1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION CHAMBER SUMMONS NO.81 OF 2008 IN TESTAMENTARY SUIT NO.47 OF 2008 IN TESTAMENTARY PETITION NO.792 OF 2007 Bhupendra Muljibhai Shah .. Plaintiff Versus Mrs.PadminiSudev Rao @ Ms.Padmini Rakesh Goswami .. Defendant Plaintiff in person Ms.Kavita Shah for defendant Nos. 1 and 2 Mr.U.J.Makhija i/b. Shantilal & Co. in support of Chamber Summons – Original Defendant No.3/ respondent No.3 CORAM : S.C.DHARMADHIKARI, J. DATE : 30th September 2009. P.C.: 1] The chamber summons is to condone the delay of 146 days in filing caveat and affidavit in support thereof. 2] The caveator has filed an affidavit in support of this chamber summons and has stated that the deceased expired at Mumbai on 18th June 2 2007. The caveator and her family was not in Mumbai at that time. The present petitioner stated that he had a subsequent will dated 12th June 2007 in his favour. The petitioner tried to take possession of the flat on the death of the deceased but the flat was in possession of the caveator and, therefore, the proceedings under section 145 of the Cr.P.C., were initiated. The caveator has pointed out that the Executors appointed under the will dated 4th June 2004 left by the deceased, filed a petition for probate being Petition No.956 of 2007. The office objections were complied with and citations issued. However, the grant came to be made on 18th January 2008 but a Miscellaneous Petition was filed by the present petitioner for revocation of the probate. That revocation was allowed and the probate granted on 18th January 2008 in Petition No.956 of 2007 was set aside. The caveator has stated that she is one of the beneficiaries under the will dated 4th June 2004 which is registered. Subsequent, alleged will produced by the petitioner does not appear to be the genuine will as the same was executed only six days prior to death of the deceased and that too when she was seriously ill and hospitalised. The caveator in the affidavit in support has, therefore, stated that she became aware of the filing of the petition only in February 2008 when the housing society 3 served an order dated 15th February 2008 passed by the Joint Registrar, C.S. Mumbai on her. It is in these circumstances that the delay has occurred and there is no negligence or deliberate inaction or lack of bonafides on her part. The original petitioner has filed an affidavit in reply and has pointed out that the delay cannot be condoned. All statements made in the affidavit in support are false. The caveator has no caveatable interest. Further, she was fully aware of the proceedings and it is incorrect to state that the caveator and her family members were out of Mumbai when the deceased expired. The application for condonation of delay is lacking in bonafides. The earlier probate was obtained by practicing fraud and considering the conduct of the caveator, the delay should not be condoned. My attention is invited to the affidavit in reply and it is urged that the statements in the affidavit in support are false and, therefore, action should be taken against the caveators. 3] I have heard the original petitioner appearing in person and Mr.Makhija for caveators. Having perused the affidavits on record and considering that there is an order of the Division Bench dated 9th June 2009 in Appeal No.131 of 2009, so also there being cross objections, 4 interest of justice would be sub-served if the delay in filing caveat is condoned. More so, as I find that the explanation offered is satisfactory and reasonable. The application does not suffer from lack of bonafides nor can it be said that the delay is caused on account of deliberate inaction or utter negligence. Hence, by compensating the petitioner by payment of costs, the delay can be condoned. Chamber summons is accordingly made absolute in terms of prayer clause (a). Caveat is taken on record, subject to caveator paying costs quantified at Rs.2500/- to be paid to the petitioner within two weeks from today. However, no opinion is expressed on the merits of the controversy and all contentions in that behalf of are kept open. (S.C.DHARMADHIKARI, J)