SITARAM SHIVCHANDRAI GADODIA Vs. GORDHANDAS SHIVCHANDRAI

JUDGEMENT

(1.) ONE Shivchandrai Rampratap Gadodia died at Bombay on 29 -3 -1968 leaving behind a will dated 18 -3 -1967. He left behind him seven heirs and next -of -kins who are listed in the petition, two of them being his widow Laxmidevi and the minor son Nathmal Shivchandrai. Two caveats were filed against the said petition, one of them was filed by Nathmal who was then a minor. The said Nathmal was served with the citation through his mother, namely, the present defendant. The caveat also was filed through the mother, the present defendant. The affidavit in support of the caveat was also sworn and filed by the defendant Laxmidevi who is the present caveatrix. As admitted by her in her affidavit made on 31 -3 -1981 the citation was already served on her prior to 1972. She did not file any caveat then. As there were two caveats the petition was converted in two suits, being Suit No. 4 of 1970 and Suit No. 8 of 1974. By an order dated 26 -8 -1975 the probate was ordered to be issued by Madon J. Before the order was made certain consent terms were filed and both the caveats were withdrawn followed by the evidence of one of the attesting witnesses who was the Attorney of this Court. It appears that the probate remained to be issued in favour of the plaintiff, inter alia, because of the pendency of some litigation.

(2.) THE defendant thereafter filed a caveat dated 1 -9 -1980. It appears that it was filed on 8 -9 -1980. The exact date, however, is not very material.

(3.) MR . Shah says that the affidavit filed is possibly contrary to the actual fact. He says that the citation was probably served on the defendant after the order was made by Madon J., and that in that event the order would have been made without citation having been served on his client. He contends that in the absence of service of citation the entire procedure was contrary to law and the principle of natural justice, and the whole order was a nullity. In support of his contention he relies on Maneklal V. Shah v. Jagdish C. Shah 72 Bom. L R 719, wherein it is stated that each caveat results in separate suits and should be numbered as such. He contends that in view of that decision a judgment in one suit cannot be made binding in all the suits. He further relies on Bhagwandas v. D. D. Patel and Co. : A I R 1940 Bom. 131, headnote (f), wherein it is held that a decree in rem can be contested on the ground of fraud or collusion which does not go to the jurisdiction of a Court and that it is not necessary for the party against whom such a judgment is set up to bring a separate suit or proceedings to have it set aside; he may show in the suit or proceeding in which it is set up against him that it was obtained by fraud. He, therefore, contends that the caveat is maintainable.