JUDGMENT
1. The question which is involved in this matter is whether the learned trial Judge of the 9th City Civil Court Ahmedabad was justified in rejecting the appellant's prayer to number the petition for probate filed by the respondent, as a suit, and to treat the same as such under [SECTION] of [ACT]. The order which is attacked in this matter is passed by the learned Judge in [CASE NUMBER] of his file and is sought to be challenged in this appeal.
2. Shri [ENTITY], the learned advocate of the respondent, has, however, raised a preliminary objection to this appeal by contending that the order against which the appellant has made the grievance is not appealable and hence this appeal is not competent.
3. Short facts of the case are that the respondent has filed an application for probate in the City Civil Court, Ahmedabad, under [SECTION] of the [ACT]. The probate which is sought is with regard to the will said to have been executed by one deceased named Mrs. [ENTITY] of Ahmedabad. The respondent, who has filed this application for probate is one of the brothers of the deceased. The application for probate was filed on 4th April, 1972 and it showed the names of next-of-kins of the deceased according to the law of Parsi Intestate Succession. The court after receiving this application issued notices in accordance with law. One such notice was served on the appellant who is the sister of the deceased. The appellant filed her objections to the application of probate on 6-12-72 as found at Ex. 29. By these objections, she contended that the will, which was propounded by the respondent, was not executed by the deceased in sound disposing state of mind.
4. The [ACT] contemplate the filing of a caveat either before or after the filing of an application for probate in the prescribed form. Such a caveat is also filed by the appellant on 5-7-73 as found at Ex. 40. [ACT] further require that the caveator should file en affidavit in support of the caveat within 8 days of the filing of the caveat. However it is an admitted position that the appellant failed in filing such an affidavit.
5. If the caveator fails in filing an affidavit in support of the caveat, the rules provide that such a failure shall not prevent the court from granting the pro bate or letters of administration of the propounded will. It appears from the record of the case that the appellant-caveator not only did not file an affidavit in support of her caveat, within 8 days as prescribed by Rules, but also did not prefer to request the court to extend the time for filing the said affidavit. Instead she seems to have relied upon the verification on oath which she is found to have made below the objections which she has filed on 6th December. 1972 vide Ex. 29.
6. [SECTION] of the [ACT] provides that if the caveator files an affidavit in support of the caveat, the petition for probate or letters of administration should be numbered as a suit in which the applicant praying for the probate shall be the plaintiff and the caveator shall be the defendant. The rule further provides that procedure in such suit shall, as nearly as may be, according to the provisions of the [ACT] and the [ACT]. Relying upon this rule the appellant caveator requested the learned Judge of the lower court to number the respondent's -application for probate as a regular suit and to try it as such. However, the learned Judge rejected this prayer on two grounds, namely, (1) though the caveat has been filed in the prescribed form on 5-7-73, notice thereof has not been issued by the Registrar, City Civil Court and this defect results in the position wherein no caveat has been filed; and (2) [SECTION], which is referred to above, has no application because the caveator has failed to file affidavit in support of the caveat within 8 days of the filing of the caveat. These are the two grounds on which the learned Judge has rejected the caveator's prayer for numbering the application for probate as a suit. However, the learned Judge has, instead of granting the probate, further ordered that the respondent's application for probate should be treated as Civil Misc. Application, which should be disposed of in accordance with law "after considering the objections filed on behalf of the objector". In short, therefore, the learned judge has held that the question of grant of the probate should be summarily disposed of without resorting to the regular procedure of a suit. It is against this order that the caveator has preferred this appeal.
7. As stated above, Shri [ENTITY], who appears on behalf of the respondent, has raised a preliminary objection about the maintainability of the appeal, as according to him, the order passed by the lower court is not appealable and the matter is not governed by [SECTION] of the [ACT], which contemplates appeals from every order made by the District Judge by virtue of the powers conferred upon him under the [ACT].
8. I first propose to deal with the preliminary objection raised by Shri [ENTITY] on behalf of the respondent.
9. The appellant-caveator has preferred this appeal under [SECTION] of the [ACT], which is here in after referred to as "the Act". It is, the therefore, necessary to examine provisions of this section of the Act. The section is in the following terms:
"Every order made by a District Judge by virtue of the powers hereby conferred upon him shall be subject to appeal to the High Court in accordance with the provisions of the [ACT], applicable to all appeals."
