:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY TESTAMENTARY TESTAMENTARY & INTESTATE JURISDICTION & INTESTATE JURISDICTION & INTESTATE JURISDICTION CHAMBER CHAMBER CHAMBER SUMMONS NO. 106 OF 2008 SUMMONS NO. 106 OF 2008 SUMMONS NO. 106 OF 2008 IN IN IN SUIT SUIT SUIT NO. 58 OF 2007 NO. 58 OF 2007 NO. 58 OF 2007 IN IN IN PETITION PETITION PETITION NO. 620 OF 2007 NO. 620 OF 2007 NO. 620 OF 2007 Ramkishoredas Baldevdas @ Ramkishoredas Sadhanwala @ Ramkishoredas. ... Deceased. Bijendra Ramkailash Singh. ... Petitioner/Plaintiff. V/s. Ashok G. Rajani. ... Caveator/Defendant. And Hinduja Foundation. ... Caveator/Applicant. Mr. J.A. Udaipuri i/b. Rajesh Jadhav for the Petitioner. Mr. Arif Bookwala with Mr. K. Moye a/w. Mr. V.S. Vengurlekar for the Applicant. Ms. Shubhangi Chavan i/b. Ashok M. Saraogi for Defendant No. 1 ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 17TH 17TH 17TH OCTOBER 2008. OCTOBER 2008. OCTOBER 2008. P.C. P.C. P.C. : : : . Heard Mr. Bookwala, learned Senior Counsel appearing for the Applicant/Caveator and Mr. Udaipuri, appearing for the Original Petitioner in opposition. The other Defendants are duly served. 2. The Applicant has prayed that the delay in filing the affidavit in support of the Caveat be condoned. Alternatively, it has prayed that it may be permitted to file fresh Caveat and affidavit in support in the above :2: Probate Petition which was converted into Testamentary Suit No. 58 of 2007. 3. The above proceedings for issuance of a Probate were converted into a Suit on account of a Caveat filed by one Ashok Rajani. After the said Rajani put in a Caveat and raised his objection to the grant of Probate that the Petition was converted into a contested matter. Subsequently, the Petitioner applied for dismissal of the Caveat of Caveator Rajani. This Court by the order passed on 27th August 2008 in Notice of Motion No.99 of 2007, dismissed the Caveat of Mr. Rajani. 4. Consequently, there being no other objection to the Probate of the Will being issued, the Petitioner prayed that the Probate be issued in his favour. 5. However, Mr. Bookwala, appearing in support of this Chamber Summons invited my attention to para 3 of the affidavit in support and contended that on or before 1st October 2007, the Applicants have filed a Caveat in the Probate Petition to oppose the grant of the Probate of the alleged Will. He submits that the said Caveat is duly noted in the Register maintained by the Department. He also contended that the Petitioner to this Petition acknowledged the Applicant as a Caveator in the Advocate’s Notice dated 25th February 2008 which was served upon the Advocates appearing for the Applicant. However, no :3: citation was served on the present Applicant. Despite filing Caveat, according to Mr. Bookwala, neither the name of their Advocates nor of the Applicants themselves was displayed on the daily cause list of this Court. Therefore, neither the Applicant nor their Advocates could remain present. He submits that on this ground alone the delay should be condoned. 6. Alternatively, Mr. Bookwala submits that there have been series of proceedings between the Petitioner and the Applicant. They are referred to in the affidavit in support. When the Applicant did not get any notice nor was their name appearing on Board, they took search of the records on 4th October 2008. Upon taking search it was discovered that the earlier Caveat was missing from the record. However, the proceedings were already converted into Testamentary Suit. My attention is also invited to para 8 of the affidavit in support by Shri Bookwala. For all these reasons, he submits that sufficient cause is made out for the condonation of the delay and even for the alternate prayer that is prayer Clause (b) of the Chamber Summons being granted. 7. Mr. Udaipuri on the other hand invites my attention to Rule 401 of the Original Side Rules and submits that the caveat has to be filed in a format prescribed in the said Rule. The caveat has to be filed with the affidavit in support. If there is no affidavit :4: in support then there is no caveat within the meaning of the said Rule. In such circumstances, no cognizance being taken of mere filing of the caveat without compliance with the aforesaid Rule. That apart, he relies upon the entry made in the records to the effect that there is no caveat filed on behalf of the Applicant. In such circumstances, he submits that there is no question of condoning the delay in filing the affidavit in support of the caveat. He submits that on account of the conduct of the Applicant, even the alternate prayer should not be granted. Mr. Udaipuri submits that although no affidavit in reply is filed in the Chamber Summons, he proceeds on the basis of denials. 8. Having perused this Chamber Summons and the affidavit in support so also noting the endorsement in the record, I am of the view that in the peculiar facts of the case, prayer clause (b) deserves to be granted. This is a case where the Applicants have made out sufficient cause for not being able to file their affidavit. While it may be true that the office states that there is no entry of the caveat filed in October 2007, yet, the Petitioner does not deny issuance of the letter dated 25th February 2008. There is no denial of the averments in para 3 of the affidavit in support of this Chamber Summons. Further, nothing has been pointed out to me which would prohibit the Applicants from filing a fresh caveat. More so, when the Probate is yet to be granted. In such circumstances, :5: and in the peculiar facts of this case, I am of the opinion that the Chamber Summons deserves to be made absolute and it is accordingly made absolute in terms of prayer clause (b), subject to the Applicant paying costs quantified at Rs.7,500/-. If the Applicants file their Caveat on or before 10th November 2008 and pay costs quantified at Rs.7,500/- to the Petitioner, the Office to accept the Caveat and the affidavit and thereafter, the matter be proceeded in accordance with law. Merely because the Petitioner has not filed any affidavit in reply does not mean that he has admitted the contents of the affidavit in support of this Chamber Summons in so far as the merits of the controversy. All pleas of both sides in that behalf kept open. 9. In the view that I have taken, it is not necessary to go into submissions of Mr. Udaipuri with regard to collusion between Mr. Rajani and the present Applicant. The caveat of Shri Rajani has already been dismissed and the Petitioner has succeeded to that extent. 10. In such circumstances and in the larger interest of justice, it is not necessary to enter into this controversy. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)