Bhosale D.B., J.
1. Heard learned Counsel for the parties.
2. The following questions of some importance have been raised in these proceedings: when a caveator-defendant dies, whether it is for the plaintiff/petitioner to bring on record the heirs and legal representatives of the deceased-caveator as defendants in a suit?; and if the plaintiff fails to do so whether the suit and the petition, both abate? And; if it is held to be not mandatory for the plaintiff to do so whether the suit only would stand dismissed as abated or infructuous and in that eventuality the petition for probate would be liable to be allowed as uncontcsted
3. The factual matrix, sans unnecessary details, is as follows:
The plaintiff filed a petition for probate of the last Will and testament dated 2nd June, 1988 of Dr. Anant Rajaram Deshpande. He died at Bombay on or about 16.8.1988. The plaintiff is the sole executor named in the Will. The defendant- Suneel Anant Deshpande was the son of Dr. Anant Deshpande. After service of a citation, Suneel Deshpande had filed caveat and objected the grant of probate. The caveator Suneel also died at Bombay on 3rd January, 2007 leaving the Will dated 23rd May, 2003, where-under he appointed his widow Meena Suneel Deshpande and his two daughters, namely, Sujata Rohit Tarkunde and Renuka Tushar Damle, as executors of his Will and Trustees of his estate. The Advocates of the heirs of Suneel by their letter dated 5th February, 2007 addressed to the Advocates for the plaintiff informed them the names of the heirs and next of kin of deceased Suneel with their residential addresses expecting them to take out appropriate proceedings to bring them on record. The plaintiff, however, have not taken any steps to bring the heirs and legal representatives of the deceased - caveator on record.
4. I have heard learned Counsel for the parties at considerable length and with their assistance have gone through the relevant provisions of the Indian Succession Act, 1925 ('the Act' for short) and the Bombay High Court (Original Side) Rules ('the Rules' for short) so also the Code of Civil Procedure, 1908 ('the C.P.C.' for short) and other material placed on record. At the outset, the contention urged by Counsel for the defendant is that the entire proceeding abates and deserves to be dismissed as such since it was mandatory for the plaintiff to bring the heirs of deceased-defendant on record within the prescribed time. As against this, Counsel for the plaintiff urged that the sole caveator has died and in view thereof an objection for grant of probate does not survive and, therefore, the suit deserves to be dismissed as infructuous and the petition for probate may be allowed as uncontested.
5. Mr. Setalvad, learned Counsel for the plaintiff, submitted that the petition for probate is different from a suit. It is not a contentious/adversarial proceeding like a suit, which commences with filing of a plaint. It is only when a person opposes grant of probate by filing caveat that the proceedings become contentious/adversarial in nature. After inviting my attention to Section 295 of the Act he submitted that cases in which there is contention, the proceedings shall take, as nearly as may be, the form of a civil suit under the provisions of the C.P.C. In the present case he submitted, that there is no contention as the opposing parties, namely, the heirs of deceased caveator have not entered a caveat though they had notice of pending testamentary proceedings for probate and they had an opportunity, as contemplated under the Rules, to enter a caveat and to oppose the grant of probate. However, they have chosen not to do so after death of the deceased caveator, and that is how the proceedings have rendered non contentious and as a result thereof the suit deserves to be dismissed and probate be granted as non-contentious probate proceedings. He then submitted in any case the proceedings would not abate since a decision of the Probate Court would be a judgment in rem. There is no provision of law which provides for abatement of the petition for probate. In probate proceedings it would not be possible to assume that the heirs of the deceased caveator also intend to oppose grant of probate. It is always open to the heirs, who desire to oppose grant of probate, to enter a caveat. The provisions of Order 22, Rule 4 of the C.P.C. would not be attracted in view of peculiar nature of the probate proceedings. A person can be made defendant only if he files a caveat and not otherwise. Lastly, he submitted that in any case, in the present proceedings, it is not necessary for the petitioner to bring the heirs of the deceased caveator on record in view of the fact that none of the heirs of the deceased caveator, having knowledge of the instant proceedings, has entered a caveat. In support of his submissions he placed reliance on the following judgments: : AIR1915Bom208 (Maharaj Indrajitsinghji v. H.H. Maharaja); : AIR2007Bom103 (Thrity Sam Shroff v. Shiraz Byramji Anklesaria]; : (1970)72BOMLR21 (Manekji Manchersha Javeri v. Phiroze Boman Javeri; : AIR1994Pat144 (Sidhnath Bharti v. Jain Narayan).
