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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Ketankumar Manganlal Sharma
Vs.
Dahiben Vasantkumar Patel & other
Chamber Summons (L) No. 131 of 2013 in Petition No. 466 of 2010
Decided On : 17.2.2014
401. Caveat. - Any person intending to oppose the grant of probate or letter of administration shall file a caveat in Form No. 116 within fourteen days from the service of the citation upon him or within such shorter time as the Judge in Chambers may direct. Notice of the filing of the caveat shall be given by the Prothonotary and Senior Master to the petitioner or his Advocate on record. The Judge in Chambers may extend the time to file a caveat, provided the grant has not in the meantime been issued.
A perusal of Rule 401 clearly indicates that a person intend to oppose the grant of probate or letters of administration has to file a caveat in Form No. 116 within fourteen days from the service of the citation upon him or within such shorter time as the Judge in Chambers may direct. The said provision however empowers the Judge in Chambers to extend the time to file a caveat, provided the grant has not in the meantime been issued. In Court’s view, the caveat has to be filed in Form No. 116 either by the party who intend to oppose the grant of letters of administration or by the constituted attorney. Since in this Court, the applicants have placed reliance on the power of attorney dated 15th/25th June, 2013 on the basis of which the said caveat and affidavit in support came to be filed, it would be necessary to consider whether such power of attorney relied upon by the applicants was in order and would give such power to file caveat and affidavit in support or any legal proceedings in respect of the estate of the deceased.
Since the said power of attorney was not executed by all the applicants and in view of the fact that such power of attorney does not give any such power in favour of the constituted attorney to sign and/or represent the applicants or to sign any affidavit or any legal proceedings in respect of the estate of the deceased, such caveat and affidavit in support filed based on such power of attorney cannot be considered as the caveat and affidavit in support in the format prescribed under the High Court Rules. The question of considering any delay or condonation of delay of such caveat and affidavit in support therefore did not arise. In Court’s view such caveat cannot be considered as caveat in Form No. 116 by a person within the meaning of Rule 401 of the High Court (Original Side) Rules.
1. By this Chamber Summons, applicants seek condonation of delay of 140 days in filing caveat and affidavit in support of caveat. This Chamber Summons is opposed by the original petitioner by filing a detailed affidavit in reply. There is no rejoinder filed by the applicants. Some of the relevant facts for the purpose of deciding this Chamber Summons are as under:-
2. On 22.4.2013 citations were received by the caveators at Canada. On 15/25.6.2013, Mrs. Dahiben Vasantkumar Patel who is one of the applicant and was served with citation executed a power of attorney in favour of Mr. Suchindra Bhawarlal Soni. Based on such power of attorney, on 4.7.2013, the said constituted attorney filed caveat in this court on behalf of all the applicants.
3. On 4.7.2013, applicants filed Chamber Summons (59 of 2013) in Petition No. 466 of 2010 inter alia praying for condonation of delay of 40 days in filing caveat. While opposing the said Chamber Summons No. 59 of 2013, the learned counsel appearing on behalf of the petitioner strongly raised an objection regarding the power of attorney dated 15/25.6.2013 on the ground that the same was given only by Mrs. Dahiben Vasantkumar Patel one of the applicant and not by other applicants. An objection was also raised that the said power of attorney was only to deal with two of the flats mentioned therein and not for filing any proceedings including caveat in respect of the estate of the deceased.
4. On 16.9.2013, applicants herein sought liberty to withdraw the said Chamber Summons No. 59 of 2013 with liberty to file fresh Chamber Summons in view of the objections raised by the original petitioner. By an order dated 16.9.2013, this court granted liberty to the applicants to withdraw the said Chamber Summons (59 of 2013) with liberty to file a fresh Chamber Summons. Chamber Summons was dismissed with liberty as prayed.
5. On 30.9.2013, the applicants have executed another power of attorney in favour of the same constituted attorney Mr. Suchindra Bhawarlal Soni. The contents of the power of attorney executed on 30.9.2013 and 15/25.6.2013 are identical. Mr. Vora, learned counsel appearing on behalf of the petitioner invited my attention to both the General Power of Attorneys dated 15/25.6.2013 and 30.9.2013. It is submitted that the specimen signature of the alleged constituted attorney is not identified by any advocate or by notary public. It is submitted that in any event, the power of attorney does not authorise the constituted attorney to file any caveat and/or affidavit in support of caveat or Vakalatnama on behalf of the applicants in the testamentary proceedings but at most empower the constituted attorney to deal with the two flats which are already sold.
6. Mr. Vora, learned counsel appearing for the petitioner submits that the caveat and affidavit in support are admittedly filed on the basis of the first power of attorney dated 15/25.6.2013 which was admittedly defective as the same was not given by all the applicants but only by Mrs. Dahiben V. Patel. When this objections were brought to the notice of the court, the applicants withdrew the earlier chamber summons with liberty to file fresh chamber summons. It is submitted that even the second power of attorney is identical to the first power of attorney. Learned counsel submitted that since the caveat and affidavit in support filed by the applicants is based on the defective power of attorney, such defective caveat and affidavit in support are not the valid caveat and affidavit and thus can be considered to be on record. It is submitted that since the caveat and affidavit in support are defective, the question of condoning delay in filing caveat and affidavit does not arise.
7. Mr. Vora, learned counsel placed reliance on the judgment of this Court in case of Shrichand Vishandas Raheja vs. Purshotam Vishandas Raheja, 2011(4) ALL MR 242: 2011(4) Bom. C.R. 61, Paragraphs 9, 10, 11, 13 and 15 to 17 of the said judgment are relevant which reads
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