1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION MISC. PETITION SUIT NO.39 OF 2009 IN TESTAMENTARY PETITION NO.466 OF 2006 Jyoti Mahesh Adwaney ..Petitioner. Vs. Sunder Sahani ..Respondent. .... Mr. N.R. Bubna for the Petitioner. Mr. Tejas Vora i/b Ms. B.S. Shivhare for the Respondent. .... CORAM : DR. D.Y. CHANDRACHUD, J. 28th August, 2009. P.C. : 1. The Petition has been instituted for seeking the revocation of a probate which was granted by this Court on 4th August, 2007 of the will of Lata Girdharlal Matai. 2. The will of the testatrix was alleged to be executed on 16th January, 2003. The will has been registered. The testatrix died on 8th February, 2006. The Respondent who has been named as an executor under the will filed a petition in this Court for probate on 6th June, 2006. The service of the citation under Rule 399 of the High Court (Original Side) 2 Rules was transmitted to the Petitioner who resides in London on 17th July, 2006. It may be noted that the case of the Petitioner is that she was adopted by the testatrix on 2nd October, 1975 and that a deed of adoption was executed on 2nd March, 1976. The Petitioner filed a caveat before this Court on 17th January, 2007. In the caveat the Petitioner stated that she had been served with the citation on 26th December, 2006 at London. Under Rule 401 the Petitioner was required to file a caveat within 14 days from the receipt of the citation. On 29th January, 2007 an office objection was noted on the caveat to the effect that the caveat has not been filed within time. On 14th/16th March, 2007 the office of the Prothonotary and Senior Master remitted a memo to the Petitioner calling upon her attorneys to meet the Prothonotary in respect of the caveat and the affidavit in support. The memo addressed by the Prothonotary was admittedly received by the Petitioner on 22nd March, 2007. A precipe was filed before the Learned Single Judge exercising testamentary jurisdiction on 5th June, 2007 praying that the registry may be directed to issue a probate since the caveat was under objection and had not been taken on file until date. A Learned Single Judge of this Court issued a direction on 3 7th June, 2007 directing the office to proceed in accordance with the rules. On 9th July, 2007 the Additional Prothonotary and Senior Master once again issued a direction to the Respondent to serve the citation again to the Petitioner with notice to prove the adoption. On 12th July, 2007 the advocate for the Respondent filed a precipe before this Court and impugned the correctness of the direction issued by the Additional Prothonotary and Senior Master. By an order dated 13th July, 2007 a Learned Single Judge of this Court noted that in the affidavit in support of the caveat, the caveator had expressly stated that she had received a copy of the citation in the Petition and hence, there was no need to serve by publication in the local newspapers. In the circumstances, the direction issued by the Additional Prothonotary and Senior Master requiring service under Rule 400 by issuing a publication in the local newspapers was not maintained by the Learned Single Judge. The office was directed to proceed as per law. On 25th July, 2007 an office order was passed to proceed towards the issuance of a probate and accordingly a probate was issued on 4th August, 2007. 4 3. Counsel appearing on behalf of the Petitioner submitted that the Petitioner as an adopted daughter has been named in the testamentary petition for the grant of a probate. She therefore has a caveatable interest and she claims to be the only heir. In these circumstances, it was submitted that service of the citation upon the Petitioner was mandatory. Learned counsel sought to submit that the citation was sought to be served upon the Petitioner at a wrong address and that consequently the service of the citation has not been validly effected under Rule 399 of the High Court (Original Side) Rules. Reliance in this connection was sought to be placed on Exhibit 1 to the reply filed by the Respondent which is an affidavit dated 19th January, 2007 of an officer working in the establishment of the Prothonotary and Senior Master in regard to the transmission of the citation on 17th July, 2006 and the receipt of the acknowledgment card on 10th August, 2006. 