Bombay High Court
Sunita Barua Of Mumbai Hindu vs Miss Mihika Barua on 2 September, 2013
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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16-CST73.12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
CHAMBER SUMMONS NO. 73 OF 2012
IN
PETITION NO. 830 OF 2010
Captain Makhan Lal Barua
alias M.L.Barua ..... Deceased
Sunita Barua of Mumbai Hindu )
Inhabitant E-2, Amalfi - 15 L.D., )
Ruparel Marg, Malabar Hill, )
Mumbai - 400 006 ) ..... Petitioner
AND
1. Miss Mihika Barua )
(aged about 19 years) residing at )
Flat No.1, Fairlawn Building, 128 )
Maharshi Karve Marg, Oval, )
Mumbai 400 020 and also at )
Flat 11, Shiv Shanti Bhuvan, 146 )
Maharishi Karve Marg, Oval, )
Mumbai 400 020 )
2. Master Shanat Barua )
(aged about 15 years) Through his )
Mother and Natural and Legal )
Guardian Ms.Farah Barua, residing)
at Flat No.1, Fairlawn Building, )
128 Maharshi Karve Marg, Oval, )
Mumbai 400 020 and also at Flat )
11 Shiv Shanti Bhuvan, 146 )
Maharishi Karve Marg, Oval, )
Mumbai 400 020 ) ..... Applicants/
(Caveators)
Mr.J.P.Sen, i/b. M/s.Dastur Dadhich & Kalambi for the Applicants.
Mr.Zuben Behramkamdin, i/b. M/s.Wadia Ghandy & Co. for the Petitioner in
Test.Ptn. No. 830 of 2010 and for Respondents in Chamber Summons.
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16-CST73.12
CORAM : R.D. DHANUKA, J.
DATED : 2nd SEPTEMBER, 2013
ORAL JUDGMENT
By this Chamber Summons caveators seeks condonation of delay, if any, in lodging of the applicants' caveat dated 9th March, 2012 and affidavit in support of caveat dated 16th March, 2012 and seek directions to the Prothonotary and Senior Master to accept caveat and affidavit in support.
2. Applicants are the legal heirs of Mr.Adhip Lal Barua, who was son of the deceased late Captain Makhanlal Barua. On demise of the said late Captain Makhanlal Barua, the petitioner who claims to be executor under an alleged Will, the petitioner filed Letters of Administration for the property and credit of late Captain Makhanlal Barua in this court. Prior to the date of filing of the said petition for Letters of Administration, on 10th June, 2010 Mr.Adhip Lal Barua expired. In the petition for Letters of Administration filed by the petitioner, name of the legal heirs and next of kin at the time of death of the said deceased are disclosed in paragraph (4). In so far as name of Mr.Adhip Lal Barua, son of the said deceased is concerned, it is disclosed that Mr.Adhip Lal Barua expired on 10 th June, 2010.
3. It is the case of the applicants that from the High Court website, applicants came to know about filing of the petition for Letters of Administration sometimes in the month of August, 2010. Vide letter dated 6th August, 2010, applicants through their advocate called upon the petitioner to furnish a copy of the testamentary petition filed by the petitioner. On 6th August, 2010, the petitioner through her advocate furnished a copy of the petition alongwith annextures to the ::: Downloaded on - 27/11/2013 20:14:13 ::: kvm 3/10 16-CST73.12 applicants. Applicants thereafter filed a caveat in this court under section 148A of the Code of Civil Procedure. Further correspondence was exchanged between the parties. Applicants requested the petitioner to serve citation upon them. Vide letter dated 21st September, 2010, the petitioner informed that in view of the applicants already having filed caveat, question of furnishing citation upon them did not arise. Vide letter dated 29th September, 2010, applicants clarified position that caveat filed by the applicants was only under section 148 of the Code of Civil Procedure and not under section 401 of the High Court (Original Side) Rules and were thus entitled to service of citation. Vide letter dated 19th October, 2010, the petitioner informed the applicants that the caveat dated 6th August, 2010 had been already filed under section 148A of the Code of Civil Procedure and in any event the applicants were not entitled to service of citation. It is the case of the applicants that in view of the petitioner's refusal to serve citations, the applicants lodged a caveat under Rule 401 of the Bombay High Court (Original Side) Rules, 1980 in form no. 116 thereof on 9th March, 2012 and filed an affidavit in support thereof on 16th March, 2012 within eight days of filing of the said caveat as provided in Rule 402 of the Bombay High Court (Original Side) Rules, 1980. On 10th April, 2012, the Section Officer of the Testamentary Department raised an office objection about delay in filing of caveat as well as affidavit in support of the caveat. It is the case of the applicants in the affidavit in support of the Chamber Summons that there was no delay in filing caveat or affidavit in support and in any event if this court comes to the conclusion that if there was any delay in filing caveat and affidavit in support, the same shall be condoned.
