:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO. 1014 OF 2002 NO. 1014 OF 2002 NO. 1014 OF 2002 WITH WITH WITH NOTICE NOTICE NOTICE OF MOTION NO. 845 OF 2003 OF MOTION NO. 845 OF 2003 OF MOTION NO. 845 OF 2003 IN IN IN SUIT SUIT SUIT NO. 2 OF 1983 NO. 2 OF 1983 NO. 2 OF 1983 IN IN IN PETITION PETITION PETITION NO.85 OF 1982 NO.85 OF 1982 NO.85 OF 1982 Surendra Kashib & Ors. ... Appellants V/s Mrs. Dolly Dady Writer & Ors. ...Respondents Mr.Chetan Kapadia with H.K. Sudhakara i/b Tushna Thapliya for the appellant Mr.Rahul Narichania, instructed by M/s B. Amin and Company for respondent Nos. 1 to 3 CORAM : D.K. DESHMUKH & A.A. SAYED JJ. DATE : 6TH JANUARY, 2009 P.C. 1. By this appeal the Appellants challenge order dated 20th December, 2001 passed in Suit No. 2 of 1983. The facts which are relevant and material for deciding this appeal are that probate petition No. 95 of 1982 was filed by one Mrs. Dolly Dady Writer, the present respondent No.1. In that petition Mr. :2: K.E.Writer filed Caveat. It appears that thereafter the present appellants being Mr.Surendra Kashib, Mrs. Surendra Kashib filed their caveats in the probate petition and the caveats were opposed. By order dated 15th July, 1998 the caveats filed by both the appellants were taken on record and the Caveators who are the present appellants were directed to be joined as defendant Nos.3 and 4 in Suit No.2 of 1983. Thus it is clear that the probate petition No.95 of 1982 ceased to exist and it was converted into the Suit No.2 of 1982. It appears that on 20th December, 2001 the present appellants apprehended that on the basis of some compromise between defendant No.1 and the plaintiff/ probate petitioner, some orders may be obtained in the suit and, therefore, affidavit was filed by Surendra Kashib before the Court pointing that out no consent terms be taken on record by the Court and they opposed the consent terms. In these circumstances, the order came to be passed on 20th December, 2001. The Court in the order noted that the defendant No.1 has withdrawn his caveat and therefore directed the office to grant probate of the will of deceased Dady Jahangir Writer in favour :3: of the petitioner subject to compliance of office objection. It is surprising to note that as a consequence of withdrawal of caveat by defendant No.1, Suit No. 2 of 1983 was dismissed. 2. We have heard the learned Counsel for both sides. The learned Counsel appearing on behalf of the appellants submitted that the probate petition got converted into a suit because of the caveats filed by defendant No.1 K.E. Writer and the present appellants and, therefore, merely because of withdrawal of the caveat by defendant No.1 the suit would not get converted into a probate petition and will continue to be a civil suit in which the present appellants will continue to be the defendants. Therefore, the Court was not justified in dismissing that suit. The learned Counsel further submitted that in probate petition, probate of the will could not have been granted as caveat filed by the present appellants were not withdrawn by them and the caveats were on record. He submits that merely because liberty was granted to the present appellants to agitate their rights in relation to the flat No. B-25, North Bombay :4: Cooperative Housing Society Ltd. Juhu Bombay, will not wipe out the caveats filed by the appellants in the probate petition. 3. The learned Counsel appearing for the original plaintiff submits that it is a fact that the caveats filed by the present appellants are not withdrawn. The learned Counsel justified granting of probate of the will in view of the liberty granted to the present appellant to agitate their rights in respect of the flat which is mentioned in the order. The learned Counsel further submitted that the appellants had not withdrawn their caveats and that fact was not suppressed from the Court because the affidavit filed by the present appellant dated 20th December, 2000 was before the learned Single Judge. 4. Now in the light of submissions if the record of the case is perused it becomes clear that the present appellants filed their caveats and had opposed grant of probate of the will and those caveats were taken on record by order dated 15.7.1998 and they were joined as defendant Nos. 3 :5: and 4 to the suit. Now once the probate petition got converted into a Civil Suit because of the opposition filed to the grant of probate, only method by which the probate petition can be revived is the withdrawal of all the caveats. Unless all the caveats are withdrawn the probate petition will not be revived and therefore, there is no question of grant of probate of the will in the probate petition. Once the caveats have been filed in the probate petition and probate petition is converted into a civil suit, order for grant of probate of the will can only be granted in the Civil suit. Surprisingly the Single Judge dismissed the suit only because the defendant No.1 had withdrawn his caveat. In our opinion it is a gross irregularity committed by the learned Single Judge. The present appellants had filed caveats in the probate petition. The plaintiffs opposed those caveats to be taken on record. Therefore, an order was made by the learned Single Judge dated 15th July 1998 rejecting the opposition to the caveats filed by the appellants and those caveats were taken on record and present appellants were directed to be joined as defendant Nos. 3 and 4. Now, in view of this :6: position, if the learned Single Judge was inclined to grant probate petition on withdrawal of the caveat filed by the defendant No.1, the learned Single Judge could have recalled the order dated 15th July 1998 taking caveats of present appellants on record and reject the caveats. The learned Single Judge has not done that, with the result the caveats filed by the appellants were on record and therefore, the probate could not have been granted. The other method by which probate of the will could have granted by the learned Single Judge was by deciding the civil suit finally and recording a finding that the will of which probate is sought is legal and genuine. What is most surprising is that when the learned Single Judge made the order granting probate of the will, not only the caveats filed by the appellants on record but their affidavit opposing passing of any order in the civil suit on the basis of compromise reached between the plaintiffs / probate petitioners and the defendant No.1 was also on record. Therefore, it was obligatory on the part of the learned Single Judge at least to refer to the facts and caveats of appellants which were on record and point out what :7: happened to that affidavit and the caveats. We regret to note that the learned Single Judge has made the order by following procedure which cannot be said to be a procedure sanctioned by law. In our opinion therefore the following order would meet the ends of justice. ORDER ORDER ORDER Order dated 20th December,2001 passed in Suit No. 2 of 1983 is set aside and that suit is restored to file. The learned Single Judge to proceed further in accordance with law. Appeal is disposed of. Notice of Motion No. 845 of 2003 is accordingly disposed of. (D.K. (D.K. (D.K. DESHMUKH, J.) DESHMUKH, J.) DESHMUKH, J.) ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)