1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.99 OF 2009 IN TESTAMENTARY PETITION NO.904 OF 2007 Smt.Kunjamma Michael ...Deceased Mr.Oommen Michael ...Petitioner vs. Babu Michael ...Respondent Ms M.V.Gaikwad for the Petitioner M.B.G.Saraf a/w Mr.Sandesh G. Deshpande for the Respondent CORAM :A.S.OKA,J. DATE : NOVEMBER 20, 2009 P.C. 1 This chamber summons has been taken out by the respondent for condonation of delay of 115 days in filing the Caveat. On earlier occasion when the chamber summons was called out, liberty was granted to the respondent to file additional affidavit in support. Accordingly, an additional affidavit in support for prayer for condonation of delay has been filed on 16 th November 2009. The learned counsel for the respondent has invited my attention to the averments made in the said additional affidavit. In paragraph 3 of the said affidavit the respondent has stated thus : 3 I say that initially I have filed proposed caveat in the matter on 19 th October 2007. I was carrying the impression that 2 whatever proceedings being filed in the High Court will be served upon my Advocate, Mr.Deepak Thakare. I say that accordingly nothing is being served upon my Advocate. I say that if at all I do not want to being served, then in that case I would not have filed proposed caveat itself... In paragraph 4, the respondent has stated thus: 4 I say that on 18 th Septmber 2009 we had meeting at Mr.Pradhan office. I say that at the relevant time I came to know about the probate proceedings wherein the Petitioner has taken steps for probating the said alleged Will. I say that in the meeting held on 18 th September 2009, Petitioner, myself, my brother George were present in the office of the Solicitor Mr.Subhash Pradhan. I say that the Petitioner was wanted to retain the house of the mother situated at Chembur as well as shop premises at Mulund, for which we were not agreeable. I say that being aggrieved by the same, Petitioner has declared that Probate proceedings initiated by him are at final stage and if we are not agreeable for the settlement, Petitioner can take appropriate orders from the 3 Court. I say that only at that time I came to know that the Petitioner has filed probate proceedings and seriously prosecuting the same. I say that till that date I was not aware that the Probate proceedings have been initiated by the Petitioner... 2 Thus, the specific case of the respondent is that till 18 th September 2009 he was not aware that the probate proceeding has been initiated by the petitioner. The learned counsel for the petitioner has invited my attention to the Caveat No.47 of 2007 filed by the respondent and one Mr.George. The original Caveat shows that the lodging number of the petition filed by the petitioner for grant of probate has been specifically incorporated thereunder. The said Caveat has been lodged on 19 th October 2007. The said original Caveat shows that the respondent was fully aware of the pendency of the petition filed by the petitioner. Thus the statement in the additional affidavit that the respondent became aware of the probate petition only on 18 th September 2009 is not correct. 3 The learned counsel for the petitioner submitted that the earlier Caveat was filed by the another Advocate. However, this fact has no consequence in as much as on 19 th October 2007, the respondent was fully 4 aware of the fact that the petition was pending. In the additional affidavit, a specific case has been made out that the respondent was not aware of the probate proceeding and he became aware only on 18 th September 2009. Thus, the statement made in the additional affidavit in support is found to be false. In this view of the matter, no case is made out for condonation of delay. The chamber summons is accordingly rejected. 4 At this stage, the learned counsel for the respondent states that on the basis of the first Caveat, the respondent is entitled to notice. This aspect cannot be dealt with while deciding the chamber summons as the only prayer in the chamber summons is for condonation of delay in filing the second caveat. JUDGE