4. The contention of the Petitioner that she has not been served validly with the personal service of the citation is thoroughly misconceived. It must be noted that in the caveat which was filed in this Court on 17th 5 January, 2007 by the Petitioner in person it has been stated that she had been served with the citation “recently on 26th December, 2007 at London U.K”. It was in view of the statement made by the Petitioner herself that a Learned Single Judge of this Court in the order dated 13th July, 2007 observed that since the caveator had stated expressly that she had received a copy of the citation, there was no need to serve her by publication in the local newspapers under Rule 400. Rule 399 requires citations to be served personally when possible. Rule 400 provides for publication in the local newspapers when a citation cannot be personally served as required by Rule 399. In the present case, the Petitioner having expressly stated that she was served with the citation on 26th December, 2007 in London, the submission cannot be accepted. Some effort was made to demonstrate before the Court that the citation of the caveat was not sent to the correct address. In the affidavit dated 19th January, 2007 filed by the officer working in the establishment of the Prothonotary, it has been stated that the caveat was transmitted to the Petitioner at an address which is recorded as “43, Conestan Gardens, at Wembly in London”. The postal acknowledgment that is annexed to the affidavit, 6 however, clearly shows that it was transmitted to the address at 34 Conestan Gardens which from the caveat filed by the Petitioner is the correct address. Consequently, the Petitioner cannot now seek to take advantage of a typographical error in the affidavit of the bailiff dated 19th January, 2007 particularly having expressly acknowledged receipt of the citation. 5. The Petitioner was served with the citation. A copy of the acknowledgment was received back in the office of the Prothonotary and Senior Master on 10th August, 2006. Even if the date of the receipt of the citation is taken as 26th December, 2006 as stated by the Petitioner in her caveat, the caveat was not filed within time. Under Rule 401 any person intending to oppose the grant of probate or letter of administration has to file a caveat within 14 days of the service of the citation upon him. The Judge in Chambers may extend the time to file a caveat provided the grant has not in the meantime been issued. In the present case, the office had raised an objection on the caveat lodged by the Petitioner and thereupon a noting was made to the effect that the caveator may be 7 directed to take appropriate orders from the Court. In pursuance thereto a memo was sent to the Petitioner in London on 15th March, 2007 which was received by the Petitioner on 22nd March, 2007. Evidently, the Petitioner did not take any steps thereafter. The caveat therefore was, as a matter of fact, not taken on the record since it was not filed within time. The Learned Single Judge issued a direction on 7th June, 2007 directing the office to proceed in accordance with the rules. It was thereafter that the matter was processed and probate was granted. Probate was granted by this Court on 4th August, 2007. From the date of the lodgment of the caveat on 17th January, 2007, until 4th August, 2007 the Petitioner took no steps whatsoever to move the Court for an extension of time to file a caveat and a probate was thereupon issued in accordance with law. 6. Counsel appearing on behalf of the Respondent has drawn the attention of the Court to the circumstance that acting on the basis of the caveat the residential flat which forms the subject matter of the will of the testator has been transferred to the beneficiary named in the will. The beneficiary under the will is a nephew of the testatrix. In Crystal 8 Developers v. Asha Lata Ghosh1 the Supreme Court has held that if an executor has after the grant of a probate performed acts for the purpose of the administration of the estate and if the act is in consonance with the testator’s intention, compatible with the administration of the estate, such an act will be protected by law if the caveat was to be revoked. Therefore in any case the transfer of the residential flat which has taken place in accordance with the intent of the testatrix cannot be revoked. 7. In any event for the reasons already indicated, no case has been made out by the Petitioner for the revocation of the grant of the probate. The Petitioner was indolent and did not comply with the provisions of the law for espousing her objection to the grant of the probate. Counsel appearing on behalf of the Petitioner submits that the delay in filing the caveat was only of seven days. This may not again be a correct appraisal of the position. The Petitioner in her caveat has disclosed that the citation was served on her on 26th December, 2007. The acknowledgment which was submitted together with the citation was received back in the office of the Prothonotary on 10th August, 2006. If that be so, the contention of the 1 AIR 2004 SC 4980. 9 Petitioner in regard even to the date of service may not be a truthful recording of the actual date on which service has been effected. Be that as it may, admittedly the caveat was filed beyond time and by the time that the probate came to be issued by this Court, no steps were taken by the Petitioner to remedy the delay by moving the Testamentary Judge for an appropriate order of extension. The Petitioner has to be blamed for her own negligence. In these circumstances, no case has been made out for revocation. The Petition is accordingly dismissed. *****