The failure to comply with the requirement of filing an affidavit in support of a caveat within the stipulated time under Order XXV, Rule 52 of Madras High Court Original Side Rules may result in the automatic discharge of the caveat and preclude the caveator from seeking revocation of the probate.

R. BANUMATHI, J.

1. This intra Court appeal arises out of the dismissal of the application in A.No.7000 of 2007 in O.P.No.188 of 2006 and declining the revoke the probate of the Will (25.08.2005) of deceased T.S. Savithri Krishnasamy.

2. Brief facts:- O.P.No.188 of 2006 was filed by the Respondents for grant of probate of Will dated 25.8.2005 of the deceased T.S. Savithri Krishnasamy. In the main O.P., Appellants were served with notice during April 2006 and they have filed their vakalat and caveat on 28.04.2006. Case of Appellants is that subsequent to the filing of caveat in O.P.No.188 of 2006 for probate, the counsel for Respondents spoke to their Advocate and negotiated for settlement and settlement talks were in progress and the Appellants have authorised their elder sister's son Rajamani to represent them in the settlement talks with the Respondents. According to Appellants, even during the second week of August 2007, their representative and the counsel contacted the Respondents' counsel. On 21.09.2007 when the representative went over to the office of the counsel for Respondents to enquire into the settlement, he was informed about the order of the Court dated 31.07.2007 granting probate. According to Appellants, they were under the bonafide impression that the matter would be settled amicably and therefore, they did not proceed further by filing affidavit in support of the Caveat and that they were deceived by the Respondents by calling them for mediation and settlement. Alleging that the Will has been created by the Respondents only to defeat their legitimate rights, the Appellants filed A.No.7000 of 2007 in O.P.No.188 of 2006 praying to revoke the probate of the Will of the deceased T.S. Savithiri dated 25.8.2005 granted to the Respondents on 31.07.2007.

3. Counter:-Respondents resisted the application setting out the entire events chronologically. Respondents denied any malafide motive and contended that despite the name of the counsel shown in the cause list, Appellants counsel did not appear. As required under Order XXV, Rule 52 of Madras High Court Original Side Rules, Appellants have not filed the affidavit within eight days from the date of lodging of the Caveat and despite number of opportunities, Appellants have not chosen to file an affidavit in support of the Caveat and therefore, by the order dated 31.07.2007, Court discharged the Caveat and granted probate. In respect of Will, it was submitted that the testatrix T.S. Savithiri was a high ranking Officer in Civil Services of Central Government and knew her ways and that the Will was a holograph and unimpeacheable and testatrix dedicated all her estate for charitable purposes. According to Respondents, they made full disclosure of all the modes of disposal and the act of lodging a Caveat was a betrayal. According to Respondents, they have acted as per the desire of the testatrix and prayed for dismissal of the application.

4. Finding of single Judge:- The learned single Judge pointed out that Appellants have filed Caveat, but did not take any steps to file an affidavit in terms of Order XXV, Rule 52 of Original Side Rules either on time or after taking leave of the Court to file it beyond the stipulated time. Pointing out that testatrix was a retired Civil Servant and held a senior position and she had bequeathed substantial portion of the property to charitable purposes, the learned single Judge held that no substantial caveatable interest has been expressed by the Appellants so as to throw any suspicion on the Will executed by the testatrix. Learned single Judge declined to revoke the probate holding that Appellants having lost their right to file an objection after being notified by the Court, cannot seek for revocation of the probate and that too by allegations which are not germane to such proceedings.

5. Contention:- Challenging the impugned order, Mr. K. M.Vijayan, learned Senior Counsel for Appellants contended that after the first