In support of his contention, Shri [ENTITY] has raised two points. He has first pointed out that it is not every order which is passed by a District Judge or a City Civil Court judge in a probate proceeding which is appealable under [SECTION] of the Act, because this section speaks of only those orders which are passed by the judge concerned "by virtue of the powers hereby conferred upon him". According to Shri [ENTITY], therefore, unless it is found that the order against which the grievance is made is the order passed by the learned Judge by virtue of the powers conferred upon him under the Act, the said order does not become appealable. Shri [ENTITY]'s second contention was that even if it is held that the order concerned is passed by the learned Judge "by virtue of the powers conferred upon him under the [ACT]", appeal to the High Court would lie only if such an order is appealable under the provisions of the [ACT]. According to Shri [ENTITY], the order passed by the learned Judge merely says that t he matter shall not be proceeded with as a suit and since [SECTION] of the [ACT] does not contemplate an appeal against any such order, the present appeal is not competent.
10. As against this, Shri [ENTITY], who appears on behalf of the appellant-caveator, has contended that the order in question is an order passed by the learned Judge of the City Civil Court "by virtue of the powers conferred upon him by the Act," because, the procedure contemplated by [ACT] is adopted by him under the provisions of the Act. According to Shri [ENTITY], since the learned Judge has exercised his jurisdiction while sitting as a probate Judge any order passed by him as a probate Judge would be an order contemplated by [SECTION] of the Act. On the second point raised by Shri [ENTITY], Shri [ENTITY] has pointed out that the words "in accordance with the provisions of the [ACT]" which appear in [SECTION] of the Act, refer only to the procedure contemplated by the [ACT] and do not control the right of the parties concerned to prefer an appeal if the order against which the grievance is made, falls within the scope of [SECTION] of the Act.
11. Alternatively, Shri [ENTITY], contended that in case this court finds that the order Passed by the learned Judge is not appealable, this " appeal should be treated as a revision and should be disposed of as such.
12. I find that on true construction of [SECTION] of the Act, an order passed by a probate Judge would be appealable only if it is passed by virtue of the powers conferred upon him under the Act and not otherwise. This is obvious from the plain meaning of the words of [SECTION] which speak of the order made "by virtue of the powers hereby conferred". These words very clearly suggest that the order in question must be found to have been passed under some of the provisions of the [ACT]. The use of the expression "hereby" makes this clear beyond any shadow of doubt. Now what the learned Judge has done in this case is to apply the Provisions contained in the relevant rules framed by the High Court under [SECTION] of the [ACT] and [SECTION] of the [ACT] for regulating the procedure of the work to be done by the City Civil Court at Ahmedabad. There is no provision in the [ACT] per under which such an order could have been passed by the learned Judge. This will be evident from the discussion which follows.
13. So far as [ACT] is concerned, the relevant provisions are contained in [SECTION] relating to the practice in granting and revoking the probates and letters of administration. [SECTION] of this Chapter speaks about the jurisdiction of the District Judge in granting and revoking probates etc. [SECTION] provides that proceedings of the court of District judge in relation to the granting of probate and letters of administration shall, save hereinafter other wise provided, be regulated, so far as the circumstances of the case permit by the [ACT]. So, according to [SECTION] the Probate proceedings are to be regulated so far as the circumstances of the case permit by the provisions contained in the [ACT]. [SECTION] contemplates the particulars to be mentioned in a petition for Probate and [SECTION] contemplates the lodging of caveats against grant of probate or letters of administration. This caveat is to be lodged in the form set forth in [SECTION]. [SECTION] provides that no proceedings should be taken on the petition for probate or letters of administration after the lodging of the caveat until after a proper notice to the caveator. [SECTION] finally Provides that when it appears to the District Judge or District delegate that probate of a will should be granted, he shall, grant the same under the seal of his court in the prescribed form.
14. These are the relevant provi sions contained in the [ACT] governing the procedure to be adopted by the Judge in the cases wherein a probate is prayed for. There is nothing in these provisions by virtue of which the Judge could pass the type of the Order which is the subject-matter of this appeal. Under the circumstances, it is not possible to hold that the order against which the appellant has made a grievance is the one which is passed by virtue of the powers conferred upon the learned Judge by the [ACT].
15. On the contrary, it is found that this order is passed by the learned Judge by virtue of the Powers conferred upon him by [ACT]. [SECTION] of these Rules provides for testamentary and Intestate matters. [SECTION] of this Chapter says how an application for Probate shall be made. [SECTION] further provides that in all applications for probate, notice of application shall be given to all the heirs and next-of-kin of the deceased mentioned in the petition. [SECTION] provides for filing of a caveat and says that 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 the court in Form No. 78. Reference to [SECTION] and [SECTION] shows that caveats can be filed for the probate and after the said filing. The caveat is prescribed to be filed in the following form :
" To : the Register, Ahmedabad City Civil Court, Ahmedabad.
