1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.610 OF 2006 IN CHAMBER SUMMONS NO.189 OF 2004 IN CAVEAT NO.2 OF 2004 IN TESTAMENTARY PETITION NO.633 OF 1989 Chandrakant Jayantilal Shah Hindu Inhabitant, Residing at, Dharamvir Co-op. Hsg. Society, 2nd Floor, Flat No.8, Ashok Chakravarti Road, Opp. Damodar Wadi, Kandivali (E), Mumbai – 400 101. (Executor named in the Last Will of the Deceased). ..... Appellant V/s. 1) Lalitchandra Jagjivandas Juthani, Hindu Inhabitant, Residing at, 182/7, Krishnalaya, Sion Main Road, Opp. Sion Hospital, Sion, Mumbai – 400 022. 2) Kanak Ramniklal Shah, Hindu Inhabitant, Residing at, 4, Paras Building, Gulmohar Cross Road NO.4, J.V.P.D. Scheme, Mumbai – 400 049. .... Respondents Mr.S.N.Pandit, Advocate, for the Appellant. Mr.Hiralal Thacker, Sr.Advocate with Mr.Kumar Purohit, Advocate, i/b M/s.Purohit & Purohit, for the Respondent Nos.1 & 2. 2 CORAM : SRI R.M.S.KHANDEPARKAR & SRI P.B.MAJMUDAR, JJ. DATED : JUNE 26, 2008. ORAL JUDGMENT ( PER R.M.S.KHANDEPARKAR, J.) 1. Heard. 2. Admit. By consent taken up for final hearing. The learned Advocate for the respondents waives service for the respondents. 3. This appeal arises from the order dated 28-02-2006 passed in Chamber summons No.189 of 2004. By the impugned order, the learned Single Judge has dismissed the chamber summons which was taken out by the appellant for dismissal of the caveat dated 13-01-2004 filed by the respondent in Testamentary Petition No.633 of 1989 and further for grant of probate in terms of order dated 27-02-2003 in the said petition. 4. A perusal of the impugned order discloses that the chamber summons has been dismissed on the ground that the caveators had filed the caveat prior to the issuance of the order for grant of probate in the matter and it was to the understanding of the appellant himself that the probate was yet to be granted to the appellant and that therefore, in the chamber summons itself there was a prayer made for grant of probate 3 pursuant to the order dated 27-02-2003. 5. While assailing the impugned order, the learned Advocate appearing for the appellant submitted that by order dated 27-02-2003 the Court had clearly declared that the proceedings to be treated as non- contested petition and therefore, taking into consideration the provisions of Rule 370 and 371 of the Bombay High Court Original Side Rules, the Prothonotary and Senior Master was required to issue probate and infact there was an order in that regard issued by the Prothonotary and Senior Master on 04-01-2004 and hence taking into consideration the provisions of Rule 401 of the said Rules, it was not open for the Court to entertain any caveat alleged to have been filed by the respondents after 04-01-2004 and this aspect has not been considered by the learned Single Judge while passing the impugned order. The same needs to be set aside and the chamber summons taken out by the appellant needs to be allowed in terms of the prayer clause therein. 6. The learned counsel for the respondents, on the other hand, submitted that after passing of the order dated 27-02-2003, there was further order passed by the learned Single Judge in Testamentary Petition NO.633 of 1989 on 24-04-2003, which clearly discloses that the petition was still pending before the Court and besides that there was no order 4 issued by the Prothonotary & Senior Master for issuance of the probate even after the proceedings were declared as non-contested petition. Considering the same, according to the learned counsel for the respondents, no fault can be found with the impugned order. He further submitted that the respondents were never served with any citation in the matter and in any case, the caveat was filed prior to the issuance of the probate and hence, it cannot be said to be barred under Rule 401 of the said Rules. In relation to the order dated 04-01-2004, it is the contention on behalf of the respondents that it is a drawn-up order with reference to the order of 27-02-2003 and can by no stretch of imagination be said to be an order issued by the Prothonotary & Senior Master in exercise of the powers of that office under Section 370 and 371 of the said Rules. Reliance is also placed in the decision of Calcutta High Court in the matter of Smt.Umasashi Saha & Ors. V/s. Paribala Saha & Anr., reported in AIR 1984 Calcutta 409. 7. Undisputedly, the Court while dealing with the Testamentary Petition No.633 of 1989, issued the order dated 27-02-2003 after going through the records that there was no contest in the matter of the petition filed by the appellant and therefore, proceedings stand non-contested and the declaration in that regard was required to be made and was infact 5 made under the said order. 