1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2936 OF 2010 1 Sou.Shashikala Atmaram Hatkar 2 Sou.vijaymala Dattatraya Shinde 3 Smt.Pushpa Ramchandra Hatkar 4 Sou.Pramila Sambhaji Khandare ...Petitioners vs. 1 Krishnakumar @ Chandrakant Maruti Pol 2 Kalpana Maruti Pol 3 Dr.Ashok Maruti Pol 4 Uddhav Maruti Pol ...Respondents Mr.Umesh Mankapure for the petitioners Mr.Krishnakumar @ Chandrakant Maruti Pol-respondent no.1- in person Mr.K.P.Mali, Advocate amicus curie CORAM :A.S.OKA,J. DATE : MAY 7, 2010 P.C.: 1 Parties were put to notice that the petition will be taken up for final disposal at admission stage. On 15th April 2010, order to that effect was passed. On that day, the first respondent appeared in person for himself and on behalf of the 2nd respondent. He stated that he was not in position to engage an Advocate. Therefore, this Court requested Shri K.P.Mali, Advocate to assist the Court by espousing the cause of the 1st and 2nd respondents. The learned Advocate willingly agreed to do so. The controversy involved in this writ petition is very short. An application was made by the 1st and 2nd respondents under section 276 of the Indian Succession Act,1925 for grant of probate in respect of the alleged will dated 4th August 2004 executed by one Maruti who is the father of the petitioners and the respondents. The 2 petitioners are married sisters of the first respondent. The 2nd respondent is the unmarried sister who is stated to be mentally retarded. The 3rd and 4th respondents are the brothers of the petitioners. The order impugned has been passed by the trial Court on an application made by the petitioners at Exh.45. By the said application, a prayer was made for setting aside the order passed by the trial Court to proceed with the application without reply of the petitioners and for taking reply on record which was tendered along with the application. By the order impugned dated 12th March 2010, the said application has been rejected. The learned trial Judge observed that notice of the application was served to the petitioners between July 2007 to September 2008 and the present application was filed on 6th Feb 2010. The learned Judge pointed out that the application was filed after the first respondent filed an affidavit in lieu of examination in chief and after No Cross order was passed. 2 The learned counsel for the petitioners submitted that the petitioners are the married sisters of the first respondent who are not the residents of the Kolhapur. He pointed out that few of the petitioners are resident of Mumbai. One is resident of Sangli and the third is resident of Solapur. He submitted that sufficient reasons were set out in the application for delay in filing the reply. The learned counsel for the 1st and 2nd respondents invited my attention to the reply filed by the 1st and 2nd respondents. He pointed out that from the roznama of the proceedings that the present petitioners have more than sufficient opportunity to file a reply. He pointed out that an application has been moved at the fag end of recording of evidence when affidavit in lieu of examination in chief of the first 3 respondent was filed and thereafter order of No cross was passed. He submitted that by filing various proceedings, the petitioners have extensively delayed the trial of the application. He pointed out that the first respondent is looking after the 2nd respondent. He pointed out that not only notice were served to the petitioners but even the citation was published in the newspaper and therefore, no interference was called for. 3 I have carefully considered the submissions. It must be noted here that the decision of the Court in Probate proceedings operates as in rem. If application for probate is filed under section 283, Indian Succession Act,1925 (hereinafter referred to as the said Act) the Court is duty bound to issue citation calling upon all the persons claiming to have not interested in the estate of the deceased to come and see the proceedings. The learned counsel for the petitioners has relied upon the various decisions of this Court. He submitted that the petitioners being the daughters of the deceased, this was case where said citation ought to have been issued to the petitioners. 4 It is true that the petitioners had not entered the caveat under section 284 of the said Act. The effect of filing the caveat is that no proceedings can be taken for probate or letters of administration without notice to the caveator. Section 286 of the said Act reads thus : 286. District Delegate when not to grant probate or administration  A District Delegate shall not grant probate or letters of administration in any case in which there is contention as to the grant, or in which it otherwise appears to him that probate or letters of administration ought to not to be granted in his court. 4 Explanation - Contention means the appearance of anyone in person, or by his recognised agent, or by a pleader duly appointed to act on his behalf, to oppose the proceeding. Explanation to section 286 to mean that if appearance is filed through person or pleaded to post the proceedings the same amounts to contention. Section 295 of the said Act provides that in any case, before the District Judge, where there is contention, the proceedings shall take as nearly as form of a regular suit, according to the provisions of the Code of Civil Procedure,1908 in which the petitioner shall be plaintiff and the person who appeared for opposing shall be defendant. Perusal of the Roznama of the proceeding shows that the petitioners appeared in the proceedings to oppose the proceedings. However, there is no further order passed by the trial Court in accordance with section 295 of the said Act. After noticing that there is contention within the meaning of section 286 of the said Act, the learned Judge was required to pass a formal order under section 295 of the said Act and called upon the persons raising objection to file the written statement. However, section 295 of the said Act has not been followed and the proceedings still continues to be miscellaneous application. 5 Apart from the aforesaid legal aspect, it must be stated here that the petitioners are the married daughters of the deceased testator and in paragraph 3 of the application reasons were assigned for not filing the reply earlier. After formal direction was issued under section 295 of the said Act, the petitioners can always 5 file a reply/written statement. 6 It is true that the proceedings of the probate has been delayed and the prejudice is caused to the respondents. The petitioners have deposited a sum of Rs. 7500/- towards costs payable to the 1st and 2nd respondents. The first and second respondents will be entitled to the said costs. The first and second respondents will be entitled to file further affidavit in lieu of examination in chief in the light of the reply which is ordered to be taken on record by this order and expeditious hearing will have to be ordered. 7 Hence, petition is disposed of by passing the following order : i) Impugned order is quashed and set aside. The trial Court will pass a formal order under section 295 of the Indian Succession Act,1925 by treating the case as Contingency Case and will follow an appropriate procedure. ii)The application at Exh.45 is hereby allowed. iii)The trial Court will have to frame issues arising in the proceedings in view of section 295 of the said Act. iv)After the issues are framed, it will be open for the first respondent to file further affidavit in lieu of examination-in-chief and to lead further evidence. v) Hearing of the proceedings is expedited and the same shall be concluded on or before 31st December 2010. vi)The first and second respondents are entitled to withdraw a sum of Rs.7500/- deposited by the petitioners in this Court. The amount be paid over to the first respondent for himself and on behalf of 6 the second respondent. vii)Petition is allowed in above terms. JUDGE