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2012 Supreme(Bom) 1389
High Court of Judicature at Bombay
ROSHAN DALVI
Dr. Devika Damji Shah
Versus
Rashmi Mukesh Shah & Another
Notice Of Motion No. 72 of 2012 In Suit No. 843 of 2003 & Misc. Petition No. 58 of 2012 In Testamentary Petition No. 917 of 2009
Decided on : 27-07-2012
For the Plaintiff:Ms. Mahek Bookwala a/w. Ms. Smita Sawant a/w Bilawala i/b Bilawala & Co., Advocates.
For the Defendants:D1 -Rajesh Shah a/w Vipul Shukla, D2 -Ms. Mili Thakkar a/w Rajan V. Thakkar, Advocates.
Headnote:Succession Act, 1925 - Section 2(f) - Probate - A probate means a copy of Will, certified under seal of Court of competent jurisdiction with a grant of administration to estate of testator.
Under Section 2(f) of the Succession Act, 1925 a probate means a copy of the Will certified under the seal of the Court of competent jurisdiction with a grant of administration to the estate of the testator. In this case the Will of the deceased is not certified under the seal of Dubai Court as a Court of competent jurisdiction granting the probate. It is not accompanied by a grant of administration to the estate of the deceased. It is only an order granting and allowing transfer of the estate of the deceased to be executed as per the Will of the deceased. Therefore, the grant, if any, of the Court of Cassation in Dubai is not valid in law and cannot be acted upon.
Succession Act, 1925 - Section 2(f) - CPC, Section 13 - Grant of probate by a Foreign Court. A judgment stated to be a probate granted by a Foreign Court, would came within purview of Section 13 of CPC as any other foreign judgment.
Succession Act, 1925 - Sections 2(f) and 263 - Probate.
A private is a judgment in rem and would be presumed to have been obtained in accordance with law and accordingly conclusive on its validity.
A probate is a judgment in rem and would be presumed to have been obtained in accordance with the procedure prescribed by law and would be good against the whole world and accordingly conclusive on its validity so that it would be operative even against outsiders and third parties who, would be bound by the probate and would not be entitled to challenge or to go behind the grant. This however is provided the grant is made by a Court competent to pronounce such a judgment in rem and has not be revoked under Section 263 of the Succession Act.
Succession Act, 1925 - Section 63 - Evidence Act, Section 68 - Proof of execution of Will - Execution of Will by proof of testator in presence of attesting witnesses and attesting witnesses, attesting will in presence of testator being a matter of substance, would be as lex causae. - How a Will is to be executed is a matter of substantive law set out in Section 63 of the succession Act and statutorily accepted in Section 30 of the Hindu Succession Act. Hence the requirement that atleast one attesting witness is called for proving the execution of a Will under Section 68 of the Evidence Act or if no such attesting witness is found, the proof that the attestation of one attesting witness is in his handwriting as required by Section 69 of the Evidence Act may be a matter of procedure.
However the factum of execution of the Will and its attestation which by the same would have to be proved is not a matter of procedure but of substance. Whereas the proof by one attesting witness or any other witness may be guided lex fori, the fact that the execution of the Will by the proof of the testator affixing his signature in the presence of the attesting witnesses and the attesting witnesses attesting the Will in the presence of the testator, being the matter of substance, would be as per lex causae.
That aspect would, therefore, be governed by Section 63 of the Succession Act arid no other provision. How the validity of the Will is proved may be governed by the law of the country where the Will is sought to be probated.
Key Points: - Probate means a copy of the Will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator (!) . - Execution of a Will must comply with mandatory provisions under Section 63 of the Indian Succession Act, including signature and attestation by two witnesses (!) . - A foreign judgment granting probate is not conclusive under Section 41 of the Indian Evidence Act if it is in breach of Indian law or does not recognize applicable Indian law (!) (!) .
What is a probate under the Indian Succession Act?
What are the requirements for a valid will under Indian law?
Is a foreign court judgment granting probate conclusive in India?
1. This Notice of Motion is taken out by defendant No.1 for dismissal of the suit and release of the assets of the deceased whose estate is being administered. The deceased was one Dr. Mukesh Ramji Shah. The plaintiff is the mother of the deceased (mother). Defendant No.1 is the wife of the deceased (wife). Defendant No.2 is the son of the deceased (son). All these parties are the heirs and legal representatives of the deceased under Section 8 of the Indian Succession Act. The mother has sued for claiming her 1/3rd share in the estate of the deceased and for that purpose prayed for declaration that the will of the deceased dated 19th February, 2002 and two joint declarations dated 16th August, 2001 are illegal and void and accordingly for administration of the estate of the deceased as on intestacy, making accounts, and giving her share.
2. The will of the deceased was sought to be probated by his wife as the guardian of his son who was the sole legatee under the will. The will was executed in Mumbai. However the deceased as well as his wife and son were resident in Dubai, UAE. The will was sought to be probated there. After initial rejections on the ground that such a will could not have made under a Sharia law, the Court of Cassation in Dubai, which is the Apex Court in that country, has passed an order which has granted the administration of the movable and immovable assets of the deceased to his minor son. The wife claims that that is the probate of the will granted by the Court of Cassation in Dubai.
3. The wife has thereafter filed a petition under Section 228 of the Indian Succession Act for an ancillary probate in respect of the estate of the deceased in Mumbai, India. Since the will of the deceased was proved and deposited in the Court in Dubai and an authenticated copy of the will was produced for the grant of Letters of Administration with the authenticated copy of the will proved abroad, this is separately obtained and may be separately challenged by the mother.
4. The son has attained majority. However the wife has applied for dismissal of this suit upon the ground that the will of the deceased is probated by the Competent Court in Dubai, UAE. A petition for obtaining ancillary grant also for the administration of the properties of the deceased in India has also been filed.
5. It is contended on behalf of the petitioner that the probate of the Court in Dubai is conclusive proof of the probate under Section 41 of the Indian Evidence Act, 1872 which runs thus:
41. Relevancy of certain judgments in probate, etc., jurisdiction. A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Such judgment, order or decree is conclusive proof-that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, [order or decree] declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, [order or decree] declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, [order or decree] declares that it had been or should be his property.
6. It may at once be mentioned that the contention that the probate becomes so conclusive as a judgment in rem as would not come up for challenge at any time is only par