8. Rule 370 of the said Rules provides that “non-contentious matters shall include applications for probate or letters of administration or succession certificate and the obtaining thereof when there is no contest as to the right thereto”. It further provides that “such proceeding shall also include issuing of probate or letters of administration or succession certificate in contentious cases when the contest is terminated, and all ex- parte applications in matters of testacy and intestacy not being proceedings in any suit”. 9. Rule 371 of the said Rules provides that “the Prothonotary and Senior Master shall have full power to administer oaths or solemn affirmations in all matters relating to the testamentary and intestate jurisdiction of the Court to issue sub-poenas to bring in and lodge testamentary papers and documents and to exercise in non-contentious matters the powers conferred by the Indian Succession Act, 1925 on the District Judge”. 10. A conjoint reading of Rules 370 & 371 therefore, disclose that once the proceedings in a testamentary petition are declared to be non- contentious or non-contested, the Prothonotary & Senior Master in terms of the said provisions of law, has to perform the functions required for 6 issuance of the probate and for that purpose, it can exercise all the powers of the District Judge under Indian Succession Act, 1925. 11. Section 270 of the Indian Succession Act, provides that “Probate of the Will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided in the said Act, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge”. 12. Section 275 of the said Act, provides that “application for probate or letters of administration if made and verified in the manner provided therein, shall be conclusive for the purpose of authorizing the grant of probate or administration; and no such grant shall be impeached by reason only that the testator or intestate had no fixed place of abode or no property within the district at the time of his death, unless by a proceeding to revoke the grant if obtained by a fraud upon the Court”. 13. Section 283 of the Indian Succession Act, provides that “In all cases the District Judge or District Delegate may if he thinks proper examine the petitioner in person upon oath; require further evidence of the due execution of the Will or the right of the petitioner to the letters of 7 administration as the case may be; and issue citation calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration”. 14. Section 268 of the said Act, provides that “the proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall save as provided in the said Act, be regulated so far as the circumstances of the case permit by the Code of Civil Procedure 1908”. 15. Taking into consideration the above referred provisions of law in Indian Succession Act read with Rule 371 of the said Rules, it would reveal that the Prothonotary and Senior Master consequent to the declaration of the testamentary petition as non-contentious matter, has to exercise the powers conferred by the Indian Succession Act, on a District Judge. In other words, consequent to declaration of the proceedings to be non- contentious before actually issuing the probate to the party, it is necessary for the Prothonotary & Senior Master to pass order for issuance of such probate. Undisputedly, in the matter in hand, there is no such order passed by the Prothonotary & Senior Master. 16. The order dated 04-01-2004, as rightly submitted on behalf of the 8 respondents, is a drawn-up order in relation to the order of 27-02-2003 passed by the court. That itself cannot be said to have been an order independently passed by the Prothonotary & Senior Master in terms of Rule 371 read with provisions of the Indian Succession Act, for issuance of the probate. 17. It is not in dispute that the respondents were not served with the citation. However, it is sought to be contended that they were not required to be served as they were not legal heirs of the deceased. Be that as it may, the fact remains that no order in terms of Rule 371 was passed by the Prothonotary & Senior Master before the caveat was filed by the respondents. Being so, even after taking into consideration the provisions of Rule 401 of the said Rules, it cannot be said that the caveat was filed beyond the period of limitation. The period of limitation prescribed under Rule 401 specifically refers to the service of citation. Certainly therefore, in a case where for whatever reason citations are not served, the period of limitation would not be attracted. 