Sir, Let nothing be done in the matter of estate of the abovenamed Late of deceased, who died at on or about the day of without due notice to the above named caveator."
This form shows that a mere filing of caveat in this form would not give any idea as to the exact nature of objections which are sought to be raised by the caveator. It is for this reason that [SECTION] and [SECTION] contemplate the affidavits in support of the caveat giving the particulars as regards the right and interest of the caveator and the grounds of objection to the application. It is [SECTION] which is relevant for our purpose. It is as under:
"[SECTION]. Affidavit supporting caveat:
In every case in which a caveat is filed before the filing of the application for Probate or Letters of Administration, an affidavit in support of the caveat shall be filed within eight days of the service of the notice of the filing of the application for Probate or Letters of Administrations under preceding rule and in other cases an affidavit in support of the caveat shall be filed within eight days 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 application. If such be not filed within such time the caveat shall not prevent the grant of Probate or Letters of Administration. No such affidavit shall be filed after the expiration of the said eight days without the order of the Judge. A copy of such affidavit shall be supplied by the caveator to the petitioner for Probate or Letters of Administration."
The relevant rule which follows there after is [SECTION] which is in the following terms:
201. Procedure: Upon the affidavit in support of the caveat being filed, the petition for Probate or Letters of Administration shall be numbered as a suit in which the petitioner shall be the plaintiff and the caveator shall be the defendant. The procedure in such suit, shall, as nearly as may be, be according to the provisions of the [ACT] and these Rules."
15-A. It is evident from the order passed by the learned Judge that he has relied upon the failure of the caveator to file an affidavit in support of the caveat within the time prescribed by [SECTION] and has, therefore, refused to adopt the procedure contemplated by [SECTION].
16. From the above reference to the relevant provisions of the Act as well as [ACT], it is clear that the order in question is the order passed by virtue of the powers which the judge had under the [ACT] and not by the virtue of the powers which he had under any of the provisions of the Act. In view of this position, the question which arises to be considered is whether this appeal is competent under the provisions of [SECTION] of the Act which contemplates an appeal from only that order which is passed by virtue of the powers conferred upon the Judge under the Act. As already noted above, the use of the expression "hereby" is clearly suggestive of the fact that it is not every order passed by a probate Judge which is made appealable. But it is only that order which is passed under the provisions of the Act, which is made appealable by [SECTION] of the Act. The fact that the Act contemplates that the Probate proceedings shall be regulated so far as the circumstances of the case permit, by the provisions of the [ACT], would not make any difference because [SECTION] merely contemplates the regulation of the procedure and nothing more. The only impact which [SECTION] has on the provisions of the [ACT] is that the procedure which can be adopted by the Probate Judge, should, so far as the circumstances of the case can Permit, be governed by the Provisions contained in the [ACT]. If, therefore, any order is Passed Pursuant to the provisions of the [ACT], that order would be passed by virtue of the Provisions of that Code and it cannot be contended that it is an order passed by virtue of the Powers conferred upon the Judge by any of the provisions of the Act. Therefore, Shri [ENTITY]'s contention that when a Judge sitting in probate proceedings passes any order even as regards the procedure contemplated by the [ACT], the said order comes within the purview of [SECTION], is not found acceptable. [SECTION] contemplates very specifically only those orders which are passed by virtue of the powers conferred upon the concerned Judge by the Act and by no other provision of law. Under the circumstances, at the time of deciding whether a particular order passed by a probate judge is appealable under [SECTION] of the Act, the appellate court has to see whether the learned Judge could have passed such an order under the provisions of the [ACT] or not. If he derived his power to pass that order not under the provisions of the [ACT]. But under the provisions of any other Act, which is made applicable to the procedure to be adopted under the [ACT], then that order would be by virtue of the powers conferred upon the Judge under that other Act but not under the [ACT].
