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High Court of Judicature at Bombay
R.D. DHANUKA, J.
Lydia Agnes Rodriques Nee D'Cunha & Others
Versus
Joseph Anthony D'Cunha & Others
Misc. Petition No.86 of 2013, In Petition No.851 of 1979
Decided On : 14-10-2013
The petitioners cannot just simply take an excuse of lack of knowledge of the alleged fraud without taking any reasonable steps or acting with reasonable diligence to ascertain such facts. In my view, the petitioners would have deemed knowledge of filing of such petition by the executor and issuance of grant by this Court. Limitation in this case thus would commence on the date of issuance of grant by this Court which was in the year 1980 and would not commence in the year 2012 when public notice was issued by the respondents in the newspaper.
Petitioners have neither able to make out any case that the said executor or the respondents have committed any fraud or forgery as alleged in obtaining probate nor have proved that the petitioners in spite of reasonable and due diligence could not find out the ’fraud alleged to have been committed by the executor or by any other party. In my view, the petition is thus barred by law of limitation. Petitioners have not made out any just cause prescribed in Section 263 of Indian Succession Act, 1925. Petition is devoid of merits. I, therefore pass the following order.
(a) Miscellaneous petition is dismissed. No order as to costs.
(b) In view of dismissal of petition, notice of motion does not survive and is disposed of accordingly.
1. By this petition, petitioners seek revocation of probate granted by this Court on 3rd July 1980 in favour of Mr. Joseph Anthony D'Cunha in respect of the Will and testament of Mr. Andrew Satiro D'Cunha (herein after referred to as the said deceased).
2. Petitioner Nos.1 and 2 are the aunts of petitioner Nos.3 to 6 and the respondents. Petitioner No.7 is the widow of Mr. Patrik Edwin Anthony D'souza, the deceased nephew of petitioner Nos.1 & 2. The said deceased expired on 20th August 1977 leaving behind three daughters and two sons namely petitioner Nos.1 & 2 and their siblings Mr. s. Annie D'souza, Mr. Joseph D'Cunha & Mr. Edwin D'Cunha as his heirs under the Indian Succession Act 1925 by which he was governed. Mr. s. Annie D'Souza expired on 5th July 1993 and is survived by petitioner Nos.3 to 6. Petitioner No.7 is the widow of Mr. Patrik Edwin Anthony D'Souza, one of the sons of Mr. s. Annie D'Souza. Mr. Joseph D'Cunha expired on 17th April 2004 and is survived by his children who are respondents to this petition. Mr. Edwin D'Cunha widower expired intestate and issueless at Goa on 7th November 2002.
3. There is no dispute that the deceased had left a Will dated 20th February 1971 bequeathing his house 'Villa Bemvinda' to his son Joseph. Petitioners were admittedly aware of the said Will left by the said deceased which is probated. It is the case of the petitioners that the petitioners came to know about public notice dated 14th December 2012 appearing in Free Press Journal dated 22nd December 2012 stating that the respondents had agreed with some undisclosed developers to jointly develop the property of the said deceased situated at Bandra. The petitioners through their Advocate, sent reply to the said public notice on 2nd January 2013 as heirs of the said deceased and claimed undivided 4/5th share in the said property and objected to the respondents dealing with the said property without prior consent of the petitioners. Petitioners called upon advocate of the respondents to disclose the identity of his clients and instruct them not to deal with the said property through the respondents. By letter dated 18th January 2013, the respondents and the proposed developers replied to the letter dated 2nd January 2013 and informed the petitioners that the said deceased had left a Will dated 20th February 1971 and had bequeathed the said property to the respondents absolutely. The petitioners were also informed that this Court had granted probate of the said Will in Petition No.851 of 1979 on 3rd July 1980. The respondents denied the allegations made by the petitioners.
4. The petitioners vide their Advocate's letter dated 12th February 2013 informed the Advocate of the respondents that the petitioners were aware that the said deceased had left a Will dated 20th February 1971 bequeathing the house 'Villa Bemvinda' to his son Joseph in the manner more particularly set out therein with a condition that in the event of the house being sold, the sale proceeds after deducting the expenses, should be divided into six shares, two of which should go to Joseph and the other children one share each. Petitioners alleged that they had grave doubts about the authenticity of the said Will and the circumstances under which the same was obtained however, had no occasion to place on record their objections to the same as no citation of any testamentary petition was served on them nor were they informed of any petition being filed. It was alleged that the said Will dated 20th February 1971 was never acted upon and no citation of any petition for probate was served upon the petitioners thereafter and therefore the petitioners had presumed that their brother/uncle, Joseph D'Cunha had disregarded the said Will.
5. It is the case of the petitioners that petitioners thereafter took inspection of papers and proceedings in the testamentary department of this Court and came across an affidavit dated 1st September 1979 purported to be signed by lat
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