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H vs 29Th Road, Bandra (West), Mumbai … on 30 July, 2014

Bombay High Court H vs 29Th Road, Bandra (West), Mumbai … on 30 July, 2014Bench: R.D. Dhanuka

hvn 1 CHAMBER SUMMON NO 36 of 201004.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGNAL CIVIL JURISDICTION

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CHAMBER SUMMONS NO. 36 OF 2014

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IN

REVIEW PETITION NO. 03 OF 2013

IN

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PROBATE PETITION NO. 1388 OF 2012

Twinkle Jatin Khanna,

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@ Twinkle AkshayKumar,

An Indian Inhabitant, residing at

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G-2, Plot No. 1, Prime Beach,

Gandigram Road, Vile Parle (West),

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Juhu, Mumbai 400 009 … Applicant In the matter between :

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Twinkle Jatin Khanna,

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@ Twinkle AkshayKumar,

An Indian Inhabitant, residing at

G-2, Plot No. 1, Prime Beach,

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Gandigram Road, Vile Parle (West),

Juhu, Mumbai 400 009 … Petitioner Versus

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Anita Advani, An Indian Inhabitant residing at Flat No. 504, B-Wing, 5th Floor, Marain House, ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 2 CHAMBER SUMMON NO 36 of 201004.sxw 29th Road, Bandra (West), Mumbai 400 050 … Respondent rt

Mr. Janak Dwarkadas, Sr. Advocate along with Dr. Birendra Saraf along with Ms. Pooja Kshirsagar i/by I.C. Legal for the applicant. ou

Mr. Manohar Shetty along with Mr. Abhishek Dhoot for respondents. CORAM : R.D. DHANUKA,J.

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DATED : JULY 30, 2014

ORAL JUDGMENT :

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1. By this chamber summon the applicant seeks that the order dated 17 February 2014 passed by the Learned Commissioner of Taking Accounts rejecting the review ig

petition filed by the applicant be set aside and seeks that the application filed by the respondent for certified copies of the proceedings of probate petition No. 1388 of H

2012 be dismissed. Some of the relevant facts for the purpose of deciding this chamber summon are as under:-

2. Applicant is the daughter of the late Mr Rajesh Khanna who expired on 18 th y

July 2012. It is case of the applicant that the said deceased had left a will and ba

testament dated 19th June 2012 and had appointed the applicant as executrix of the said will. The applicant filed a testamentary petition in this Court being No. 1388 of 2012 for probate of the said will. By an order dated the 6th October, 2002 this Court om

allowed the said petition and granted probate in respect of the said will.

3. Sometime in the month of November 2012 the respondent filed a complaint being complaint no. DV/25/2012 against the applicant and her family members before B

the learned Metropolitan Magistrate under the provisions of the Protection of Women from Domestic Violence Act 2005. By an order dated 3 rd December 2012 passed by this Court in Criminal Petition No. 4196 of 2012 and other 2 connected matters filed ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 3 CHAMBER SUMMON NO 36 of 201004.sxw by the applicant and her family members the proceedings initiated by the respondent before the learned Metropolitan Magistrate came to be stayed. rt

4. On 27th November 2012 the respondent applied to the Prothonotary and Senior ou

Master of this Court for certified copies of the probate proceedings filed by the applicant under rule 268 of the Bombay High Court (original side) Rules. The respondent filed an affidavit in support of the said application along with the said C

application. It is case of the applicant that the applicant was not served with a copy of the said application and was not aware of the said application.

5. 28th of January 2013 the learned Prothonotary and Senior Master passed an h

order allowing the application made by the respondent to the extent the copies of the ig

probate proceedings are concerned and not the probate. It is case of the applicant that in the month of February 2013 the applicant came to know about the order passed by H

the learned Prothonotary and Senior Master. On 25th of February 2013 the applicant through her advocate lodged an objection in respect of the said order passed by the learned Prothonotary and Senior Master. The matter was placed for directions by the y

learned Prothonotary and Senior Master on 26 February 2013. ba

6. On 30th January 2013 the respondent filed another complaint before the learned Metropolitan Magistrate against the applicant and her family members under section 91 of the Criminal Procedure Code inter alia praying for production of original will of om

Mr. Rajesh Khanna. It is case of the applicant that the learned Metropolitan Magistrate did not take any cognizance of the said complaint.

7. On 28th of February 2013 the applicant filed her objection/written submissions B

opposing the grant of certified copies and prayed for reviewing/recalling of the order passed by the learned Prothonotary and Senior Master dated 28 th of January 2013. It is case of the applicant that the learned Prothonotary and Senior Master treated the said objection as Review and stayed the earlier order passed by him. Both parties filed ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 4 CHAMBER SUMMON NO 36 of 201004.sxw the submissions before the learned Prothonotary and Senior Master. On 15th June 2013 the respondent raised an objection that the written submission/objections cannot rt

be considered as Review petition. In view of such objection raised by the respondent, ou

the applicant filed a review petition before the learned Prothonotary and Senior Master praying for recalling/reviewing of the order passed by him on 28 th of January 2013. The respondent filed reply to the said application. C

8. On 1st October 2013 the learned Prothonotary and Senior Master passed an order not to place the said application before him. By an administrative order passed by the Hon’ble Chief Justice the matter came to be assigned to the learned h

Commissioner for taking accounts. The learned Commissioner for taking accounts ig

allowed both the parties to file submissions and also heard the parties through their learned Counsel. By an order dated 17 February 2014 the learned Commissioner for taking accounts dismissed the said review petition. The applicant has impugned the H

said order in this chamber summon.

9. Mr. Dwarkadas learned senior Counsel for the applicant submits that when a y

third party, not party to the proceedings applies for certified copy of the proceedings ba

under rule 268 on the ground of sufficient cause, the Prothonotary and Senior Master is bound to give a notice and an opportunity of being heard to show as to how the grant of copies of the proceedings filed by the party to a third party would prejudice om

the rights of the party to the proceedings. It is submitted that the learned Commissioner for taking accounts has placed reliance on an alleged practice followed by the Department internally not to issue notice when an application for certified copies of the proceedings is made by a third party which cannot override the B

requirements of the principles of natural Justice. It is submitted that even under rule 247 when a party to the proceedings applies permission to take such of the papers and proceedings as per the procedure set out, notice has to be issued to the other party. ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 5 CHAMBER SUMMON NO 36 of 201004.sxw

10. The learned senior Counsel submits that even if rule 268 does not contemplate any hearing or notice, a party whose personal financial and other sensitive details are rt

ordered to be furnished to a third party, such party would be an affected party and ou

without any notice and hearing such party, no such personal financial and sensitive details of such party can be furnished to a third party. Non-compliance of principles of natural Justice by the Prothonotary and Senior Master would amount to a gross C

abuse of process of law.

11. The learned senior Counsel submits that the learned Commissioner for taking accounts failed to appreciate that the only alleged interest shown by the respondent in h

her application for certified copies was that she was a live- in partner of the deceased ig

and the deceased had allegedly assured her to bequeath her a major portion of his estate. The learned senior Counsel placed reliance on the judgment of Supreme Court in case of Velusamy vs. D.Patchaiammal (2010)10 S.C.C 469 in support of his H

submission that since the respondent was not qualified to enter into a legal marriage with the said deceased, the complaint filed by the respondent before the learned Metropolitan Magistrate under the provisions of the Protection of Women from y

Domestic Violation Act 2005 itself is not maintainable and thus the respondent could ba

not have invoked the provisions of the said Act for making an application for certified copies of the proceedings before the learned Prothonotary and Senior Master. Reliance is placed on paragraphs 31 to 33 of the said judgment of the Supreme Court which om

read thus:-

“31. In our opinion a ‘relationship in the nature of marriage’ is akin to a common law marriage. Common law marriages require that although not B

being formally married:

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 6 CHAMBER SUMMON NO 36 of 201004.sxw (c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

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(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time. ou

(see ‘Common Law Marriage’ in Wikipedia on Google) In our opinion a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a ‘shared household’ as defined in C

Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.

32. In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of h

2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a ‘keep’ whom he maintains financially and uses mainly for sexual ig

purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage’

33. No doubt the view we are taking would exclude many women who H

have had a live in relationship from the benefit of the 2005 Act, but then it is not for this Court to legislate or amend the law. Parliament has used the expression ‘relationship in the nature of marriage’ and not ‘live in relationship’. The Court in the grab of interpretation cannot change the language of the statute.”

