MAKHAN LAL BARUA Vs. MIHIKA BARUA AND ORS

JUDGEMENT

(1.) By this Chamber Summons caveators seeks condonation of delay, if any, in lodging of the applicants' caveat dated 9th March, 2012 and affidavit in support of caveat dated 16th March, 2012 and seek directions to the Prothonotary and Senior Master to accept caveat and affidavit in support.

(2.) Applicants are the legal heirs of Mr.Adhip Lal Barua, who was son of the deceased late Captain Makhanlal Barua. On demise of the said late Captain Makhanlal Barua, the petitioner who claims to be executor under an alleged Will, the petitioner filed Letters of Administration for the property and credit of late Captain Makhanlal Barua in this court. Prior to the date of filing of the said petition for Letters of Administration, on 10th June, 2010 Mr.Adhip Lal Barua expired. In the petition for Letters of Administration filed by the petitioner, name of the legal heirs and next of kin at the time of death of the said deceased are disclosed in paragraph (4). In so far as name of Mr.Adhip Lal Barua, son of the said deceased is concerned, it is disclosed that Mr.Adhip Lal Barua expired on 10th June, 2010.

(3.) It is the case of the applicants that from the High Court website, applicants came to know about filing of the petition for Letters of Administration sometimes in the month of August, 2010. Vide letter dated 6th August, 2010, applicants through their advocate called upon the petitioner to furnish a copy of the testamentary petition filed by the petitioner. On 6th August, 2010, the petitioner through her advocate furnished a copy of the petition alongwith annextures to the applicants. Applicants thereafter filed a caveat in this court under section 148A of the Code of Civil Procedure. Further correspondence was exchanged between the parties. Applicants requested the petitioner to serve citation upon them. Vide letter dated 21st September, 2010, the petitioner informed that in view of the applicants already having filed caveat, question of furnishing citation upon them did not arise. Vide letter dated 29th September, 2010, applicants clarified position that caveat filed by the applicants was only under section 148 of the Code of Civil Procedure and not under section 401 of the High Court (Original Side) Rules and were thus entitled to service of citation. Vide letter dated 19th October, 2010, the petitioner informed the applicants that the caveat dated 6th August, 2010 had been already filed under section 148A of the Code of Civil Procedure and in any event the applicants were not entitled to service of citation. It is the case of the applicants that in view of the petitioner's refusal to serve citations, the applicants lodged a caveat under Rule 401 of the Bombay High Court (Original Side) Rules, 1980 in form no. 116 thereof on 9th March, 2012 and filed an affidavit in support thereof on 16th March, 2012 within eight days of filing of the said caveat as provided in Rule 402 of the Bombay High Court (Original Side) Rules, 1980. On 10th April, 2012, the Section Officer of the Testamentary Department raised an office objection about delay in filing of caveat as well as affidavit in support of the caveat. It is the case of the applicants in the affidavit in support of the Chamber Summons that there was no delay in filing caveat or affidavit in support and in any event if this court comes to the conclusion that if there was any delay in filing caveat and affidavit in support, the same shall be condoned.