- (1.) This special appeal is from a judgment and order of the learned Single Judge dated 10 July 2015 by which an application filed by the appellants under Section 151 of the Code of Civil Procedure(CPC) for the discharge of a caveat in a testamentary case was dismissed.
(2.) The appellants instituted a Testamentary Case(No.14 of 2014) seeking letters of administration with a will dated 31 March 2012 annexed of the estate of Sarla Shukla, who was the spouse of Justice Mahesh Narayan Shukla, former Chief Justice of this Court. The testatrix died on 12 March 2013. On 30 May 2014, notices were issued fixing 30 July 2014 as the date of hearing. On 25 June 2014, notices were remitted to the next of kin and were published in the newspapers. On 13 August 2014, the respondents, who are daughters of the testatrix, filed a caveat application under the provisions of Section 284 of the Indian Succession Act, 1925. On 9 December 2014, the appellants who are sons of the testatrix, filed an application under Section 151 of the CPC for the discharge of the caveat on the ground that within a period of fourteen days from the lodgement of the caveat, the respondents had not filed an objection together with an affidavit stating the right or interest of the caveators and the grounds of objection to the application. The learned Single Judge dismissed the application by the judgment and order which is impugned in this appeal.
(3.) The learned Single Judge found that while lodging a caveat on 13 August 2014, the respondents had filed an affidavit stating that they are daughters of the deceased testatrix and were filing a caveat in order to contest the proceedings on the ground that the will is forged and fabricated and all the properties had been bequeathed to the appellants whereas these being ancestral properties the testatrix had only a limited right in respect of the properties. The learned Single Judge held that there was substantial compliance on the part of the respondents with the provisions contained in Rule 36 of Chapter XXX of the Allahabad High Court Rules, 1952(the Rules) since there was in substance a caveat, accompanied by an affidavit which stated the right and interest of the caveators as well as their grounds of objection to the application filed by the appellants. Even otherwise, the learned Single Judge was of the view that Rule 38 of the Rules provides that if the caveator fails to file an objection in compliance with Rule 36 of the Rules, the caveat may be discharged by the Court which imports a discretion in the Court on whether or not to discharge the caveat. Accordingly, the learned Single Judge held that since the affidavit filed by the respondents substantially complied with the provisions of Rule 36 of the Rules by spelling out the right and interest of the caveators and their objection to the will on the basis of which the letters of administration were sought, the application filed by the appellants was liable to be rejected. However, the caveators were granted three weeks' time to file their objection/written statement.;