6. Mr. Bharucha, learned Counsel for the heirs of the deceased caveator, on the other hand, submitted that on a plain reading of the relevant provisions of the Act, Rules and C.P.C. it becomes abundantly clear that once the probate proceedings become contentious the provisions of the C.P.C, so far as the procedure is concerned, would apply. In other words, he submitted that where the Act is silent as to the procedure to be followed, in view of Sections 268 and 295, the provisions of the C.P.C. must be followed. These provisions (sections 268 and 295) expressly require the proceedings in relation to probate of Will, on becoming contentious, to be treated as a regular suit and to be governed by the procedure as set out in the C.P.C. with respect to regular suits. He submitted, the Act does not set out procedure to be followed in the probate proceeding. He then submitted that it is incorrect to say that the character of a probate proceedings can be determined only at its commencement and not at any later stage when there are no provisions to the contrary. As far as contentious proceedings are concerned, according to Mr. Bharucha, procedure as set out in the C.P.C. with regard to regular suits must be followed. He, then submitted that the right to oppose grant of probate survives even after the death of caveator and, therefore, the procedure laid down in Order 22 of the C.P.C. need to be followed.
7. The plaintiff, in the present case, ought to nave made an application to bring the heirs and legal representatives of the deceased defendant on record. Since an application for bringing the heirs on record is not made within the prescribed time not only the suit but even the petition abates. The estate of the deceased, in such eventuality, will have to be administered as per the law of Intestacy. It would no longer be possible for the executor of the Will, in such a situation, to obtain probate and the Will of the deceased would become incapable of taking effect. In support of his contentions, a reliance was placed upon the following judgments: A.I.R. 1977 Gauhati 70 (Nira Kanta Chutia v. Smt. Bedoi Chutiani and Anr.; : AIR1994Guj42 (Smt. Multivahuji w/o. Goswami Goverdhaneshji Girdharlalji v. Kalindivahuji and Ors.); A.I.R. 1991 Mad 284 (Dr. (Mrs.) Ruth Annamalai v. Mrs. Valliammai Achi w/o late Dr. A.L. Annamalai and Ors.); 1996 AIHC 342 (Smt. Satyawati's LR.s v. State of Rajasthan and Ors.).
8. Chapter XXVI of the Rules deals with testamentary and intestate jurisdiction of this Court, while Chapter 4 in Part IX of the Indian Succession Act, 1925 ('the Act' for short) deals with the practise in granting and revoking the probates and letters of administration. I propose to make reference to the relevant provisions in these chapters for better appreciation of the submissions advanced by learned Counsel for the parties and for addressing the questions formulated in the first paragraph of the judgment.
9. The whole Chapter 4 in Part IX of the Act lays down the procedure for grant of probate and letters of administration. Section 268 in this Chapter provides that the proceedings in relation to grant of probate and letters of administration, shall, be regulated, as far as the circumstances of the case permit, by C.P.C. The proceedings for grant of probate is initiated by filing an application under Section 276 of the Act. Section 280 of the Act provides with regard to verification of petition for probate or letters of administration. Sub-section (1)(c) of Section 283 empowers the Court to issue citations calling upon 'all persons' claiming to have any interest in the estate of the deceased to come and see the proceedings after issuance of citations. Clause (c) of Sub-section (1) of Section 283 empowers the District Judge to 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. Sub-section (2) thereof provides that the citation shall be fixed up in some conspicuous part of the Court-house, and also in the office of the Collector of the District and otherwise 'published' or made known in such manner as the Judge or District delegate issuing the same may direct. Section 284 provides for lodging of caveats against the grant of probate or letters of administration by the persons who want to oppose the proceeding. After lodging of caveat, the proceeding become contentious. 284, 295 of the Act provides the procedure to be followed in a contentious proceeding. It says that after proceeding for grant of probate Or letters of administration becomes contentious, the proceeding shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908 ('the C.P.C.' for short) in which the petition for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. Section 300 of the Act provides that the High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers conferred upon the District Judge under this Chapter.
