The main legal point established is that the limitation period under Article 137 of the Limitation Act, 1963 applies to petitions for revocation of grant of probate. Additionally, the Testamentary Court does not have the power to decide title disputes, and caveatable interest is necessary for maintaining a petition for revocation of grant of probate.

R.D. DHANUKA, J.

1. By this petition filed under section 263 of the Indian Succession Act, 1925, the petitioner prayed for revocation and cancellation of the grant of probate of the purported last Will and Testament of the deceased dated 9th January, 2014 in Testamentary Petition No.1800 of 2014 and seeks direction against the respondent to deposit the original probate with the learned Prothonotary and Senior Master, High Court, Bombay. Some of the relevant facts for the purpose of deciding this petition are as under :-

2. It is the case of the petitioner that the petitioner is the real brother of the deceased Mr.Tejpal Jugilal Podar (hereinafter referred to as the said deceased) who died at Mumbai on 26th January, 2014 leaving behind him the last Will and Testament dated 9th January, 2014. It is the case of the petitioner that at the time of the death of the said deceased along with the petitioner, their respective family members were all jointly residing in the suit property i.e. Radha Niwas, 2nd Dadiseth Cross Lane, Near Babulnath Temple, Mumbai 400 007. It is the case of the petitioner that the suit property was purchased by the father of the petitioner i.e. late Mr.Jugilal Hanumanbux Podar in 1944 from his funds of the joint family.

3. According to the petitioner, for the purposes of convenience and as a matter of practice, the suit property was purchased in the name of the elder son i.e. the deceased vide deed of assignment dated 26th July, 1944 by the father of the petitioner from his personal/joint family funds with the intention of putting the property in common hotchpotch of the family for joint use by all members of the family.

4. It is the case of the petitioner that on 24th September, 2005, the petitioner and the said deceased had executed a written memorandum recording the family arrangement which was entered into between them earlier in the year 2004 and though the said family settlement was only signed by the petitioner and the deceased, it was agreed between the petitioner and the deceased that they shall cause their family members who have right, title and interest in the businesses mentioned in the schedule, to release, relinquish, surrender the same in favour of the other party and/or his family members as per the distribution recorded in the family settlement. It is the case of the petitioner that the petitioner and the said deceased along with their family members acted upon the said family settlement in the manner setout in paragraph (11) of the petition.

5. It is the case of the petitioner that the petitioner came to know about the grant of probate in respect of the purported Will of the said deceased only when the respondent filed a suit bearing no. LE & C Suit No. 128 of 2017 against the petitioner and his son before the Small Causes Court, Bombay for seeking eviction. The petitioner accordingly filed a petition on 22nd January, 2019 inter alia praying for revocation of the said grant of probate issued by this court on 12th June, 2015.

6. Mr.Lohia, learned counsel for the petitioner submits that the petitioner did not have knowledge of the grant of probate till the date of service of the papers and proceedings in LE & C Suit No. 128 of 2017. The matter was argued at length by both the parties.

7. Mr.Cyrus Ardeshir, learned counsel appearing for the respondent raised various issues including the issue of limitation, maintainability of this petition by the petitioner and also the issue that since the Testamentary Court has no power to decide the title in respect of the property in question, no relief of any nature whatsoever can be granted by this court in favour of the petitioner.

8. Insofar as the issue of limitation is concerned, it is submitted by the learned counsel that the grant of probate in this court was issued on 12th June, 2015 whereas the petition for revocation of the said grant has been filed on 22nd January,2019 which is admittedly not filed within the period of three years from