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High Court of Judicature at Bombay
R.D. DHANUKA, J.
Peter John D'Souza & Others
Versus
Armstrong Joseph D'souza
Misc. Petition No. 69 of 2012 & Misc. Petition No. 5 of 2013 in T. Petition No.722 of 2010
Decided on: 28-03-2014
Succession Act, 1925 - Section 263 Petition for grant of/revocation of letters of administration. Testamentary Court, cannot decide issue of title in respect of property of deceased in petition for letters of administration. A party who has no caveatable interest or even a slightest interest in the property of the deceased and a party who claims interest adverse to the interest of the deceased testator cannot maintain a caveat. The Testamentary Court does not decide the title in respect of the property of a deceased. But insofar as the claim of the petitioners that they have interest in some of the properties which were the subject-matter of the petition for letters of administration and those letters of administration could not have been granted is concerned, the Court cannot decide such an issue of title in this petition for revocation nor has decided the issue of title in the petition filed for letters of administration by the respondent. Such issues can be adjudicated by a Civil Court.
Succession Act, 1925 - Section 263 Explanation (b)(c) Grant of letters of administration. If Court comes to conclusion that grant of letters of administration is obtained by practicing fraud, fabrication or concealment, Court can set aside such grant. There was no specific bequest in the Will of the deceased in respect of the plots, in which the petitioners claim interest, the petitioners cannot be even allowed to urge and bring to the notice of the Court the fact of fraud, fabrication or ’concealment. Court can take cognizance of the allegation of fraud, fabrication or concealment even at the instance of a party who claims even a slightest interest in the property of the deceased.
Once the allegation of fraud, fabrication or concealment is brought to the notice of the Court, which is alleged to have been committed by the opposite party for obtaining letters of administration from a Court, it becomes the duty of the Court to look into such allegation whether any grant of letters of administration is obtained by a party from the Court by practicing fraud, fabrication or concealment. The Court can take cognizance of such allegation suo moto and if it comes to the conclusion that the grant is obtained fraudulently or by making false suggestion or by concealment of such fact, it is duty of Court to set aside such grant.
1. Both these petitions were heard together and are being disposed of by this common order.
2. Both these petitions are filed under Section 263 of the Indian Succession Act, 1925 (for short, “the Act”) for setting aside the grant of letters of administration issued by this Court on 31-3-2011 in Petition No.722 of 2010 in favour of the respondent on various grounds.
3. The petitioners in both the petitions claim certain rights in respect of few properties described in the Schedule appended to the petition for letters of administration filed by the respondent in this Court in respect of the estate of deceased Triza Domnic D'souza. The respondent claims to be the grandson of the said deceased.
4. Both the petitioners have urged before this Court that the grant obtained by the respondent is liable to be revoked on the just cause under Section 263(a), (b) and (c) r/w Illustrations (v) and (vi) to Section 263 of the Act. Mr. Korde, learned senior counsel appearing for the petitioners in Miscellaneous Petition No.69 of 2012 and Mr. Damle, learned counsel appearing on behalf of the petitioners in Miscellaneous Petition No.5 of 2013 submit that to the knowledge of the respondent the said deceased had left a Will dated 23-2-1966. The learned counsel invited my attention to the averments made in Testamentary Petition No.722 of 2010 filed by the respondent in this Court and in particular paragraph 3 thereof.
5. In paragraph 3 of the said petition, the respondent has averred that the said deceased died intestate and due and diligence search had been made for a Will but none had been found. On the premise that the said deceased died intestate and had not executed a Will, the respondent, who is the grandson of the said deceased, in the said petition prayed for letters of administration in respect of the estate of the said deceased. There was no opposition to the said petition. This Court accordingly issued a grant, i.e. the letters of administration in favour of the respondent in respect of the said deceased on 31-3-2011.
6. My attention is also invited by the learned counsel to the affidavit in rejoinder filed in Miscellaneous Petition No.69 of 2012 and the averments made in Testamentary Petition No.722 of 2010 in support of the submission that the petitioners have annexed a copy of the said Will executed by the said deceased in the year 1966, which was a registered Will and the respondent having suppressed the existence of the said Will of the said deceased and by making a false and incorrect statement before this Court obtained the letters of administration. The learned counsel also invited my attention to copy of a Power of Attorney annexed to the compilation of documents which refers to the said Will and the said Power of Attorney has been signed by the respondent also. My attention is also invited to the averments made in the sur-rejoinder filed by the respondent on 21-3-2014 and in particular paragraph Nos.7 and 8 thereof in support of the submission that the respondent does not dispute that the said deceased had left a Will dated 23-2-1966.
7. The learned counsel, therefore, submit that since the respondent had made a false suggestion and had concealed from this Court the fact that the said deceased had left a Will and made a false statement that the said deceased died intestate and based on such untrue allegations of fact essential in point of law to justify the grant, such grant is liable to be revoked. Reliance is also placed on illustrations (v) and (vi) to Section 263 of the Act in support of the submission that since it is not in dispute that the said deceased had left a Will, on that ground alone the grant can be revoked under Section 263 of the Act.
8. Mr. Kumbhakoni, the learned senior counsel appearing on behalf of the respondent, on the other hand, raises issue of maintainability of these petitions on the ground that the petitioners in both the matters were admittedly not the legal heirs of the said deceased and di
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