10. Rule 374 of the Rules provides the procedure for making an application for probate. Rule 397 says that in all applications for probate, letters of administration and succession certificate, notice of the application shall be given to 'all the heirs and next-of-kin of the deceased' mentioned in the petition except to those whose consent has been filed in the proceedings. Sub-section (4) of Rule 397 provides that the probate shall not be granted until after the expiry of fourteen clear days from the date of the service of the citation or notice, and from the 'publication' thereof in newspapers, if any, and from the affixing thereof on the Court house and in the Collector's Office, as the case may be, unless the Judge in Chambers otherwise directs. Rule 399 provides for service of citations. Rule 400 provides for service by advertisement. It states that citations which cannot be personally served as required by Rule 399 shall be served by publishing the same in such newspapers as the Prothonotary and Senior Master may direct. Rule 401 says that any person intending to oppose the grant of the probate shall file caveat in Form No. 116 within the time prescribed under the said Rule. It further says that notice of filing of the caveat shall be given by the Prothonotary and Senior Master to the petitioner or his Advocate on record. Rule 402 provides for filing of an affidavit in support of caveat and Rule 403 provides for procedure on affidavit in support of the caveat being filed. The plain reading of this provision (Rule 403) in the Rules would show, that when the affidavit in support of the caveat is filed the probate proceeding becomes contentious and then the proceeding are required to be processed further and prosecuted as the contested suit by applying the provisions of the CPC. A conjoint reading of the provisions contained in Chapter IV of the Act and Chapter XXVI of the Rules would show that once the caveat and the affidavit in support thereof is filed, the probate petition assumes the character of a suit and in that case the petitioner becomes the plaintiff and caveator becomes the defendant.
11. This Court in Maharaja Indrajitsinghji's case (supra) had an occasion to consider a question as to the rights while dealing with the contention, in the petition for letters of administration in which caveat and the affidavit in support thereof was filed, that the suit was not maintainable in the absence of a consent of the Central Government by reason of the provisions of Section 87-B of the CPC. The Division Bench after considering all the relevant provisions of the CPC and the Rules held thus:.A petition for letters of administration with the Will annexed or a petition for a probate is not directed, against any party. It seeks from the Court only this relief that the petitioner should be clothed with authority to represent the estate of the deceased and that he should exercise various powers as representing that estate. It is true that the petitioner does not get this relief ex parts. Both the Succession Act and the High Court Rules provide that notice must be given to the next of kin, and when notice is given, it is open to any next of kin to file what is known as a caveat and also to file an affidavit in support of a caveat. It is at that stage that the proceedings become what is known as contentious, and when they become contentious they are treated as a suit, they are numbered as a suit and the petitioner is described as the plaintiff and the caveator is described as the defendant.
It is very difficult to accept the view that these proceedings are a suit as contemplated by Section 86. If we are right in the view that we take that a suit can only be instituted as required by Section 26 by the presentation of a plaint, then obviously a petition for letters of administration with will annexed is not a plaint and at no stage becomes a plaint as understood in the manner laid down in the Civil Procedure Code, not a proceeding which is treated as a suit by reason of the provisions of some other law. It is also difficult to understand how a petition for letters of administration can be a suit when no relief is sought by the petitioner against the caveator. It is true that the caveator appears on the scene to oppose the grant of the letters of administration to the petitioner. But it is all the same true that quae the defendant the plaintiff is seeking no relief, and the very essence of a suit is. and must be that the parties are so arrayed that one party seeks relief from the other is denying.
(emphasis supplied)
12. in Thrity Sam Shroff's case (supra) and Manekji Manchersha Javeri's case (supra) this Court has taken almost similar view as in Maharaj Indrajitsinghji's case (supra). It is reiterated that the provisions of law, no where state that the proceedings for grant of probate would be a suit under the C.P.C. The framers of law on the contrary have cautiously used the expression 'take, as nearly as may be, the form of a regular suit according to the provisions of the Code of Civil Procedure'. If the probate proceedings remain non contentious, it never assumes even the form of a suit. Similarly, in Sidhnath Bharti's case (supra) Patna High Court after considering the provisions of Section 295 of the Act has observed that once the proceedings become contentious the proceedings will be treated as a regular suit. The language of the section clearly show that the Legislature never intended that the contentious proceedings should exactly be the same as the suit.
13. The judgments of various High Courts in Nira Kanta Chutia (supra), Smt. Multivahuji w/o Goswami Goverdhaneshji Girdharlalji (supra), Dr. (Mrs.) Ruth Annamalai (supra) and Smt. Satyawati's (supra) cases relied upon by the defendants state, that where the Act is silent as to the procedure to be followed in view of Sections 268 and 295 the provisions of the C.P.C. must be followed. In these judgments it is further held that once the probate petition becomes contentious it shall take, as nearly as may be, the form of a regular suit and the provisions of C.P.C. will apply as far as possible. It is further held that it is incorrect to say that the character of a proceeding can be determined only at its commencement and not at any later stage when there are provisions to the contrary. In short, these judgments make it abundantly clear that as far as contentious probate proceedings are concerned, the procedure as set out in C.P.C. with regard to regular suits must be followed. In my opinion, these judgments, in relation to the present case state that when the plaintiff seeks to bring the heirs of deceased caveator on record the procedure contemplated under the provisions of CPC and more particularly Order 22 will have to be followed. These judgment would not help to address the question whether it is for the plaintiff to bring on record the heirs and legal representatives of the deceased caveator as the defendant in the probate proceedings.
