SHOBHNATH DUBE Vs. TARA DEVI

JUDGEMENT

(1.) THIS is an appeal against an order of the learned single Judge rejecting the preliminary objections raised by the appellant that the respondents are not entitled to contest the proceedings relating to grant of letters of administration with the will annexed. The appellant Shobhnath dube claims to be the brother of Kashinath dube and his case is that Kashinath Dube had executed an unregistered Will dated 14-12-2003 in his favour. On the death of kashinath Dube he applied for grant of letters of administration. In the petition the appellant had shown Tara Devi widow of the deceased and Vijay Laxmi a married daughter of the deceased as heirs of the deceased. The court by order dated 11-10-2007 issued notices to these persons whereupon the respondent Tara Devi widow of the deceased filed a counter affidavit opposing the grant. She however did not lodge a caveat, which according to the appellant was a necessary requirement under Chapter XXX Rule 35 of the Rules of the Court. The learned single judge has held that a caveat need not be filed by a person who is heir of the deceased to whom citation has been issued. The only question that is involved in the present appeal relates, therefore, to the interpretation of Rule 35 of Chapter XXX of the Rules of the court. The said Rule is quoted as follows.

(2.) SRI Sandeep Agrawal, learned counsel for the appellant submitted that every person who wants to contest the proceeding for the grant is required to file a caveat and that in the absence of a caveat he has no right to contest the proceeding. Reliance is placed by the learned counsel for the appellant upon a decision of the Apex Court in Smt. Rukmani Devi and others v. Narendra Lal gupta, AIR 1984 SC 1866. In that case a citation was issued to the daughter-in-law of the deceased but she did not come forward to contest the proceeding and ultimately a probate was granted in favour of the applicant. She challenged the Will in a separate suit. Her right to challenge the Will was negatived because the order for the grant of a probate had become final as she did not choose to contest the probate proceedings though citation was issued to her. In the present case on the issuance of the citation the widow has appeared and has filed a counter affidavit contesting the case. The decision in Smt. Rukmani Devi, therefore, is clearly distinguishable.

(3.) LEARNED counsel for the appellant then relied upon the provisions of Section 283 (1) (c) of the Indian Succession Act, 1925, which are as follows: