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High Court of Judicature at Bombay
R.D. DHANUKA, J.
Mukesh Ramanlal Gokal & Another
Versus
Ashok Jagjivan Gokal
Miscellaneous Petition No. 54 of 2012 In Petition No. 733 of 2007
Decided On : 11-10-2013
Probate - Amendment of Probate - Hindu Succession Act, 1956 - Rule 304 of the High Court (Original Side) Rules - Section 152 of the Code of Civil Procedure - Indian Succession Act, 1925, Section 261 - Limitation Act, 1963, Article 137
Fact of the Case:
The petitioners sought setting aside of the orders permitting the respondent to amend the probate granted by the court and dismissal of the application for amendment. The deceased left a will and codicil, and the respondent, one of the executors, filed a probate petition. The petitioners alleged misapplication of the deceased's property and filed a complaint against the respondent. The respondent sought amendment to the probate, which was granted by the Prothonotary, and the petitioners sought to set aside these orders.
Finding of the Court:
The court found that the respondent's amendment application was made after three years from the date of the grant of probate, and thus barred by the law of limitation. The court also found that the amendment sought by the respondent was of a substantial nature and would affect the rights of the beneficiaries. The court held that the Prothonotary and Senior Master had no power to grant such an amendment, and the amendment was unsustainable and set it aside.
Issues: The issues included the validity of the respondent's amendment application, the court's power to grant such an amendment, and the application's compliance with the law of limitation.
Ratio Decidendi: The court held that the respondent's amendment application was time-barred and that the Prothonotary and Senior Master had no power to grant such an amendment. The court also found that the amendment sought by the respondent was of a substantial nature and would affect the rights of the beneficiaries.
Final Decision: The court set aside the orders permitting the respondent to amend the probate and rejected the respondent's amendment application. The court directed the respondent to submit the original probate for deletion of the amendment and directed the Prothonotary and Senior Master to delete the amendment from the probate and petition.
By this petition, petitioner seeks setting aside of the orders dated 4th August, 2011 and 6th August, 2011 passed by the Prothonotary and Senior Master permitting the respondent to amend probate granted by this court on 13th December, 2007 and seeks dismissal of the application for amendment made by the respondent dated 4th August, 2011. Some of the relevant facts for the purpose of deciding this petition are as under :
2. Petitioners along with Mrs. Meena Rajani, Shailesh Gokal and Mrs. Sushila Gokal are the legal heirs of Mr. Ramanlal Gokal as per Hindu Succession Act, 1956 who expired on 22nd March, 2007 (hereinafter referred to as the said deceased). The deceased had left will dated 25th January, 2005 and codicil dated 28th June, 2006. Respondent was one of the executors named in the said Will and testament of the deceased on 25th January, 2005. On demise of the said deceased, respondent being one of the executors, of the Will filed Probate Petition (733 of 2007) for grant of probate of the Will and Codicil in this court. The respondent filed schedule of assets along with the said testamentary petition. One of the properties of the deceased which was described at Item No. 2 of the said schedule of assets filed along with the testamentary petition is extracted as under :
Merchantile Corporation 2nd Floor = 2200 sq. ft. 6th Floor = 2000 sq. ft. Mercantile House, Reay Road, Mumbai.
50.00%
Current a/c. No. 0001201401682 Bank of India Main Branch, Mumbai 400 023
3. The respondent thereafter amended the said schedule of assets. As far as item No. 2 in the original schedule of assets which was in respect of the Mercantile House is concerned, the same was amended as under:
“Owner of Mercantile House situated at Magazine Street, Basement Ground plus six floors, Reay Road, Mumbai with its attendant assets and its right, title and interest in Mercantile House for the valuation of Rs.40,32,08,000/.” The above property fetches no rent.
4. The petitioners filed consent affidavits and did not raise any objection to grant of probate. The other heirs of the deceased also filed similar consent affidavits which were filed along with probate petition. As there was no opposition to grant of probate from any of the legal heirs of the deceased, by an order dated 13th December, 2007, this court granted probate of the said last will and testament along with codicil in favour of the executor. It is the case of the petitioners that by the Codicil dated 28th June, 2006, the said deceased had bequeathed property of Mercantile House in favour of the petitioners. It is the case of the petitioners that since respondent and another executor had misapplied the property of the deceased and did not comply with the directions of the testator as per the said will and codicil properly, petitioners filed complaint dated 22nd February, 2011 and 8th April, 2011 to the Commissioner of Police against respondent. On 4th August, 2011 respondent submitted affidavit in this court for the purpose of amendment in the probate. In the said affidavit dated 4th August, 2011, respondents placed reliance on paragraph 11 of the Will dated 26th January, 2005 which reads as under:
“11 (a) : My share and entitlement in the firm M/s. Mercantile Corporation”.
The respondent sought amendment to item No.2 of the schedule as under :
“The deceased's share and entitlement in the Mercantile Corporation situated at Magazine Street, Reay Road, Mumbai.”
5. The Additional Prothonotary & Senior Master raised four objections on such affidavit/application for amendment filed by the respondent on 4th August, 2011 which are as under :
“(1) Copy of the Affidavit to be furnished to the Superintendent of stamps and Receipts to be produced.
(2) Consent Affidavit of all legal heirs to be filed.
(3) Affidavit of other legal executors to be filed.
(4) Original Grant submitted for amendments. For orders.”
6. On 4th August, 2011, Additional Prothonotary and Senior Master considered the request of
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