MANEKLAL V. SHAH Vs. JAGDISH C. SHAH

JUDGEMENT

(1.) This is a Chamber Summons taken out by the daughter of the deceased one Parsanba for an order that the caveat dated June 12, 1969, which the applicant sought to be filed, but which the Testamentary Department of this Court refused to take on file, be directed to be taken on file, as well as for a consequential order that the time to file the affidavit in support of the caveat be extended to a suitable date.

(2.) THE short facts necessary for the purpose of disposing of this application are that a petition was filed on January 27,1969 for the grant of probate of the will of Parsanba, by her son and daughter -in -law, and a citation was served on the applicant in the ordinary course. On June 10, 1969, a grandson and grand -daughter of the deceased filed a caveat. On June 12, 1969, the applicant filed a caveat, but the Testamentary Department refused to take the same on file and returned it to the applicant with an endorsement 'Please take out a Chamber Summons as there is already a Caveat filed in this matter.' It may be mentioned that on June 16, 1969, the affidavit in support of the earlier caveat was filed. The applicant then took out the present Chamber Summons on June 19, 1969 for the reliefs already set out above.

(3.) SECTION 283(1)(c) of the Indian Succession Act, 1925, empowers the Court to issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration, and Section 284(1) lays down that 'caveats' against grant of probate or administration may be lodged with the Court. Mr. Nariman has relied strongly on the use of the plural 'caveats' in Section 284(1) in support of his contention that the filing of a caveat is a matter of right on the part of any person interested in the estate of the deceased, and any number of caveats may be so filed. In my opinion, that contention of Mr. Nariman is right. Mr. Nariman has pointed out that, as stated in Tristram and Coote's Probate Practice (22nd Edn.) pp. 511 and 512, a caveat is nothing more than a notice in writing to the Court that no grant is to be made without notice to the party who has entered the caveat. Indeed, that is precisely what Section 285 of the Indian Succession Act lays down, and the same is also borne out by the form of the caveat prescribed by form No. 131 of the Rules (O.S.) of this Court. It is the contention of Mr. Nariman that a caveat being merely a notice to the Court, any person interested has a right to give that notice and the testamentary department cannot refuse to receive or take such notice on file, or require an order of the Court for that purpose. In my opinion, that contention of Mr. Nariman is also correct and must be accepted. To complete reference to the relevant sections of the Act, it may be mentioned that Section 295 of the Act lays down that in any case in which there is contention, the proceedings are to take, as nearly as may be, ' the form of a regular suit' according to the provisions of the Code of Civil Procedure, in which the petitioner for probate or letters of administration is to be the plaintiff, and the person who has appeared to oppose the grant is to be the defendant.