4. Mr.Sen, learned counsel appearing on behalf of the applicants invited my attention to Rules 397, 399, 401 and 402 of the High Court (Original Side) Rules. It is submitted by the learned counsel that since on the date of filing petition for ::: Downloaded on - 27/11/2013 20:14:13 ::: kvm 4/10 16-CST73.12 Letters of Administration by the petitioner, Mr.Adhip Lal Barua who was son of the said deceased has expired and the said fact was disclosed in paragraph (4) of the petition, the petitioner ought to have brought the legal heirs of the said deceased on record and ought to have serve citation on them being legal heirs of the said Mr.Adhip Lal Barua. It is submitted that in any event if Mr.Adhip Lal Barua would have expired after filing of the petition, the applicants being legal heirs of the said Mr.Adhip Lal Barua were entitled to be served with citation separately. Learned counsel submits that the applicants being next of kin of the deceased mentioned in the petition are bound to be served with the notice under Rule 397. It is submitted that under Rule 399 of the High Court (Original Side) Rules, service of citation personally is mandatory. Learned counsel submits that time to file caveat would commence only after service of citation and time to file affidavit in support of the caveat would commence only after filing of caveat. Learned counsel submits that since no citation was served, time to file caveat and affidavit in support of the caveat did not commence and resultantly there is no delay in filing caveat as well as affidavit in support. It is submitted that in any event if this court comes to the conclusion that if there is any delay in filing caveat and affidavit in support, the same shall be condoned for the reasons rendered in the affidavit in support of the Chamber Summons.
5. Mr.Behramkamdin, learned counsel appearing on behalf of the petitioner on the other hand submits that in the petition for Letters of Administration, petitioner was required to disclose the names of the legal heirs and next of kin who were survived by the said deceased at the time of his death on the date of filing of the said petition. It is submitted that in any event, no sooner a request was received from the applicants to furnish a copy of the petition, on the same day petition alongwith annextures was served upon the applicants by the petitioner. Learned ::: Downloaded on - 27/11/2013 20:14:13 ::: kvm 5/10 16-CST73.12 counsel would submit that though the applicants choose to file caveat under section 148A of the Code of Civil Procedure and were aware of their rights, did not choose to file caveat under Rule 401 of High Court (Original Side) Rules.
Applicants were fully aware of the petition filed by the petitioner for seeking Letters of Administration. It is submitted that since copy of the petition was already served on 6th August, 2010, applicants were not prevented from filing caveat as well as affidavit in support in accordance with Rule 401 and 402 of the High Court (Original Side) Rules respectively.
6. Without prejudice to these submissions, learned counsel appearing for the petitioner submits that the applicants were even otherwise were not entitled to be served with citation as they were not heirs of the said deceased on the date of death of the said deceased. It is submitted that applicants have already filed a separate petition for Letters of Administration of Mr.Adhip Lal Barua through whom this applicants are claiming rights and have obtained such Letters of Administration.
7. Learned counsel submits that on 6th August, 2010 when the petitioner forwarded a copy of the petition with annextures, applicants were fully aware that such petition has been already filed. It is submitted that citation required to be served under Rule 399 of the High Court (Original Side) Rules is merely a notice in the format prescribed. It is submitted that service of petition for Letters of Administration itself was by way of notice and separate citation would not be required.
8. It is not in dispute that applicants are legal heirs of Mr.Adhip Lal Barua who was son of the deceased late Captain Makhanlal Barua. It is not in dispute that on the date of filing petition in Letters of Administration by the petitioner, the said ::: Downloaded on - 27/11/2013 20:14:13 ::: kvm 6/10 16-CST73.12 Mr.Adhip Lal Barua had expired. Though the petitioner has disclosed the name of Mr.Adhip Lal Barua as one of the relative of the said deceased late Captain Makhanlal Barua, the legal heirs of the said Mr.Adhip Lal Barua were not brought on record in the petition itself or at subsequent stage. In my view, since Mr.Adhip Lal Barua during his lifetime would have caveatable interest to oppose such Letters of Administration, applicants as legal heir of Mr.Adhip Lal Barua his demise also would been entitled to be served with the citation. It is not in dispute that no citation has been served on the applicants who are legal heirs of the said Mr.Adhip Lal Barua.
9. Mr.Behramkamdin, learned counsel appearing for the petitioner is right that the applicants had filed caveat under section 148A of the Code of Civil Procedure.
In my view, caveat filed under section 148A of the Code of Civil Procedure can not be equated with and in compliance with caveat required to be filed under Rule 401 of the High Court (Original Side) Rules. Applicants had repeatedly called upon the petitioner to serve the citation upon them but the petitioner did not serve citation on the ground that the caveat filed under section 148A had been already filed by the applicants or on the ground that applicants were not entitled to be served with citation. Affidavit in support of caveat filed under Rule 402 has to be treated as written statement. Rules 397, 399 , 401 and 402 of High Court (Original Side) Rules read thus :-
397. Notice of next-of-kin - (1) In all applications for probate, letters of administration and succession Certificate, notice of the application shall be given to all the heirs and next-of-kin of the deceased mentioned in the petition except to those whose consent has been filed in the proceedings.
