Allowed

Kamni Ashok Daryanani @ Kamini Tekumal Shewakramani @ Kamini Prakash Shewakramani v. Murli Prakash Shewakramani @ Murli Prakash Shevakramani

Bombay HC24 Jul 2013APP/767/2012

Case brief

AI extract

What is this about?

This appeal challenged the dismissal of a petition for revocation of probate. The High Court found the lower court's factual finding on service of citation erroneous as bailiff reports showed no one was served. The appeal was allowed, the impugned order set aside, and proceedings remanded with liberty to apply for evidence.

What did the court decide?

Impugned order of 3 December 2012 set aside; proceedings remanded to learned Single Judge with liberty to apply for permission to file affidavits.

Kamni Ashok Daryanani @ Kamini Tekumal… — Civil Procedure and Limitation | Bombay HC (2013)

app 767-2012

1/6

sat

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶5

ORDINARY ORIGINAL CIVIL JURISDICTION

¶6

APPEAL NO. 767 OF 2012 IN MISC.PETITION NO. 94 OF 2011 IN

¶7

TESTAMENTARY PETITION NO. 404 OF 2006

¶8

Kamini Ashok Daryanani alias Kamini Tekumal Shewakramani alias Kamini Prakash Shewakramani

¶9

...Appellant

¶10

¶11

Murli Prakash Shewakramani @ Murli Prakash Shewakramaniu

¶12

..Respondent

¶13

Mr. Sanjay Jain i/b. M/s.LJ Law for the Appellant. Ms.Snehal Paranjape i/b. M/s.Mishra & Co. for the Respondent.

¶14

CORAM : DR.D.Y.CHANDRACHUD, AND S.C. GUPTE, JJ.

¶15

24 JULY 2013

¶16

P.C. :

¶17

Admit. With the consent of the learned Counsel for the parties and by consent, the appeal is taken up for hearing and final disposal.

¶18

2 The learned Single Judge has dismissed a petition for the revocation of a probate which was granted by the court on 19 July 2008.

¶19

3 The Appellant is the sister of the Respondent. The mother of the Appellant and the Respondent died on 9 June 2004. Apart from the Appellant and the Respondent, she left behind another son and daughter. The Respondent filed a petition on 25 April 2006 for probate of a will alleged to have been executed by the testatrix on 30 November 1998. The petition was dismissed in default on 31 August 2007. The order of dismissal was set aside on 7 March 2008 and the petition was restored to file. Two affidavits of the Respondent and of the Bailiff dated 3 September 2007 and 1 January 2008 were filed in proof of service of the citation on the heirs of the deceased testatrix. Probate was granted by the court on 19 July 2008. The Appellant filed a Miscellaneous Petition on 15 September 2011 for the revocation of the probate which was

app 767-2012

2/6

sat

granted by the court. The petition for revocation has been dismissed by the learned Single Judge on 3 December 2012.

¶24

4 Issues were framed in the petition for revocation on 19 October 2012. The Appellant was directed to file her affidavit of examination-in-chief and of documents. The Appellant did not file the affidavit of examination or of documents. On 19 November 2012, the hearing of the Petition was adjourned to 3 December 2012 for dismissal unless the directions were complied. On 3 December 2012, the Appellant was absent. Her husband, Ashok, had appeared as her representative and the learned Single Judge recorded that he stated that he is a Constituted Attorney of the Appellant. The power of attorney was not produced. The learned Single Judge recorded that since the Appellant had failed to comply with the directions for filing an affidavit of evidence and affidavit of documents, the Petition would stand dismissed for want of appearance of the Appellant herself under Order 17 Rule 2 of the Code of Civil Procedure, 1908. However, the learned Judge has recorded that the Petition may be proceeded with under Order 17 Rule 3 even if the Appellant is taken to be a representative of her husband. At this stage, it may also be noted that the spouse of the Appellant had informed the learned Judge that the Appellant sought to change her Advocate. The learned Judge was of the view that the Appellant had enough time to do that. The learned Single Judge noted that the Appellant failed to show how she was not served with the Petition at her place of residence, as claimed by her. The finding which the learned Judge arrived at was in the following terms :-

