1. Chamber Summons no.52 of 2007 is taken out by the plaintiff (in the testamentary suit) for dismissal of the caveat dated 12th March 2007 filed by the defendant opposing the grant of probate to the alleged will dated 4th April 2005 of Mr.Sudesh Kapur. Chamber Summons No.80 of 2007 is taken out by the defendant (in the testamentary suit) for taking on record the additional affidavit in support of his caveat or in the alternative to allow the amendment to the affidavit in support of his caveat dated 12th March 2007.

2. The relevant facts briefly stated are that on 5th July 2006 Mr.Sudesh Kapur (hereinafter referred to as "the deceased") died leaving behind him the plaintiff as a widow and the defendant as his son. According to the plaintiff, the deceased has left behind him his last will and testament dated 4th April 2005.

3. On 9th October 2006, the defendant filed a suit bearing Suit No.3020 of 2006 in this Court for administration of the estate of the deceased alleging that the deceased had died intestate. On 7th December 2006, the plaintiff filed a petition bearing Testamentary Petition No.998 of 2006, for grant of probate to the alleged last will of the deceased dated 4th April 2005. On service of the notice of the testamentary petition, on 12th March 2007 the defendant filed a caveat opposing the grant of probate and on the next day, i.e. on 13th March 2007, filed an affidavit setting out the grounds of opposition for the grant of probate. On 6th July 2007, the defendant filed an additional affidavit setting out additional grounds of opposition for the grant of probate. On 7th September 2007, the defendant filed the Chamber Summons No.80 of 2007 seeking leave to take the additional affidavit dated 13th July 2007 on record or in the alternative to permit him to amend the affidavit by setting out additional grounds of opposition for the grant of probate. In the meanwhile, on 16th July 2007, the plaintiff has taken out Chamber Summons No.52 of 2007 for dismissal of the caveat of the defendant on the ground that his affidavit dated 13th March 2007 does not specifically set out any ground of opposition for the grant of probate.

4. Rule 401 of the Bombay High Court (Original Side) Rules, 1980 (for short "the Rules") provides that any person intending to oppose the grant of probate or letters of administration shall file a caveat within 14 days of the service of the citation upon him or within such shorter time as the Judge in chambers may direct. The Judge in chambers may extend the time to file the caveat provided that the grant has not in the meanwhile been issued. Rule 402 of the Rules provides that an affidavit in support of the caveat shall be filed within 8 days from the date of the filing of the caveat. Such affidavit shall state the right and interest of the caveator and the grounds of objections to the application for grant of probate/letters of administration. Rule 402 further provides that no affidavit shall be filed after the expiry of the period of 8 days without an order of the Judge in chambers. Rule 403 of the Rules provides that upon the affidavit in support of the caveat being filed, the petition for grant of probate/letters of administration shall be numbered as a suit in which the petitioner shall be the plaintiff and the caveator shall be the defendant. Rule 403 further provides that petition shall be treated as a plaint and the affidavit in support of the caveat shall be treated as written statement of the caveator and the procedure in the suit shall, as nearly as may, be according to the procedure applicable to civil suits on the Original Side of the Court.

5. As regards the defendant’s chamber summons for taking additional affidavit on record, it may be stated that there is no provision in the Rules for filing of an additional affidavit. In fact, the affidavit in support of the caveat is required to be filed within 8 days of the filing of the caveat. Though, as held by this Court in Husein Abdu