(2) In all applications for probate and letters of Administration the citation shall be affixed on ::: Downloaded on - 27/11/2013 20:14:13 ::: kvm 7/10 16-CST73.12 some conspicuous part of the Court house and also in the office of the Collector of Bombay.
(3) In all applications for succession certificate, notice of the application shall be affixed on some conspicuous part of the Court house.
(4) No grant of probate, letters of administration or succession certificate shall be made until after the expiry of fourteen clear days from the date of the service of the citation or notice, and from the publication there of in newspapers, if any, and from the affixing thereof on the court house and in the Collector's Office as the case may be, unless the Judge in Chambers otherwise directs.
399. Service of citations - Citations shall be served personally when possible. Personal service shall be affected by leaving a true copy of the citation with the party cited and taking his acknowledgement on the original.
401. Caveat - Any person intending to oppose the grant of probate or letter of administration shall file a caveat in Form No. 116 within fourteen days from the service of the citation upon him or within such shorter time as the Judge in Chambers may direct. Notice of the filing of the caveat shall be given by the Prothonotary and Senior Master to the petitioner or his Advocate on record. The Judge in Chambers may extend the time to file a caveat, provided the grant has not in the meantime been issued.
402. Affidavit in support of caveat. - An affidavit in support of a caveat shall be filed within eight days from the date of the filing of the caveat, notwithstanding the Court vacations. Such affidavit shall state the right and interest of the caveator, and the grounds of the objections to the application. A copy of the said affidavit shall be served by the caveator on the petitioner or his advocate on record. If such affidavit be not filed within the prescribed time, ::: Downloaded on - 27/11/2013 20:14:13 ::: kvm 8/10 16-CST73.12 the caveat shall not prevent the grant of probate or letters of administration. No such affidavit shall be filed after the expiry of the said eight days without an order of the Judge in Chambers.
10. On conjoint reading of sections 397, 399, 401 and 402 of the Bombay High Court (Original Side) Rules, it is clear that all the heirs or next of kin of the deceased mentioned in the petition have to be served with the notice. Citation has to be served personally when possible. Time to file caveat within 14 days commences only from the date of service of citation upon the next of kin. Time to file affidavit in support of the caveat under Rule 402 commences from the date of filing of caveat prescribed under Rule 401. In my view, since applicants were required to be served with the citation in view of Rule 397 read with 399 and since citation itself has not been served upon the applicants, time to file caveat under Rule 401 of the High Court (Original Side) Rules did not commence. Similarly since time to file caveat did not commence, the question of commencement of time to file affidavit in support of the caveat did not arise. In my view, there is no delay in filing caveat as well as affidavit in support of the caveat.
11. As far as submission of Mr.Behramkamdin, learned counsel appearing for the petitioner that service of petition for Letters of Administration upon the applicants was sufficient and separate citation was not necessary in view of the knowledge derived by the applicants in filing of the petition is concerned, in my view there is no substance in this submission of the learned counsel. Knowledge of filing of the petition would not commence time for filing caveat or affidavit in support of caveat. In my view commencement of time to file caveat and/or obligation to file caveat commences only upon service of citation.
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12. As far as submission of the learned counsel appearing for the petitioner that the applicants are not the heirs and the legal representatives of the said deceased late Captain Makhanlal Barua and were not entitled to be served with any citation is concerned, in view of the fact that the applicants who are claiming through Mr.Adhip Lal Barua who was admittedly son of the said deceased late Captain Makhanlal Barua, the said Mr.Adhip Lal Barua being entitled to served with the citation on the demise of the said Mr.Adhip Lal Barua, in my view his legal heirs would be entitled to be served with the citation.
13. The next submission of Mr.Behramkamdin is that if according to the applicants, there was no delay in filing caveat and affidavit in support, filing of the Chamber Summons for condonation itself was unwarranted and not maintainable.
In the alternative it is submitted that in the affidavit in support of the Chamber Summons, applicants have not explained any delay in filing caveat as well as affidavit in support. This court has taken a view that there was no delay in filing caveat as well as affidavit in support in view of the non service of the citation upon the applicants, prayers for seeking condonation of delay was thus not necessary. On perusal of the affidavit in support, it is clear that the chamber Summons has been filed by the applicants by making their position clear that there was no delay in filing affidavit in support in view of non service of citation upon them, however, without prejudice the same, Chamber Summons has been filed for condonation of delay in the interest of justice. In my view there is no substance in the alternate submission made by the learned counsel appearing for the petitioner that delay is not explained.
14. Chamber Summons is made absolute in the aforesaid terms. In my view, there being no delay in filing caveat and affidavit in support, Prothonotary and ::: Downloaded on - 27/11/2013 20:14:13 ::: kvm 10/10 16-CST73.12 Senior Master is directed to take caveat as well as affidavit in support on record and to convert the petition into a suit. Place the matter on board for direction after three weeks.
[R.D. DHANUKA, J.] ::: Downloaded on - 27/11/2013 20:14:13 :::