14. It is true that a petition for probate is not a plaint and at no stage becomes the plaint as understood in the manner laid down in the C.P.C. and in any case cannot be treated as a suit by reason of the provisions of some other law. In such proceedings though the caveator appears on the scene to oppose grant of probate or letters of administration to the petitioner, the plaintiff can never seek any relief against the caveator/ defendant. He seeks from the Court only a probate of the last Will and Testament of the deceased. The petitioner in such proceedings, however, does not get this relief ex parte.
15. It is well settled that the decision of the Probate Court is a judgment in rem. Till the order granting probate remains in force it is conclusive as to the execution and validity of the Will till the grant of probate is revoked. Apart from the fact that a decision of the probate Court would be a judgment in rem not only binding on the parties to the probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is cast on the probate Court. Section 41 of the Indian Evidence Act provides that a final judgment or order of a Competent Court in the exercise of probate jurisdiction is conclusive proof of what is decided therein that is about the genuineness of the Will. To be precise, a probate granted by a Competent Court is conclusive of the validity of such Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate. Apart from anything else, the citation having been issued to the heirs and next-of-kin and having been served upon them, their failure to enter a caveat to contest the proceedings would preclude them from contesting the validity of the Will subsequently in any other proceedings. Once the Will has been admitted to probate any infirmity in the matter of the probate of the Will due to the want of proper attestation of the Will as required by Section 63(1)(c) of the Act would be removed because the order admitting the Will to the probate Will operate as judgment in rem. It is thus clear that a solemn duty is cast on the probate Court, which, while dealing with the probate proceedings will have to be absolutely careful and deligent, more particularly in a situation, such as in the present case where the plaintiff seeks dismissal of suit and hearing of the probate petition as uncontested proceedings. Consequences of rejection of the prayer for grant of probate in such uncontested proceeding cannot be overlooked and will have to be borne in mind while dealing with the probate proceeding.
16. The judgment cited by learned Counsel for the plaintiff draw distinction between a regular suit instituted by a plaint under Section 26 of the C.P.C. and probate proceedings which are to be treated as suits on becoming contentious. It is true, the distinction is in respect of various substantive rights, such as in issue in the aforementioned judgments and it is equally true they do not deal with the procedure to be followed while dealing with these proceedings. In Sidhnath Bharti's case the question was whether an order passed in the probate proceedings was a decree. In Maharaj Indrajitsinghji's case the issue was whether the probate proceedings on being numbered as a suit on a caveat having being filed by a Ruler of a former Indian State could be dismissed on account of the fact that prior consent of the Central Government had not been obtained, and in Thrity Sam Shroffs case the question was whether on death of all the executors the probate proceedings would abate. In Thrity Sam Shroff's case this Court while dealing with this question has however confirmed that as far as procedure was concerned, the provisions of the C.P.C. would be applicable in relation to contentious probate proceedings. In other words, so far as contentious probate proceedings are concerned, the provisions of the CPC so far as they relate to procedure must be followed. In short these judgments and the provisions of the Act and the Rules clearly show that when the probate proceedings on filing of a caveat become contentious, the provisions of the C.P.C. would apply in the matter of procedure. Thus, if plaintiff seeks to bring the heirs of deceased-caveator on record the procedure contemplated under the provisions of the C.P.C. will have to be followed.
17. Moreover, it will have to be borne in mind that once the caveator appears on the scene to oppose grant of probate to the petitioner, the right to oppose survives even after the death of the caveator, which his heirs can exercise and continue to contest these proceedings. It is true, the plaintiff seeks no relief against the caveator, but it is equally true, the caveator - defendant has a right to oppose grant of probate. Once having exercised the right it would not vanish with his death. His heirs, if they so desire, can continue to contest and oppose grant of probate. In a given case the heirs even may not be aware of such Will or the proceeding being pending. Therefore, the question is whether the plaintiff should bring them on record on the death of the caveator-defendant and if plaintiff fails to do so what is the duty of the Court under the provisions of the Act, the Rules and CPC.