18. Undoubtedly, the mandate of Rule 401 is that no caveat can be entertained, once there is an order for issuance of the probate in order to give finality to the proceedings in such matters. That however, would not bar the persons, who have not been served with citation, from filing the 9 caveat prior to the issuance of the order for grant of probate. Viewed from this angle, caveat filed by the respondents cannot be said to be barred under Rule 401 of the said rules. 19. As far as the decision of the Calcutta High Court is concerned, it has no application to the case in hand, as in the said case, it was held that “If a will is not contested the same can be proved in common form and in the High Court probate would be granted as a matter of course. Where however, a caveat is filed and a contention is raised, the cause is marked as contentious and thereafter the proceedings take the colour of a regular suit. Even if at a subsequent stage the contention or the contest is not pressed the same still have to be disposed of as a suit. It follows that once a probate proceeding is marked as contentious the same even if is undefended has to be disposed of as an undefended suit and the probate will not be granted automatically”. The ruling has no application to the matter in hand. It was in a totally different set of facts that the above observation was made. 20. It is also to be noted that after passing of the order dated 27-02- 2003, it was at the instance of the appellant himself that the Court entertained an application in the Testamentary Petition No.636 of 1989 and while passing the order dated 24-04-2003, had clearly observed that the order regarding disbursement of amount of Rs.49,113/- to the credit of the suit account would be decided at the time of passing of final order 10 regarding the grant of probate. Infact, such an observation is found at two places in the said order dated 24-04-2003. This order apparently discloses that though under order dated 27-02-3003 the proceedings were declared to be uncontested and the order for the grant of probate was not passed. In other words, on 24-04-2003, there was no order for grant of probate issued. It is nobody's case that during the period between 24-04-2003 and 04-01-2004, there was any other order passed either by the Court or the Prothonotary & Senior Master in the matter of issuance of the probate. As already held, the order dated 04-01-2004 was merely a drawn-up order in relation to the order dated 27-03-2003. Even after 04-01-3003 till 13-01- 2004, the date on which the caveat was filed, there was no order on record for issuance of the probate. Hence, by no stretch of imagination it can be said that the caveat was filed after the order for issuance of the grant of probate, as rightly held by the learned Single Judge. 21. As rightly observed by the learned Single Judge, even the appellant himself did not understand the orders dated 27-02-2003 or 24- 04-2003 to be the orders for issuance of the grant of probate. Rather he never considered those orders were for issuance of the grant of probate and therefore, he had taken out chamber summons with a specific prayer that the petitioner be granted probate as per the order dated 27-02-2003 11 without further delay. Otherwise, there would have been no occasion for the appellant to take out chamber summons with the relief in the manner which is sought for. 22. It was also sought to be contended on behalf of the appellant that if there was no order for issuance of the grant of probate, the Prothonotary and Senior Master would not have asked the appellant to comply with the directions regarding the payment of dues in terms of the order dated 04-01- 2003. The issuance of the directions for payment of certain dues in order to enable the party to get probate cannot itself be a decision for issuance of probate. The order for issuance of the probate should disclose that the decision by the official authority for issuance of probate. It cannot be forgotten that the powers which the Prothonotary and Senior Master is expected to exercise in this regard is in terms of the District Judge under Section 268 of the Indian Succession Act. Therefore, the decision on the part of the Prothonotary & Senior Master for issuance of probate should be revealed from order to be passed by such authority in the proceedings. There is no such order passed by the authority. 23. No other point is canvassed on behalf of the appellant and hence, we do not find any case for interference with the impugned order. In the result therefore, the appeal fails and is hereby dismissed. No order as 12 to costs. ( P.B.MAJMUDAR, J.) ( R.M.S.KHANDEPARKAR, J.)