CT RAMASAMY Vs. SP KAVERI ACHI

JUDGEMENT

(1.) THE appellant filed O.P.97 of 2001 for the issue of probate in respect of the Will executed by CT.RM.CT. Chidambaram Chettiar. On behalf of the respondent, her counsel filed vakalat on 23.7.2001. THEreafter on 24.7.2001 the respondent filed Caveat Petition No.158 of 2001 under Section 148-A of C.P.C. Since the necessary affidavit, as prescribed under the Original Side Rules, was not filed in time, the respondent filed Application No.1021 of 2002 on 21.2.2002 to condone the delay of 229 days in filing the affidavit. THE said application was ordered by the learned Judge by order dated 29.4.2002. Against the said order of the learned Judge, the appeal has been filed.

(2.) THE contention of the learned senior counsel for the appellant is that in a probate proceeding under the Original Jurisdiction of this court, only the procedure prescribed under the Original Side Rules is applicable. In respect of filing Caveat, Order XXV of the Original Side Rules deals with the procedure. Hence the filing of Caveat by the respondent under Section 148-A of C.P.C cannot be considered to be a Caveat in respect of the probate proceedings initiated by the appellant. Hence, in the eye of law, there is no Caveat at all by the respondent and when that be so, there is no question of entertaining an application for condoning the delay in filing the affidavit in support of the Caveat. Even assuming for the purpose of argument that the Caveat filed by the respondent under Section 148-A of C.P.C can be treated as one under the Original Side Rules still it is for the respondent to file an affidavit during the life time of the Caveat. THE validity of the Caveat being for 90 days, it is for the respondent to file an affidavit in support of such Caveat before ever the period of 90 days expires. Once the Caveat expired, thereafter no affidavit can be filed in support of the non-existing Caveat and as such the petition for condoning the delay is of no use and cannot be entertained. THE other alternate argument is that if the Caveat filed by the respondent is to be construed as one under the Original Side Rules, then the limitation for filing the affidavit is to be governed as prescribed under the Original Side Rules. Admittedly the respondent did not file the affidavit in support of the Caveat before ever the expiry of the period of eight days or even before the expiry of the caveat and as such the court has no jurisdiction to condone the delay in filing the affidavit. In the absence of any Rule under the Original Side Rules, conferring jurisdiction on the court to condone the delay in filing the affidavit, the learned Judge had passed the order without any jurisdiction and consequently the same is liable to be dismissed.

(3.) RULE 52 of Order XXV of the Original Side RULEs envisages the filing of Caveat after the application for probate was filed. When a Caveat is entered after an application has been made for the grant of probate or letters of administration, the affidavit in support of the Caveat shall be filed within 8 days of the Caveat being filed, giving out the right and interest of the Caveator and the grounds of objection.