: 1 : nmt-15-2011-Judgment=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 15 OF 2011 IN TESTAMENTARY PETITION NO. 12 OF 2010 Marionettee Anna Paula Salazar alias DeSa, Indian Christian Inhabitant of Mumbai residing at ‘Sangolda’, Flat No.201, St. Frnscis Avenue Road, Santacruz (W), Mumbai – 400 052 .. Petitioner/Plaintiff v/s. Ms. Uneetha Linda Anne DeSa r/at C/o. Satish Premnath Law, Raj Engineering Works, 882, Bootee Street, Pune – 411 001 .. Caveatrix/Defendant ......... Mr. O.J. Menezes for the plaintiff None for the defendant when the order is dictated ......... CORAM : R.Y.GANOO, J. DATE : 8th APRIL, 2011 ORAL JUDGEMENT : 1. By this motion, the plaintiff has prayed that consent order dated 21st October, 2010 passed in Chamber Summons No.132 of 2010 be set aside and the caveat dated 15th November, 2010 be dismissed. The defendant against whom this notice of motion is taken out has not : 2 : nmt-15-2011-Judgment=.sxw filed affidavit in reply though sufficient opportunity was given. The hearing of motion was over on 7th April, 2011 and the motion is today on board for passing order. Yesterday the defendant was represented by advocate Mr. Deepak Gupte instructed by Shadab Peerzade. 2. The plaintiff instituted this Testamentary Petition for letters of administration with xerox copy of Will annexed that of Orlinda Georgina Amelia Antoinette de sa (hereinafter referred to as the deceased). According to the plaintiff, the deceased had executed Will on 15th February, 1990 and it was necessary to obtain letters of administration. The citation in respect of the said testamentary petition was served upon the defendant on 4th September, 2010 in accordance with the provisions of The Bombay High Court Original Side Rules (for short said Rules). As per the said Rules if a person on whom the citation is served wishes to challenge the said Will, said person is required to file caveat within a period of 14 days from the date of service of citation. The affidavit in support of the caveat is required to be filed within a period of 8 days from the date of filing of caveat. It appears that after the citation was served upon the defendant, the defendant intended to file the caveat. In fact, the caveat was not filed till 15th November, 2010. Similarly, affidavit in support of the caveat was also not filed in accordance with the provisions of Rule 402 of the said Rules. The : 3 : nmt-15-2011-Judgment=.sxw caveat and affidavit in support of the caveat came to be filed on 15th November, 2010. It appears that the defendant realised that there has been a delay in filing the caveat as well as affidavit in support of the caveat. Record shows that defendant filed Chamber Summons No.132 of 2010 and prayed that delay of 8 days in filing the caveat and affidavit in support of the caveat be condoned. This chamber summons was served upon the plaintiff. The chamber summons came up for hearing on 21st October, 2010. The plaintiff was represented by an advocate. Consent was rendered by the plaintiff for condonation of delay, of course, presuming that appropriate caveat has been filed and affidavit in support of the caveat is also filed. The Court on 21st October, 2010 accepted the no objection given by the plaintiff and passed the following order. “By consent delay of 8 days in filing affidavit in support of the caveat is condoned”. 3. After 21st October 2010 the plaintiff made an investigation. On the basis of record he came to the conclusion that the caveat as well as affidavit in support of the caveat was filed in the office along with the praecipe dated 15th November, 2010. It is seen that the plaintiff had by letter dated 18th December, 2010 reminded the advocate for the defendant about the order dated 21st October, 2010 and requested him : 4 : nmt-15-2011-Judgment=.sxw to serve advocate for the plaintiff true copy of affidavit in support of the caveat without delay. It is seen that the caveat and the affidavit in support of the caveat was filed on 15th November, 2010 along with the praecipe. After noting the fact that the caveat and the affidavit in support of the caveat was filed on 15th November, 2010, the plaintiff has taken out this Notice of Motion on 31st January, 2011 for the reliefs as mentioned aforesaid. 4. Learned Counsel Mr. O.J. Menezes appearing on behalf of the plaintiff submitted that when an application for condonation of delay in filing caveat / affidavit in support of the caveat is filed it pre-supposes that the caveat / affidavit in support of the caveat is already filed in the office and as delay has resulted in filing the said caveat / affidavit in support of the caveat such a delay is required to be condoned. Learned Counsel Mr. O.J. Menezes submitted that in the present case when the Chamber Summons No.132 of 2010 was taken out, no caveat was filed in the office. He pointed out that affidavit in support of the caveat was also not filed. He had submitted that there was no question of seeking condonation of delay in filing caveat / affidavit in support of the caveat as caveat / affidavit in support of caveat was not filed. He draw my attention to paragraph 2 of the affidavit in support of the chamber summons No.132 of 2010 and submitted that such affidavit indicates : 5 : nmt-15-2011-Judgment=.sxw that the defendant wanted to create a picture that the caveat and the affidavit in support of the caveat is already filed (though it was not filed). Learned Counsel Mr. O.J. Menezes submitted that if caveat / affidavit in support of the caveat was not filed, there was no question of condonation of delay in filing caveat / affidavit in support of the caveat and as such order dated 21st October, 2010 was secured in improper manner. He, therefore, submitted that said order is required to be set aside. 5. Learned Counsel Mr. O.J. Menezes submitted that the plaintiff did not object to the grant of relief in Chamber Summons No.132 of 2010 presuming that the caveat / affidavit in support of the caveat is already filed in the office and looking to the quantum of the delay he had recorded his no objection. He submitted that once it is disclosed that no caveat / affidavit in support of the caveat is filed, the order condoning delay could not have been passed and as such the same is required to be set aside. 