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12. The learned senior Counsel placed reliance on the judgment of Supreme Court in case of Ila Vipin Pandya Vs Smita A Patel (2008)7 SCC 435 and submits that third party who applies for certified copies of the proceedings must show that he has om

tangible interest which the respondent has failed to show. It is submitted that the respondent failed to show that she had any caveatable interest or was a legal heir of the said deceased. It is submitted that even if the will would not have been probated, the respondent would not get any share in the property on the basis of intestacy. The B

respondent has asserted her alleged rights under the provisions of Domestic Violence Act. Paragraphs 13 and 14 of the said judgment of the Supreme Court in case of Ila V Pandya (supra) read thus:-

::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 7 CHAMBER SUMMON NO 36 of 201004.sxw “13. The Division Bench has held and in our opinion rightly, that the respondent No. 1 though caveator in the beginning had become a party rt

to the suit and was as such interested in the matter. It cannot be disputed ou

that the Miscellaneous Application No. 1 of 2004 was filed by the respondent No. 2 Fereshte Sethna against the appellant herein praying therein for the action to be instituted against the appellant for perjury. C

The evidence by the appellant was given in the suit itself and, therefore, the respondent No. 1 who was a contesting party against the appellant, was certainly interested person since the allegations of perjury were h

made against her adversary, the appellant herein. When the respondent No. 1 sought for the certified copies, it was not necessary to decide the ig

merits or the demerits of the Miscellaneous Application No. 1 of 2004. If she had shown as to how she was interested in the Miscellaneous H

Application and if such interest was tangible, then even if she was not a party in the strict sense to the Miscellaneous Application No. 1 of 2004, the Prothonotary and Senior Master could have, in his discretion, y

granted the certified copies of the Miscellaneous Application No. 1 of ba

2004. Though a view was taken by the learned Single Judge that she was not at all interested and she could not be interested, the Division Bench has shown as to how she would be interested in the Miscellaneous om

Application No. 1 of 2004. Therefore, even if it is held that she was not a party to the matter, i.e., Miscellaneous Application No. 1 of 2004, since she was a party to the suit out of which the Miscellaneous Application No. 1 of 2004 emanated and as such the same could be B

treated as record of that suit, the Division Bench, in our opinion, was right in taking the view that she was entitled to the certified copies.

14. Shri Nariman, learned Senior Counsel, however, suggested that the only idea of having those copies was to harass and/or to misuse ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 8 CHAMBER SUMMON NO 36 of 201004.sxw those copies against the appellant and it was only for that reason that the appellant was opposing the grant of certified copies of the rt

Miscellaneous Application No. 1 of 2004 to the respondent No. 1. We do not think that there is any possibility of misuse. It has not been shown as to in what manner the respondent No. 1 would be able to ou

misuse the said documents. Shri Nariman, however, expressed his apprehension that the respondent No. 1 would insist in joining the proceedings which were to follow the Miscellaneous Application No. 1 of 2004. He, therefore, expressed that if the respondent is granted C

the certified copies, she would jump into the fray in Miscellaneous Application No. 1 of 2004. The Division Bench has taken care of that matter. In paragraph 9 of its order, the Division Bench has expressed and in our opinion, very rightly that by mere grant of certified copies, it cannot be construed that respondent No. 1 has a h

right to participate in the perjury application. The Division Bench has already directed that the said application should be heard along ig

with the main suit. The Division Bench has also very rightly expressed that ultimately it would be for the learned Judge to decide the issue as to whether respondent No. 1 can join the proceedings. That question had been left open. Again the Division H

Bench has clarified that the issue regarding the evidentiary value of papers and documents in the perjury proceedings was kept to be agitated by both sides. At this juncture, however, the main suit itself stands decided and the parties before us did not point out anything y

about Miscellaneous Application No. 1 of 2004 nor was it pointed out as to whether it was still pending or not. But even if it is presumed ba

that it is still pending, we make it clear that mere grant of certified copies in favour of the respondent No. 1 itself would not entitle her to take part in the proceedings and confirm the action of the Division Bench of keeping that question open. As far as the misuse om

is concerned, we only have to observe that in case of its misuse, the court below would be fully free to deal with such complaint if made to it.”

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13. Learned senior Counsel placed reliance on the judgment of Supreme Court in case of Krishnakumar Birla VS Rajendra Singh Lodha (2008) 4 SCC 300 in support of his submission that even if petition is filed under section 263 of the Indian succession Act by the respondent she will have no right to file such petition and thus the learned ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 9 CHAMBER SUMMON NO 36 of 201004.sxw Prothonotary and Senior Master could not have passed an order for issuance of the certified copies of the proceedings in favour of the respondent. rt

14. It is submitted by the learned senior Counsel that even if the learned ou

Prothonotary and Senior Master is granted a discretionary power under rule 268, such discretionary power has to be exercised reasonably and with caution after giving notice and hearing. In support of this proposition the learned senior Counsel placed C

reliance on the judgment of Supreme Court in case of Consumer Action Group Vs State of Tamilnadu (2000)7 SCC 425.

