JUDGMENT - PATIL J.A., J.:This is a petition under section 263 of the Indian Succession Act, 1925 for revocation of the grant of probate made in favour of the respondent in Petition No. 987/2002. The relevant facts necessary for deciding this petition may be briefly stated as under:

2. One Dr. Mrs. Roshan Sam Boyce died intestate at Mumbai on 19th day of November 2001, leaving behind her a sister and two brothers as her only legal heirs. The deceased had made a Will dated 21st June, 1989 under which she had appointed the respondent as sole executor. The respondent is the natural son of the sister of the deceased and according to him, he was adopted by the deceased. The deceased left behind her certain properties including a house called "Villa Hormuzd" situate at 8-A, Carmichal Road, Mumbai-400 026. It appears that the said house was in occupation of one Ramprasad Gupta, who claimed to be the tenant in the said property. The respondent being the sole executor, filed Petition No. 987/2001 for grant of probate. The said petition was opposed by the said Ramprasad Gupta who filed a caveat. The petitioner then took out Chamber Summons No. 431/2002, praying for discharging the caveat filed by the said Ramprasad. This Court by its order dated 13th June, 2002 made the said chamber summons absolute and discharged the caveat filed by the said Ramprasad, holding that he did not have any caveatable interest in any of the properties of the deceased. No appeal was preferred against the dismissal of the said caveat. Consequently, probate was granted in favour of the present respondent as prayed for.

3. The petitioner is the son of the said Ramprasad Gupta and he has filed the present petition for revocation of the said grant on the ground that the purported Will dated 21st June, 1989 set up by the respondent is a forged and fabricated document and that respondent is not entitled to grant of probate upon it. The petitioner has pointed out that his father Ramprasad Gupta was the tenant of the above mentioned house and that he had filed during his life time R.A.D. Suit No. 913/1987 in the Small Causes Court at Mumbai for a declaration of his right as tenant. It appears that the said Ramprasad Gupta died on 27th August, 2002, leaving behind him the petitioner as his sole heir.

4. On behalf of the respondent his constituted attorney has filed his affidavit in reply, wherein it is contended that even assuming for the sake of argument that the Will is fabricated, in that event also as per the law of intestacy and succession, the petitioner will have no interest in the property of the deceased.

5. I have heard Mr. Merchant, learned Counsel for the petitioner and Mr. Madon, learned Counsel for the respondent.

6. Mr. Merchant submitted before me that dismissal of the caveat does not debar the petitioner from filing a petition for revocation of grant of probate. Mr. Merchant drew my attention to the provisions of section 263 of the Indian Succession Act and submitted that grant of probate or letters of administration may be revoked or annulled by the Court for any just cause enumberated in Clauses (a) to (e) of the Explanation to that section. According to him, the present petition falls under Clause (b) of the Explanation which in substance states that just cause shall be deemed to exist where the grant was obtained fradulently by making a false suggestion or by concealing from the Court something material to it. In support of his submission Mr. Merchant relied upon the decision in (Elizabeth Antony v. Michel Charles John)1, A.I.R. 1990 S.C. 1576, in which it was held that party against whom finding has been given that he has no caveatable interest can also invoke section 263. It was observed by the Supreme Court "We must point out that by granting a probate, the Court is not deciding the disputes to the title. Even with regard to a probate granted, it cannot be revoked as provided under section 263 of the Act in any one of the cases mentioned therein. But

Click Here to Read the rest of this document