Allahabad High Court
In The Matter Of The Goods Of Late Ajab ... vs Anil Sharma on 22 July, 2013
Author: Pankaj Mithal
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Case :- TESTAMENTARY CASES No. - 1 of 2010 Petitioner :- In The Matter Of The Goods Of Late Ajab Singh Counsel for Petitioner :- R.P. Mishra Counsel for Respondent :- Anil Sharma,Brahm Prakash Misra,Dheeraj Singh Bohra Hon'ble Pankaj Mithal,J.
A preliminary issue whether the objections can be entertained and the matter be allowed to be contested even though no caveat as provided under Rule 35 of Chapter XXX of the Allahabad High Court Rules, 1952 (hereinafter referred to as the Rules) has been filed is for consideration before me.
The brief facts leading to the above preliminary issue are that the petitioner Smt. Prakashi wife of Budhsen applied for grant of Letters of Administration in respect of the estate and credits of the deceased Ajab Singh with the Will annexed.
Notice of the petition was published in the news papers Danik Jagran (Hindi) and Hindustan Times (English) besides being sent to the next of kins of the deceased by registered post.
Sri D.S. Bohra appeared as counsel according to the office report dated 31.3.2010 on behalf of Jitendra and Kiran Pal nephews of the deceased. He filed objections to the petition on their behalf where upon the matter was adjourned for one reason or the other. Ultimately, the court, due to absence of Sri D.S. Bohra and the caveat on behalf of the parties represented by him vide order dated 29.4.2010 held that matter is non-contentious in nature.
The application moved by them for the recall of the above order was rejected on 22.4.2011.
These two orders were challenged by them in Special Appeal No.761 of 2012, Jitendra and another Vs. Smt. Prakashi. The appeal was disposed of vide judgment and order dated 2.4.2013. The orders impugned referred to above were set aside on payment of Rs.15000/- as cost with liberty to file objections supported by affidavit, if not already filed within two weeks.
In pursuance to the above order the cost was paid as is admitted. The objections had already been filed as such no necessity was felt for filing further objections but no caveat was ever filed.
It is in the above background in the absence of the caveat as provided under Rule 35 of Chapter XXX of the Rules that an objection was raised that the case cannot be converted into a suit as provided under Rule 39 of Chapter XXX of the Rules whereupon the above preliminary issue was formulated.
The submission of Sri Nimai Das, learned counsel for the petitioner is that the case cannot be converted into a suit. The objections filed without lodging a caveat are of no consequence and on its basis no one can be allowed to contest the matter.
On the other hand Sri Anil Sharma, learned counsel for the objectors submits that as the objections were already on record and they have been permitted by the Division Bench to be filed if not already filed, it means that the court has taken cognizance of the same. Thus filing of the caveat is an empty formality and would not come in way of consideration of their objections on merits.
Rule 35 of Chapter XXX of the Rules provides that any person who intends to oppose the grant of Letters of Administration must file a caveat in court in the form prescribed.
Rule 36 of the Chapter XXX of the Rules provides for filing of objections supported by affidavit within 14 days of the caveat being lodged and in case objections are not so filed the caveat would be discharged.
It is on the filing of affidavit containing objection in support of the caveat that a case for grant of Letters of Administration is liable to be converted into a suit to enable the parties to put in contest.
The relevant provisions in this regard as contained in Chapter XXX are reproduced herein below:-
"35 Caveats:- Any 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 Court in the prescribed form. Notice of the filing of the caveat shall be given by the Court to the petitioner of his Advocate in the prescribed form.
36. Affidavit in support of caveat:-Where a caveat is entered an application has been made for a grant of probate or letters of administration with or without the will annexed, an objection supported by affidavit shall be filed within fourteen days of the caveat being lodged. Such objection shall state the right and interest of the caveator and the ground of objection to the application.
37...................
38. Consequence of non-compliance:-Where the caveator fails to file any objection in compliance with Rule 36 or in compliance with the notice issued under Rule 37, the caveat may be discharged by an order to be obtained on application to the Court.
39. Conversion of application into suit:-Upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner) the proceedings shall be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the objection filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code.