15. It is submitted by the learned senior Counsel that the respondent had filed h

similar application for certified copy of the probate in the criminal proceedings which ig

proceedings are stayed by this Court. The learned Prothonotary and Senior Master therefore ought to have considered these facts before allowing the application of the H

respondent for certified copy of the proceedings. It is submitted that though the respondent had mentioned in her application that criminal proceedings filed by her against the applicant and her family members was pending, the learned Prothonotary y

and Senior Master did not think it necessary to issue notice to the applicant before ba

allowing the application of the respondent. The learned Prothonotary and Senior Master ought to have considered that any such order would have affected the rights of the applicant and her family members.

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16. It is submitted by the learned senior Counsel that the reasons rendered by the learned Commissioner for taking accounts that if the submission of the applicant is accepted, notice will be required to be issued to every party concerned is erroneous. B

It is submitted that valuable right of a party cannot be taken away on the ground that there would be floodgate of notices required to be issued. Reliance is placed on the judgment of Supreme Court in case of Coal India Ltd Vs Saroj Kumar Mishra (2007)9SCC 625.

::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 10 CHAMBER SUMMON NO 36 of 201004.sxw

17. The learned Counsel appearing for the respondent on the other hand submits that the respondent had applied for certified copy of the probate proceedings and the rt

probate on the ground that the respondent wanted to file a petition for revocation of ou

the probate obtained by the applicant and her family members fraudulently and by committing forgery. The said deceased had assured the respondent that he would bequeath share in the property of the said deceased. It is submitted by the learned C

Counsel that the criminal proceedings filed by the respondent against the applicant and her family members and that this application for certified copy of the probate proceedings are totally different. It is submitted that since the applicant has obtained h

the probate on such forged will of the said deceased by committing a fraud, such order passed by this Court is illegal and nonest. Reliance is placed on the judgment of ig

Supreme Court in case of S.P.Chengalvaraya Naidu Vs Jagannath (AIR 1994 SC 853).

18. It is submitted by the learned Counsel that even if the probate Court gives H

finding about caveatable interest it has limited effect and cannot deprive such party to seek revocation of probate u/s 263 of the Indian Succession Act 1925. Reliance is placed on the judgment of Supreme Court in case of Elizabeth Anthony Vs Mchel y

Charles John Chown Lengera (1990) 3 SCC 333. The learned Counsel also placed ba

reliance on the judgment of Supreme Court in case of G. Gopal Vs C.Bhaskar (2008)10 SCC 489 in support of his submission that even if a party has the slightest interest in the estate of the testator, he is entitled to file caveat and contest the grant of om

probate of the will of the testator. It is submitted that the respondent has tangible interest in the estate of the said deceased. In any event the learned Commissioner for taking accounts has not decided the caveatable interest of the respondent. It is B

submitted that under rule 268 there is no procedure for issuance of any notice by the Prothonotary and Senior Master before issuance of such certified copies. It is submitted that once the Prothonotary and Senior Master was satisfied with the sufficient cause shown by the respondent and has exercised his discretion, this Court ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 11 CHAMBER SUMMON NO 36 of 201004.sxw shall not interfere with such discretion exercised by the learned Prothonotary and Senior Master.

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19. Rule 267, 268 and 271 of the High Court(OS) Rules are ou

extracted as under:-

“267. Search and certified copies of documents to a party to suit or matter :- The Prothontoary and Senior Master shall, on the application of C

any party to a suit or matter, allow such or grant certified copies of all papers and proceedings in the suit or matter, on payment of the prescribed fees and charges. When the party applies for a certified copy of a part of a document on record, the Prothonotary and Senior Master h

may, in his discretion, grant such copy.

268. Search and Certified copies of documents to a person not a party to ig

suit or matter :- The Prothonotary and Senior Master may, on the application of a person not a party to a suit or matter, on sufficient cause being shown, allow search or grant certified copies of such papers and H

proceedings in the suit or matter as the Prothonotary and Senior Master may think fit, on payment of the prescribed fees and charges. When such person applies for a certified copy of a part of a document on record, the Prothonotary and Senior Master may, in his discretion, grant such copy. y

271. Application to state whether copy of required for private use or otherwise : Every application for a certified copy shall state whether the ba

copy is required for the private use of the person applying for it or otherwise. When the certified copy is required for a purpose other than private use, the requisite Court fee under Article 24, 25 and 2 of Schedule II to the Bombay Court Fees Act, 1959, shall be paid in addition to the om

fees prescribed by rule 20.”

