The procedure by way of an application for further and better particulars under Order 6, Rule 5 of the Civil Procedure Code does not apply to an affidavit filed in support of a caveat on the Testamentary Side of the court.

Headnote:
TESTAMENTARY SUIT - PROCEDURE - PARTICULARS OF AFFIDAVIT IN SUPPORT OF CAVEAT - APPLICABILITY OF ORDER 6, RULE 5 OF THE CIVIL PROCEDURE CODE - INHERENT POWERS OF THE COURT UNDER SECTION 151 OF THE CIVIL PROCEDURE CODE.
Fact of the Case:

The plaintiff, the brother of the deceased, filed a petition for the grant of probate of the will of Esmail Abdul Karim Panju, who died in 1965. The defendant, the daughter of the deceased, filed a caveat and an affidavit in support of the caveat. The plaintiff applied for further and better particulars of several statements contained in the affidavit filed by the defendant.
Finding of the Court:

The court held that the procedure by way of an application for further and better particulars under Order 6, Rule 5 of the Civil Procedure Code does not apply to an affidavit filed in support of a caveat on the Testamentary Side of the court. The court also held that the inherent powers of the court under Section 151 of the Civil Procedure Code cannot be invoked to entertain such an application.
Issues: 1. Whether the procedure by way of an application for further and better particulars under Order 6, Rule 5 of the Civil Procedure Code applies to an affidavit filed in support of a caveat on the Testamentary Side of the court. 2. Whether the inherent powers of the court under Section 151 of the Civil Procedure Code can be invoked to entertain such an application.
Ratio Decidendi: 1. The court held that the procedure by way of an application for further and better particulars under Order 6, Rule 5 of the Civil Procedure Code does not apply to an affidavit filed in support of a caveat on the Testamentary Side of the court because: (a) The nature and form of a petition for probate and of the affidavit in support of the caveat do not require such particulars. (b) Rule 710 of the Rules (O.S.) of the court, which deals with the procedure in testamentary suits, provides that the procedure in such suits shall be "as nearly as may be" according to the provisions of the Code of Civil Procedure. This limitation precludes the application of Order 6, Rule 5 to affidavits in support of caveats. 2. The court held that the inherent powers of the court under Section 151 of the Civil Procedure Code cannot be invoked to entertain an application for further and better particulars of an affidavit in support of a caveat because: (a) Rule 710 of the Rules (O.S.) of the court deals specifically with the applicability of the procedural provisions of the Code of Civil Procedure to testamentary suits and sets a limitation thereon. (b) Resort cannot be had to inherent powers where there is a specific provision which deals with the particular matter.
Final Decision: The court dismissed the plaintiff's application for further and better particulars of the affidavit filed by the defendant in support of the caveat.

JUDGMENT - 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 Cootes 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

Click Here to Read the rest of this document

Judicial Analysis

1972 Supreme(Bom) 23

The procedure by way of an application for further and better particulars under Order 6, Rule 5 of the Civil Procedure Code does not apply to an affidavit filed in support of a caveat on the Testamentary Side of the court.

Cases Referred (1)

Judicial Analysis