17. The view which is taken by me in this connection gets support from a Division Bench decision given by the High Court of Allahabad in Smt. [PRECEDENT]. There the question was whether an order made in exercise of the powers conferred by the [ACT] could be treated as an order made by virtue of the powers conferred by [SECTION] of the [ACT]. This question was answered in the negative holding that an order made under a special Act may be said to be an order under the [ACT] if the said Code regulates the proceedings under the special Act but the converse is not true. Relying upon the decision in [PRECEDENT], it was argued before the said Division Bench of the Allahabad High Court that where a power is conferred by statute and there is nothing said inhibiting the exercise of the power by any limitations or restrictions it is reasonable to hold that it carries with it the power of doing all such acts or employing such means as are reasonably necessary for such execution. But even this contention was rejected and, rightly so, in my opinion, in view of the peculiar language adopted by the Legislature in framing [SECTION] of the Act. This language rules out any scope for the contention in favour of the implied power inasmuch as the section specifically refers only to those orders which are passed by virtue of the powers conferred by the [ACT]. Therefore, the theory of implied power which is recognised by the Supreme Court in [PRECEDENT]'s case (supra) would not be helpful to the appellant in showing that the order in question is appealable.
18. In view of this discussion, I am of the opinion that Shri [ENTITY] succeeds in his first point, namely, that an appeal under [SECTION] can lie only if the order in question is found to have been passed by virtue of the power conferred upon the learned Judge by any of the provisions of the [ACT]. In view of this, it is not strictly necessary to consider the next contention raised by Shri [ENTITY] to the effect that even if the order is found to have been passed by virtue of the power conferred upon the judge by [ACT],the said order should be found appealable under the provisions of [SECTION] of the [ACT]. However, since both the learned advocates have argued even this second question at length, I will shortly discuss the same.
19. A short reply to Shri [ENTITY]'s second contention is that even if it is believed that the words "in accordance with the provisions of the [ACT]", which appear in [SECTION] of the Act, refer to the substantive provisions of the Code contained in [SECTION] thereof, and even if it is further believed that the order passed by the probate Judge should be found appealable under the provisions of [SECTION], [ACT], I find that [SECTION], [ACT] itself saves from its operation express provisions provided in any, law for the time being in force making certain orders appealable. It, therefore, follows that if a particular order is specifically made appealable either under the [ACT] or under the provisions of any other law for the time being in force, an appeal against that order would lie. [ACT] is such a law "for the time being in force," and if it is found that a particular order is passed by virtue of the powers conferred by that Act, then by virtue of the above discussed provisions of [SECTION], [ACT], that order would be appealable and would be saved from the operation of that section. Such a view is taken by the High Court of Bombay in [PRECEDENT] and [PRECEDENT]. Contrary view taken by the Calcutta High Court in three cases, namely, [PRECEDENT], [PRECEDENT] and [PRECEDENT] is not approved by the High Court of Bombay. (Vide 44 Bom LR 603 = (AIR 1942 Bom 276 . The Bombay High Court has rather preferred to follow the view taken by the Rangoon High Court in [PRECEDENT] which has held that an appeal lay against all orders made by a District Judge by virtue of the powers conferred on him under the provisions of the [ACT]. In view of this state of the case law, I do not find any substance in Shri [ENTITY]'s contention that in order that an appeal can be preferred against the order passed by a Judge sitting in probate proceedings, the said order should be found appealable under the provisions of the [ACT]. However, Shri [ENTITY] succeeds in his contention that this appeal is not maintainable under the provisions of [SECTION] of the Act as the order in question is not passed by virtue of the powers conferred upon the judge under any of the provisions of the [ACT].
20. I have verified that the order in question is not also appealable under any of the provisions of the [ACT] or Rules. The result, therefore, is that this appeal is not maintainable as the order against which it is filed is not appealable order.
21. But this does not dispose of the matter because this appeal can be treated as a revision application and can be disposed of as such. I see no objection to treat this appeal as a revision application and, therefore, I shall now proceed to consider whether treating this appeal as the revision application, the caveator becomes entitled to any relief.
22. Shri [ENTITY] contended on behalf of the respondent that if this matter is treated as revision application, then the jurisdiction of this court sitting in revision shall be very much limited as it would be governed by the provisions of [SECTION] of the [ACT]. According to Shri [ENTITY], there is no error of jurisdiction committed by the learned Judge of the lower court in passing the order under which the caveator has made grievance and therefore, this court should not interfere with this order.
23. It is evident that if the learned Judge has misconstrued the provisions of [ACT] and has thereby failed to exercise the jurisdiction which he had to treat the proceedings as civil suit under [SECTION], then this would clearly be a case which would be governed by the provisions of [SECTION] of the [ACT], because, in that case, it can be contended, with good deal of force that the learned judge has failed to exercise the jurisdiction which he had in the matter. It is, therefore, necessary first to consider whether the learned Judge has properly construed the relevant rules at the time of considering the caveator's request for conducting the proceedings as per [SECTION]. It is apparent from the order passed by the learned Judge that he has treated the provisions of [SECTION] relating to the filing of the affidavit within 8 days after filing of the caveat as mandatory. Therefore, the real question is whether these provisions are mandatory or merely directory.
