Ashok Kumar Shukla And Anr. vs Smt. Karuna Tiwari And 2 Others
2015 Latest Caselaw 1565 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Chief Justice's Court
 

 
Case :- SPECIAL APPEAL No. - 505 of 2015
 

 
Appellant :- Ashok Kumar Shukla And Anr.
 
Respondent :- Smt. Karuna Tiwari And 2 Others
 
Counsel for Appellant :- Manish Goyal
 
Counsel for Respondent :- Rohit Agrawal
 

 
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
 
Hon'ble Yashwant Varma,J.

This special appeal is from a judgment and order of the learned Single Judge dated 10 July 2015 by which an application filed by the appellants under Section 151 of the Code of Civil Procedure1 for the discharge of a caveat in a testamentary case was dismissed.

The appellants instituted a Testamentary Case2 seeking letters of administration with a will dated 31 March 2012 annexed of the estate of Sarla Shukla, who was the spouse of Justice Mahesh Narayan Shukla, former Chief Justice of this Court. The testatrix died on 12 March 2013. On 30 May 2014, notices were issued fixing 30 July 2014 as the date of hearing. On 25 June 2014, notices were remitted to the next of kin and were published in the newspapers. On 13 August 2014, the respondents, who are daughters of the testatrix, filed a caveat application under the provisions of Section 284 of the Indian Succession Act, 1925. On 9 December 2014, the appellants who are sons of the testatrix, filed an application under Section 151 of the CPC for the discharge of the caveat on the ground that within a period of fourteen days from the lodgement of the caveat, the respondents had not filed an objection together with an affidavit stating the right or interest of the caveators and the grounds of objection to the application. The learned Single Judge dismissed the application by the judgment and order which is impugned in this appeal.

The learned Single Judge found that while lodging a caveat on 13 August 2014, the respondents had filed an affidavit stating that they are daughters of the deceased testatrix and were filing a caveat in order to contest the proceedings on the ground that the will is forged and fabricated and all the properties had been bequeathed to the appellants whereas these being ancestral properties the testatrix had only a limited right in respect of the properties. The learned Single Judge held that there was substantial compliance on the part of the respondents with the provisions contained in Rule 36 of Chapter XXX of the Allahabad High Court Rules, 19523 since there was in substance a caveat, accompanied by an affidavit which stated the right and interest of the caveators as well as their grounds of objection to the application filed by the appellants. Even otherwise, the learned Single Judge was of the view that Rule 38 of the Rules provides that if the caveator fails to file an objection in compliance with Rule 36 of the Rules, the caveat may be discharged by the Court which imports a discretion in the Court on whether or not to discharge the caveat. Accordingly, the learned Single Judge held that since the affidavit filed by the respondents substantially complied with the provisions of Rule 36 of the Rules by spelling out the right and interest of the caveators and their objection to the will on the basis of which the letters of administration were sought, the application filed by the appellants was liable to be rejected. However, the caveators were granted three weeks' time to file their objection/written statement.

Learned counsel appearing on behalf of the appellants has submitted that (i) the filing of a caveat together with an affidavit was not in compliance with the provisions contained in Rules 35 and 36 of Chapter XXX of the Allahabad High Court Rules, 1952; (ii) since no objection was filed by the respondents stating the right and interest of the caveator and the ground of objection to the application, there was no compliance of the requirements of Rule 36 and the affidavit which was filed by the respondents, could not be considered as a written statement within the meaning of Rule 39; (iii) in view of the failure of the respondents to file an affidavit together with the objection, the matter would be rendered non-contentious and could not be treated as a contentious cause; and (iv) Rule 36 provides a limitation of fourteen days for filing an objection supported by an affidavit upon the lodgement of a caveat and there is no provision for the extension of the period by the Court.

These submissions fall for consideration.

Section 284 of the Indian Succession Act, 1925 provides for caveats against the grant of probate or letters of administration. Under sub section (1) of Section 284, caveats against the grant of probate or administration may be lodged with the District Judge or a District Delegate. Sub section (4) of Section 284 provides that the caveat shall be made as nearly as circumstances admit in the form which is set out in Schedule V. The form of a caveat in Schedule V essentially provides that nothing be done in the matter of the estate of the deceased without notice to the caveator. The Rules framed by the High Court in Chapter XXX of the Allahabad High Court Rules, 1952 govern the testamentary and intestate jurisdiction. Section B of Chapter XXX of the Rules deals with non-contentious business, whereas Section C deals with contentious business. Under Rule 3, non-contentious business includes the business of obtaining probate and letters of administration, with or without the will annexed and where there is no contention as to the rights thereto, or in a situation where there has been a contention, the contest is terminated. Non-contentious business also includes all ex parte business to be taken in the Court in matters of testacy and intestacy not being proceeded in any suit, and also the business of lodging caveats against the grant of probate or letters of administration. Rule 7 of the Rules provides for an application for letters of administration with a will annexed. Where an application is made for letters of administration with a will annexed, the application has to set out the names and addresses of the legal representatives of the deceased, unless the Court has seen it fit to dispense with them. Rule 21 of the Rules stipulates that all citations unless otherwise ordered, shall direct the persons cited to show cause on such day as the Judge shall direct and would be in the prescribed form. Section C of Chapter XXX of the Rules deals with contentious business. Rules 35 to 39 of the Rules have a bearing on the issues which are raised in this appeal and are therefore extracted hereinbelow:

"35. Caveats :- Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his Advocate file a caveat in Court in the prescribed form. Notice of the filing of the caveat shall be given by the Court to the petitioner or his Advocate in the prescribed form.

36. Affidavit in support of caveat :- Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, an objection supported by affidavit shall be filed within fourteen days of the caveat being lodged. Such objection shall state the right and interest of the caveator and the ground of objection to the application.

37. When caveat is entered before application for grant is filed :- Where an application for grant of probate or letters of administration with or without the will annexed is presented after a caveat has been filed, the Registrar shall forthwith issue notice to the caveator calling upon him to file his objection supported by affidavit within fourteen days from the service of such notice.

38. Consequence of non-compliance:- Where the caveator fails to file any objection in compliance with Rule 36 or in compliance with the notice issued under Rule 37, the caveat may be discharged by an order to be obtained on application to the Court.

39. Conversion of application into suit :- Upon the affidavit in support of the caveat being filed (notice whereof shall immediately be given by the caveator to the petitioner) the proceedings shall be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff, and the caveator shall be the defendant, the petition for probate or letters of administration being registered as and deemed a plaint filed against the caveator, and the objection filed by the caveator being treated as his written statement in the suit. The procedure in such suit shall, as nearly as may be, be according to the provisions of the Code.

These Rules indicate that a person who intends to oppose a grant of probate or letters of administration has to file a caveat in Court in the prescribed form personally or through an Advocate. Once the caveat is filed, notices are furnished by the Court to the petitioner or through his Advocate. Rules 36 and 37 govern two separate eventualities. Rule 36 of the Rules deals with the situation where a caveat is filed after an application has been made for the grant of probate or letters of administration. Under Rule 36, where a caveat is entered after the application has been made, an objection supported by an affidavit has to be filed within fourteen days of the caveat being lodged. The objection has to state the right and interest of the caveator and the ground of objection to the application. Rule 37 deals with a situation when a caveat is entered before an application for a grant is filed. Rule 38 provides the consequences of non-compliance. If the caveator fails to file an objection in compliance with Rule 36 or in compliance with the notice which is issued under Rule 37, the caveat 'may' be discharged by an order to be obtained on an application made to the Court. A failure to file an objection in compliance with Rule 36 does not ipso facto or as a necessary consequence result in the caveat being discharged. A caveat can be discharged, once it is filed, only by an order to be obtained on an application to the Court. Moreover, the fact that a caveat 'may' be discharged is indicative of the position that a discretion is conferred upon the Court on whether or not to discharge the caveat. Conceivably, even if an objection is not filed before the Court together with an affidavit within fourteen days of the lodgement of a caveat, it would be open to the Court upon being moved to allow the affidavit to be filed beyond a period of fourteen days if a case to the satisfaction of the Court is made out. The mere fact that Rule 36 does not contain an express provision enabling the Court to enlarge time, is not in our view, dispositive of the matter nor does it lead to the conclusion that the Court would be deprived of jurisdiction in an appropriate case. The element of discretion which is conferred by the Rules upon the Court is evident from Rule 38 which stipulates that a caveat may be discharged by an order to be obtained on an application to the Court if a caveator has failed to file an objection in compliance with Rule 36 or in compliance with a notice under Rule 37. Once an affidavit in support of the caveat is filed, notice of which is required to be furnished to the petitioner, the proceedings are numbered as a suit in which the petitioner for the grant of probate or letters of administration becomes a plaintiff and the caveator is to be the defendant. The petition for probate or letters of administration is registered as and deemed to be a plaint filed against the caveator and the objection which is filed by the caveator is treated as a written statement in the suit. Once an affidavit is filed in support of the caveat, the proceedings become contentious. It is upon the filing of an affidavit stating the right and interest of the caveator and the grounds on which the caveator objects to the grant of probate or letters of administration, that the caveator evinces an intention to contest the claim of the petitioner to the grant of probate or letters of administration.

