Allowed

Mr. Sandeep Damodar Tamhankar v. Mr. Satish Damodar Tamhankar (Caveator)

Bombay HC22 Jun 2015CST/74/2015

Case brief

AI extract

What is this about?

The court condoned the delay in filing a caveat due to reasons stated in the supporting affidavit. The judge further observed the inconsistent practice of not serving the petition copy on next of kin and directed future compliance by petitioners to serve the authenticated petition with annexures.

What did the court decide?

Chamber Summons declared absolute; petitioner directed to serve copy of petition on next of kin; Affidavit in Support to be filed by 30th June 2015.

Mr. Sandeep Damodar Tamhankar Vs Mr. Satish… — Succession and Inheritance | Bombay HC (2015)

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27-CST74-15.DOC

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Atul

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
CHAMBER SUMMONS NO. 74 OF 2015

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IN

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CAVEAT (L) NO. 58 OF 2015

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IN

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TESTAMENTARY PETITION NO. 1243 OF 2014

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Satish Damodar Tamhankar...Applicant
In the matter between
Sandeep Damodar Tamhankar…Petitioner
Versus
Satish Damodar Tamhankar…Caveator/
Defendant

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Mr. Arvind Taral, for the Petitioner.
Mr. Victor Fernandes, for the Applicant.
Mr. Ram Kapse, Additional Prothonotary & Senior Master, High
Court, Bombay.

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CORAM:G.S. PATEL, J
DATED:22nd June 2015

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PC:-

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1.This is an application seeking that a delay of four days in
filing the caveat be condoned. The caveat is already filed, but
remains under objection for this reason. A consequential prayer is
for leave to file an Affidavit in Support of that Caveat.

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2.I am satisfied from the Affidavit in Support that a sufficient
cause has been made out, particularly in view of the averments in
paragraphs 2(a), 3(a) and 4 of that affidavit.

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3.It would have ordinarily been sufficient to allow this
Chamber Summons with these observations. However, the
Applicant has raised a further ground in paragraph 3(b) and 5. In
these paragraphs, the Applicant says that he was not served with a
copy of the Petition and its annexures.

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4.Rule 397 of the Bombay High Court (Original Side) Rules
deal with the notice required to be given to the next of kin. The
Rule reads thus:

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“R.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.

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(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.

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(3)In all applications for succession certificate,
notice of the application shall be affixed on some
conspicuous part of the Court house.

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(4)No grant of probate, letters of administration or
succession certificate shall be made until after the
expiry of fourteen clear days from the date of the
service of the citation or notice, and from the publication
thereof in newspapers, if any, and from the affixing

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thereof on the court house and in the Collector’s Office
as the case may be, unless the Judge in Chambers
otherwise directs.”

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5.Citation is to be served in the manner provided in Rules 399
and 400.

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“R.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.

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R.400. Service by advertisement.– Citations which
cannot be personally served as required by the last
preceding rule shall be served by publishing the same in
such local newspapers as the Prothonotary and Senior
Master may direct.”

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6.Upon service of the citation, any person who intends to
oppose the petition is required to file a Caveat in Form No. 116
within fourteen days of such service and an Affidavit in Support
service (Rule 402) within eight days thereafter.

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7.Form 115 appended to the Bombay High Court (Original
Side) Rules gives a format of the citation that is served. This is
described as a “citation to see proceedings”. In other words, this
notice requires the noticee to come to the High Court, apply for
search, take inspection, and then file a Caveat within fourteen days
of such service followed by an Affidavit in Support support of that
Caveat within eight days thereafter.

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8.I see absolutely no reason why a copy of the Petition with its
annexures (including the Will itself) should not be served by the
Petitioner and accompany the notice or citation. Nothing in our
Rules prevents or prohibits this. In a regular civil suit, a copy of the
plaint is required to accompany the writ of summons. A contested
testamentary proceeding, which is the outcome once a Caveat and
Affidavit in Support, is renumbered as a suit and tried as such. In
short, what this means is that in testamentary proceedings there is
no need to serve a copy of the petition although that petition may
later be tried as a suit, but in a regular suit the Plaintiff himself
serve a copy of the plaint. This is inconsistent and incongruous. It
puts the noticee conceivably at a very great disadvantage, especially
if the noticee does not reside in Mumbai; more so if the noticee
lives abroad. I believe it would be in the interest of expedition and
would avoid such grounds being taken to condone delay if a copy of
the testamentary petition is directed to be served by the Petitioner
in addition to the notice under Rules 397/399.

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9.Indeed, I can see no logical or compelling reason why a copy
of the petition ought not to be so served. Once that copy is made
available, the noticee can then set out more precisely the grounds of
opposition to the Will itself and it will not then be open in every
case for the noticee to make a complaint about not having sent a
copy of the petition. This will expedite matters, something that I
believe is necessary given that there are delays of several decades in
regard to the administration of estates.

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10.For these reasons, the Testamentary Department of the High
Court is directed to immediately ensure that henceforth a true copy

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of the Petition authenticated by the Advocate for the Petitioner
along with all its annexures is served by the Petitioner on the next
of kin in addition to the notice issued under Rules 397/399. This
service is effected by the Advocate for the Petitioner to the
satisfaction of the Department.

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11.Place a copy of this order before the Prothonotary and Senior
Master as also before the Additional Prothonotary and Senior
Master, High Court, Bombay.

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12.The Chamber Summons is made absolute in terms of prayer
clauses (a) and (b). A copy of the petition will be served on the
Advocate for the Applicant during the course of the day. Affidavit
in Support of the caveat to be filed and served on or before 30th
June 2015.

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13.Upon the Affidavit in Support being filed as directed, the
Petition to be renumbered as a Suit and to be placed for framing
issues on the supplementary board on 14th July 2015. If the
Affidavit in Support is not filed, Caveat to stand discharged without
further reference to the Court; and the Applicant is put to notice
that the Caveat will not thereafter be restored to file.

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(G. S. PATEL, J.)

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Mr. Sandeep Damodar Tamhankar v. Mr. Satish Damodar Tamhankar (Caveator)

Case brief

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What did the court decide?

Mr. Sandeep Damodar Tamhankar v. Mr. Satish Damodar Tamhankar (Caveator)

Case brief

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What did the court decide?

What the court decided

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