The aforesaid Rules lay down the procedure relating to business which is contentious in nature in relation to testamentary matters. It provides for lodging a caveat and mandates for filing objections supported by affidavit within 14 days of filing of caveat failing which the caveat would stand discharged.
The aforesaid Rules contemplates filing of a caveat so as to contest the grant but there is no time limit prescribed for lodging a caveat as has been held in the matter of the Goods of Late Suraj Prakash 2012(6) ADJ 157. It is also important to note that the Rules do not prescribe any consequence for non-filing of caveat.
The object of filing a caveat is to make known to the party applying for the grant, the intention of the other side to oppose the grant of Letters of Administration and to contest the matter so that the party seeking the grant may not be taken by surprise. The aforesaid Rules though coughed in a language which makes them appear to be mandatory are only tools of procedure for advancement of substantive justice.
The filing of the objections with affidavit in support by implication is notice of opposition. The pendency of the objections for a sufficient long times gives ample notice and time to the petitioner seeking the grant to be prepared. The consideration of the objections so filed in such a situation cannot spring surprise to him.
The petitioner was also made aware of the contest being put by the objectors by the order passed in appeal. Therefore, also the petitioner was having sufficient notice and knowledge of the grant being opposed by the objectors irrespective of the fact that no caveat was filed by them.
In view of the aforesaid facts and circumstances, the object sought to be achieved by filing a caveat stood duly fulfilled and therefore technicality alone can not be permitted to defeat the right of the objectors to contest the matter merely for non-filing of caveat. The Rules do not provide for any consequence of non-filing of caveat. In the absence of any Rule to this effect, its non-filing is not to be treated as fatal which may impair contest on merits when the objections are already on record.
A Division Bench of this court in Shobhnath Dube Vs. Smt. Tara Devi and another 2009 (6) ADJ 396 (DB) held that in cases where citation has been issued inviting objections for contesting the proceedings, the filing of caveat is not necessary. In the case at hand a general citation was issued in the news papers besides being sent to the next of kins of the deceased and therefore, filing of objections with affidavit is sufficient for contesting the proceedings and it is not mandatory to lodge a caveat.
The decision in Banku B. Das Vs. Kashi N. Das AIR 1963 Cal.85 cited by Sri Nimai Das, learned counsel for the petitioner is on a different aspect relating to locus standi of the caveater to contest the proceedings and is not an authority on the issue raised herein.
The principle that where a statue requires to do a certain thing in a certain way, the thing must be done in that way or not at all, based upon the maxim expressio unius est exclusio alterius was propounded first in Taylor Vs. Taylor LR (1875-76) 1 Ch.D. 426 and is being followed in this country with full vigour, but the said principle is not of universal application. It applies to authorities that are vested with power to do a thing. It cannot be applied with rigidity to private persons to follow a particular procedure which has been laid down as the non following of the produce would entail its consequences if any.
In Dhanajaya Reddy Vs. State of Karnataka (2001) 4 SCC 9 the court was dealing with the recording /admissibility of the statement of confession under Section 164 Cr.P.C. It was held that the Magistrate must record the confession in the manner laid down in the provision which requires it to be signed by the person making the confession but mere failure to get the signature on the confession may not be very material if the making of the confession is not disputed. This leads to an inference that non following of the procedure prescribed in every case may not be fatal.
Similar is the position here. The intention of opposing the petition and contesting it is implicit from the objections with affidavit. At the same time it also accords opportunity to the petitioner to be ready for the contest. Therefore, non filing of the caveat is only a procedural defect which is not sufficient to avoid the contest inasmuch as the Rules of procedure are handmade of justice and the courts have sufficient judicial discretion in applying the same particularly when the consequences of not adhearing to it have not been specified in law.
Accordingly, notwithstanding the technicalities, the preliminary issue is decided in favour of the objectors and against the petitioner holding that in view of the objections of the objectors already on record for a sufficient long time, the non-filing of the caveat which is procedural irregularity is not of any consequence and the objectors can oppose the grant of Letters of Administration even without lodging a caveat.
In view of the above, the case is converted into a suit. The petitioner henceforth will be referred as the plaintiff and the objectors as defendants No. 1 and 2. The petition would be treated as plaint and the objections as written statement.
Office to proceed.
Order Date :- 22.7.2013 piyush