Bombay High Court
Jitendra Pranlal Sanghavi vs Kewalraj Premraj Nanda (Caveator) on 20 June, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-OS:9286
SWAROOP Digitally
by SWAROOP
signed
SHARAD SHARAD PHADKE
Date: 2024.06.26
PHADKE 21:02:09 +0530 13-cts-232-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
CHAMBER SUMMONS NO.232 OF 2019
IN
TESTAMENTARY PETITION NO.2487 OF 2018
Jitendra Pranlal Sanghavi ...Petitioner
vs.
Kewalraj Premraj Nanda ...Respondent
Chandrika Yograj Nanda @ Chandrika Nanda ...Deceased
Mr. Rajesh Shah a/w. Ms. Shruti Lakhani i/b. Mr. A.R. Bapat, for
the Petitioner.
CORAM : N. J. JAMADAR, J.
DATE : JUNE 20, 2024
P.C.:
1. Heard the learned counsel for the Petitioner .
2. This Chamber Summons is filed seeking to condone 6 days
delay in filing an affidavit in support of the Caveat. In the
affidavit in support of the Chamber Summons, the caveator
affirms that the citation was served on the Caveator on 13
March 2019 and, thereupon, he filed a caveat on 27 March
2019. However, the affidavit in support of the caveat could not
be filed within a period of 8 days from the date of filing of the
caveat as on account of personal difficulty, he being the
resident of Mira Road, Dist. Thane was unable to contact his
Advocate at Mumbai. Affidavit came to be affirmed on 10 April
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2019. Thus, the delay of six days occurred in filing an affidavit
in support of the Caveat.
3. The Petitioner has resisted the prayer to condone the
delay in filing affidavit in support of the Caveat. It is contended
that, in fact, the citation was published in Free Press Journal and
Navshakti on 8 March 2019, as the Petitioner was not aware of
the whereabouts of the caveator and his siblings. Thus, the
citation is deemed to have been served on the caveator on 8
March 2019 and not on 13 March 2019, as claimed by the
Caveator. Resultantly, there is a delay of six days in lodging the
Caveat and further delay of six days in filing an affidavit in
support of the Caveat. The Petitioner asserts, the delay has not
been properly explained. Therefore, on this count alone, the
caveat deserves to be dismissed.
4. Mr. Shah, learned Counsel for the Petitioner, submitted
that the Caveator has not turned up after taking out Chamber
Summons to condone the delay in filing caveat and filing an
affidavit in reply to the notice of motion taken out by the
Petitioner to dismiss the caveat on the ground that the caveator
has no caveatable interest. It implies that the caveator has lost
interest in opposing the Petition for grant of probate and the
caveat has been lodged only with a view to delay the disposal of
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the Petition. Since none appeared for the caveator, despite
ample opportunities, the Chamber Summons deserves to be
dismissed.
5. At the outset, it must be noted that by a separate order
passed today, I have dismissed the Notice of Motion filed by the
Petitioner to discharge the caveat on the ground that the
caveator has no caveatable interest. I have recorded a
tentative finding that the caveator is entitled to succeed to the
estate of the deceased under Section 15(1)(b) of the Hindu
Succession Act, 1956 in the event of intestacy.
6. Under Rule 402 of the Bombay High Court (Original Side)
Rules, 1980 an affidavit in support of the caveat shall be filed
within a period of 8 days from the date of filing of the caveat
notwithstanding the court vacation. No such affidavit shall be
filed after the expiry of 8 days without the order of the Judge in
Chamber. Under Rule 402, the Probate Court has discretion to
extend the period to file an affidavit in support of the caveat
and allow the caveator to file such an affidavit beyond the said
period of 8 days.
7. In the case at hand, there is a delay of six days in filing
affidavit in support of the caveat. Certain reasons have been
ascribed in the affidavit in support of the Chamber Summons to
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account for the said delay. It is trite, an application for
condonation of delay deserves to be considered liberally. The
Courts lean in favour of condonation of delay so as to advance
the cause of substantive justice by promoting the determination
of a lis on merits, rather than on technicalities.
8. Having regard to the period of delay i.e. six days and the
reasons ascribed in the affidavit in support of the Chamber
Summons, in my considered view, a case is made out for
condonation of delay. Inconvenience and delay caused to the
Petitioner can be compensated by directing the caveator to pay
costs.
9. Hence, the following order :
ORDER
(i) The Chamber Summons stands allowed.
(ii) Six days delay in filing affidavit in support of the Caveat stands condoned, subject to the payment of costs of Rs.10,000/- by the Applicant- Caveator to the Petitioner within a period of one month from today. The payment of costs shall be a condition precedent.
(iii) In the event the costs are not paid within the stipulated period, this order shall stand vacated ssp ...4 ::: Uploaded on - 27/06/2024 ::: Downloaded on - 15/07/2024 08:15:50 ::: 13-cts-232-2019.doc and the Chamber Summons shall stand dismissed without further reference to the Court.
(iv) In the event, the costs are paid and the affidavit in support of the Caveat is accepted, the Petition be converted into a Testamentary Suit and the procedure in accordance with the Rule 403 of the Bombay High Court (Original Side) Rules, 1980 be followed..
(v) The Chamber Summons stands disposed.
(N. J. JAMADAR, J.)
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