¶25

The citation with a copy of the Petition is shown to be served upon the Petitioner herein through the Sheriff's Bailiff. The report of the Bailiff shows that the citation was served upon the Petitioner at 82, Maker Towers, 8th floor, K-wing, Cuff Parade, Mumbai. The Petitioner's husband who is present in Court states that that is their residence since 2005. He also states the passport was issued in 2004 prior to the purchase of that flat and hence shows his old residential address. The Petitioner lived along with her husband. Her husband's place of residence is, therefore, the last known address of the Petitioner. The Petitioner is shown to be served the citation as also the copy of the petition at that last known address. The service at the aforesaid address is shown to be made twice as per two reports

app 767-2012

3/6

sat

of the Sheriff's Bailiff dated 26th July, 2007 and 26th November, 2007.

¶30

5 In the absence of any evidence produced by the Appellant, the learned Single Judge was of the view that it “could not be seen” that the Appellant was not served with the citation along with the petition at the last known address of the Appellant which is seen to be her husband's address. In this context, the learned Single Judge has entered the following findings :-

¶31

“Endorsement of the Bailiff shows that it was served at that address and further that her husband was found at the time of service, but not the Petitioner and upon making inquiry from the husband the husband stated that she was out of India in Dubai and he did not know when she would return. The Testamentary Petition was, therefore, correctly served upon a family member of the Petitioner herein.”

¶32

Consequently, the Petition has been dismissed.

¶33

6 The learned Single Judge had directed the Appellant to file her affidavit of evidence and affidavit of documents in support of the petition for revocation on 19 October 2012, when issues were framed in the suit. Since the Appellant did not do so, a direction was issued on 19 November 2012 that the petition would stand adjourned to 3 December 2012 for dismissal, if the directions were not complied with. On 3 December 2012, the petition was listed for dismissal. The learned Single Judge was of the view that since the Appellant had failed to comply with her directions, the Court would have been justified in dismissing the petition for want of appearance under Order 17 Rule 2. However, the Court proceeded on the basis of the provisions of Order 17 Rule 3. Under Order 17 Rule 3, where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary for the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, if the parties are present, proceed to decide the suit forthwith, or if the parties are, or any of them, is absent, proceed under rule 2. The basis and foundation of the judgment of the learned Single Judge is that the citation together with a copy of a petition was served upon the Petitioner through the Sheriff's bailiff on two

app 767-2012

4/6

sat

occasions as per two reports of the representatives of the Bailiff dated 26 July 2007 and 26 November 2007. Moreover, the learned Single Judge proceeded on the basis that the endorsements of the Bailiff indicated that the husband of the petitioner had indicated that she was out of India, in Dubai. The learned Judge holds that the testamentary petition was served upon a family member of the petitioner.

¶38

7 We have with the assistance of the learned Counsel, perused the record. During the course of the hearing of the Appeal, learned Counsel have also inspected the record of Testamentary Petition 404/2006. In the testamentary petition, the address of the petitioner was disclosed to be as follows :

¶39

“ C/o. L.N. Daryanani, 82/8^th Floor, Maker Tower Building, K Wing, G.D. Somani Marg, Cuffe Parade, Colaba, Mumbai-400 005.

¶40

8 The first affidavit of the Bailiff dated 3 September 2007 is to the effect that when he visited the premises of the Appellant, they were found to be locked and on making inquiries with a security person of the wing, he was informed that the family had gone out. The second affidavit of the Bailiff dated 1 January 2008 states as follows :

¶41

“2) And on 23.11.07 at about 9.15 a.m. Upon service to Mrs.Kamini Daryanani visited at her address 82/8^th floor, Maker Tower Bldg, K-Wing, G.D. Somani Marg, Cuff Parad, Colaba, Mumbai – 400 005. Mrs.Kamini Daryani, who was not found is this place and making enquiry with her husband Mr.Ashok Daryani, he stated that Mrs.kamini Daryani had gone for out of India (Dubai) and he does not know when she available at this stage. Hereto annexed and marked as Exhibit “A” bailiff service report dated 26/11/2007.

