Decided on August 03,1960

GAIND KANWAR Respondents

Referred Judgements :-


Cited Judgements :-



MODI J. - (1.)THIS is a miscellaneous appeal by the objector Kalyansingh in a probate matter.
(2.)THE facts leading up to this appeal may be shortly stated as follows. Thakur Moolsingh with respect to whose estate the present proceeding has arisen died on the 2nd November, 1956. THE case of the respondents who are his daughters and were petitioners in the court below was that on the 22nd June, 1956, Thakur Moolsingh had made a will by which he bequeathed all his properties and his right to receive compensation of the jagir held by him in their favour. This will was registered on the 6th July, 1956. THE petitioners applied for probate of the will on the 4th Dec, 1956. In this application they mentioned the appellant as one of the kith and kin of the deceased Thakur Moolsingh. A citation was issued to Thakur Kalyansingh and accordingly on the 23rd March, 1957, he filed an objection to the grant of probate to the petitioners of the alleged will. No affidavit was filed along with this objection. THE petitioners, therefore, made an application on the 3rd Aug. , 1957, praying that as Kalyansingh had not filed his affidavit within 14 days of the submission of his objection as required by the R. 778 of the Rules of this Court, the caveat be discharged. THEreupon Kalyansingh filed an affidavit on the 2nd Sept. , 1957. THE learned District Judge held that the affidavit in support of the objection should have been filed within 14 days of the same having been lodged, and, that having not been done, the caveat deserved to be discharged and he ordered accordingly. THE present appeal has been filed by the objector Kalyansingh from the aforesaid order.
The main point raised by the objector in his memorandum of appeal to this Court was that the learned Judge below had acted with material irregularity in discharging the caveat inasmuch as R. 780 of the Rules of this Court which prescribes a period of 14 days for the lodging of an affidavit in support of the caveat was not mandatory; but before we do so, we wish to refer to the principal contention raised before us by learned counsel which was that it was not at all necessary for him to file an affidavit in support of his objection inasmuch as it did not amount to a caveat, strictly speaking. The submission of learned counsel is that the filing of a caveat has been provided for under sec. 234 of the Indian Succession Act, 1925 (No. XXXIX of 1925) and sub-sec. (4) of that section further provides the form in which the caveat has to be made. This form is given in Schedule V of the Act. This form is as follows- "let nothing be done in the matter of the estate of AB, late. . . . . . . . . . . . . . . . . . . . of deceased, who died on. . . . . . . . . . the day of. . . . . . . . . . . . at without notice to C D of. . . . . . . . . . . . . . "

It is plain therefore, that a caveat is a sort of an information or notice to the Court that it should not take any further proceedings in the matter of the grant of the probate of a will which may be submitted to it for probate without notice to the caveator. The contention of learned counsel, put briefly, is that what Kalyansingh had done in this case, strictly speaking, was not to have filed a caveat but that when a citation had been issued to him from the District Judge, he had filed an objection which was obviously not in the form of a caveat (which we have set out above), and, therefore, the provisions of R. 778 of the Rules of this Court are not at all attracted to a case like the present. In support of this contention, learned counsel placed his reliance on a decision of the Calcutta High Court in Bhobatarini Vs. Haricharan (1 ). In this case, a widow died in October 1914. Thereafter her father applied for the probate of the will made by the widow. In his application he stated the names of the relatives of the deceased, namely, her two daughters. One of the daughters then appeared in court and intimated that she would oppose the application for probate. She then made a petition on which she affixed an eight-annas stamp only. The Dist. J. held that this petition was in the nature of a caveat and required a stamp of five rupees under Art. 12, Schdl. 2 of the Court-fees Act. Consequently he refused to accept the petitioner's objection and proceeded to deal with the application for probate ex parte. This order was taken in appeal to the High Court, and it was held that a caveat was in the nature of a precautionary measure intended to ensure that there should be no proceedings in the matter of the estate of a deceased without notice to the person who filed the caveat, and as citations had been issued to the daughters at the instance of the petitioner and as one of them had appeared in answer thereto, no caveat was necessary, and, therefore, an eight-anna stamp on the petition filed by her was sufficient. In this view of the matter the proceedings were re-opened and the case was remanded to the district court for further proceedings in accordance with law. We may point out in this connection that there is an earlier bench decision of the same Court in Tarachand Chuckerbutty Vs. Deonath Roy (2) in which the will was opposed by a distant relative who claimed to be the heir of the testator and he had made an application upon an eight-anna stamp. The learned Judges held in this case that although no proper caveat had been filed, yet the petitioner was nevertheless allowed to come in and be heard, and, therefore, they directed that he should have paid the court-fee stamp of Rs. 5/- on his application and ordered him to file the same accordingly.

