Filing objections with affidavit serves as notice of opposition, and the absence of a caveat is a procedural defect that does not prevent the contest.

A preliminary issue whether the objections can be entertained and the matter be allowed to be contested even though no caveat as provided under Rule 35 of Chapter XXX of the Allahabad High Court Rules, 1952 (hereinafter referred to as the Rules) has been filed is for consideration before me.

2. The brief facts leading to the above preliminary issue are that the petitioner Smt. Prakashi wife of Budhsen applied for grant of Letters of Administration in respect of the estate and credits of the deceased Ajab Singh with the Will annexed.

3. Notic of the petition was published in the news papers Danik Jagran (Hindi) and Hindustan Times (English) besides being sent to the next of kins of the deceased by registered post.

4. Sri D.S. Bohra appeared as counsel according to the office report dated 31.3.2010 on behalf of Jitendra and Kiran Pal nephews of the deceased. He filed objections to the petition on their behalf where upon the matter was adjourned for one reason or the other.Ultimately, the court, due to absence of Sri D.S. Bohra and the caveat on behalf of the parties represented by him vide order dated 29.4.2010 held that matter is non-contentious in nature.

5. The application moved by them for the recall of the above order was rejected on 22.4.2011.

6. These two orders were challenged by them in Special Appeal No. 761 of 2012, Jitendra and another v. Smt. Prakashi. The appeal was disposed of vide judgment and order dated 2.4.2013. The orders impugned referred to above were set aside on payment of Rs 15,000 as cost with liberty to file objections supported by affidavit, if not already filed within two weeks.

7. In pursuance to the above order the cost was paid as is admitted. The objections had already been filed as such no necessity was felt for filing further objections but no caveat was ever filed.

8. It is in the above background in the absence of the caveat as provided under Rule 35 of Chapter XXX of the Rules that an objection was raised that the case cannot be converted into a suit as provided under Rule 39 of Chapter XXX of the Rules whereupon the above preliminary issue was formulated.

9. The submission of Sri Nimai Das, learned counsel for the petitioner is that the case cannot be converted into a suit. The objections filed without lodging a caveat are of no consequence and on its basis no one can be allowed to contest the matter.

10. On the other hand Sri Anil Sharma, learned counsel for the objectors submits that as the objections were already on record and they have been permitted by the Division Bench to be filed if not already filed, it means that the court has taken cognizance of the same. Thus filing of the caveat is an empty formality and would not come in way of consideration of their objections on merits.

11. Rule 35 of Chapter XXX of the Rules provides that any person who intends to oppose the grant of Letters of Administration must file a caveat in court in the form prescribed.

12. Rule 36 of the Chapter XXX of the Rules provides for filing of objections supported by affidavit within 14 days of the caveat being lodged and in case objections are not so filed the caveat would be discharged.

13. It is on the filing of affidavit containing objection in support of the caveat that a case for grant of Letters of Administration is liable to be converted into a suit to enable the parties to put in contest.

14. The relevant provisions in this regard as contained in Chapter XXX are reproduced herein below :

"35 Caveats.—Any person intending to oppose the issuing of a grant of probate or letters of administration must either personally or by his advocate file a caveat in Court in the prescribed form. Notice of the filing of the caveat shall be given by the Court to the petitioner of his advocate in the prescribed form.

36. Affidavit in support of caveat.—Where a caveat is entered an application has been made for a grant of probate or letters of administration with or without the Will annexed, an objection supported b