CAPTAIN MAKHAN LAL BARUA Vs. MIHIKA BARUA

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.) MR .Sen, learned counsel appearing on behalf of the applicants invited my attention to of the High Court (Original Side) Rules. It is submitted by the learned counsel that since on the date of filing petition for Letters of Administration by the petitioner, Mr.Adhip Lal Barua who was son of the said deceased has expired and the said fact was disclosed in paragraph (4) of the petition, the petitioner ought to have brought the legal heirs of the said deceased on record and ought to have serve citation on them being legal heirs of the said Mr.Adhip Lal Barua. It is submitted that in any event if Mr.Adhip Lal Barua would have expired after filing of the petition, the applicants being legal heirs of the said Mr.Adhip Lal Barua were entitled to be served with citation separately. Learned counsel submits that the applicants being next of kin of the deceased mentioned in the petition are bound to be served with the notice under Rule 397. It is submitted that under Rule 399 of the High Court (Original Side) Rules, service of citation personally is mandatory. Learned counsel submits that time to file caveat would commence only after service of citation and time to file affidavit in support of the caveat would commence only after filing of caveat. Learned counsel submits that since no citation was served, time to file caveat and affidavit in support of the caveat did not commence and resultantly there is no delay in filing caveat as well as affidavit in support. It is submitted that in any event if this court comes to the conclusion that if there is any delay in filing caveat and affidavit in support, the same shall be condoned for the reasons rendered in the affidavit in support of the Chamber Summons.