Madhavi Mayuresh Kowarkar v. Manohar Dattaram Kowarkar (Deceased) And Maheshwari Vishvas Hande (Caveator)
by JITENDRA SHANKAR NIJASURE Date:
2022.02.21 14:28:54 +0530 JITENDRA SHANKAR NIJASURE jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION CHAMBER SUMMONS NO.131 OF 2019 IN CAVEAT (L) NO.299 OF 2018 IN TESTAMENTARY PETITION NO.1387 OF 2018 Maheshwari Vishvas Hande ...Applicant / Caveatrix In the matter between Madhavi Mayuresh Kowarkar
...Petitioner
Versus
Maheshwari Vishvas Hande ...Caveatrix ---------- Mrs. Tulsi Dhami, i/b. Mr. Vishal Kurtukade for the Applicant / Caveatrix.
Mr.Rajesh Kachare, i/b. Sanjyoti Redkar for the Petitioner. ---------- CORAM :
R.I. CHAGLA J.
DATE :
18TH FEBRUARY, 2022 ORDER :
1.
Heard learned Advocate appearing for the Applicant / Caveatrix.
2.
By this Chamber Summons, the Applicant has sought condonation of delay of 130 days in fling the Affdavit in 1/4
Support of the Caveat dated 8th March, 2019 (Caveator had fled Caveat on 17th October, 2018) and for taking the Affdavit in Support on record.
3.
There is no averment in the Affdavit in Support of the Chamber Summons to justify the delay in fling the Affdavit in Support of the Caveat. There is only a statement that the Caveatrix being the daughter of the deceased Manohar Dattaram Kowarkar is opposing grant of probate of the alleged last Will and Testament in favour of the Petitioner by fling Caveat.
4.
Under Rule 402 of the Bombay High Court (Original Side) Rules, an affdavit in support of a caveat shall be fled within eight days from the date of the fling of the caveat, notwithstanding the Court vacations. Such affdavit shall state the right and interest of the caveator, and the grounds of the objections to the application. The copy of the Affdavit shall be served by the Caveator on the Petitioner or his Advocate on record. It is made clear in the said Rule that if such Affdavit is not fled within the prescribed time, Caveator shall not prevent the grant of probate or Letters of Administration. No such 2/4
Affdavit shall be fled after expiry of the said eight days without order of the Judge in Chamber.
5.
The Caveatrix having failed to fle the Affdavit in Support within the time prescribed under Rule 402 of the Bombay High Court (Original Side) Rules. The Caveatrix has also failed to give any explanation as to why there has been a delay in fling the Affdavit in Support of the Caveat beyond the prescribed period of 8 days from fling the Caveat. It appears that an application by way of Praecipe dated 28th December, 2019 was made requesting the Prothonotary and Senior Master that since the Affdavit in Support of Caveat is not fled by the Caveatrix within the prescribed time, the Caveat be dismissed. This has been listed on several occasions before the Additional Registrar (O.S.) / Prothonotary and Senior Master and on which dates neither Caveatrix nor her Advocate on record were present.
Therefore on 12th March, 2018, the Additional Registrar (O.S.) directed the offce to proceed with the matter and grant fnal opportunity to the Advocate on record of Caveatrix to remain present on next date.
Caveat is fled. An objection was raised by the Advocate for the Petitioner on 30th March, 2019 that the Affdavit in Support of the Caveat cannot be taken on record as the same is not fled within the prescribed time under Rule 402 of the Bombay High Court (Original Side) Rules. The Caveatrix was well aware of the applicable Rule and the process and there is a deliberate failure and neglect to explain the delay in fling the Affdavit in Support of the Caveat.
6.
In view thereof, the Chamber Summons for condonation of delay in fling Affdavit in Support of the Caveat which mentions the delay as 130 days is rejected. There shall be no order as to costs.
[R.I. CHAGLA J.] 4/4