Allahabad High Court
Gagan Arora vs Unknown on 10 April, 2012
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 10
Case :- TESTAMENTARY CASES No. - 1 of 2012
Petitioner :- Gagan Arora,In The Matter Of The Goods Of Late Suraj Prakash
Petitioner Counsel :- Pratik J.Nagar
Respondent Counsel :- S.C.Tiwari
Hon'ble Pankaj Mithal,J.
Heard Sri Pratik J. Nagar, learned counsel for the petitioner and Sri Shashi Nandan, Senior Advocate, assisted by Sri S.C. Tiwari, for the respondent.
Petitioner Gagan Arora, has applied for grant of Letters of Administration to the estate of the deceased Suraj Prakash with the Will annexed.
On behalf of Ravi Kumar Sachedeva, son of the deceased a caveat was filed on 17.3.2012. Thereafter on 29.3.2012 he filed an application to vacate the interim order along with written statement with his affidavit.
Sri Prateek J. Nagar, learned counsel for the petitioner has raised an objection that as objections were not filed within 14 days of the caveat supported by an affidavit, the respondent is not entitle to contest the proceedings.
Rule 35 of Chapter XXX of the Rules of the High Court contemplates for filing of caveat on behalf of the person, who proposes to oppose the grant of probate or Letters of Administration.
Rule 36 provides that where a caveat is entered after the filing of the petition for grant of Letters of Administration or probate, objections supported by affidavit shall be filed within 14 days of the caveat being lodged.
In view of the aforesaid Rule 36, there is no time limit prescribed for lodging a caveat. However, objections supported by affidavit are required to be filed within 14 days of the lodging of the caveat.
In the instant case, caveat was filed on 17.3.2012 and a written statement which is said to be in fact the objections on behalf of the respondent was flied on 29.3.2012 with an affidavit of the respondent Ravi Kumar Sachedeva.
Sri Shashi Nandan, states that in fact the respondent had filed objections not the written statement on 29.3.2012.
It is the substance and not the nomenclature of the document which is relevant and material for determining its nature. The purpose of filing of the written statement is to oppose the grant of probate or letters of administration as the case may be. Therefore, in substance the written statement so filed is in the nature of objections opposing the grant. The written statement as such is objections on behalf of the respondent and as the same has been filed within 14 days of lodging of the caveat coupled with an affidavit in support thereof. Accordingly, the objection that the respondent is not entitle to contest the proceeding is overruled. The aforesaid written statement/objections with affidavit of the respondent Ravi Kumar Sachedeva are entertained.
In view of above, the testamentary case is directed to be converted into the suit.
The petition for grant of probate/letters of administration would be treated as plaint in the suit.
The above objections are directed to be treated as written statement as has already been described by the respondent.
The petitioner Gagan Arora would henceforth be referred to as plaintiff and the respondent Ravi Kumar Sachedeva, as the defendant in the suit.
Sri Nagar, may if so pleases file replica within three weeks.
There is no justification to vacate the interim order of status quo.
The order of status quo passed on 18.1.2012 shall therefore, continue to operate during the pendency of the suit.
Applications No. 102425 of 2012, 715785 of 2012 to vacate the interim order and application paper No. A-11 for discharge of caveat, application paper No. A-9 for rejecting the counter affidavit of Ravi Kumar Sachedeva and counter objection No. 102387 of 2012 all stand disposed of in terms of this order.
Office to proceed and to allot number to the suit accordingly.
Order Date :- 10.4.2012
piyush
