Analysis of Delay in Filing Affidavit in Support of Caveat in Indian Probate Proceedings

The Procedural Imperative: Analyzing Delays in Filing Affidavits in Support of Caveats under Indian Law

Introduction

In the realm of testamentary and succession law in India, the caveat serves as a crucial procedural tool for persons having an interest in the estate of a deceased to ensure that no grant of probate or letters of administration is issued without due notice to them. While the filing of a caveat initiates an objector's intent to contest, it is the subsequent filing of an affidavit in support of the caveat that substantiates the objections and converts a non-contentious proceeding into a contentious suit. The procedural rules, particularly the Original Side Rules of various High Courts, meticulously prescribe timelines for these filings. This article undertakes a scholarly analysis of the legal principles governing the delay in filing an affidavit in support of a caveat, drawing upon statutory provisions and judicial pronouncements primarily from Indian High Courts and the Supreme Court. It examines the mandatory nature of these timelines, the consequences of non-compliance, and the scope of judicial discretion in condoning such delays.

The Caveat Mechanism and the Supporting Affidavit

A caveat, in the context of probate proceedings, is a formal warning lodged by a person claiming an interest in the estate of the deceased, requesting the court to refrain from granting probate or letters of administration without first hearing the caveator. While Section 148-A of the Code of Civil Procedure, 1908 (CPC) provides for caveats in civil proceedings generally, caveats in testamentary matters are specifically governed by the Indian Succession Act, 1925, and the rules framed by various High Courts, such as their Original Side Rules.

Purpose and Nature of a Caveat

The Supreme Court in Krishna Kumar Birla v. Rajendra Singh Lodha And Others (2008 SCC 4 300) extensively discussed the concept of 'caveatable interest,' emphasizing that a caveator must demonstrate a legitimate and substantial interest in the estate to be entitled to lodge a caveat. The mere fact of being a relative is not sufficient; the interest must be such that the caveator would be deprived of a benefit or suffer a prejudice if the will were probated without contest.

It is pertinent to note the distinction sometimes drawn between a caveat filed under Section 148-A CPC and one filed under the specific testamentary rules of a High Court. In Ct. Ramasamy v. Sp. Kaveri Achi (2002 SCC ONLINE MAD 714), the Madras High Court observed arguments suggesting that a caveat under CPC might not be considered a proper caveat in probate proceedings governed by Original Side Rules, though the court proceeded to analyze the matter under its specific rules.

The Requirement and Content of an Affidavit in Support

The filing of a caveat is merely the first step. To give substance to the objections, the caveator is invariably required to file an affidavit in support. This affidavit is crucial as it sets out the caveator's right and interest in the estate and the specific grounds upon which the grant of probate or letters of administration is opposed. This requirement is embedded in the procedural rules of High Courts.

  • The Madras High Court Original Side Rules, Order XXV, Rule 52, mandates that where a caveat is entered after an application for grant, "the affidavit in support of the caveat shall be filed within eight days of the caveat being filed. Such affidavit shall state the right and interest of the caveator and the grounds of the objections to the application" (Ct. Ramasamy v. Sp. Kaveri Achi (2002 SCC ONLINE MAD 714); N. Sthirasundari & Another v. V. Kalyani & Others (Madras High Court, 2013)).
  • Similarly, the Calcutta High Court Rules, as noted in Krishna Kumar Birla v. Rajendra Singh Lodha And Others (Supreme Court Of India, 2008, referencing Calcutta HC Rules), Rule 25 (or Rule 26 concerning notice to file affidavit if probate application is filed after caveat) stipulates the filing of an affidavit in support. The Supreme Court in Yash Vardhan Mall v. Tejash Doshi (Supreme Court Of India, 2017) referred to Rule 25 of the (presumably Calcutta) High Court Rules, stating, "Affidavit in support of caveat.—Where a caveat is entered after an application has been made for a grant of probate or letters of administration... the affidavit or affidavits in support shall be filed within eight days of the caveat being lodged... Such affidavit shall state the right and interest of caveator, and the grounds of the objections to the application."
  • The Bombay High Court (Original Side) Rules, 1980, Rule 402, also requires an affidavit in support to be filed within eight days from the date of filing the caveat, stating the right and interest of the caveator and the grounds of objections (Mahesh Atalraikeswani v. Suresh Atalrai Keswani (2013 SCC ONLINE BOM 1019); RAJ KUMAR MITTAL AND 2 ORS. v. RAJESH VENKATESHWAR SOMANI (Bombay High Court, 2017)).

The grounds of objection must be substantive. As observed in RAJ KUMAR MITTAL AND 2 ORS. v. RAJESH VENKATESHWAR SOMANI (Bombay High Court, 2017), "A caveator... cannot seek to oppose the grant of probate or letters of administration without indicating any ground of objection which bears on the question whether the grant should be made or not."

Time Limits for Filing the Affidavit and Consequences of Non-Compliance

Prescribed Time Limits

A consistent feature across various High Court Original Side Rules is the prescription of a specific, often short, period for filing the affidavit in support of the caveat, typically eight days from the lodging of the caveat (Yash Vardhan Mall v. Tejash Doshi (SC, 2017); Ct. Ramasamy v. Sp. Kaveri Achi (Madras HC, 2002); Mahesh Atalraikeswani v. Suresh Atalrai Keswani (Bombay HC, 2013)). Some rules also address scenarios where the probate application is filed after the caveat, requiring the Registrar to notify the caveator to file the affidavit within a similar timeframe from the service of such notice (e.g., Order XXV, Rule 53, Madras High Court Original Side Rules, as cited in N. Sthirasundari & Another v. V. Kalyani & Others (Madras HC, 2013); Rule 26, Calcutta High Court Rules, as cited in Krishna Kumar Birla v. Rajendra Singh Lodha And Others (SC, 2008)).

Consequences of Failure to File or Delayed Filing

The failure to file the affidavit in support within the stipulated time, or at all, carries significant procedural consequences:

  • Caveat rendered ineffective or discharged: Many rules explicitly state that if the affidavit is not filed within time, the caveat shall not prevent the grant of probate or letters of administration, or that the caveat may be discharged. Order XXV, Rule 54 of the Madras High Court Original Side Rules provides that "When the caveator fails to file any affidavit in support of his caveat... the caveat may be discharged by an order of Court" (N. Sthirasundari & Another v. V. Kalyani & Others (Madras HC, 2013)). Rule 402 of the Bombay High Court (OS) Rules similarly states, "If such affidavit be not filed within the prescribed time, the caveat shall not prevent the grant of probate or letter of administration" (Mahesh Atalraikeswani v. Suresh Atalrai Keswani (Bombay HC, 2013)).
  • Matter does not become contentious: The filing of the affidavit is what typically converts the proceedings into a contentious suit. In N. Sthirasundari & Another v. V. Kalyani & Others (Madras HC, 2013), the court noted, "In case, no affidavit is filed within the stipulated period of eight days or no application is filed seeking extension of time for filing an affidavit, the matter never becomes contentious." This was echoed in IN THE GOODS OF DILIP KUMAR ADDY (DEC) v. EEPSITA ADDY -VS- ELA ADDY (Calcutta High Court, 2025), citing N. Sthirasundari.
  • Proceedings treated as uncontested: Consequently, the testamentary petition may be processed as an uncontested matter (Mahesh Atalraikeswani v. Suresh Atalrai Keswani (Bombay HC, 2013); Vasantkumar Maganlal Patel v. Dahiben Vasantkumar Patel (Bombay HC, 2014)).
  • Expiry of Caveat: A critical issue arises if the caveat itself expires before the affidavit is filed or before an application for condonation of delay is considered. In Ct. Ramasamy v. Sp. Kaveri Achi (Madras HC, 2002), the Madras High Court highlighted Rule 56 of Order XXV of its Original Side Rules, which stipulated that a caveat remains in force for six months. The court held that if the caveat expires, it becomes a "dead letter," and an affidavit cannot be filed in support of a non-existing caveat. "When the caveat has no effect on the date of filing the Application... for condoning the delay in filing the affidavit in support of the caveat undoubtedly the caveat has no life... an affidavit in support of such caveat cannot be entertained."

Furthermore, if the caveat itself is fundamentally defective (e.g., not in the prescribed form or filed based on a defective power of attorney), the question of condoning delay in filing an affidavit in support may not even arise, as the underlying caveat is invalid (Vasantkumar Maganlal Patel v. Dahiben Vasantkumar Patel (Bombay HC, 2014)).

Condonation of Delay: Judicial Discretion and Limitations

The question of whether delay in filing the affidavit in support of a caveat can be condoned is subject to judicial discretion, often guided by the specific High Court rules and general principles of procedural law.

The Power to Condone Delay

Courts have generally recognized a power to condone delay, provided sufficient cause is shown and the rules permit such extension. In Premratan Balkrishna Bhabhda v. Madanmohan Narnarayan Bhabhda Caveator (Bombay High Court, 2020), the Bombay High Court acknowledged its power to condone delay and extend time to file a caveat as well as the affidavit-in-support under Rules 401 and 402 of its Original Side Rules. The Bombay High Court in Raintaine Gonsalves, In Re (2018 SCC ONLINE BOM 17486) condoned a delay of three days in filing the affidavit in support, finding the explanation sufficient. Similarly, in Captain Makhan Lal Barua v. Mihika Barua (2013 SCC ONLINE BOM 1173), an application for condonation of delay in lodging the caveat and filing the affidavit was considered.

An interesting perspective was noted in IN THE GOODS OF DILIP KUMAR ADDY (DEC) v. EEPSITA ADDY -VS- ELA ADDY (Calcutta High Court, 2025), where counsel for the caveatrix cited In the Goods of Ganapati Sarkar and Ors Vs. Umarani Bose and Others (AIR 1959 Cal 277) to argue that "if the caveator is unable to give any reason for the delay, the Court can, nevertheless, allow the caveator to contest the Will by filing an affidavit in support of the caveat out of time and to condone the delay." This suggests a potentially broad discretion, though typically courts require "sufficient cause."

Factors Considered for Condonation

When exercising discretion to condone delay, courts consider various factors:

  • Sufficient Cause: The primary consideration is whether the caveator has provided a "sufficient cause" or a reasonable explanation for the delay (Raintaine Gonsalves, In Re (Bombay HC, 2018)).
  • Length of Delay: While not the sole factor, the duration of the delay is relevant. However, as noted in Raintaine Gonsalves, In Re (Bombay HC, 2018), citing a Delhi High Court judgment, "it is not the length of delay which is immaterial... but whether explanation can be accepted or not."
  • Interests of Justice: Courts may lean towards condonation if it serves the broader interests of justice, allowing a genuine contest on merits, provided the delay is not egregious or unexplained (argument noted in Ct. Ramasamy v. Sp. Kaveri Achi (Madras HC, 2002), though not the basis of the decision there).
  • Prejudice to Parties: The potential prejudice to the petitioner (applicant for probate) versus the prejudice to the caveator if the delay is not condoned is also a relevant consideration.

Limitations on Condonation

The power to condone delay is not unfettered:

  • Expiry of Caveat: As decisively held in Ct. Ramasamy v. Sp. Kaveri Achi (Madras HC, 2002), if the caveat itself has expired (e.g., after six months under Madras HC OS Rule 56), an application to condone delay in filing an affidavit for such an expired caveat is not maintainable. The supporting affidavit cannot breathe life into a defunct caveat.
  • Mandatory Nature of Rules: Some courts have emphasized the mandatory nature of these procedural timelines. In Mahesh Atalraikeswani v. Suresh Atalrai Keswani (Bombay HC, 2013), the court, referring to Rule 402 of the Bombay High Court (OS) Rules, stated that its compliance is mandatory, and in the absence of an affidavit in support or a successful application for condonation, the caveat was vacated.
  • Absence of Specific Power: An argument was raised in Ct. Ramasamy v. Sp. Kaveri Achi (Madras HC, 2002) that in the absence of any rule under the Original Side Rules conferring jurisdiction on the court to condone the delay in filing the affidavit, an order condoning delay would be without jurisdiction. While the court found force in other contentions (expired caveat), this highlights a potential jurisdictional hurdle if rules are silent on condonation.
  • Defective Caveat: If the caveat itself is improperly filed or fundamentally flawed (e.g., not in the prescribed Form No. 116 as per Bombay HC OS Rules, or based on a defective power of attorney), the court may hold that such a caveat cannot be acted upon, rendering the question of delay in filing its supporting affidavit moot (Vasantkumar Maganlal Patel v. Dahiben Vasantkumar Patel (Bombay HC, 2014)).

Procedural Integrity and Alternative Remedies

The strict adherence to timelines for filing affidavits in support of caveats underscores the judiciary's emphasis on procedural integrity in testamentary matters. These rules are designed to ensure that probate proceedings are not unduly delayed by frivolous or unsubstantiated objections, and that genuine contests are pursued diligently. The conversion of a petition into a suit upon the filing of a valid affidavit (e.g., Rule 28 Calcutta HC Rules, as per Krishna Kumar Birla v. Rajendra Singh Lodha And Others (SC, 2008); Rule 55 Madras HC OS Rules, as per Petitioner v. Respondent (Madras HC, 2014)) is a significant step that should not be indefinitely postponed.

However, procedural rules are generally intended to be handmaidens of justice. In situations where a caveat becomes ineffective due to a failure to file the supporting affidavit in time, and condonation is not granted or is not possible (e.g., due to an expired caveat), the caveator may not be entirely without remedy. The Madras High Court in Petitioner v. Respondent (2014), following the principles laid down in Ct. Ramasamy v. Sp. Kaveri Achi (Madras HC, 2002), allowed the respondents (original caveators whose earlier attempt was flawed) to file a fresh caveat in the prescribed form and then file an affidavit in support within the prescribed time, so that procedural formalities could be complied with. This suggests that, subject to limitation and other substantive legal principles, a party with a genuine caveatable interest might be able to initiate a fresh challenge by filing a new caveat and diligently complying with the affidavit requirements.

Conclusion

The requirement to file an affidavit in support of a caveat within a prescribed period is a cornerstone of procedural discipline in Indian probate litigation. The High Court Original Side Rules typically mandate this, usually within eight days, and specify that the affidavit must detail the caveator's interest and grounds for objection. Non-compliance can lead to the caveat being rendered ineffective, preventing the matter from becoming contentious and potentially allowing the probate to proceed uncontested. The expiry of the caveat itself, as highlighted by the Madras High Court, poses a significant bar to subsequently validating it with a delayed affidavit.

While courts possess inherent and sometimes rule-based discretion to condone delays upon demonstration of "sufficient cause," this power is exercised judiciously, balancing the need for procedural certainty against the interests of justice. The possibility of filing a fresh caveat, if permissible, offers a pathway for those who may have faltered procedurally but possess a substantive claim. Ultimately, legal practitioners and caveators must exercise utmost diligence in adhering to these timelines to ensure their objections are properly considered by the courts, thereby upholding the integrity and efficiency of the testamentary adjudication process.