1 CST37.10.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION CHAMBER SUMMONS NO. 37 OF 2010 IN SUIT NO. 29 OF 2010 IN PETITION NO. 898 OF 2009 Mr. Amit T. Marfatia. ... Plaintiff. V/s. Mr. Ramesh R. Joshi. ... Defendants. And Mr. Tanay D. Gandhi & Ors. ... Applicants. Mr. Vaibhav J. Mehta and Miss. D.B. Mistry i/b. Vaibhav Mehta & Assocates for the Plaintiff. Mrs. Nityoah Mehta with Mr. Jay Mehta for the Defendants and Applicants i/b. Nityoah Suneel & Associates. CORAM : R.Y. GANOO, J. DATED : 13th AUGUST 2010. P.C. :- After the citations in so far as this Petition were posted on the notice board of this Court, a caveat came to be filed by 5 persons i.e. Mr. Ramesh R. Joshi and the Applicants herein opposing the Will. At the time of filing the affidavit in support of the caveat, the affidavit came to be filed by Mr. Ramesh R. Joshi, Caveator No.1 and it is specifically mentioned in the paragraph 1 of the said affidavit that the affidavit is being filed for and on behalf of himself and Caveator Nos. 2 to 5. It is pertinent to note that the caveat filed by 5 persons was through one Advocate and all the 5 Caveators were 2 CST37.10.sxw represented jointly. It was subsequently noticed by 4 caveators i.e. Caveators Nos.2 to 5 that they have not filed independent affidavits in support of the caveat. They thought that this formality is required to be completed. Hence, this Chamber Summons has been taken out. 2. This Chamber Summons has been opposed by the learned Counsel for the Plaintiff. He had taken me through Bombay High Court (O.S.) Rules, hereinafter referred to as the said Rules ranging from 397 upto 403. He had drawn my attention to the procedure as regards filing of the caveat and had submitted that if a caveat is filed by more than one person each caveator has to file an affidavit in support of the caveat. 3. After considering the said Rules, I am inclined to observe that the Plaintiff could not show to this Court a specific Rule which provided filing of affidavit in support of the caveat by each and every caveator in a case where only one single caveat is filed by more than one person. If the rules are silent about it, in my view, filing of affidavit in support by one caveator for and on behalf of the rest of the caveator would be permissible as there is no violation of Rules. Sub-Rule 2 of Rule 403 provides that where there are 2 or more caveators and each of them has filed affidavit in support of his caveat, separate Suit numbers shall not be given to the Petition but all caveators shall become party Defendant in one Suit. Interpreting this sub-Rule, it is clear that in a given case each 3 CST37.10.sxw of the caveator may file a separate affidavit or all the caveators taken together would file one affidavit in support of the caveat through one caveator. If the legislature intended that every caveator must file his own affidavit in support of the caveat certainly the legislature would have been clear about it. In the absence of specific provision in that behalf, a liberal approach will have to be taken and filing of affidavit in support of caveat on behalf of all the caveators by one caveator would meet requirements. 4. In my view, the lodgment of the caveat by 5 person taken together and filing of an affidavit by one caveator was sufficient. Now, that rest of the 4 caveators want to file separate affidavit in support of the caveat, such a thing can be permitted as no prejudice would be caused to the Plaintiff as the Testamentary Petition has been already converted into a Suit. At the most, some grounds would get added for the purposes of objecting the Will. In view of the aforesaid discussion, I am not inclined to allow the Chamber Summons. 5. It was sought to be contended by the learned Counsel for the Plaintiff that the notice was pasted on the notice board of the Court on 15th January 2010 as provided under Rule 397 and therefore, anybody who wanted to challenge the Will ought to have filed caveat should have done so within 14 days from the date of such pasting of notice. The learned Counsel for the Plaintiff submitted that the caveat filed by the 5 caveators is beyond the period of limitation and therefore, the 4 CST37.10.sxw caveat ought not to have been taken on record. He had, therefore, submitted that if the main lodgment of the caveat itself is beyond the period of limitation, subsequent stages should not be permitted. I am not inclined to accept this argument. Now that the caveat has been filed and the Petition has been converted into a Suit, the desire of each caveator to file the affidavit in support of the caveat can be granted. If at all the Plaintiff is of the view that the lodgment of the caveat by 5 caveators is beyond the period of limitation, it will be open for the Plaintiff to adopt appropriate proceedings to have the Caveat set aside. Merits of the said application are left open. 6. There has been a delay of 11 days in filing the affidavit in support of the caveat by each of the caveator as desired by them. The quantum of delay is such that it can be conveniently condoned once it is decided to allow the caveator to file affidavit in support of the caveat, 7. For the reasons mentioned aforesaid, I am inclined to allow the chambers Summons. Hence, following order is passed :- (i) The Chamber Summons is made absolute in terms of prayer clauses (a) and (b). (ii) There shall be no order as to costs. 5 CST37.10.sxw (iii) Affidavits in support of the caveat be filed in the office directly on or before 31st August 2010. Copy of the same be served upon the Advocate for the Plaintiff upon filing of the aforesaid affidavits on or before 31st August 2010. (iv) No specific liberty is required to be granted to the Plaintiff to make an application for setting aside the caveat which in his submission was filed beyond period of limitation. (v) After the affidavits are filed, present applicants be shown as Defendant Nos.2 to 5. 9. After the aforesaid order is passed, the learned Counsel for the Plaintiff wanted to take inspection of codicil since the caveators are relying upon the codicil. The Plaintiff should get the inspection of the same. The submission is fair. The Defendant as well as the present Applicants are directed to offer inspection of codicil on which they rely upon on or before 6th September 2010. Counsel on both sides shall fix the date of inspection by appropriate correspondence. (R.Y. GANOO, J.)