Be that as it may, we feel that the question which is precisely before us in this appeal did not directly arise before the Calcutta High Court in the two cases to which we have made reference above. The question before us, put in a nut-shell, is whether an objection filed by an objector to the grant of a probate in response to the citation issued by the court is a caveat or something in the nature of a caveat which must be supported by an affidavit as required by our Rules. In this connection we cannot do better than to invite reference to R. 777 of the Rules of this Court. That rule is in these terms: - "any person intending to oppose the issuing of a grant of probateor letters of administration must either personally or by his advocate file a caveat in the court in the prescribed form. Notice of the filing of the caveat shall be given by the Court to the petitioner or his Advocate (form prescribed ). " We may also quote rule 778 here: - Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, the affidavit or affidavits in support shall be filed within fourteen days of the caveat being lodged. Such affidavit shall state the right and interest of the caveator, and the ground of the objections to the application. " The combined effect of these rules to our mind plainly is that whoever wishes to oppose the grant of probate or letters of administration can do so only by filing a caveat and that this caveat must be supported by an affidavit or affidavits by the caveator, and the affidavit or affidavits must be filed within 14 days of the lodging of the caveat. It is further necessary that the affidavit must disclose the right and interest of the caveator and the grounds on which he opposes the grant of probate. In this state of the law, we are definitely disposed to hold that the only manner in which the appellant Kalyansing could oppose the grant of probate to the respondents was by filing a caveat and by no other method. It may be that the caveat was not filed according to the strict language of the form which has been prescribed in this connection by the Indian Succession Act, but that, in our opinion, does not alter the substance of the matter. We may also add that any other view would render the provisions of Rules 777 and 778 entirely nugatory; for if we allow ourselves to be persuaded to accept the submission made by learned counsel, then all that a caveator need do is to file an objection not in the form of a caveat and do so without filing the necessary affidavits under R. 778 and without showing his own right or interest in the property of the deceased or disclosing the grounds on which he sought to oppose the grant of probate in a given case. We are, therefore, categorically of the opinion that we should not accept such an interpretation of the rules to be correct which would render them fruitless, but, on the order hand, we should be guided more by the substance of the matter rather than its form and interpret the rules in such a way that their real object would be served and not defeated. For these considerations, we hold that whether what the appellant filed in this case was strictly a caveat or not, it was certainly something in the nature of a caveat which falls within the four walls of RR. 777 & 778, and, therefore, it was necessary for the appellant to have filed an affidavit in support of his objection as required by R. 778.

The next question that falls for consideration is whether the provisions of R. 778 are mandatory. We do not feel called upon to express any considered opinion on this question; for it is unnecessary to do so for the purposes of the present appeal.

This brings us to a consideration of R. 780 of the Rules. The relevant portion of this rule is: - "where the caveator fails to files any affidavit in support of his caveat in compliance with R. 778. . . . . . . . . the caveat maybe discharged by an order to be obtained on application to the court. " The respondents did file an application to the court below that the objection filed by the appellant here had not been supported by an affidavit as required by R. 778. Thereupon the court discharged the caveat. We will assume for the purposes of this appeal that the court below could in a proper case have allowed the filing of an affidavit even after the time prescribed by R. 778; though, as we have said above, we do not express any final opinion on this point.

The question still arises whether the court below or for that matter this Court in appeal should allow the affidavit to be filed after the prescribed time. We need hardly say that all discretions by courts of law have to be exercised on sound judicial principles and not by mere whim or caprice. The question, therefore, at once arises whether the appellant has disclosed any grounds to entitle him to get the indulgence he seeks from us. The answer to this question must be in the negative; for, no reasons whatever have been brought to our notice which should rightly induce us to allow the appellant any extension of the time prescribed under the Rules. The memorandum of appeal does not contain any such reasons nor are they contained in the affidavit. We are, therefore, of the opinion that assuming that we have the power to extend the period prescribed under R. 778 in an appropriate case, no reasons have been adduced in the present case to induce us to grant any such extension.

There is yet another aspect of the case to which we should like briefly to refer in this connection. As we have already stated above, one of the essential requirements of R. 778 is that the caveator must not only file an affidavit within the time prescribed but he must state in his affidavit what right and interest he has in the testator's property and what are his grounds for objecting to the grant of his probate of his estate. We have carefully perused the affidavit filed by the appellant such as it was filed on the 2nd Sept. , 1957, and we find that there is nothing therein to show whether and if so what interest the appellant has with respect on the testator's estate. Learned counsel for the appellant invited us to read the application for probate filed by the respondents themselves wherein the appellant was mentioned as one of the kith and kin of the deceased Thakur Moolsingh and from this he wanted us to draw the inference that Thakur Kalyansingh must have been interested in the property of the deceased. We regret, we cannot draw any such inference from the mere circumstance that the appellant was mentioned by the respondents as one of the kith and kin of the late Thakur Moolsingh. It is one thing to be a relative of a person but quite another to have some thing to do with his estate. We are, therefore, of opinion that the affidavit filed by Kalyansingh also fails to satisfy this essential requirement of R. 778 of the Rules of this Court. In these circumstances, we hold that the only proper order to pass would be to upheld the order of discharge passed by the learned District Judge, though our reasons for arriving at the same conclusion are somewhat different from those which prevailed with him.

We, therefore, dismiss this appeal with costs. .


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