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2009 DIGILAW 1506 (ALL)

SHOBHNATH DUBE v. TARA DEVI

2009-04-17

ASHOK SRIVASTAVA, JANARDAN SAHAI

body2009
( 1 ) THIS is an appeal against an order of the learned single Judge rejecting the preliminary objections raised by the appellant that the respondents are not entitled to contest the proceedings relating to grant of letters of administration with the will annexed. The appellant Shobhnath dube claims to be the brother of Kashinath dube and his case is that Kashinath Dube had executed an unregistered Will dated 14-12-2003 in his favour. On the death of kashinath Dube he applied for grant of letters of administration. In the petition the appellant had shown Tara Devi widow of the deceased and Vijay Laxmi a married daughter of the deceased as heirs of the deceased. The court by order dated 11-10-2007 issued notices to these persons whereupon the respondent Tara Devi widow of the deceased filed a counter affidavit opposing the grant. She however did not lodge a caveat, which according to the appellant was a necessary requirement under Chapter XXX Rule 35 of the Rules of the Court. The learned single judge has held that a caveat need not be filed by a person who is heir of the deceased to whom citation has been issued. The only question that is involved in the present appeal relates, therefore, to the interpretation of Rule 35 of Chapter XXX of the Rules of the court. The said Rule is quoted as follows. "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 or his Advocate in the prescribed form. " ( 2 ) SRI Sandeep Agrawal, learned counsel for the appellant submitted that every person who wants to contest the proceeding for the grant is required to file a caveat and that in the absence of a caveat he has no right to contest the proceeding. Reliance is placed by the learned counsel for the appellant upon a decision of the Apex Court in Smt. Rukmani Devi and others v. Narendra Lal gupta, AIR 1984 SC 1866 . In that case a citation was issued to the daughter-in-law of the deceased but she did not come forward to contest the proceeding and ultimately a probate was granted in favour of the applicant. In that case a citation was issued to the daughter-in-law of the deceased but she did not come forward to contest the proceeding and ultimately a probate was granted in favour of the applicant. She challenged the Will in a separate suit. Her right to challenge the Will was negatived because the order for the grant of a probate had become final as she did not choose to contest the probate proceedings though citation was issued to her. In the present case on the issuance of the citation the widow has appeared and has filed a counter affidavit contesting the case. The decision in Smt. Rukmani Devi, therefore, is clearly distinguishable. ( 3 ) LEARNED counsel for the appellant then relied upon the provisions of Section 283 (1) (c) of the Indian Succession Act, 1925, which are as follows: "283 (1) (c ). Issue citations calling upon all persons claiming to have any interest in the estate of the deceased to come and see the proceedings before the grant of probate or letters of administration. " ( 4 ) LEARNED counsel submits that under Section 283 (1) (c) a general citation is issued in a probate and letters of administration case. It is true that Section 283 (1) (c) relates to the issuance of a general citation. Section 235 however is a provision, which relates to issuance of citation to the next of kin. This provision is squarely applicable to the present case. Section 235 is quoted below; "235. Citation before grant of administration to legatee other than universal or residuary. Letters of administration with the will annexed shall not be granted to any legatee other than an universal or a residuary legatee, until a citation has been issued and published in the manner hereinafter mentioned, calling on the next of kin to accept or refuse letters of administration. " ( 5 ) THE court is, therefore, duty bound to issue a citation to the next of kin. A widow would fall within the description of next kin. It appears that in the English Law the words next of kin refer to blood relations. In the context of Section 235 of the Indian Succession Act the expression next of kin would include the widow also. A widow would fall within the description of next kin. It appears that in the English Law the words next of kin refer to blood relations. In the context of Section 235 of the Indian Succession Act the expression next of kin would include the widow also. This meaning is to be given to the expression in view of the scheme of the provisions of Sections 218 and 219 of the Indian Succession Act, which describe the persons to whom the administration of the deceaseds estate is granted and a widow would be included therein. The expression next of kin has also been defined in Section 2 (c) of the Administrators General Act, 1963 and includes a widow or widower or other person to Whom letters of administration can be granted. Chapter XXX of the High Court Rules relates to testamentary jurisdiction of the High Court. Rule 7 of that Chapter provides that in an application for grant of letters of administration with the Will annexed the name and addresses of the legal representatives of the deceased shall be disclosed. The widow is undoubtedly an heir and a legal representative of the deceased. Under Rule 19 of Chapter XXX of the High Court Rules the court is required to issue citation to all persons having a right to take the grant prior or equal to that of the applicant. The widow is preferential heir to the appellant the brother of the deceased and therefore a citation was required to be issued to her under this Rule. Rule 21 of chapter XXX reads as follows; "21. Citations.- All citations shall, unless otherwise ordered, direct that persons cited to show cause on such day certain as the Judge shall direct and shall be in the prescribed form and where they cannot be served in the manner provided for service of process, may be served by the insertion as an advertisement in such newspaper as may be directed of a notice in the prescribed form. " ( 6 ) IT is clear from the provision of Section 235 and of Rules 7, 19 and 21 that a citation has to be issued to the legal representatives of the deceased as well as to a person who has a right to take the grant prior or equal to that of the applicant. " ( 6 ) IT is clear from the provision of Section 235 and of Rules 7, 19 and 21 that a citation has to be issued to the legal representatives of the deceased as well as to a person who has a right to take the grant prior or equal to that of the applicant. Rule 21 clearly provides that the citation is issued to persons to show cause. Any person who after being served with a citation comes forward to show cause can do so and oppose the grant by filing a counter affidavit. In view of the fact that Rule 21 itself contemplates that the person to whom citation is issued is to show cause the right to oppose the grant is inherent in this Rule itself. It does not appear that any useful purpose would be served by insisting that such a person who shows cause and files a reply under Rule 21 to contest the grant should also file a caveat under Rule 35. It is well settled that such an interpretation should be given to a statutory provision, which will serve the purpose of the enactment and will advance the cause of justice. It is also well settled that a judgment given by a probate court is a judgment in rem. As such every person who claims an interest in the estate of the deceased has a right to contest such proceedings even though a citation may not have been issued to him. It appears that the purpose of Rule 35 is to allow such persons also who though may not have been issued a citation would like to come forward claiming a title or interest in the estate of the deceased and contest the proceedings relating to the grant of probate or letters of administration. The words any person, therefore, used in Rule 35 would refer to persons other than the persons to whom a citation has been issued by the court. This interpretation of Rule 35 would subserve the cause of justice. Giving an interpretation suggested by the learned counsel for the appellant that it is mandatory even for the next of kin or other person to whom citation is issued to lodge a caveat to contest the proceedings would not advance the cause of justice. It would rather result in a technicality defeating the cause of justice. Giving an interpretation suggested by the learned counsel for the appellant that it is mandatory even for the next of kin or other person to whom citation is issued to lodge a caveat to contest the proceedings would not advance the cause of justice. It would rather result in a technicality defeating the cause of justice. It is well settled that rules of procedure are handmaids of justice. We are therefore of the view that in such cases where a citation has been issued to any person the filing of a caveat is not necessary for the purpose of contesting the proceedings. We do not find any merit in the objection raised by the appellant. The appeal is dismissed. Appeal dismissed. .