4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Chamber Summons No.47 of 2008 IN Petition No.329 of 2007 Kumud Jayant Engineer & ors. .. .. Petitioners And Mr.Arun Engineer .. .. Caveator Mr.S. Shah i/by M/s.Dhru & Co. for Petitioners. Mr.N.S. Fadia for Caveator. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 11th July, 2008 P.C. : 1.The Caveator is the son of the deceased testator Kehsavram B. Engineer. He seeks to file a Caveat after a delay of 12 days. Hence, he has taken out this Chamber Summons for condonation of such delay. The Application is not as bonafide as it seems. The Caveator is one of the legatees under the Will required to be probated in the above Petition. He has an equal share along with his sister in several immovable properties. He has equal share along with his sister and her children in some other property. 2.The Will has been executed as far back as on 11.11.1999. The testator expired on 16.4.2004. The executors have acted upon the Will. The executors become the legal owners of the 4 property under the Will required to be administered it in accordance with the wishes of the testator. The executors sold one of the properties on 19.10.2007. In that property, the Caveator as well as his sister were to share equally. The executors have given the half share in the sale-proceeds to the Caveator. The Caveator has accepted such half share. 3.It is alleged by the Caveator that there is misappropriation and mismanagement of the estate of his deceased father. He states that he was not living with his deceased brother and he does not know about the Will. He states that he has no copy of the Will or the Petition. He is certainly entitled to a copy of the Will and the Petition. It shall be given to him from the Court records itself forthwith. However, his grievances are to be remedied in a Civil Suit which is a Suit for administration of the estate of his deceased father upon payment of the requisite Court fees in such Suit and obtaining orders as are required for protection of such property. 4.Thus far the administration of the estate is not shown to be particularly mismanaged except for the fact that after the citation was got issued in July 2007 and before it was served upon the Petitioner and before the grant is obtained, one of 4 the properties is sold. 5.The executors require certain amounts for administration of the estate. Hence, the executors would be entitled to sell one of the properties. If both the beneficiaries consent to such sale, there is nothing in law which would prevent the executors in doing so. In this case, both the beneficiaries have consented. They have been paid their respective shares. They have accepted the shares. 6.After accepting the Will, the Caveat cannot stand in a Court of law. This Caveat was not filed by the Caveator in time. It is delayed by 12 days. The Court must see not only the period of delay but also the motive, ulterior or otherwise, of the Applicant in any Application. The discretionary relief has to be based upon a judicious understanding of the facts of the case. It is not a mere clerical act which has to be done by the Court without application of mind to the entire facts of the case. 7.It is seen that the litigation upon the Caveat would itself be frivolous when the Caveator has accepted the Will and at- least one of the bequests thereunder. Even if the Caveat was filed in time, this fact would weigh against the Caveator. If 4 the Caveat is not filed in time, it is for the Court to see the bonafides of the Caveator along with bonafides of delay, if any. It is seen that the Caveat lacks bonafides. However, the rights, if any, of the Caveator in an administration Suit must be secured. 8.Hence, the Chamber Summons is dismissed. The copy of the Will and the Probate Petition shall be given to the Caveator. The Caveator shall be entitled to take such steps in accordance with law with regard to the administration of the estate of his deceased father under the Will dated 11.11.1999, which has been accepted by the Caveator. [SMT.ROSHAN DALVI, J.]