20. A perusal of the application filed by the respondent before the Prothonotary and B

Senior Master for certified copy of the probate proceedings indicates that it was case of the respondent that the applicant and her family members have forged and fabricated the will of the said deceased. She had proposed to file a petition for the revocation of the probate obtained by the applicant and her family members. The ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 12 CHAMBER SUMMON NO 36 of 201004.sxw respondent has already filed a petition under the provisions of the Domestic Violence Act against the applicant and the family members. It is case of the respondent that the rt

respondent was the live in partner of the said deceased and had been living with him ou

and co-habited as man and wife under the same roof at the address at Ashirwad bungalow and also at New Delhi. It is case of the respondent that the said deceased had expressed on numerous occasions that he was going to bequeath major portion of C

his property to her.

21. Supreme Court in case of Ila Vipin Pandya (supra) has interpreted 267 and 268 of the High Court rules and it is held that while there is a clear cut right in favour of h

the party to the suit to get the search and certified copies, there is a discretion in ig

Prothonotary and Senior Master to grant or not such search and/or certified copy to a person who is not a party to the suit or matter. It is held by the Supreme Court that the grant of certified copies in favour of a party would not entitle her to take part in the H

proceedings. The division bench of the Bombay High Court had held that by grant of certified copies it cannot be construed that such party has a right to participate in the perjury application.

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22. A perusal of the record indicates that on the respondent making an application for certified copy of the record and proceedings, the Master (ADMINISTRATION) (CERTIFIED COPY BRANCH) of submitted a report before the Prothonotary and om

Senior Master for the appropriate order whether to grant certified copy of the entire proceedings and the order passed by this Court to the respondent or not. A perusal of the endorsement made on the said report indicates that the learned Prothonotary and Senior Master has passed an order that the respondent be issued only record and B

proceedings and not the probate.

23. The learned Commissioner for taking accounts in the impugned order after hearing the parties and after considering the submissions made by both parties has ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 13 CHAMBER SUMMON NO 36 of 201004.sxw summarized the procedure for issuance of a certified copy on the application of the third party. Such third party has to file an affidavit along with the application and has rt

to state therein the cause for which the certified copy of the particulars papers and ou

proceedings are required by such third party. It is held that as per the prevalent practice the subject of issuance of certified copy is between the third party applicant and the Prothonotary and Senior Master. In that context the learned officer has held C

that if the submission of the applicant is accepted notice would be required in every matter on receipt of any such application from a third party.

24. It is held that at the stage of considering an application for certified copies, it is h

not necessary for the learned Prothonotary and Senior Master to decide the merits or ig

de-merits of the proposed revocation petition or any other legal proceedings proposed to be filed by the respondent. It is held by the learned Commissioner for taking accounts that the learned Prothonotary and Senior Master had passed the order on the H

office submission made to that effect as per the prevalent practice and procedure and after going through the contents of the affidavit of the respondent made in support thereof and after being satisfied has passed an order for issuance of certified copy only y

of the papers and proceedings and not the probate. ba

25. It is not in dispute that the applicant had filed an objection before the Prothonotary and Senior Master when she came to know about the order. The om

applicant thereafter filed in review petition before the learned Prothonotary and Senior Master for recalling of the earlier order. It is not in dispute that the learned Commissioner for taking accounts granted opportunity to both the parties to file submissions and had heard both the parties at length. Though the respondent had B

raised an issue of maintainability of the review petition, the learned Commissioner for taking accounts without going into the issue of maintainability decided the matter on merits and rejected the Review petition. The learned Commissioner for taking accounts has complied with the principles of natural Justice. ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 14 CHAMBER SUMMON NO 36 of 201004.sxw

26. Question however that arises for consideration of this Court is whether the learned Prothonotary and Senior Master was bound to issue notice to the applicant, rt

the original petitioner in the probate petition before considering the application of the ou

respondent for issuance of certified copy. A perusal of rule 268 indicates that if the third party applies before the Prothonotary and Senior Master for search or grant of certified copies of the papers and proceedings in any suit or matter on payment of the C

prescribed fee and charges and if sufficient cause is shown, the Prothonotary and Senior Master has discretionary power to grant certified copy of the record and proceedings.

