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2013 SCC OnLine Bom 1173 : (2013) 5 Mah LJ 951 : (2014) 2 Bom CR 144 :
(2014) 2 Mah LJ 194

Bombay High Court

Caveat Under Rule 481 of High Court Original Side Rules : Commencement of
Time For Filing
(T. and I.J., Bombay)
(BEFORE R.D. DHANUKA, J.)

Captain Makhan Lal Barua alias M.L. Barua Deceased. Sunita Barua
… Petitioner;
Versus
Miss Mihika Barua and another … Applicants.
Chamber Summons No. 73 of 2012 in Test. Petition No. 830 of 2010
Decided on September 2, 2013
Bombay High Court (Original Side) Rules, 1980, RR. 401, 397, 399, 402 and Succession
Act (39 of 1925), S. 278 — Petition for Letter of Administration — Service of citation and
commencement of time to file caveat — Knowledge of filing of the petition would not
commence time for filing caveat or affidavit in support of caveat — Commencement of time
to file caveat and/or obligation to file caveat commences only upon service of citation.
In all applications for probate, letters of administration and succession certificate, all the heirs or
next of kin of the deceased mentioned in the petition have to be served with the notice. Citation has
to be served personally when possible. Time to file caveat within 14 days commences only from the
date of service of citation upon the next of kin. Time to file affidavit in support of the caveat under
Rule 402 commences from the date of filing of caveat prescribed under Rule 401. Since applicants
were required to be served with the citation in view of Rule 397 read with 399 and since citation itself
has not been served upon the applicants, time to file caveat under Rule 401 of the High Court
(Original Side) Rules did not commence. Similarly since time to file caveat did not commence, the
question ofcommencement of time to file affidavit in support of the caveat did not arise. There is no
delay in filing caveat as well as affidavit in support of the caveat. Knowledge of filing of the petition
would not commence

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time for filing caveat or affidavit in support of caveat. Commencement of timeto file caveat and/or
obligation to file caveat commences only upon service of citation.

(Paras 10 and 11)

For Applicants : J.P. Sen instructed by M/s Dastur Dadhich and Kalambi Zuben
Behramkamdin instructed by M/s Wadia Ghandy and Co. for petitioner (in Test. Ptn.
No. 830 of 2010) and for respondents in Chambers Summons.
ORAL JUDGMENT
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 Lai 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
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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 disclosedin paragraph (4). Insofar 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 along with 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

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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
thatif there was any delay in filing caveat and affidavit in support, the same shall be
condoned.

4. Mr. Sen, learned counsel appearing on behalf of the applicants invited my

attention to Rules 397, 399, 401 and 402 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
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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.
5. Mr. Behramkamdin, learned counsel appearing on behalf of the petitioner on the
other hand submits that in the petition for Letters of Administration, petitioner was
required to disclose the names of the legal heirs and next of kin who were survived by
the said deceased at the time of his death on the date of filing of the said petition. It
is submitted that in any event, no sooner a request was received from the applicants
to furnish a copy of the petition, on the same day petition along with annextures was
served upon the applicants by the petitioner. Learned counsel would submit that
though the applicants choose to file caveat under section 148A of the Code of Civil
Procedure and were aware of their rights, did not choose to file caveat under Rule 401
of High Court (Original Side) Rules. Applicants were fully aware of the petition filed by
the petitioner for seeking Letters of Administration. It is submitted that since copy of
the petition was already served on 6th August, 2010, applicants were not prevented
from filing caveat as well as affidavit in support in accordance with Rule 401 and 402
of the High Court (OriginalSide) Rules respectively.
6. Without prejudice to these submissions, learned counsel appearing for the
petitioner submits that the applicants were even otherwise were not entitledto be
served with citation as they were not heirs of the said deceased on the date of

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death of the said deceased. It is submittedthat applicants have already filed a

separate petition for Letters of Administration of Mr. Adhip Lal Barua through whom
this applicants are claiming rights and haveobtained such Letters of Administration.

7. Learned counsel submits that on 6th August, 2010 when the petitioner forwarded
a copy of the petition with annextures, applicants were fully aware that such petition
has been already filed. It is submitted that citation required to be served under Rule
399 of the High Court (Original Side) Rules is merely a noticein the format prescribed.
It is submitted that service of petition for Letters of Administration itself was by way of
notice and separate citation would not be required.
8. It is not in dispute that applicants are legal heirs of Mr. Adhip Lal Barua who was
son of the deceased late Captain Makhanlal Barua. It is not in dispute that on the date
of filing petition in Letters of Administration by the petitioner, the said Mr. Adhip Lal
Barua had expired. Though the petitioner has disclosed the name of Mr. Adhip Lal
Barua as one of the relative of the said deceased late Captain Makhanlal Barua, the
legal heirs of the said Mr. Adhip Lal Barua were not brought on record in the petition
itself or at subsequent stage. In my view, since Mr. Adhip Lal Barua during his lifetime
would have caveatable interest to oppose such Letters of Administration, applicants as
legal heir of Mr. Adhip Lal Barua his demise also would been entitled to be served with
the citation. It is not in dispute that no citation has been served on the applicants who
are legal heirs of the said Mr. Adhip Lal Barua.
9. Mr. Behramkamdin, learned counsel appearing for the petitioner is right that the
applicants had filed caveat under section 148A of the Code of Civil Procedure. In my
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view, caveat filed under section 148A of the Code of Civil Procedure can not be
equated with and in compliance with caveat required to be filed underRule 401 of the
High Court (Original Side) Rules. Applicants had repeatedly called upon the petitioner
to serve the citation upon them but the petitioner did not serve citation on the ground
that the caveat filed under section 148A had been already filed by the applicants or on
the ground that applicants were not entitled to be served with citation. Affidavit in
support of caveat filed under Rule 402 has to be treated as written statement. Rules
397, 399, 401 and 402 of High Court (OriginalSide) Rules read thus:—
397. Notice of next-of-kin — (1) In all applications for probate, letters of
administration and succession Certificate, notice of the application shall be given
to all the heirs and next-of-kin of the deceased mentioned in the petition except
to those whose consent has been filed in the proceedings.
(2) In all applications for probate and letters of Administration the citation shall be
affixed on some conspicuous part of the Court house and also in the office of the
Collector of Bombay.
(3) In all applications for succession certificate, notice of the application shall be
affixed on some conspicuous part of the Court house.
(4) No grant of probate, letters of administration or succession certificate shall be
made until after theexpiry of fourteen clear days from the date of the service of
the citation or notice, and from the publication

