=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.182 NO.182 NO.182 OF 2003 OF 2003 OF 2003 IN IN IN MISCELLAEOUS MISCELLAEOUS MISCELLAEOUS PETITION PETITION PETITION NO.18 OF 2001 NO.18 OF 2001 NO.18 OF 2001 IN IN IN TESTAMENTARY TESTAMENTARY TESTAMENTARY PETITION PETITION PETITION NO.836 OF 1997 NO.836 OF 1997 NO.836 OF 1997 Dr Dinshah Dhunjishah Gagrat ...Appellant v/s Viloo Byramji Plumber and anr. ...Respondents Dr V.V. Tulzapurkar with Mr Berjis Colabawala and Mr Shyam Mehta i/b M/s Madekar and Co. for Appellant. Mr I.S. Mecwan for Respondents. CORAM CORAM CORAM : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 20TH JANUARY 2009 20TH JANUARY 2009 20TH JANUARY 2009 =2= P.C. :- 1. By this appeal, the appellant challenges the order passed by the learned Single Judge of this Court in miscellaneous petition No.18 of 2001. The facts relevant for deciding this appeal are that one Perin Gagrat expired on 31st January 1987 leaving behind her a will dated 21st January 1987. A petition for obtaining probate was filed in this Court on 16th October 1997 by respondent No.1 - Viloo Byramji Plumber who claimed to have been named as executor in that will. This Court granted probate of that will as no caveats were received opposing the grant of probate, by order dated 21st November 1997. The present appellant on 17th January 2001 filed miscellaneous petition No.18 of 2001 under section 263 of the Indian Succession Act 1925 for revocation of the grant of probate dated 21st November 1997 of the will dated 21st January 1987. The case of the petitioner was that he was son of the deceased Perin but the citation of the probate petition was not served on him in accordance with law. This position was contested on behalf of the respondents. According to the respondents, an affidavit was filed in the probate petition by a Clerk in the Office of the Prothonotary and Sr. Master that a packet containing probate =3= petition was delivered to the Advocate on record to the petitioner to transmit it through Indus Cargo and Couriers Pvt.Ltd. That packet was returned to the Office of the Prothonotary and Sr. Master alongwith the letter from Courier Agency. The packet is dated 11th November 1997. In that letter, it was stated that the packet was taken to the residence of the petitioner on 24th October 1997 but he was not found, therefore intimation was given on telephone that the consignment is received, but he did not collect the consignment. It appears that the matter was placed before the learned Single Judge of this Court who held the service to be good and as the petitioner did not file any caveat opposing the grant of probate, the Court granted probate on 21st November 1997. 2. The learned counsel appearing for petitioner submitted that the relevant Bombay High Court (Original Side) Rules for the purpose of service of citation are Rules 399 ad 400. They read as under :- "399. Service of Citation :- Citations shall be served personally when possible. Personal service shall be affected by leaving a true copy of the citation, with the party cited and taking his acknowledgment on the original. =4= 400. Service by advertisement :- Citations which cannot be personally served as required by the last preceding rule shall be served by publishing the same in such local newspapers as the Prothonotary and Senior Master may direct." . The learned counsel submits that the rules contemplate delivery of the citation to the party and taking acknowledgment of the party on the original, the alternate mode of service is by publication. Therefore, in cases where it is not possible to obtain acknowledgment on the original of the person to whom the citation is addressed, the alternate mode of service has to be adopted. The learned counsel further submits that service of citation by courier is not authorised mode of service. The learned counsel invited our attention to the provisions of Rule 189A which has been incorporated by amendment in the High Court (Original Side) Rules in the year 2001. That rule reads as under :- "189A. For the purpose of Chapters VI, IX, X and XI of the High Court Original Side Rules, in addition to the other modes of service prescribed under the said Chapters, urgent notice / order / process may be served by Fax, Speed Post or Courier with acknowledgment, =5= wherever such facility is available, at the cost of the parties. Such service shall be treated as good service upon production of the original fax notice / order / process alongwith the activity report or acknowledgment in token of service of the notice / order / process by speed post or by courier. Such acknowledgment purporting to be signed by the defendant or a endorsement by postal servant or courier agent that the defendant refused service shall be deemed to be prima facie proof of service." . The learned counsel submits that even according to that rule, service by courier is permitted only of urgent notice and process and service of citation which is provided by Chapter XXVI is not covered by that amendment. The learned counsel submits that these were relevant provisions of law which ought to have been considered by the learned Single Judge before holding that the citation was properly served. The learned counsel submits that non-application of mind to these relevant provisions of law by the learned Single Judge vitiates the order passed by the learned Single Judge. 3. The learned counsel for original probate =6= petitioner, on the other had, submits that as a matter of practice, the Office of the Prothonotary and Senior Master permits service through courier when the person to be served is not residing in India. The learned counsel submits that as that is the practice followed, the service effected on the appellant is valid. The learned counsel further submits that Rule 399 does not prohibit service through courier, therefore effecting service through courier is valid. 4. Now it is clear from the record that the only mode of service adopted was sending of the packet through courier. It is also clear from the letter which was received from the courier agency that the residence of the petitioner was visited only on 24th October 1997 and at that time, according to that letter, the petitioner was not at home. Thus on 24th October 1997, the packet was not tendered to the petitioner. On 25th October 1997, an intimation is alleged to have been given to the petitioner on telephone, but on that date the packet was not tendered. The requirement of Rule 399 is that the packet should be left with the party and his acknowledgment on the original should be obtained. Even assuming that service by courier is permitted, the provisions of Rule 399 were not followed and therefore, the only other mode of service viz. by publication under Rule 400 should have been adopted. The mode of =7= service approved by Rule 399 is by personal service. Personal service is contemplated by other Rules also. Perusal of provisions of Rule 189A quoted above shows that the Court incorporated that Rule by amendment in the year 2001 and providing for service by courier only of urgent notices and processes in some cases. The amended Rule does not apply to service of citation under Chapter XXVI. In our opinion therefore, it will be reasonable to assume that at least as on the date on which the service is alleged to have been effected on the petitioner, the authorised mode of service of citation was not adopted. It is thus clear that even assuming that courier was authorised mode of service, service in terms of provisions of Rule 399 has not been effected and as we have observed above, courier is not authorised mode of service of citation. When we indicated to the learned counsel appearing for original probate petitioner that we are inclined to set aside the order on the ground that citation was not properly served, he submitted that other questions which have been considered by the learned Single Judge should be kept open to be raised in the revocation petition. We accept the submission made on behalf of the original probate petitioner. 5. In the result therefore, present appeal succeeds, the order passed by the learned Single Judge =8= dated 30th October 2002 in miscellaneous petition No.18 of 201 is set aside. That petition is remitted back to the learned Single Judge for consideration and decision in accordance with law. All contentions available to both the sides which are not finally determined by this order are kept open. It is further directed by consent of parties that the interim order that was operating during the pendency of the appeal, shall continue to operate during the pendency of miscellaneous petition. No order as to costs. . Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( A.A. SAYED J.)