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2014 Supreme(Bom) 1485
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Twinkle Jatin Khanna, @ Twinkle AkshayKumar - Applicant
Versus
Anita Advani - Respondent
CHAMBER SUMMONS NO. 36 OF 2014 IN REVIEW PETITION NO. 03 OF 2013 IN PROBATE PETITION NO. 1388 OF 2012
Decided on: JULY 30, 2014
Advocate Appeared
Mr. Janak Dwarkadas, Sr. Advocate along with Dr. Birendra Saraf along with Ms. Pooja Kshirsagar i/by I.C. Legal for the applicant.
Mr. Manohar Shetty along with Mr. Abhishek Dhoot for respondents.
Headnote:Bombay Government Premises (Eviction) Act, 1955 - Rule 268. - See Succession Act, 1925, Section 263.
Bombay Government Premises (Eviction) Act, 1955 - Rule 268 Application for certified copies of papers and proceedings. - In an application by third party, photonotary in his discretion, if sufficient cause is shown, can grant such request. A perusal of Rule 268 indicates that if the third party applies before the Prothonotary and Senior Master for search or grant of certified copies of the papers and any proceedings in any suit or matter on payment of the prescribed fee and charges and if sufficient cause is shown, the Prothonotary and Senior Master has discretionary power to grant certified copy of the record and proceedings.
The respondent had already filed an affidavit along with such application for certified copies before the Prothonotary and Senior Master stating reasons as to why she required such copies. The respondent had already filed criminal proceedings against the applicant and her family members. The respondent required the papers and proceedings for the purpose of filing a petition for revocation of the probate obtained by the applicant and her family members. The Prothonotary and Senior Master has not decided the issue as to whether respondent would have locus to file such petition or not. Merely because the Prothonotary and Senior Master having been satisfied with the sufficient cause shown by the respondent and has passed an order for issuance of certified copy of the papers and proceedings, it would not cause any prejudice to the applicant or her family members in any manner whatsoever. By the impugned order the Prothonotary and Senior Master or by the Commissioner for taking accounts has not decided the rights if any which the respondent proposes to claim in the proceedings proposed to be flied by the respondent.
A perusal of Rule 268 however does not indicate issuance of any prior notice to a party to the proceeding before considering an application of a third party for issuance of certified copy of the papers and proceedings. The Prothonotary and Senior Master having exercised his discretion on having been satisfied that sufficient cause was shown for issuance of certified copies, this Court shall not interfere with such discretion exercised by the Prothonotary and Senior Master.
Succession Act, 1925 - Section 263 Bombay High Court (O.S.) Rules, 1980, Rule 268 Application for certified copy of probate proceedings. Section 263 of Act, prescribing condition applicable for revocation of probate, cannot be extended to such an application made under Rule 268 of Rules, 1980. The condition applicable for revocation of probate prescribed under Section 263 of the Indian Succession Act, 1925 cannot be extended to an application for certified copy of the probate proceedings made under Rule 268 of the High Court rules. Court is thus not dealing with the judgment of the Supreme Court relied upon by both parties on the issue of caveatable interest. Since the respondent has not challenged the order on the ground of maintainability of review petition, Court need not deal with the said issue in this order.
1. By this chamber summon the applicant seeks that the order dated 17 February 2014 passed by the Learned Commissioner of Taking Accounts rejecting the review petition filed by the applicant be set aside and seeks that the application filed by the respondent for certified copies of the proceedings of probate petition No. 1388 of 2012 be dismissed. Some of the relevant facts for the purpose of deciding this chamber summon are as under:-
2. Applicant is the daughter of the late Mr Rajesh Khanna who expired on 18th July 2012. It is case of the applicant that the said deceased had left a will and testament dated 19th June 2012 and had appointed the applicant as executrix of the said will. The applicant filed a testamentary petition in this Court being No. 1388 of 2012 for probate of the said will. By an order dated the 6th October, 2002 this Court allowed the said petition and granted probate in respect of the said will.
3. Sometime in the month of November 2012 the respondent filed a complaint being complaint no. DV/25/2012 against the applicant and her family members before the learned Metropolitan Magistrate under the provisions of the Protection of Women from Domestic Violence Act 2005. By an order dated 3rd December 2012 passed by this Court in Criminal Petition No. 4196 of 2012 and other 2 connected matters filed by the applicant and her family members the proceedings initiated by the respondent before the learned Metropolitan Magistrate came to be stayed.
4. On 27th November 2012 the respondent applied to the Prothonotary and Senior Master of this Court for certified copies of the probate proceedings filed by the applicant under rule 268 of the Bombay High Court (original side) Rules. The respondent filed an affidavit in support of the said application along with the said application. It is case of the applicant that the applicant was not served with a copy of the said application and was not aware of the said application.
5. 28th of January 2013 the learned Prothonotary and Senior Master passed an order allowing the application made by the respondent to the extent the copies of the probate proceedings are concerned and not the probate. It is case of the applicant that in the month of February 2013 the applicant came to know about the order passed by the learned Prothonotary and Senior Master. On 25th of February 2013 the applicant through her advocate lodged an objection in respect of the said order passed by the learned Prothonotary and Senior Master. The matter was placed for directions by the learned Prothonotary and Senior Master on 26 February 2013.
6. On 30th January 2013 the respondent filed another complaint before the learned Metropolitan Magistrate against the applicant and her family members under section 91 of the Criminal Procedure Code inter alia praying for production of original will of Mr. Rajesh Khanna. It is case of the applicant that the learned Metropolitan Magistrate did not take any cognizance of the said complaint.
7. On 28th of February 2013 the applicant filed her objection/written submissions opposing the grant of certified copies and prayed for reviewing/recalling of the order passed by the learned Prothonotary and Senior Master dated 28th of January 2013. It is case of the applicant that the learned Prothonotary and Senior Master treated the said objection as Review and stayed the earlier order passed by him. Both parties filed the submissions before the learned Prothonotary and Senior Master. On 15th June 2013 the respondent raised an objection that the written submission/objections cannot be considered as Review petition. In view of such objection raised by the respondent, the applicant filed a review petition before the learned Prothonotary and Senior Master praying for recalling/reviewing of the order passed by him on 28th of January 2013. The respondent filed reply to the said application.
8. On 1st October 2013 the learned Prothonotary and Senior Master passed an order not t
