Neelam Jalan And Anr vs Vishal Jalan
2021 Latest Caselaw 1035 Cal/2

Judgment

                 IN THE HIGH COURT AT CALCUTTA
                           Civil Appellate Jurisdiction
                                 ORIGINAL SIDE

                                APOT 67 of 2021
                                      with
                                PLA 105 of 2011
                              IA No. GA 1 of 2021


                              IN THE GOODS OF:
                           KISHORILAL JALAN (DEC.)
                                    -AND-
                           NEELAM JALAN AND ANR.
                                  -VERSUS-
                                VISHAL JALAN

BEFORE:
The Hon'ble JUSTICE ARINDAM SINHA
                 AND
The Hon'ble JUSTICE SUGATO MAJUMDAR




For appellants   :     Mr. Utpal Bose, Sr. Adv.
                       Mr. Aniruddha Mitra, Adv.
                       Mr. Ajay Gaggar, Adv.
                       Ms. Trini Joarder, Adv.

For respondent   :     Mr. Sabyasachi Choudhury, Adv.

Mr. Nischay Mall, Adv.

Mr. Tridib Bose, Adv.

Heard on : 2nd and 11th August, 2021 and 22nd September, 2021.

Judgment on : 22nd September, 2021.

Arindam Sinha, J.: Parties have been heard on the application and appeal.

Mr. Bose, learned senior advocate appears on behalf of applicants/appellants,

while Mr. Choudhury, learned advocate appears on behalf of respondent. Mr.

Choudhury, in fairness, does not stand in the way of delay being condoned and the

appeal itself being heard and disposed of on papers already disclosed. As such, delay is condoned and the appeal itself taken up for hearing and disposal on

dispensing with formalities.

Mr. Bose submits, by impugned order dated 16th June, 2015 the

interlocutory Court found his client had failed to file vakalatnama and caveat. In

the circumstances, including absence of his client at the time of hearing, the

application was dismissed. He submits, the only ground for dismissal was stated

delay of one year after there had been mention, in taking out the application. This

position is incorrect. Mention was on 2nd February, 2012 and the application filed

shortly thereafter in February, 2012 itself. He submits, on this short point of fact,

impugned order be set aside and the appeal allowed. He refers to rules 24, 25 and

27 in Chapter XXXV of the Original Side Rules to submit, they are applicable to the

case.

Mr. Choudhury submits, a caveat was filed on 21st November, 2011, the

application for probate having been filed earlier on 20th May, 2011. This caveat

was entered after the application had been filed. Affidavit in support of it ought to

have been filed by 30th November, 2011. Keeping aside the mistake of fact,

regarding dates of mention and application filed thereafter by appellants, another

interlocutory Bench, by order dated 15th January, 2021, had noticed that by

impugned order appellants had been denied right to file affidavit in support of the

caveat. It is after this that the appeal came to be filed. What remains unexplained

is why no affidavit in support of the caveat, entered on 21st November, 2011, was

filed. According to him, entering of the caveat itself was deliberately suppressed.

Rule 24 says any person intending to oppose the issuing of a grant of

probate or letters of administration, must file a caveat. Rule 25 requires a caveat,

entered after the application has been made, to have affidavit in support of it, be

filed within eight days of lodging of the caveat. Rule 27 provides for consequence of not filing affidavit in support of the caveat, being that the caveat may be

discharged on an order to be obtained on summons. It must be mentioned that

rule 26 requires issuance of notice to a caveator, who lodged caveat before the

application was made.

Impugned order dated 16th June, 2015 is reproduced below.

"The Court: This is an application for extension of time of file vokalatnama and lodge caveat in the probate proceeding. On 26th December, 2011 the applicant was served with a special citation. It is stated in the petition that on 1st February, 2011 the petitioner executed a vokalatnama. However by that time, the time to file a vokalatnama and lodge a caveat had expired. It is stated in paragraph 7 that the matter was mentioned before the Hon'ble Justice I.P. Mukerji on 2nd February, 2011 when the petitioner was presumed to have been asked to take out a formal application. This application was filed one year thereafter. No explanation is offered for not being able to file this application immediately after 2nd February, 2011. The petitioner has failed to explain the delay in filing the vokalatnama and caveat in the department concerned. The applicant is also not represented. Under such circumstances, GA No.394 of 2012 stands dismissed.

Urgent certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities."

Caveat was entered on 21st November, 2011, no affidavit in support of it filed and

nothing has been shown that thereafter summons were taken out to discharge it.

Instead, appellants had mentioned, admittedly on 2nd February, 2012 and soon

thereafter filed the application, said in impugned order to be on delay and thereby

rejected.

Impugned order proceeded on statement in the application that time to file

vakalatnama and lodge a caveat had expired, coupled with perpetrating the

mistake made in the application, regarding dates of mention and filing of it. The rejection of the application is based on the mistake leading to inference of delay.

We set it aside and restore the application.

The rules do not provide for a time, in which a caveat must be entered after

an application for grant of probate or letters of administration has been made. In

this case applicants were said to have been served with a special citation. Rule 12

in Chapter XXXV requires the citation to contain direction upon person(s), claiming

to have any interest in the estate, to see the proceedings. It is to be considered

whether in an application, on which special citation has been served on caveator,

delayed affidavit in support of the 21st November, 2011 caveat may be filed. The

interlocutory Court will deal with the application on benefit of facts noted above

and observations made. It is clarified that we have not made any observation

regarding merits of the rival claims on the estate.

The appeal and application are disposed of.

(ARINDAM SINHA, J.)

(SUGATO MAJUMDAR, J.)

s.pal