Decided on February 25,1972



- (1.) THIS is a Chamber Summons under Order 6 Rule 5 of the Civil Procedure Code taken out by the Plaintiff-Petitioner for particulars of several statements and allegations contained in the affidavit dated 11th May 1971 filed by the defendant in support of the caveat dated 12th April 1971. The testamentary petition out of which the present application has arisen relates to the estate of one Esmail Abdul Karim Panju who died in Bombay on the 12th day of February 1965 leaving a will dated 29th June 1953 under which the plaintiff was appointed sole executor. The plaintiff filed this petition for the grant of probate on the 19th of August 1970 and a caveat and an affidavit in support of the caveat having been filed by the defendant the proceedings were numbered as a suit in accordance with the provision of Rule 710 of the Rules (O. S.) of this Court. For the sake of completing the facts it may be stated that I have already recorded on 2nd February, 1972 the evidence of Mr. Aibara the solicitor who prepared and attested the will in question. The plaintiff has thereafter taken out the present Chamber Summons for further and better particulars of several statements contained in the affidavit filed by the defendant in support of the caveat. It may be mentioned that the plaintiff is the brother of the deceased and the caveatrix is the daughter of the deceased.
(2.) THE first question that arises on this Chamber Summons is whether the procedure by way of an application under Order 6, Rule 5 of the Civil P. C. for further and better particulars applies to an affidavit filed in support of a caveat on the Testamentary Side of this Court. It was strongly contended by Mr. A. H. Mehta on behalf of the plaintiff in support of his application that that procedure is applicable in regard to an affidavit filed in support of a Caveat, and that unless that was so it would not be possible for the plaintiff to know what is the case which he is called upon to meet in the testamentary suit. Mr. Mehta relied in support of his contention on (1) the concluding sentence of Rule 710 of the Rules (O. S.) of this Court. (2) Section 141 of the Code of Civil Procedure, and (3) the English practice which he pointed out from standard works. It was frankly admitted by Mr. Mehta at the very outset of his argument before me yesterday that there is not a single decision of an Indian Court, nor a single decision of an English Court, bearing directly on the point which has arisen before me, which is, therefore, what is popularity called, a maiden point.
(3.) TURNING first to the English practice relied upon by Mr. Mehta it is stated in Tristram and Coote's Probats particulars of every defence, on whatever ground, in a probate action must may order a party to serve on any other party particulars of any defence stated in the pleading or in an affidavit which has been ordered to stand as a pleading. Mr. Mehta also relied on the statement that is to be found in Supreme Court Practice, 1970, Vol. I Part I, p. 261, that the procedure in regard to particulars is the same in all Divisions of the High Court of Justice in England. The practice in England in regard to testamentary proceedings is however so different that I am afraid no assistance can be derived from the English practice in regard to the furnishing particulars on which Mr. Mehta has relied. I have in my decision in the case of Maneklal V. Shah v. Jagdish C. Shah. (1970) 72 Bom LR 719 pointed out (at p. 722) what that procedure is and how it differs from the Side of this Court. As pointed out in my judgment in the said case, a caveat filed to have force after the expiry of six months from the date on which it was entered, unless a fresh caveat is filed before the expiration of that period, or proceedings are commenced by writ citation or motion while it is in force. After that caveat is filed a warning is issued against the caveator by the party whose application for grant has been stopped and the appearance to such warning by the caveator is required to disclose, inter alia, the interests of the respective parties in the estate of the deceased. With that information, it is open to either party, if their interests conflict to commence an action against the other for the purpose of establishing his own claim and the proceedings that ensue take the form either of a probate action, or of citation proceedings, or of a Motion. Parties to a probate action are described as plaintiffs, defendants, interveners, and parties cited. Moreover, a Statement of Claim has to be filed and a Statement of Defence, and in appropriate cases a counter claim, by the parties to a probate action, as is pointed out in the Supreme Court Practice, 1970, Vol. I. Part I at a p. 1102, and in Tristram and Coote's Practice, 23rd End. at pp. 673 and 674. There can be no doubt that the procedure by way of application for further and better particulars would be clearly applicable to pleadings in the nature of a Statement of Claim or a reply or a counter-claim, as the case may be, but the difficulty that arises in this country is that there is no procedure by way of the filing of a statement of claim or a reply or a counter-claim as there is in England. Mr. Mehta who has made considerable research and has placed the entire legal position before me with great industry has fairly pointed out to me that the practice that prevails in our Court even to-day is the practice which was in force under the Rules of the Supreme Court (Esslesiastical) prevailing in England as far back as the year 1895. This was stated in the case of Chotalal Chunilal v. Bai Kabubai, (1898) ILR 22 Bom 261 at p. 263. Rule 483 of the Esslesiastical Rules then prevailing in England is a combination of a part of our present Rule 708 and our present Rule 710. The said Rule 483, however, did not make provision in regard to the numbering of testamentary proceedings as a suit, nor did it lay down that the procedure applicable would be that which would be applicable to a suit. I must, therefore, proceed to decide the present Chamber Summons without reference to the English practice on the point which cannot afford any assistance to me on the question which I have to decide on this Chamber Summons. In my opinion, in order to ensure proper control of testamentary suits it would be advisable to amend our procedure and bring it in line with the present English Procedure so as to provide for the filing of a plaint, written statement, counter-claim (if any) and a reply to counter-claim in the same manner as in a suit, so that all the provisions applicable to a suit could be applied to the same.;

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