24. In this connection Shri [ENTITY] contended that if reference is made to [SECTION] of the Rules, it will be found that it makes a mandatory Provision inasmuch as it uses the word "shall" for the purpose of filing an affidavit in support of the caveat. Shri [ENTITY] has also pointed out that this mandatory aspect of this provision is further emphasised by the fact that the rule stipulates that the required affidavit should be filed even if the court is in vacation. He, therefore, contended that if the provisions for filing the affidavit within the period of 8 days are found to be mandatory, there was no scope for the learned Judge but to proceed in the manner in which he has proposed to do.
25. On a close scrutiny of the provisions of [SECTION], I find that this contention of Shri [ENTITY] about the mandatory nature of the provisions relating to the filing of an affidavit in support of the caveat is not acceptable. The provisions in question are not mandatory, and are merely directory. This is evident from the fact that [SECTION] stipulates the filing of an affidavit even subsequent to the expiry of 8 days from the filing of the caveat, because, it specifically provides as under:
"No such affidavit shall be filed after the expiration of the said eight days without the order of the judge."
The expression "without the order of the Judge" suggests that in a case where an affidavit in support of the caveat is not filed within the stipulated period, it can be filed after obtaining the necessary order of the Judge. This provision shows that in a fit case the Judge concerned can allow the caveator to file this affidavit even after the expiry of 8 days. Thus, the prohibition against the filing of an affidavit after the expiry of the period of eight days operates against the concerned party but it does not operate against the court because in a fit case it would be in interest of justice to allow the defaulting party to file the required affidavit even after the time prescribed for the same has expired. If the provision in question was intended to be mandatory in character the rule-making authority would have prohibited even the court from receiving the required affidavit after the stipulated period. The said authority seems to have refrained from putting such a prohibition against the discretion of the Judge for good reasons. The main reason is found in the fact that a judgment granting the probate of a will operates as a judgment in rem and binds even the persons who are not joined as parties to the proceedings. Under the circumstances, it becomes the duty of the probate court to make a thorough and complete inquiry about the genuineness of the propounded will. If such an inquiry is not found possible without considering the objections of the caveator on merits, it is open to the court to extend the time for filing an affidavit in support of the caveat even if no such request is made. Of course, such a suo motu power of extending the time should be used by the court only in fit cases. But the fact that such a power is vested in court is suggestive of the directory and not mandatory character of the rule.
26. So far as the facts of this case are concerned, one very important fact which is required to be noticed is that the details of the objections which could have been shown by the caveator in support of her caveat in form of an affidavit, were already on the record of the case. As stated earlier, it was as early as 6th December, 1972 that the caveator had filed her detailed objections as found at Ex. 29. These objections are raised on solemn affirmation. Therefore, these objections amount to an affidavit in support of the cave-at. Obviously these objections were filed much before the filing of the caveat and were therefore already in the record of the case. In view of this, the court should not have insisted on a mere formality of filing another such affidavit within 8 days after the filing of the caveat. I am, therefore, of the opinion that the learned Judge was clearly in error on holding that the caveator was not entitled to take advantage of the procedure contemplated by [SECTION] simply because she had failed to comply with the procedure of filing a fresh affidavit in support of the caveat 8 days after the caveat was filed, I am of the opinion that the error committed by the learned Judge is a jurisdictional error and has resulted in his refusal to exercise his jurisdiction to treat this matter as a suit as contemplated by [SECTION]. Under the circumstances, treating this appeal as revision, I allow the same and set aside the order passed by the learned judge.
27. A further ground on which the learned Judge has rejected the prayer of the appellant is that though the caveat has been filed in Prescribed form on 5-7-73, notice thereof has not been issued by the Registrar, City Civil Court. Shri [ENTITY], who has appeared on behalf of the respondent, has not Preferred to rely upon this ground and rightly so, because, if the Registrar has failed in his duty to issue the notice of the caveat, which was properly filed, the appellant-caveator cannot be visited with any Penalty for that.
28. The matter is accordingly remanded back to the lower court with directions to Proceed according to law treating the affidavit filed by the caveator on 6th December, 1972 as sufficient for the purpose of complying with the requirement of [SECTION]. The revision application is accordingly allowed without any order as to costs. The lower court is directed to expedite the matter, if possible, within 6 months from now. The writ is ordered to be expedited.
29. Order accordingly.