ILA VIPIN PANDYA versus SMITA AMBALAL PATEL

Citation: [2007] 7 S.C.R. 24 · Decided: 17-05-2007 · Supreme Court of India · Bench: B.P. SINGH · Disposal: Disposed off

Judgment (excerpt)

A 
ILA VIPIN PANDYA 
t-
v. 
SMIT A AMBALAL PATEL 
MAY 17, 2007 
B 
[B.P. SINGH AND HARJIT SINGH BEDI, JJ.] 
Civil Law: 
1--
c 
Testamentary petition filed-Caveat filed opposing grant-Chamber 
summons taken out for dismissal of caveat on the ground that no caveatable 
interest disc/osed-Caveatrix filing affidavit in reply to chamber summons 
disclosing that she is creditor of estate of deceased-Chamber summons 
dismissed-Caveatrix filing suit against legal heirs of deceased and others 
quantifying amount allegedly due _as creditor of deceased-Notice of motion 
D taken out to seek leave of Court to deposit more than the amount claimed 
to the credit of suit to discharge the interest of the caveatrix in the estate 
of the deceased-Caveatrix not alleging any interest other than that of 
creditor in the estate of the deceased-In the facts, notice of motion allowed 
and amount directed to be deposited in full discharge of the said caveatable 
E 
interest and also suit filed by caveatrix disposed of 
Appellant was married to V but the couple divorced and remarried_ before 
the Registrar of Marriages. V died as an intestate and a testamentary petition 
was filed by his widow-appellant, praying for the grant of letters of 
admininstration for the estate of the deceased, V. Respondent, however filed a 
F 
Caveat opposing the grant and also filed an affidavit denying that the deceased 
has died intestate and pointing out that he had executed a Will which had 
+ 
been deposited by him with an Advocate and Solicitor, M, and further that the 
appellant was not the widow of the deceased as no remarriage has taken place 
as alleged. The testamentary petition came to be contested by the Caveat and 
it was converted into Testamentary Suit No. 17of1996. 
G 
The appellant thereafter took out Chamber Summons No. 990of1996 
praying for the dismissal of the caveat on the plea inter alia that no caveatable 
interest had been disclosed in the affidavit and that she as the widow of the 
deceased was bis only heir. The respondent filed an affidavit in reply to the 
-!-
Chamber Summons for the first time disclosing that she was a creditor of 
H 
24 
ILA VIP IN PANDY Av. SMIT A AMBALAL PA TEL 
25 
the estate of the deceased. Single Judge dismissed the Chamber Summon A 
observing that the Caveatrix had disclosed her interest in the estate of the 
deceased by stating that she was a creditor ofVand that creditors ofa deceas~ 
could not be said to have any interest in the estate left by him and the interest 
was limited to ensuring that the assets of the estate were sufficient to pay the 
debts of the deceased and that the remedy of a creditor of a deceased under B 
normal circumstances was to file a suit against the person in whose favour 
the grant of probate or letters of administration had been made but tltat in the 
peculiar facts of the case an outright dismissal of the caveat would not be 
justified. Appellant challenged the rejection before the Division Bench and 
also the Supreme Court but the challenge was rejected by both the Courts. 
Respondent thereafter filed Suit No. 4892of1998 before the Bombay High C 
Court against the appellant and brothers of deceased, V besides others praying 
inter alia that as she was a creditor of the estate of the deceased in the sum 
of Rs. 1,84,80,000/- this amount alongwith interest@21 % p.a. from the date 
of the suit till the payment was released to her and such other sums as were 
due to other creditors be also paid to them or secured in such manners as 
was deemed appropriate and that to secure the safety of the assets, a Court 
Receiver be appointed as well. 
'D 
The appellant thereupon took out Notice of Motion (No. 1207 of 2004) 
seeking leave of the Court to deposit to the credit of Suit No. 4892 of 1998 an 
amount of Rs. 1,20,00,000/ or any amount that the Court may determine, or E 
in the alternative to furnish a bank guarantee, for the said amount. The 
learned Single Judge of Bombay High Court dismissed the notice of motion 
holding that as Chamber Summons No. 990of1996 had already been rejected, 
the issue as to whether respondent had any caveatable interest was no longer 
in dispute. The Single Judge noticed the offer of the appellant who was a 
defendant in Civil Suit No. 4892 of 1998 to deposit not only a sum of Rs. F 
1,84,20,000/- as claimed in Civil Suit No. 4892of1998 but in fact to make a 
deposit of Rs. 2,40,00,000/- which would cover the claim calculating interest 
@ 18% p.a. on the 

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