Case Note & Summary
The appellant, R.V. Bhasin, filed a probate petition (Petition No. 4 of 2003) in the Bombay High Court seeking probate of the Will and Codicil of his close friend Ram Kumar Kapur, who died on 02.10.1998. The testator was survived by two major children: daughter Sonia Kapur and son Sunil Kapur. Both children were cited in the petition, and the appellant claimed citation was served. However, only the daughter filed a caveat. The appellant took out Chamber Summons No. 474 of 2003 for dismissal of the caveat. On 06.11.2003, the daughter remained absent and had not filed a reply, leading to an ex parte order dismissing the caveat. Probate was issued on 29.11.2003. The daughter died on 01.03.2004. The son, Sunil Kapur, took out Notice of Motion No. 16 of 2006 seeking to set aside the ex parte decree and condone delay, claiming he was not served with citation. The learned Single Judge allowed the notice of motion, set aside the ex parte decree, condoned the delay, and directed the appellant to pay costs of Rs. 25,000. The appellant appealed. The Division Bench held that the son was not served with citation, and the ex parte decree was passed without proper service. The court found no infirmity in the impugned order and dismissed the appeal, directing the appellant to pay costs of Rs. 25,000 within four weeks.
Headnote
A) Probate and Succession - Caveat - Dismissal of Caveat - Service of Citation - The court considered whether the dismissal of a caveat filed by the son of the testator was proper when the citation was not served on him. The court held that the ex parte decree was liable to be set aside as the son was not served with citation, and the delay in filing the application was condoned subject to payment of costs. (Paras 1-5)
B) Civil Procedure - Ex parte Decree - Setting Aside - Condonation of Delay - The court examined the principles for setting aside an ex parte decree and condoning delay. It held that the son had shown sufficient cause for the delay and the decree was passed without proper service, warranting its setting aside. (Paras 3-5)
Issue of Consideration
Whether the ex parte decree dismissing the caveat filed by the son of the testator was liable to be set aside when the citation was not served on him and the delay in filing the application was condonable.
Final Decision
The appeal is dismissed. The appellant is directed to pay costs of Rs. 25,000 to the respondent within four weeks.
Law Points
- Probate
- Caveat
- Citation
- Service
- Ex parte decree
- Condonation of delay
- Costs
Case Details
2010 LawText (BOM) (01) 24
APPEAL NO. 661 OF 2006 IN NOTICE OF MOTION NO......... OF 2006 IN NOTICE OF MOTION NO. 16 OF 2006 IN MISC. PETITION NO. 70 OF 2005 IN TESTAMENTARY PETITION NO.4 OF 2003
B.H. Marlapalle, Smt. V.K. Tahilramani
Mr. R.V. Bhasin (Appellant in Person), Mr. A.A. Joshi a/w Mr. Sanjay Jain i/b M/s. L.J. Law for respondent
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Nature of Litigation
Intra-court appeal against order setting aside ex parte decree dismissing caveat in probate proceedings.
Remedy Sought
Appellant sought to set aside the order of the Single Judge which allowed the respondent's notice of motion, set aside the ex parte decree, and directed payment of costs.
Filing Reason
The appellant challenged the order condoning delay and setting aside the ex parte decree dismissing the caveat, arguing that the respondent was served with citation.
Previous Decisions
The learned Single Judge on 07.07.2006 allowed Notice of Motion No. 16 of 2006, set aside the ex parte decree dated 06.11.2003, condoned the delay, and directed the appellant to pay costs of Rs. 25,000.
Issues
Whether the ex parte decree dismissing the caveat was liable to be set aside when the citation was not served on the son.
Whether the delay in filing the application for setting aside the ex parte decree was condonable.
Submissions/Arguments
Appellant argued that the respondent was served with citation and the ex parte decree was correctly passed.
Respondent argued that he was not served with citation and the ex parte decree was passed without proper service.
Ratio Decidendi
An ex parte decree dismissing a caveat in probate proceedings can be set aside if the caveator was not served with citation, and the delay in filing the application can be condoned on payment of costs.
Judgment Excerpts
The ex parte decree of dismissal of Caveat passed on 6th November, 2003 has been set aside by condoning the delay caused in filing the Notice of Motion and the original Plaintiff / present Appellant was directed to pay costs quantified at Rs. 25,000/.
The Appellant had filed Petition No. 4 of 2003 in the Original Side of this Court for getting the Probate of Will and Codicil left behind by his close friend Shri. Ram Kumar Kapur who died on 02.10.1998.
Procedural History
The appellant filed Testamentary Petition No. 4 of 2003 for probate. The daughter filed a caveat. The appellant took out Chamber Summons No. 474 of 2003 for dismissal of the caveat. On 06.11.2003, the caveat was dismissed ex parte. Probate was issued on 29.11.2003. The daughter died on 01.03.2004. The son took out Notice of Motion No. 16 of 2006 to set aside the ex parte decree. The Single Judge allowed the notice of motion on 07.07.2006. The appellant filed Appeal No. 661 of 2006 against that order.
Acts & Sections
- Indian Succession Act, 1925:
