Dalip Singh, J.
1. This misc. appeal under Section 384 of the Indian Succession Act, 1925 has been filed by the appellant against the order dated 24.2.2006 passed by the learned District Judge, Jaipur City, Jaipur in Civil Misc. Application No. 65/1995 by which he has allowed the application filed under Section 276 of the Indian Succession Act filed by the respondent Shelendra Pratap Singh allowing the letters of administration in favour of the respondent.
2. The facts, in brief, are that an application under Section 276 of the Indian Succession Act came to be filed by the respondent for the grant of letters of administration based upon the alleged Will executed by the deceased Shradha Mata @ Parwati Devi daughter of Shri Shamsher Singh who died on 29.7.1994 at Jaipur within the jurisdiction of the Court at Jaipur leaving behind the properties as mentioned in the Schedule appended to the said application. The applicant-respondent herein also alleged that the deceased Shradha Mata had during her life on 8th August, 1968 executed her last Will bequeathing all her moveable and immoveable properties in favour of the applicant. It was also stated that the Will was executed while she was in sound state of mind.
3. Learned District Judge on receipt of the aforesaid application ordered for the issuance of the notices which were issued to the public at large. In response to the aforesaid notice, an objection was filed by one Shiv Singh Galundia on 31.8.1995 in which he stated that the objection was being filed on behalf of Maha Shakti Peeth, the appellant. The respondent, who was the applicant before the learned District Judge, filed his objections to the locus standi of Shiv Singh Galundia to file the aforesaid objections and challenged the fact as alleged by Shiv Singh Galundia that he was the Secretary of the aforesaid Maha Shakti Peeth Trust, as alleged by him or that there was any Trust created by the deceased or that she had dedicated the property to the Trust. It was also disputed in the objections filed on 3,9.1996 by the respondent before the learned District Judge that the Trust had authorized Shiv Singh Galundia to file the objections.
4. In response to the aforesaid, objections were filed by the applicant to the locus standi of Shiv Singh Galundia on 3.9.1996, a reply and objections came to be filed by the appellant on 25.9.1997 objecting to the grant of letters of administration to the respondent Shelendra Pratap Singh wherein the existence and execution of the Will by the deceased Shradha Mata on 8.8.1968 was disputed and it was stated that the deceased Shradha Mata during her lifetime had created a Trust and dedicated her entire properties both moveable and immoveable to the Trust. The right of the applicant Shelendra Pratap Singh even to her personal assets were denied and it was stated that these personal assets are liable to be received by her disciple Miss Barbara Hutton. It may be stated here that the said Miss Barbara Hutton has not challenged the impugned order.
5. The aforesaid objections dated 25.9.1997 were submitted by one Ramanand alleging himself to be the Trustee of Maha Shakti Peeth, the appellant. After the aforesaid objections were filed by Ramanand on behalf of the appellant Trust Maha Shakti Peeth, an application purporting to be under Section 340 Cr.P.C. came to be filed on or about 24.8.2004 by one Sitaramdas Swami claiming himself to be the Peethadhish of Shradha Mata Maha Shakti Peeth Trust alleging that the Will dated 8.8.1968 was a forged document and the act of the applicant Shelendra Pratap Singh in submitting a forged document in the court amount to the offence under Section 195 I.P.C. and he needs to be prosecuted accordingly.
6. The learned District Court considered the objections filed by Shiv Singh Galundia filed on 31.8.1995 and by Ramandand on 25.9.1997 along with the application filed under Section 340 Cr.P.C. by Shri Sitaramdas Swami and decided the objections as well as the applications vide order dated 2.8.2005.
7. By the aforesaid order dated 2.8.2005 the learned District Judge dismissed the objections filed by Shiv Singh Galundia who did not appear to pursue the objections and also the objections filed by the appellant Trust as well as the application under Section 340 Cr.P.C. filed by Shri Sitaramdas Swami. It may be stated here that none of the parties i.e. Shiv Singh Galundia, Ramanand or Sitaramdas Swami challenged the order dated 2.8.2005 in any appeal or otherwise.
8. After the dismissal of the objections the learned District Judge proceeded with the trial and recorded the evidence of AW-1 Shelendra Pratap Singh, AW-2 Daya Shankar who was one of the witnesses to the Will and AW-3 Madrasi Singh who deposed that the deceased was the sister of the father of the applicant Shelendra Pratap Singh as the respondent had also alleged that he was the nearest reversioner of the deceased.
9. The learned District Judge after considering the evidence on record by the impugned judgment dated 24.2.2006 allowed the application filed by Shelendra Pratap Singh holding him to be entitled to the scheduled properties left behind by the deceased Shradha Mata and ordered for the issuance of the letters of administration in his favour. Hence, this appeal against the order dated 24.2.2006.
10. Learned Counsel for the appellant Maha Shakti Peeth Trust firstly sought to challenge the order passed by the learned District Judge dated 2.8.2005 in the present appeal. The learned Counsel appearing on behalf of the respondent firstly raised objection that the appeal as filed has not been filed against the order dated 2.8.2005 rejecting the objection/caveat filed by the appellant but against the final order dated 24.2.2006, as would be evident from the memo of appeal. He drew the attention of the Court to the memo of appeal wherein it has been stated by the appellant as follows:
S.B. Civil Misc. Appeal under Section 384 of the Indian Succession Act against the order dated 24.2.06 passed by Shri P.K. Bhatia, District Judge, Jaipur City, Jaipur in Civil Misc. Application No. 65/95 by which the letters of administration has been issued by the learned District Judge, Jaipur City, Jaipur in application for grant of succession certification.
11. He further drew the attention of the Court to the prayer clause which reads as follows:
It is, therefore, prayed that your lordships may very graciously be pleased to accept this appeal and may be further pleased to quash and set aside the order dated 24.2.206 passed by the trial Court in civil misc. application No. 65/95 and the application under Section 276 of the Indian Succession Act filed by the applicant respondent may kindly be dismissed with cost throughout.
12. Apart from pointing out that the appeal was not directed against the order dated 2.8.2005, the learned Counsel for the respondent also submitted that the present appeal had been filed under Section 384 of the Indian Succession Act, which provides as under:
384. Appeal.-(1) Subject to the other provisions of this Part, an appeal shall lie to the High Court from an order of a District Judge granting, refusing or revoking a certificate under this Part, and the High Court may, if it thinks fit, by its order on the appeal, declare the person to whom the certificate should be granted and direct the District Judge, on application being made therefor, to grant it accordingly, in supersession of the certificate, if any, already granted.
(2) An appeal under Sub-section (1) must be preferred within the time allowed for an appeal under the Code of Civil Procedure, 1908.
(3) Subject to the provision of Sub-section (1) and to the provisions as to reference to and revision by the High Court and as to review of judgment of the Code of Civil Procedure, 1908, as applied by Section 141 of the Code, an order of a District Judge under this Part shall be final.
13. Quoting from above, the learned Counsel for the respondent submits that under Section 383 of the Indian Succession Act, an appeal only lies from the order of the District Judge in the High Court against the granting, refusing or revoking the certificate and not against the order dismissing the objections on the caveat. He, therefore, submits that appellant has no right to challenge the order dated 2.8.2005 in the present appeal filed under Section 384 of the Indian Succession Act. It has also been submitted by the learned Counsel for the respondent that if at all the appellant was aggrieved by the order dated 2.8.2005 dismissing the objections/caveat, the appellant ought to have preferred an appeal under Section 299 of the Indian Succession Act which provides that every order made by a District Judge shall be subject to appeal to the High Court and since no appeal under Section 299 of the Indian Succession Act was preferred by the appellant within the prescribed period of limitation against the order dated 2.8.2005, the appellant cannot be permitted to raise the objections in the present appeal filed under Section 384 of the Indian Succession Act against the order dated 24.2.2006.
14. I am of the view that the objections raised by the learned Counsel for the respondent merits consideration as the present appeal, as has been mentioned hereinabove, has been filed under Section 384 of the Indian Succession Act and also the same is directed against the order dated 24.2.2006. Once the objections filed by the appellants were dismissed by the learned District Judge vide order dated 2.8.2005 and they did not choose to challenge the same within the prescribed period of limitation, the appellants are estopped from raising the objections to the order dated 2.8.2005 in the present appeal though the appellants had applied for the certified copy of the order dated 2.8.2005 on 15.10.2005 and on the notices having been issued after the preparation of the copy, the certified copy was delivered to the appellant on 19.10.2005 itself. Thus, the appellants were aware of the order and were in possession of the certified copy of the same but failed to challenge the same before this Court within the prescribed period of limitation. Assuming that the present appeal has been filed against the order dated 2.8.205 there is no application for condonation of delay or explaining the circumstances for condoning the delay.
15. Learned Counsel for the appellant sought to contend that under Section 384 of the Indian Succession Act, an appeal lies against the grant and till such time as the letters of administration had not been granted in favour of the respondent Shelendra Pratap Singh by the learned District Judge there was no occasion for filing the appeal the appellants.
16. So far as the above contention is concerned, 'suffice it to say that in that event the appeal could have been preferred by a caveator/objector who had been allowed to contest the application submitted by the applicant before the learned District Judge under Section 276 of the India Succession Act. A person whose caveat/objection had been rejected and who had not challenged the order refusing him the permission to object to the grant of letters of administration would not be permitted after the grant has been made in favour of the applicant to file the appeal under Section 384 of the Indian Succession Act.
17. In that view of the matter, I am inclined to uphold the objections raised by the learned Counsel for the respondent and accordingly hold that the present appeal cannot be maintained against the order dated 2.8.2005.
18. Having held so, though it is not necessary for this Court to examine the order dated 2.8.2005, however, with a view to satisfy regarding the validity of the order, the same, has been examined by the Court.
19. The learned District Judge rejected the objections filed by the appellant Trust through Ramanand which was filed on 25.9.1997 primarily on the ground that the same was not accompanied by an affidavit of the objector as held in the order dated 2.8.2005.
20. Learned Counsel for the respondent supported the order passed by the learned District Judge dated 2.8.2005 rejecting the objections filed by Ramanand on behalf of the Trust dated 25.9.1997 by contending that under the Rules framed by the Rajasthan High Court, it was mandatory that the objection/caveat must be supported by an affidavit which must be filed within 14 days of the caveat having been lodged. Learned Counsel for the respondent drew the attention of the Court, in particular, to the Rules 777, 778 and 780 of the Rajasthan High Court Rules and to a Division Bench. Judgment of this Court in the case of Kalyan Singh v. Mst. Gaind Kanwar reported in 1961 RLW 143 wherein a Division Bench of this Court had held after considering the High Court Rules in para 5 of the report as follows:
5. Be that as it may, we feel that the question which is precisely before us in this appeal did not directly arise before the Calcutta High Court in the two cases to which we have made reference above. The question before us, put in a nut-shell, is whether an objection filed by an objector to the grant of a probate in response to the citation issued by the court is a caveat or something in the nature of a caveat which must be supported by an affidavit as required by our Rules. In this connection we cannot do better than to invite reference to Rule 777 of the Rules of this Court. That rule is in these terms:
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 the court in the prescribed form. Notice of the filing of the caveat shall be given by the Court to the petitioner or his Advocate (form prescribed).We may also quote Rule 778 here:
Where a caveat is entered after an application has been made for a grant of probate or letters of administration with or without the will annexed, the affidavit or affidavits in support shall be filed within fourteen days of the caveat being lodged. Such affidavit shall state the right and interest of the caveator, and the ground of the objections to the application.The combined effect of these rules to our mind plainly is that whoever wishes to oppose the grant of probate or letters of administration can do so only by filing a caveat and that this caveat must be supported by an affidavit or affidavits by the caveator, and the affidavit or affidavits must be filed within 14 days of the lodging of the caveat. It is further necessary that the affidavit must disclose the right and interest of the caveator and the grounds on which he opposes the grant of probate. In this state of the law, we are definitely disposed to hold that the only manner in which the appellant Kalyansingh could oppose the grant of probate to the respondents was by filing a caveat and by no other method. It may be that the caveat was not filed according to the strict language of the form which has been prescribed in this connection by the Indian Succession Act, but that, in our opinion, does not alter the substance of the matter. We may also add that any other view would render the provisions of Rules 777 and 778 entirely nugatory; for if we allow ourselves to be persuaded to accept the submission made by learned Counsel, then all that a caveator need do is to file an objection not in the form of a caveat and do so without filing the necessary affidavits under Rule 778 and without showing his own right or interest in the property of the deceased or disclosing the grounds on which he sought to oppose the grant of probate in a given case. We are, therefore, categorically of the opinion that we should not accept such an interpretation of the rules to be correct which would render them fruitless, but, on the other and, we should be guided more by the substance of the matter rather than its form and interpret the rules in such a way that their real object would be served and not defeated. For these considerations we hold that whether what the appellant filed in this case was strictly a caveat or not, it was certainly something in the nature of a caveat which falls within the four walls of Rules 777 and 778, and, therefore, it was necessary for the appellant to have filed an affidavit in support of his objection as required by Rule 778.
21. A look at the above decision of the Division Bench of this Court goes to show that the Division Bench of this Court held in the case of caveat being entered opposing to the grant of letters of administration for the compliance of four requirements: (1) That one who wishes to oppose the grant can do so only by filling the caveat; (2) That caveat must be support by an affidavit or affidavits of the caveator; (3) That the affidavit must be filed within 14 days of having lodged the caveat; and (4) That the caveat must disclose the right and interest of the caveator along with the grounds on which the caveator seeks to oppose the grant. Having held so the learned Division Bench further went on to hold that the grant of letters of administration could either be opposed by means of a caveat even though the same may not be strictly in accordance with the language and the form as prescribed under the Indian Succession Act. This assumes importance as it was sought to be contended that the present objections were not in the form of caveat as strictly provided under the Schedule-V of the Indian Succession Act, 1925 and hence, the requirement of submitting an affidavit was not attracted. As was held by the Division Bench of this Court that by holding that in case the objections are not strictly in the form prescribed, the requirement of filing the affidavit could be does away with could not be accepted and hence, their Lordships held that the form of the objection which did not conform to the strict requirement of Schedule-V of the Act of 1925 was not to be looked into but it was the object for which it was filed which was to be looked into and since the objection/caveat is filed on 25.9.1997 by Ramanand on behalf of the appellant Trust was to object the grant of letters of administration in favour of the applicant, the same must conform to the requirement of Rule 778 of the Rajasthan High Court Rules of filing an affidavit in support which was missing in the instant case.
22. So far as the subsequent portion of the judgment of the Division Bench is concerned where their Lordships have dealt with the question, whether the caveat could be filed beyond the period of 14 days need not be looked into as no caveat was filed before the learned District Judge at all even after the period of 14 days as prescribed by Rule 778 of the Rajasthan High Court Rules.
23. Learned Counsel for the appellant sought to overcome the aforesaid shortcoming of not having filed the affidavit by having filed the affidavit before this Court which was submitted along with an application No. 17215 dated 9.7.2008 during the pendency of this appeal along with an application filed under Order 41 Rule 27 C.P.C. after the matter was heard for sometime on 15.4,2008 which is highly belated, and an afterthough. The grounds for submitting the application which is supported by an affidavit of Sitaramdas Swami has been given in para 2 and 3 of the said affidavit which are as follows:
2. That the appellant trust could not submit affidavit alongwith objection/caveat within the prescribed time as no proper legal advise was given to them by their counsel.
3. That there is no fault of the appellant in non filing of the affidavit insupport of objection/caveat The appellant should not be punished for the faults/bonafide mistake of their counsel.
