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2017 Supreme(Bom) 1587
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Purshottam Vasudev Nagpal – Petitioner
Versus
Rani Lalchand Kalro & Others – Respondents
Miscellaneous Petition No. 17 of 2013
Decided On : 10-10-2017
For the Petitioner:U.J. Makhija i/b Thakore Jariwala & Associates, Advocates
For the Respondents:F. Mussa i/b Prakash L. Mahadik, G.R. Joshi, Senior Advocate with Piyush Raheja i/b Federal & Rashmikant, F. Behram Kamdin, Bhansali i/b FZB & Associates, Advocates
Headnote:
The petitioner filed a petition under Section 263 of the Indian Succession Act, 1925, seeking revocation of the probate granted to the respondent no.1 in respect of the will of the deceased. The petitioner claimed to be the son of the deceased's sister and alleged that the respondent no.1 was not the legally adopted daughter of the deceased. The respondent no.1 contested the petition and claimed that she was the legally adopted daughter of the deceased.
Fact of the Case:
The deceased died issueless on 7th May, 2008, leaving behind a substantial estate. The respondent no.1 filed a testamentary petition for grant of probate in respect of the will of the deceased. The petitioner filed objections to the grant of probate, alleging that the respondent no.1 was not the legally adopted daughter of the deceased and that the will was not validly executed. The court framed issues on the following questions: 1. Whether the petitioner proves that the probate granted to the alleged will dated 3rd November, 2004, was not validly and properly granted for the reasons and on the grounds set out in paragraph no.30 of the Miscellaneous Petition? 2. Whether the respondent no.1 proves that she was legally adopted daughter of the said deceased? 3. Does the petitioner prove that he has a caveatable interest and the necessary locus to file the instant petition?
Finding of the Court:
The court held that the petitioner did not have a caveatable interest and the necessary locus to file the petition for revocation of probate. The court also held that the respondent no.1 had proved that she was the legally adopted daughter of the deceased. The court further held that the will was validly executed and that the probate granted to the respondent no.1 was valid.
Issues: 1. Whether the petitioner proves that the probate granted to the alleged will dated 3rd November, 2004, was not validly and properly granted for the reasons and on the grounds set out in paragraph no.30 of the Miscellaneous Petition? 2. Whether the respondent no.1 proves that she was legally adopted daughter of the said deceased? 3. Does the petitioner prove that he has a caveatable interest and the necessary locus to file the instant petition?
Ratio Decidendi: The court held that the petitioner did not have a caveatable interest and the necessary locus to file the petition for revocation of probate because he was not a legal heir of the deceased and did not fall within the class of persons who are entitled to file such a petition. The court also held that the respondent no.1 had proved that she was the legally adopted daughter of the deceased by producing evidence of her adoption, such as photographs of the adoption ceremony and affidavits from witnesses who were present at the ceremony. The court further held that the will was validly executed and that the probate granted to the respondent no.1 was valid because the will was signed by the deceased in the presence of two witnesses and the witnesses had attested the will in the presence of the deceased.
Final Decision: The petition for revocation of probate was dismissed.
1. By this petition filed under section 263 of the Indian Succession Act, 1925, the petitioner has prayed for revocation and cancellation of the original grant of Probate dated 29th September, 2010 with the Will annexed and seeks a direction against the respondent no.1 to deposit the said Will and the grant of Probate dated 29th September, 2010 with the learned Prothonotary & Senior Master of this Court and for other relief’s.
2. This Court framed the following issues:-
| Sr.No. | Issues | Findings |
| (1) | Whether the Petitioner proves that the probate granted to the alleged Will dated 3rd November, 2004 was not validly and properly granted for the reasons and on the grounds set out in paragraph 30 of the Miscellaneous Petition? | No |
| (2) | Whether the Respondent no.1 proves that she was legally adopted daughter of the deceased? | Yes |
| (3) | Does the Petitioner prove that he has a caveatable interest and the necessary locus to file the instant Petition? | No |
| (4) | What orders? | As per order |
3. The petitioner is a son of the sister of the deceased late Sattabai Lakhmichand Chhabria, who expired at Mumbai on 7th May, 2008 (hereinafter referred to as the 'said deceased'). It is the case of the petitioner that since the respondent nos.2 and 3 are claiming to be entitled to a portion of the estate of the said deceased i.e. Sattabai Lakhmichand Chhabria, they are impleaded as necessary parties to the petition. It is the case of the petitioner that since the respondent no.4 society is illegally threatening to transfer the flat in question which belonged to the said deceased, the said society has been impleaded as the respondent no.4 to the petition. It is the case of the petitioner that he was a constituted attorney of the said deceased under a General Power of Attorney, which was executed in the year 1996 and was registered with the Reserve Bank of India. The said General Power of Attorney was executed in favour of the petitioner by the said deceased being the maternal aunt of the petitioner and also on account of proximity and trust, the said deceased executed the said General Power of Attorney in favour of the petitioner. It is the case of the petitioner that the said deceased died issueless. The respondent no.1 is neither the daughter nor adopted daughter of the deceased. According to the petitioner, the said deceased died intestate leaving behind no testamentary writing or Will and did not find any Will or testamentary writing of the said deceased inspite of due and diligence search taken by the petitioner.
4. The petitioner, however, was informed by Mr.Ramesh Baldev Gwalani through his Advocate's letter dated 20th June, 2008 in respect of the said Will dated 3rd November, 2004. A copy of the said alleged Will was handed over to the petitioner and the respondent no.1 along with the said letter dated 20th June, 2008. On 7th May, 2008, the said deceased expired. Some time in the year 2009, the respondent no.1 filed testamentary petition (139 of 2009) inter-alia praying for Letter of Administration to the property and credits of the said deceased with the Will annexed. The respondent no.1 filed the supporting affidavits of other persons, including the alleged witnesses to the said alleged Will dated 3rd November, 2004.
5. It is the case of the petitioner that the name of another sister of the deceased was though initially mentioned as the legal heir and next of kin of the said deceased in the petition, pursuant to an objection raised by the office of this Court, the name of the said sister of the said deceased was deleted from the petition. The name of the brother in law of the deceased was however, included by carrying out an amendment to the testamentary petition.
6. On 9th February, 2010, this Court granted a Probate in favour of the respondent no.1. Mr.Makhija, learned c
