Dismissed

Mahesh Atalrai Keswani v. Mr.Suresh Atalrai Keshwani and Anr,(Respondents)

Bombay HC12 Aug 2013CST/25/2013

Case brief

AI extract

What is this about?

In a chamber summons to vacate a caveat filed to oppose a grant of probate, the court vacated the caveat because the caveator failed to file an affidavit in support within the prescribed statutory time, making compliance with the applicable Rules mandatory.

What did the court decide?

caveat vacated; office directed to proceed with issuance of grant of letters of administration as uncontested matter.

Mahesh Atalrai Keswani Vs Mr.Suresh Atalrai Keshwani and Anr,(Respondents) — Bombay HC (2013) — LawSathi Research

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY .

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ORDINARY ORIGINAL CIVIL JURISDICTION

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CHAMBER SUMMONS NO.25 OF 2013

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IN PETITION NO.133 OF 2012

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Mahesh Atalrai Keswani ... Petitioner/Applicant. V/s. Suresh Atalrai Keswani ... Respondent.

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Mr Sanjay Jain i/b V. Thakers for petitioner/applicant.

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Mr Deepan Dixit i/b M/s Kartikeya & Associates for Respondent/Caveator.

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No R & Ps.

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CORAM : R.D.DHANUKA J. DATED : AUGUST 12, 2013.

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JUDGMENT :

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By this chamber summons filed by the petitioner, petitioner has prayed for vacating the Caveat filed by the respondents. Citation was served on Mrs Manu Shukla on 26^th June 2012 and on Mr Suresh Atalrai Keshwani on 2^nd July 2012, respondent No.2 and respondent No.1 respectively. Petitioner was called upon to furnish copy of the probate petition by Mrs Manu Shukla. Petitioner furnished copy of the probate petition. The petitioner through his Advocate's letter dated 19^th July 2012, 23^rd August 2012 and 31^st August 2012, called upon the Caveator to provide copy of affidavit in support of the Caveat. There was no response to any of those letters. Petitioner thereafter applied for certified copies of the Caveat and affidavit in support thereof. The petitioner at that stage came to know that Caveator has

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Asmita

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not filed affidavit in support of Caveat till date in the office of this Court. Though this chamber summons was taken out by the petitioner on 8^th December 2012, no affidavit in reply has been filed by the Caveator.

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Mr Jain, learned counsel appearing for the applicant invited my attention Rule 401 and 402 of Bombay High Court (Original Side) Rules which read thus :

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R.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 Chamber 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 extend the time to file a caveat, provided the grant has not in the meantime been issued.

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R. 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 applications. A copy of the said affidavit shall be served by the caveator on the petitioner or his Advocate on record. If such affidavit be not filed within the prescribed time, the caveat shall not prevent the grant of probate or letter of administration. No such affidavit shall be filed after the expiry of the said eight days without an order of this Judge in Chambers.

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3. On perusal of Rule 402, it is clear that an affidavit in support of caveat shall be filed within eight days from the date of filing caveat. Copy of such affidavit shall be served by the caveator on the petitioner or his Advocate on record. If such affidavit is not filed within the prescribed time, caveat shall not prevent granting of probate or letter of administration. Though petitioner vide letters dated 19^th July 2012, 23^rd August 2012 and 31^st August 2012 called upon the caveator to provide copy of affidavit in support of caveat, no affidavit in support is filed. No application for condonation of delay or for permission to file affidavit in support is filed by the caveators. Thought chamber summons was served in the month of December 2012 upon the caveators, no affidavit in reply has been filed. Compliance of Rule 402 is mandatory.

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Since there was no application for condonation of delay in filing affidavit in support of caveat, in my view, Rule 402 of the Bombay High Court (O.S.) Rules being mandatory, caveat without any affidavit in support cannot remain on record and has to be vacated.

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Chamber summons is accordingly made absolute in terms of prayer clause (a). Office is directed to proceed with issuance of grant of letters of administration as uncontested matter. No order as to costs.

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(R.D.DHANUKA, J.)

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Asmita

Mahesh Atalrai Keswani v. Mr.Suresh Atalrai Keshwani and Anr,(Respondents)

Case brief

What is this about?

What did the court decide?

Mahesh Atalrai Keswani v. Mr.Suresh Atalrai Keshwani and Anr,(Respondents)

Case brief

What is this about?

What did the court decide?

What the court decided

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Coram

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