6. Learned Counsel Mr. Deepak Gupte appearing of defendant had supported the order dated 21st October, 2010 by submitting that the said order was passed by consent and now it cannot be set aside. : 6 : nmt-15-2011-Judgment=.sxw 7. I am in agreement with submission advanced by learned Counsel Mr. O.J. Menezes that question of condonation delay in filing caveat / affidavit in support of the caveat would come up only if the said documents are filed on record. If the caveat / affidavit in support of the caveat was not filed, there is no question of condonation of delay in doing so and to that extent order dated 21st October, 2010 could not have been passed. It appears that on that day on account of consent rendered by plaintiff, said order dated 21st October, 2010 came to be passed. In fact, it was the duty of the defendant to report to the Court that caveat / affidavit in support of the caveat has not been filed. I am sure, if such thing would have been reported to the Court, the learned Judge would not have passed order dated 21st October, 2010. In view of above, order dated 21st October, 2010 is required to be set aside. 8. Learned Counsel Mr. O.J. Menezes had further pointed out that the citation was served upon the defendant on 4th September, 2010 and, therefore, it was necessary for the defendant to file caveat within a period of 14 days. Learned Counsel for the plaintiff submitted that even if we take it that order dated 21st October, 2010 is the order condoning the delay in filing of caveat, it was necessary for the defendant to file affidavit in support of the caveat within 8 days from 21st October, 2010 in accordance with the provisions of Rule 402 of the : 7 : nmt-15-2011-Judgment=.sxw aforesaid Rules. Learned Counsel Mr. O.J. Menezes submitted that 8th day would get over on 29th October, 2010. Learned Counsel Mr. O.J. Menezes submitted that no explanation is coming forth as to why the affidavit in support of the caveat was not filed on 29th October, 2010. He pointed out that in the paecipe dated 15th November 2010, the defendant has made a reference to the closure of the Court during Diwali vacation. He submitted that when the 8th day was to get over on 29th October, 2010 the Court were working. He pointed out that the Diwali vacation was to commence from 1st November, 2010 and, therefore, there was no question of any impediment in filing affidavit in support of the caveat on account of the Diwali vacation. Learned Counsel Mr. O.J. Menezes drew my attention to the text of the Rule 402 of the said Rules and had pointed out that affidavit in support of the caveat can also be filed in the office during the vacations. He had, therefore, submitted that filing filing affidavit in support of caveat on 15th November, 2010 by taking shelter of Diwali vacation is not correct. 9. I have considered this aspect of the matter also. If one treats that delay in filing the caveat is condoned on account of order dated 21st October, 2010, the period of 8 days would get over on 29th October, 2010 and the affidavit in support of the caveat should have been filed on 29th October, 2010. Any delay in filing affidavit in support of the : 8 : nmt-15-2011-Judgment=.sxw caveat after 29th October, 2010 could have been a separate matter. In substance, even if one takes the order dated 21st October, 2010 as the order condoning delay in filing caveat, it was the duty of the defendant to file affidavit in support of the caveat on or before 29th October, 2010. As of today, there are no proceedings to have delay in filing affidavit in support of caveat condoned. Hence, affidavit in support of the caveat is required to be discarded. Consequently, caveat filed by defendant is required to be dismissed. 10. Learned Counsel Mr. O.J. Menezes has taken me through order dated 21st October, 2010 and had pointed out that by the said order delay in filing affidavit in support of the caveat is condoned. He submitted that delay in filing affidavit in support of the caveat which has been filed on 15th November, 2010 has not been condoned. He, therefore, submitted that looking to the order dated 21st October, 2010 from all angles and noting the fact that caveat / affidavit in support of the caveat was filed on 15th November, 2010, the said caveat as well as affidavit in support of the caveat deserves to be discarded. 11. Learned counsel Mr. O.J. Menezes had in support of the submission that order passed Court by consent can be set aside had relied upon the Judgment in the case of Yusuf I.A. Lalji & Ors. Vs. : 9 : nmt-15-2011-Judgment=.sxw Abdullabhoy Lalji and Ors., AIR 1930, Bom. 362. He submitted that order dated 21st October, 2010 being an interlocutory order, the same can be set aside by the Court in a proceeding like Notice of Motion and there is no need for the plaintiff to institute any other proceedings. I have perused the said judgment and I am in agreement with the submission advanced by learned Counsel Mr. O.J. Menezes. To that extent the present notice of motion is maintainable. 12. It is required to be mentioned that defendant was duly served with this notice of motion and the defendant has not filed affidavit in support of the caveat opposing the notice of motion. No doubt, learned Counsel Mr. Gupte was present when the matter was argued and he had tried to justify the order dated 21st October, 2010. The said order dated 21st October, 2010 is required to be set aside for reasons mentioned above. 13. For the reasons mentioned aforesaid, I am inclined to allow the notice of motion. Hence, following order is passed to dispose of the notice of motion. : 10 : nmt-15-2011-Judgment=.sxw ORDER (i) Notice of Motion is made absolute in terms of prayer clause (a). (ii) Defendant to pay to plaintiff costs of this Notice of Motion. (iii) Petition for letters of administration will have to be processed in accordance with the provisions of law. Accordingly, the Prothonotary and Senior Master is directed to process this Testamentary Petition No.12 of 2010 in accordance with the provisions of law. (iv) The drawn up order dismissing the caveat is dispensed with. (R.Y.GANOO, J.)