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there of in newspapers, if any, and from the affixing thereof on the Court house and in
the Collector's Office as the case may be, unless the Judge in Chambers otherwise
directs.

399. Service of citations — Citations shall be served personally when possible.

Personal service shall be affected by leaving a true copy of the citation with the
party cited and taking his acknowledgement on the original.
401. Caveat — Any person intending to oppose the grant of probate or letter of
administration shall file a caveat in Form No. 116 within fourteen days from the
service of the citation upon him or within such shorter time as the Judge in
Chambers may direct. Notice of the filing of the caveat shall be given by the
Prothonotary and Senior Master to the petitioner or his Advocate on record. The
Judge in Chambers may extendthe time to file a caveat, provided the grant has
not in the meantime been issued.
402. Affidavit in support of caveat.— An affidavit in support of a caveat shall be
filed within eight days from the date of the filing of the caveat, notwithstanding
the Court vacations. Such affidavit shall state the right and interest of the
caveator, and the grounds of the objections to the application. A copy of the said
affidavit shall be served by the caveator on the petitioner or his advocate on
record. If suchaffidavit be not filed within the prescribed time, the caveat shall
not prevent the grant of probate or letters of administration. No such affidavit
shall be filed after the expiry of the said eight days without an order of the Judge
in Chambers.
10. On conjoint reading of sections 397, 399, 401 and 402 of the Bombay High
Court (Original Side) Rules, it is clear that all the heirs or next of kin of the deceased
mentioned in the petition have to be served with the notice. Citation has to be served
personally when possible. Time to file caveat within 14 days commences only from the
date of service of citation upon the next of kin. Time to file affidavit in support of the
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caveat under Rule 402 commences from the date of filing of caveat prescribed under
Rule 401. In my view, since applicants were required to be served with the citation in
view of Rule 397 read with 399 and since citation itself has not been served upon the
applicants, time to file caveat under Rule 401 of the High Court (Original Side) Rules
did not commence. Similarly since time to file caveat did not commence, the question
of commencement of time to file affidavit in support of the caveat did not arise. In my
view, there is no delay in filing caveat as well as affidavit in support of the caveat.
11. As far as submission of Mr. Behramkamdin, learned counsel appearing for the
petitioner that service of petition for Letters of Administration upon the applicants was
sufficient and separate citation was not necessary in view of the knowledge derived by
the applicants in filing of the petition is concerned, in my view there is no substance in
this submission of the learned counsel. Knowledge of filing of the petition would not
commence time for filing caveat or affidavit in

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support of caveat. In my view commencement of time to file caveat and/or obligation

to file caveat commences only upon service of citation.

12. As far as submission of the learned counsel appearing for the petitioner that the
applicants are not the heirs and the legal representatives of the said deceased late
Captain Makhanlal Barua and were not entitled to be served with any citation is
concerned, in view of the fact that the applicants who are claiming through Mr. Adhip
Lal Barua who was admittedly son of the said deceased late Captain Makhanlal Barua,
the said Mr. Adhip Lal Barua being entitled to served with the citation on the demise of
the said Mr. Adhip Lal Barua, in my vew his legal heirs would be entitled to be served
with the citation.
13. The next submission of Mr. Behramkamdin is that if according to the applicants,
there was no delay in filing caveat and affidavit in support, filing of the Chamber
Summons for condonation itself was unwarranted and not maintainable. In the
alternative it is submitted that in the affidavit in support of the Chamber Summons,
applicants have not explained any delay in filing caveat as well as affidavit in support.
This Court has taken a view that there was no delay in filing caveat as well as affidavit
in support in view of the non service of the citation upon the applicants, prayers for
seeking condonation of delay was thus not necessary On perusal of the affidavit in
support, it is clear that the chamber Summons has been filed by the applicants by
making their position clear that there was no delay in filing affidavit in support in view
of non service of citation upon them, however, without prejudice the same, Chamber
Summons has been filed for condonation of delay in the interest of justice. In my view
there is no substance in the alternate submission made by the learned counsel
appearing for the petitioner that delay is not explained.
14. Chamber Summons is made absolute in the aforesaid terms. In my view, there
being no delay in filing caveat and affidavit in support, Prothonotary andSenior Master
is directed to take caveat as well as affidavit in support on record and to convert the
petition into a suit. Place the matter on board for direction after three weeks.
Order accordingly.
———
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