18. In our case, the question in issue not only of pure procedure. It may be true that the heirs of deceased caveator may or may not be wanting to contest the probate proceedings but they can exercise such right. The Act and the Rules are absolutely silent to tackle the situation as has arisen in the present case. It is true, as observed earlier, that the heirs also have independent right to file a caveat opposing grant of probate in such proceedings. The rights of the plaintiff/petitioner and that of the caveator/defendant are independent of each other in such proceedings. Both, the Act and the Rules provide that the notice must be given to the heirs and to next-of-kin of the deceased. I do not see any reason as to why the heirs and legal representatives of such heir and next-of-kin can also have similar right in the event such heir and next-of-kin, who has filed caveat, dies. The Act and the Rules, may be silent to deal with such a situation but at the distinction it does prohibit to follow the same procedure, as required to be followed upon filing of the petition, after the death of caveator. The proceedings once having been converted into suit cannot ceased to be contentious merely because the sole caveator dies. It is true, the provisions of the Act and more particularly Sections 268 and 295 thereof do not set out any procedure to be followed in the probate proceedings. But the Court is not powerless and will sit helpless.
19. Rule 397 of the Rules clearly provide that notice of the application shall be given to all the heirs and next of kin of the deceased and probate shall not be granted until expiry of 14 clear days from the date of service of citation or notice, and from publication thereof in newspapers, if any, apart from it affixing on the Court house and Collector's Office. Rule 400 states that citations which cannot be personally served as required by Rule 399 shall be served by publication in newspaper as the Prothonotary and Senior Master may direct. A bare perusal of these provisions read with Section 383 of the Act clearly cast duty on the Prothonotary and Senior Master to take necessary steps for service of citations on the heirs and next of kin of the deceased. In other words, it becomes a solemn duty of the probate Court to see that all the provisions of the Rules, the Act, and of the C.P.C. are strictly followed to meet the situation, as in the present case.
20. Thus, the question as to whether it is mandatory for the plaintiff to bring on record the heirs and legal representatives of the deceased caveator and if he fails to do so what would be its effect on the proceedings stands addressed in the answer to the second question whether the suit and the petition both abate or only the suit abates, merely because the sole caveator dies and his heirs are either not brought on record or file caveat opposing the probate petition.
21. In my opinion, a solemn duty is cast on the probate Court to see that the probate proceedings do not abate. In a situation, as in the present case, the Court should endeavour to find out whether the deceased caveator has left behind him any heirs and legal representatives and see that the proceedings do not abate merely because they are not brought on record or they do not know about the proceedings. If the caveator has heirs and if the plaintiff fails to bring them on record for any reason, the Court should either direct the plaintiff to bring them on record or direct the Prothonotary and Senior Master to serve citations on the heirs and legal representatives. In the event names and addresses of the heirs are not known and/or it is not known whether the deceased caveator left behind him any heirs and legal representatives, the Court should direct the Prothonotary and Senior Master, High Court to serve citation or notice by publication in newspaper as contemplated under Rules 397 and 399 of the Rules. If this course is not adopted the petition and the suit, both would stand abated, depriving the beneficiaries of Will from enjoying the fruits of the Will for no fault of theirs, more particularly if the executor of the Will or the beneficiaries of the Will for that matter, do not know the names and the whereabouts of the heirs of the deceased caveator. Undoubtedly, it is desirable for the plaintiff, in such proceedings, to bring the heirs and next of kin of the deceased caveator on record or to take all such steps, as aforestated, to avoid delay in disposal of the proceedings. But for any reason, if the plaintiff fails in his duty to do so he cannot be allowed to take advantage of the situation seeking dismissal of the suit as abated and proceed with hearing of the probate petition as uncontested. It is also open for the heirs and legal representatives of the deceased caveator to file caveat, if they so desire, and if they have a knowledge of the probate proceedings pending in the Court and need not and should not wait for the plaintiff/Court, to bring them on record/to serve citations. In the result, neither the whole proceeding nor the suit alone is liable to be disposed of as abated. The submissions that the estate of the deceased - caveator will have to be administered as per the law of intestacy and the Will would become incapable of taking effect, also must be rejected. All the questions raised, accordingly, stand answered in terms of this paragraph. In view of the opinion expressed in the judgment and considering the peculiar facts and circumstances of this case, I issue the following directions.
22. The heirs and legal representatives of the deceased caveator in the present case, namely, his widow Meena Suneel Deshpande and his daughters, namely, Sujata Rohit Tarkunde and Renuka Tushar Damle, who admittedly, have a knowledge of these proceedings and who are represented by the Advocates, may file caveat in Form No. 116 of the Rules within four weeks from today, if they so desire, and if they do so the suit to proceed on merits. If, however, they fail to file caveat, the petition for probate to proceed as uncontested. In view of the peculiar facts of the present case, I am not issuing direction to the plaintiffs to file an application for bringing the aforementioned heirs of the deceased defendant on record in the suit.