The provisions contained in the Rules framed by the High Court at Bombay on the Original Side came up for consideration before a learned Single Judge in Chotalal Chunilal Vs. Bai Kabubai4. The learned Single Judge after noticing the practice of the Court and the provisions contained in the Rules held that if an affidavit is filed within the period stipulated after the entry of a caveat, it becomes the written statement to the suit. Contrariwise if no affidavit is filed within the period stipulated, the suit would be placed on board for dismissal of the caveat and the petition would be dealt with by the Registrar in the manner described. The view of the learned Single Judge of the Bombay High Court was that it was not just the entry of a caveat but the filing within the stipulated period of an affidavit in support of the caveat, which is the point of time at which the petition became contentious. The entry of a caveat, it was held, does not make it a contentious proceedings since a caveat is merely a request that nothing should be done in the matter of the estate of the deceased without notice to the caveator. It was held that the caveator may only want time to inquire and obtain information. The point of time at which the matter became contentious was when an affidavit was filed in support of the caveat stating the right and interest of the caveator and the grounds of objection to the application for the grant of probate or letters of administration.

In the present case, the respondents filed an affidavit on 13 August 2014 together with the caveat. Under the provisions of Rule 36 of the Rules, the respondents who had lodged their caveat on 13 August 2014 had a period of fourteen days from the lodgement of a caveat to file an objection supported by an affidavit stating their right and interest and their grounds of objection to the application. What the respondents did, was to file the affidavit together with the caveat itself. In substance, what is required to be considered is whether the affidavit contained a sufficient indication of a statement of the right and interest of the caveator and the grounds of their objection to the application. Plainly, the affidavit which was filed by the respondents did fulfil that requirement. The respondents are sisters of the appellants and are daughters of the deceased testatrix. In their affidavit, the respondents stated as follows:

"4. That as per the averments made in the petition, the deceased Sarla Shukla died on 12 March 2013. The Will of Sarla Shukla is dated 31.3.2012.

5. That under Section 284 of the Indian Succession Act, right has been given for filing caveat against the grant of probate or administration which may be lodged.

6. That the applicants who are the three daughters of the deceased late Sarla Shukla are filing caveat in the matter to contest the proceedings as the Will is forged and fabricated as all the properties had been given to the plaintiffs which are the ancestral properties and the deceased had limited right over the said properties."

The respondents clearly stated their interest as the three daughters of the deceased testatrix. Their right as well as the grounds of objection were clearly stated. The respondents stated that they were filing the caveat to contest the proceedings indicating that they were intending to resist the grant of letters of administration to the appellants. The grounds on which they intended to do so was that according to them the will was forged and fabricated since all the properties were bequeathed to the appellants, whereas according to them, the deceased mother had a limited right over the properties. The learned Single Judge was, in this view of the matter, justified in coming to the conclusion that the requirement of filing an affidavit together with an objection setting out the right and interest of the caveator and the grounds of objection was duly fulfilled. Neither the Succession Act nor the Rules framed by this Court provide any statutory form for the filing of an objection or for the lodging of a caveat. The affidavit which was filed, contained a clear statement of objection and fulfilled the requirement of stating the right and interest of the caveator and the grounds of objection for the grant of letters of administration.

We are not impressed with the submission that no jurisdiction is vested in the Court to extend the time of fourteen days for filing an objection together with an affidavit in support. Having due regard to the fact that a discretion is conferred upon the Court by Rule 38 of the Rules on whether a caveat which is not in compliance with Rule 36 of the Rules should be discharged, the judicious exercise of that discretion would include in an appropriate case the power to extend time beyond fourteen days. In any event, that issue is really rendered academic in the present case because the affidavit in support of the caveat was filed on the same date as the caveat namely 13 August 2014.

Before concluding, we may also deal with an ancillary submission that since Rule 39 of the Rules contemplates that the objection should be treated as a written statement, the learned Single Judge was not justified in granting three weeks' time to the respondents to file their objections/written statements. The learned Single Judge has, in our view, correctly held that the affidavit which was filed by the respondents was in substantial compliance with the requirements of Rule 36 of the Rules and should be treated as the objection to the grant of letters of administration. The direction by the learned Single Judge in the concluding part of the order has only operated ex-abundanti cautela and in any event does not cause any prejudice to the appellants. We see no reason to entertain the special appeal.

The special appeal is, accordingly, dismissed. There shall be no order as to costs.

Order Date :- 31.7.2015

VMA

(Dr. D.Y. Chandrachud, C.J.)

(Yashwant Varma, J.)