Chandka 1 APP-818-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION APPEAL NO. 818 OF 2010 IN CHAMBER SUMMONS NO. 41 OF 2010 IN TESTAMENTARY PETITION NO. 594 OF 2009 Ramesh Pandurang Waghe ..Appellant versus Balchandra Pandurang Waghe & Ors. ..Respondents Mr. Dinesh Kumar Seth i/b. Mr. A. V. Dhawan for Appellant. Mr. S. S. Joshi i/b. Apte & Co. for Respondent No. 2. Mr. D. R. Mishra for Respondent No. 3. CORAM : DR. D. Y. CHANDRACHUD & ANOOP V. MOHTA, JJ. 21 February 2011. P.C. : A Chamber Summons was filed before the learned Single Judge in which the prayer was that the delay, if any, in moving the Court for seeking probate of the last will and testament of the deceased testatrix be condoned. 2. The testatrix is the mother. The Appellant and the First and Second Respondents are sons of the Testatrix while the Third Respondent is her Chandka 2 APP-818-10 daughter. The testatrix is alleged to have executed her will on 20 August 1994. She died on 11 March 1995. The petition for probate was filed before this Court by the Appellant on 4 July 2009. The learned Single Judge dismissed the Chamber Summons observing that the Appellant’s Advocate wanted further time to file an affidavit enclosing additional documents in support for the plea for the condonation of delay. The learned Judge observed that the Advocate for the Appellant was called upon to show what further documents he wanted to enclose but, that he was not able to show the documents to the Court. The Chamber Summons was accordingly rejected. 3. During the course of the hearing of these proceedings, the Appellant has filed an additional affidavit enclosing the entire medical record of the Appellant which according to the Appellant shows that he has suffered an amputation of a leg and as a result of which he consistently required medical supervision and treatment. In our view, since the Chamber Summons is rejected by the learned Single Judge only on the ground that no documentary material has been produced and an additional affidavit has now been filed enclosing relevant documentary material, it is just, fair and proper that the Appellant should have an opportunity before the learned Single Judge to seek condonation of delay. In Kunvarjeet Singh Chandka 3 APP-818-10 Khandpur vs. Kirandeep Kaur & Ors.1, the Supreme Court has held that Article 137 of the Schedule to the Limitation Act would apply to an application for the grant of probate. 4. The learned counsel appearing on behalf of the Appellant has stated that the Appellant does not desire to produce any further material other than what has been already produced on affidavit in the course of these proceedings. The Respondents shall be at liberty to file additional replies if they so desire to controvert the additional affidavit within a period of three weeks from today. In order to facilitate a fresh determination, we set aside the impugned orders dated 11 and 24 June 2010 of the learned Single Judge and restore Chamber Summons No. 41 of 2010 to the file of the learned Single Judge. The Appeal is accordingly disposed of. There shall be no order as to costs. (Dr. D. Y. Chandrachud, J.) (Anoop V. Mohta, J.) 1 (2008) 8 SCC 463