¶42

The said place of Respondents were pointed out to me by Deponent No2 Murli Prakash Shewakramani the Petitioner, in view of the above fact I could not served this citation upon all these three Respondents.” (emphasis supplied)

app 767-2012

5/6

sat

9 Incidentally, it would be necessary to note that service on the second occasion was attempted on 23 November 2007 when the testamentary petition had been dismissed for default (the petition had been dismissed in default on 31 August 2007 and was restored to file on 7 March 2008). The affidavit of the Bailiff of the visit on 23 November 2007, therefore, in any event, proceeds on the basis that the citation was not served on the Appellant, since the Bailiff was informed by her husband that the Appellant was in Dubai. As a matter of fact, the Bailiff's report dated 26 November 2007 is also to the same effect.

¶47

10 Now, the material which has been adverted to above clearly indicates that the citation was not served on the petitioner, or for that matter, upon her husband. The learned Judge has proceeded on the basis that service of the citation was effected upon the petitioner at the address at 31 Maker Towers, K-Wing, Cuffe Parade, Mumbai and reliance for this finding is placed on the reports of the Bailiff dated 26 July 2007 and 26 November 2007. This finding of the learned Single Judge is ex-facie incorrect on the basis of the admitted material on record. In the concluding part of the judgment, the learned Single Judge has entered a finding of fact that the citation was served on the husband of the Appellant correctly since in the absence of the Appellant, to Dubai, the citation could have been served on a member of the family. As a matter of fact, the record before the court indicates that the citation was not served on the husband of the petitioner. Both the reports of the Bailiff and his affidavits indicate that the citation was not served either on the Appellant or on her husband. The basic premise of the order of the Learned Single Judge is therefore erroneous.

¶48

11 However, it has been urged on behalf of the Respondent by the learned Counsel that in the present case, service of the citation was effected by publication in the local newspapers in pursuance of Rule 400 of the High Court (Original Side) Rules. Rule 400 stipulates that a citation which cannot be personally served as required by Rule 399 shall be served by publishing the same in such local newspapers as the Prothonotary and Senior Master may direct. Since that is not the basis on which the learned Single Judge has given a finding of fact that the petition for probate has been duly served, we are of the view that it would not be appropriate for this Court to inquire into this issue in

app 767-2012

6/6

sat

appeal for the first time. Having regard to all the facts and circumstances, we are of the view that it would be appropriate and proper to remand the proceedings back to the learned Single Judge for fresh consideration.

¶53

12 The Petition for revocation is restored to the file of the learned Single Judge at the same stage as before the passing of the impugned order dated 3 December 2012. To facilitate this, this impugned order dated 19 July 2008 is set aside. We leave it open to the Appellant to make an appropriate application before the learned Single Judge, in such terms as the Appellant may desire to apply for permission to comply with the order for filing the affidavits of documents and evidence.

¶54

13 The Appeal is accordingly allowed in the aforesaid terms. There shall be no order as to costs.

Kamni Ashok Daryanani @ Kamini Tekumal Shewakramani @ Kamini Prakash Shewakramani v. Murli Prakash Shewakramani @ Murli Prakash Shevakramani

Case brief

What is this about?

What did the court decide?

Kamni Ashok Daryanani @ Kamini Tekumal Shewakramani @ Kamini Prakash Shewakramani v. Murli Prakash Shewakramani @ Murli Prakash Shevakramani

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Dr. Balaji Gyanoba Phalke and Ors. Vs Union of India, through Ministry of Health and Family Welfare and Ores

Mr.Vijay Kumar Jayantiprasad, Mr.Vinay Kumar Vijay Kumar Prasad and Mr.Vinit Kumar Vijay Kumar Pras Vs Sicom Limited

R. K. Chheda and 4 Ors. Vs Kesarben L. Dedhia and 17 Ors. and Kantilal Ravji Chheda and 19 Ors. (Applicants)

Girja Shankar G. Gupta and 3 Ors., Vs Shanil Builders and Ors.

D Virendra and Co. and 2 Ors. Vs Kotak Mahindra Bank Ltd.

Central Railway Vs Commissioner of Central Escise and Customs, Nagpur