24. The aforesaid grounds which have been urged in the paras 2 and 3 in the application are as a matter of fact based upon the judgment given by the learned Single Judge of this Court in the case of Ladulal and Anr. v. Mahendra Kumar and Anr. reported in : AIR 1973 Raj. 238 : 1973 RLW 563 wherein this Court in exercise of the revisional jurisdiction while the matter was still pending before the learned District Judge and in which the order passed by the learned District Judge dismissing and discharging the caveats had been challenged, directed as follows:
7. The trial Court should consider whether it would be just to deprive the caveator of his permanent rights, if any, on account of the failure of his lawyer to be conversant with the rules in a directory matter. Proceedings for grant of probate or letters of administration are proceedings in rem and the findings in these proceedings are binding on the parties in all subsequent litigation about the property.
The above two aspects of the matter were not brought to the notice of the Division Bench in Kalyan Singh's case, 1961 RLW 143.
8. No order has yet been passed on those affidavits. Further, under Section 299 of the Succession Act every order passed by the District Judge is appealable. The present revision applications are, therefore, not maintainable. They are accordingly dismissed.
25. So far as the application submitted before this Court is concerned, suffice it to say that neither the appeal was directed against the order dated 2.8:2005 nor along with the memo of appeal was the affidavit filed and once during the course of hearing after the matter was heard on 15.4.2008 for some time, reference to the Rule 777 and 778 of the Rajasthan High Court Rules was made during the course of hearing and attention of the Court was drawn to the judgment of the Division Bench in Kalyan Singh's case (supra) and Lodulal's case (supra) that the present application came to be filed on 9.7.2008.
26. Apparently, as would be seen from the passages of the application quoted above and from the judgment of Ladulal's case (supra) a ground has been sought to be made before this Court on identical grounds as submitted in Lalulal's case regarding the competency of the lowyer who was not conversant with the Rules of procedure and hence did not, file the affidavit along with the caveat/objections. There is no affidavit of the counsel to support such a plea and hence, cannot be accepted in absence of the same.
27. Apart from the above, the objections which were filed on 25.9.1997 as caveat on behalf of Maha Shakti Peeth were filed by one Ramanand whereas the present affidavit which has been filed along with the application under Order 41 Rule 27 C.P.C. before this Court on 9.7.2008 is of one Sitaramdas Swami. Apparently, Shri Sitaramdas Swami, the deponent, who has filed the present affidavit did not consult the lawyer who submitted the caveat on 25.9.1997 and, therefore, he could not have possibly any personal knowledge regarding the fact that the counsel was not conversant with the Rules and procedure and did not advise Ramanand who filed the objections on 25.9.1997 to file the. affidavit as required by Rule 778. Moreover, Ramanand filed his caveat on 25.9.1997 through one Pratap Singh Sirohi, Advocate and Sitaramdas Swami came in the picture only on or about 24.8.2004 when he filed the application under Section 340 Cr.P.C. through his counsels Sant Ram Jethwani, Banwari Lal and Anil Mohta, Ratan Lal Agarwal, Shri R.R. Yadav and M.R. Mitruka. Hence, the explanation given in the affidavit of Sitaramdas Swami in the affidavit dated 9.7.2008 cannot be accepted as he could not have any personal knowledge in this behalf. The present affidavit and the reasons given in the application in para 2 and 3, therefore, cannot be accepted. Accordingly, even on the premise assuming that the affidavit could be filed in the appeal, as has been sought to be contended on the. basis of Ladulal's case (supra), no grounds in the facts and circumstances are made out before this Court for taking the aforesaid affidavit on record.
