal Vasani
(the deceased), who passed away at Rajkot, Gujarat on 20 th
September 2021.
4. In the petition it is averred that the deceased had left
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behind Nilesh Vasani and Ketan Vasani, the applicant herein, as
the surviving legal heirs and next of kin, Jigen Vasani, another
son, had predeceased the deceased. Citation was served on the
applicant, a non-consenting heir, on 25th February 2023.
5. The applicant has preferred this application with the
assertion that the applicant was unaware that Caveat was
required to be lodged within a period of 14 days from the date of
service of citation and certain time was lost in approaching the
Advocates, who were familiar with the procedure in
Testamentary matter. Therefore, there was delay of about 21
days in lodging the Caveat. Hence, the delay be condoned.
6. An affidavit-in reply is filed on behalf of the original
petitioner No.1 opposing the prayer for condonation of delay. At
the outset it is contended that the applicant has falsely claimed
that there is a delay of 21 days in lodging the Caveat. In fact, the
caveat and affidavit in support thereof were filed on 29 th May
2023 and, thus, there is delay of about 80 days in lodging the
Caveat. Moreover, the reasons ascribed in the application for
condonation of delay do constitute a sufficient cause. It is further
contended that, in fact, on 13 th April 2023 itself the
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Testamentary Registrar had ordered the issue of grant (the
probate). Subsequent thereto, the applicant has preferred this
application, and thereupon the grant came to be withheld. In
these circumstances, the application deserves to be rejected.
7. I have heard Ms. Deshmukh, the learned Counsel for the
Applicant, and Ms.Asher, the learned Counsel for the
Respondent/petitioner in Testamentary Petition No.3784 of 2022
at some length. With the assistance of the learned Counsel for
the parties, I have perused the material on record.
8. The learned Counsel for the applicant submitted that
though the Caveat was signed and affirmed by the applicant on
28th March 2023 itself, there was delay on the part of the
Advocate in filing the caveat in the Registry. The applicant is the
son of the deceased. In the event, the delay is not condoned and
Caveat is not taken on record, the applicant would suffer
irreparable loss. Therefore, the application be allowed.
9. The learned Counsel for Respondent stoutly resisted the
prayer for condonation of delay. It was urged that the applicant
has not approached the Court with clean hands and falsely
claimed that there was a delay of 21 days only.
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10. Emphasis was laid on the fact that the Testamentary
Registrar had passed an order dated 13 th April 2023 allowing the
petition and the office was directed to issue Probate after
verifying whether a cross petition or any Caveat has been filed.
There was delay on the part of the Department in issuing the
grant. Thereafter, the Caveat came to be lodged. In these
circumstances, if the delay is condoned, the petitioners would
suffer grave prejudice, submitted Ms.Asher.
11. I have given anxious consideration to the rival
submissions. It is true that the claim in the application that there
was delay of 21 days only, premised on the fact that the Caveat
and affidavit in support of the Caveat were affirmed by the
applicant on 28th March 2023, does not appear to be correct.
Office report indicates that the Caveat was, in fact, lodged on
24th May 2023 and, thus, there was delay of about 74 days in
filing the Caveat. Nonetheless, it is evident that the applicant has
signed the Caveat and affirmed the affidavit in support of the
Caveat on 28th March 2023.
12. It is well settled that an application for condonation of
delay should receive liberal consideration so as to advance the
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cause of substantive justice. The courts lean in favour of
condoning the delay so that lis is decided on merit rather than
on technicalities.
13. On the aforesaid touchstone, if the reasons ascribed in the
application are tested, it cannot be said that the reasons would
not constitute a sufficient cause. The Court cannot lose sight of
the fact that the applicant is the son of the deceased. Existence of
a caveatable interest can hardly be disputed. It prima facie
appears that, the applicant had entrusted the matter of filing of
the caveat to his Advocate. In this backdrop, it may not be
justifiable to take a very rigid view of the matter.
14. I am, therefore, inclined to condone the delay in lodging
the Caveat. The inconvenience and delay caused to the
petitioners can be taken care of by imposing costs. Hence, the
following order:
ORDER
(i) Application stands allowed.
(ii) Delay in filing the Caveat and affidavit in support thereof stands condoned, subject to applicant paying costs of Rs. 5,000/- to the petitioner No.1 within a period of three weeks of D.A.ETHAPE 5 of 6 ::: Uploaded on - 18/07/2024 ::: Downloaded on - 19/07/2024 05:28:46 ::: IA-2409-2023.doc uploading of this order.
(iii) Payment of costs shall be a condition precedent.
(iv) Upon payment of costs, the Caveat be accepted and registered and the petition would then stand converted into a Testamentary Suit.
(v) By way of abundant caution, the order passed by Testamentary Registrar dated 13th April 2023 allowing the petition stands set aside.
(vi) Application stands disposed of.
(N. J. JAMADAR, J.)
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