MAHENDRA PAL KAUR Vs. SAUDAGAR SINGH

JUDGEMENT

(1.) THIS is a revision by Mahendra Pal Kaur against the order of the District Judge, Ganganagar dated March 19, 1987 discharging the caveat filed by her on May 23, 1986 in proceedings under Section 372 of the Indian Succession Act for grant of succession certificate on the death of her husband Baldeo Singh.

(2.) THE petitioner was discharged from her caveat on the ground that she had not complied with Rule 785 read with Rule 778 of the Rajasthan High Court Rules. The Division Bench of this Court in Kalyansingh v. Mst. Gendkanwar 1961 RLW 143 has held that the combined effect of these Rules is that who ever wishes to approach for grant of Probate or Letter of Administration can do so only by filing a caveat and this caveat must be supported by an affidavit by the Caveator, and the affidavit must be filed during 14 days of the lodging of the caveat. It is further necessary that the affidavit must disclose the right and interest of the Caveator on the ground on which he opposes the grant of Probate. The Bench did not express any opinion about the question whether the provisions contained in Rule 778 are mandatory. It was argued that the Court could not in a proper case allow the filing of an affidavit even after the time prescribed by Rule 778. Their Lordships proceeded to examine the question whether the appellant in that case had disclosed any ground to entitle him to get indulgence that he sought for condoning the delay in filing the affidavit. It was found that no reasons what so ever had been brought to the Court's notice regarding the cause of filing the affidavit late. Even the memorandum of appeal did not contain such reasons nor they were contained in the affidavit. It was, therefore, held that the affidavit filed failed to satisfy the essential requirement of Rule 778 of the High Court Rules The same matter also came up for consideration in Gangadas v. Moolchand (1971 ILR (XXI) Raj. 4). It was held in this case that the filing of an affidavit Under Rule 778 was mandatory but the period of 14 days prescribed under the said Rule is not mandatory. In the case of Gangadas, he had filed an affidavit that he was employed as Patwari in Bilara Tehsil and his official duty required him to be busy during the months of September, October and November. Therefore, he was unable to come to Jodhpur to file an affidavit. Further it was alleged that when he came to Jodhpur on November 24, 1967, his counsel was ill. No counter affidavit had been filed on behalf of the respondent to the affidavit of Gangadas. The Court, therefore, accepted the affidavit' of Gangadas and condoned the delay in filing the affidavit within a period of 14 days prescribed under Rule 778 of the High Court Rules. The decision in Kalyan Singh's case (supra) was considered and it was distinguished on the ground that in that case it was found that no revision what so ever was given as to why affidavit was not filed within 14 days.

(3.) SITTING singly I am bound by the decision in Kalyansingh's case. Filing of an affidavit when caveat is entered into has been held to be mandatory; and the period of 14 days within which the caveat has to be lodged has only been held to be directory. In Kalyansingh's case, it was examined whether the appellant in that case had disclosed any grounds to entitle him to get the indulgence he was seeking. In that case, neither the affidavit nor the memorandum of appeal disclosed any grounds for delay in filing the affidavit. Rule 785 of the Rajasthan High Court Rules clearly provides that the Rules contained in the relevant Chapter shall, so far as may be and with necessary modification and adaptation, also apply to proceedings under the Act in subordinate Courts. The provisions contained in Rule 785 thus clearly made Rules 777, 778 and 780 of the Rajasthan High Court Rules applicable to the proceedings before the District Judge. No doubt, it is true that proceeding for grant of Probate or Letters of Administration are proceedings in rem but it has to be seen whether the petitioner had mentioned any ground for delay in filing the affidavit. I have gone through the affidavit which the petitioner had filed before the District Judge. In that affidavit it is only mentioned that unfortunately by mistake she omitted to file an affidavit in support of the caveat lodged by her on May 23, 1986. It was neither mentioned whether it was a mistake of fact or mistake of law. Vague ground like the one given by the petitioner in her affidavit before the trial Court is no ground what -so -ever. The matter will, therefore, be governed by the decision in Kalyansingh's case and the District Judge, Ganganagar, therefore, rightly rejected the entertaining of such delayed affidavit filed by the petitioner before him.