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27. The respondent had already filed an affidavit along with such application for ig

certified copies before the Prothonotary and Senior Master stating reasons as to why she required such copies. The respondent had already filed criminal proceedings against the applicant and her family members. The respondent required the papers and H

proceedings for the purpose of filing a petition for revocation of the probate obtained by the applicant and her family members. The learned Prothonotary and Senior Master has not decided the issue as to whether respondent would have locus to file y

such petition or not. In my view merely because the learned Prothonotary and Senior ba

Master having been satisfied with the sufficient cause shown by the respondent and has passed an order for issuance of certified copy of the papers and proceedings, it would not cause any prejudice to the applicant or her family members in any manner om

whatsoever. By the impugned order the learned Prothonotary and Senior Master or by the learned Commissioner for taking accounts has not decided the rights if any which the respondent proposes to claim in the proceedings proposed to be filed by the B

respondent.

28. A perusal of the other provisions of High Court rules indicates that when any such notice is required to be issued by the Prothonotary and Senior Master to any party, there is specific provision in that regard. A perusal of rule 268 however does not ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 15 CHAMBER SUMMON NO 36 of 201004.sxw indicate issuance of any prior notice to a party to the proceeding before considering an application of a third party for issuance of certified copy of the papers and rt

proceedings. In my view the learned Prothonotary and Senior Master having ou

exercised his discretion on having been satisfied that sufficient cause was shown for issuance of certified copies, this Court shall not interfere with such discretion exercised by the learned Prothonotary and Senior Master. C

29. It is held by the Supreme Court in case of Basanti Devi Vs Ravi Prakash Ramprasad Jaiswal(2008)1 SCC 267 that an application for grant of probate is a proceeding in rem and a probate when granted not only binds all the parties before the h

Court but also binds all other persons in all proceedings arising out of the will or ig

claims under or connected therewith. In my view the interest of the applicant thus cannot be prejudiced in any manner whatsoever merely because the learned Prothonotary and Senior Master ordered issuance of certified copy of the papers and H

proceedings. It is made clear that merely because the application of the respondent for certified copies of the papers and proceedings is allowed by the learned Prothonotary and Senior Master, it does not create any right or establish any right in favour of the y

respondent which she proposes to claim in the proceedings proposed to be filed. If ba

any proceedings are filed by the respondent for revocation of the probate or any of the proceedings the same shall be decided on its own merits. In my view since neither any rights are created in favour of the respondent nor any rights of the applicant are om

affected by issuance of certified copy of the proceeding, the learned Prothonotary and Senior Master was not bound to issue any notice or hear the parties before passing such order.

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33. I am not inclined to accept the submissions of the learned senior Counsel for the applicant that unless the respondent was able to show that she had a caveatable interest in the estate of the deceased, the Prothonotary and Senior Master could not have allowed certified copies of the papers and proceedings in the probate matter. In ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 16 CHAMBER SUMMON NO 36 of 201004.sxw my view the condition applicable for revocation of probate prescribed under section 263 of the Indian Succession Act, 1925 cannot be extended to an application for rt

certified copy of the probate proceedings made under rule 268 of the High Court ou

rules. I am thus not dealing with the judgment of the Supreme Court relied upon by both parties on the issue of caveatable interest. Since the respondent has not challenged the order on the ground of maintainability of review petition, I need not C

deal with the said issue in this order.

34. In so far as submission of the learned senior counsel that the respondent had already made a separate application for copy of the probate before the learned h

Metropolitan Magistrate which proceedings are stayed by this court, learned ig

Prothonotary could not have passed an order for issuance of certified copy of the probate proceedings is concerned, a perusal of the record indicates that the application before the learned Metropolitan Magistrate made by the respondent for H

copy of the probate was made after order was passed by the Prothonotary and Senior Master. Be that as it may, the said application was not decided by the learned Metropolitan Magistrate in view of the stay of the proceedings granted by this court. y

In any event, both the proceedings are different. ba

35. It is made clear that the respondent shall use the certified copies of the papers and proceedings in the probate petition only for her personal use in accordance with om

the rule 271 and will not part with copies of such proceedings in favour of any third party. In my view the chamber summons is devoid of any merits and deserves to be rejected. I therefore pass the following order:- B

36. Chamber summon is dismissed. There shall be no order as to cost. The learned learned Prothonotary and Senior Master to act on authenticated copy of this order. ::: Downloaded on – 30/07/2014 23:49:56 ::: hvn 17 CHAMBER SUMMON NO 36 of 201004.sxw

37. Dr. Saraf, learned counsel appearing for the applicant seeks continuation of the rt

ad interim order passed by this court which is opposed by the learned counsel appearing for the respondent. Application for continuation of stay is refused. ou

(R.D. DHANUKA, J.)

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