28. In the facts and circumstances, therefore, I am of the view that the present appeal deserves to be dismissed as the same could not be maintained by the appellant against the order dated 2.8.2005, as has been held hereinabove, and further on facts that the order dated 2.8.2005 calls for no interference as the caveat entered into by the appellant was rightly rejected by the learned District Judge as the same did not comply with the requirements of Rules 777, 778, 780 and 781 of the Rajasthan High Court Rules, as has been held by the Division Bench of this Court in Kalyan Singh's case (supra) that 'it was necessary for the appellant to have filed an affidavit in support of his objections, as required by Rule 778.' Since Rule 780 of the Rajasthan High Court Rules provides consequences of non-filinging of affidavit, the caveat entered without complying the requirements of Rule 778, the same had to be discharged. For ready reference, Rule 780 is reproduced hereinunder as follows:
780. Where the caveator fails to file any affidavit in support of his caveat, in compliance with Rule 778 or in compliance with the notice issued under Rule 779 the caveat may be discharged by an order to be obtained on application to the Court.
29. Thus, in my view, in the facts and circumstances of the present case, a combined reading of Section 778 and 780 makes it mandatory for the filing of affidavit by the caveator and failure to do so the caveat deserves to be discharged. This is precisely what the learned District Judge has done under the Order dated 2.8.2005 which in the facts and circumstances calls for no interference.
30. This Court may also deal with the submission of the learned Counsel for the appellant that Shiv Singh Galundia who entered the caveat for the first time on 31.8.1995 had in fact filed an affidavit along with the caveat. A perusal of the order dated 2.8.2005 passed by the learned District Judge goes to show that Shiv Singh Galundia who filed the caveat did not choose to contest the matter before the learned District Judge and did not appear to press his objections. The learned District Judge has recorded in his order as follows:
Jh f'koflag dh vksj ls cgl djus ds fy, dksbZ mifLFkr ugh gqvkA
31. The learned District Judge in spite of the above examined the caveat and its contents and held that there was no material to support the objections raised by Shiv Singh Galundia that the deceased had ivn fact created a Trust of which he was the Secretary. In the absence of the appearance of Shiv Singh Galundia or his counsel and in the absence of any appeal having been filed by Shiv Singh Galudai, the aforesaid objections cannot be accepted on behalf of the appellant who though contended that in the objections it has been mentioned as follows:
vkifRr egk'kfDrihB dh vksj lsA
32. The applicant Shelendra Pratap Singh had specifically raised an objection to the aforesaid caveat filed by Shiv Singh Galundia wherein para 4 it was stated as follows:
4. ;g fd en ua- 4 esa ntZ dFku xyr gS bUdkj gS mtjnkj egk'kfDr ihB dk lfpo ugh gS u bl ckcr dksbZ izek.k gh miyC/k gS o fdlh VLV ds izU;klh;ks ds vykok lfpo dks mtj is'k djus dk vf/kdkj ugh gSA
33. After the objections were raised by Shelendra Pratap Singh on 3.9.1996 to the caveat entered by Shiv Singh Galundia on 31.8.1995, on 25.9.1997 the caveat was entered on behalf of the appellant Maha Shaki Trust by Ramanand in which also there was no reference to the earlier objections filed on 31.8.1995 by Shiv Singh Galundia on behalf of the appellant Trust. Thus, it cannot be said that the objections which were filed by Shiv Singh Galundia were on behalf of the appellant Trust and there can be thus no co-relationship between the objections filed by Shiv Singh Galundia and the appellant and this was not the case set up by the appellant in its caveat/objections filed on 25.9.1997. Even otherwise, the affidavit and the objections cannot be said to confirm the requirements of Rule 778 of the Rajasthan High Court Rules, 1952.
34. In the grounds of the appeal which have been raised on page 6 after para 11 of the memo of appeal, there is no mention that the objections which were filed by Shiv Singh Galundia on 31.8.2005 were for and on behalf of the Trust and should have been accepted as such. In the facts and circumstances, the aforesaid grounds urged by the learned Counsel for the appellant cannot be accepted.
35. In the result, the appeal fails and is accordingly dismissed. The applications which were filed during the course of hearing and pendency of this appeal accordingly also stands dismissed.
36. The interim order passed on 21.2.2007 is vacated. The respondent is free to proceed in the matter. The record be returned to the court below.