Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Bom) 942

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S.Doctor, J.
Dinesh Madhukar Parshetye – Appellant
Versus
Abhay Shridhar Shetye – Respondent
Miscellaneous Revocation Petition No. 62 of 2021 in Petition No. 1124 of 2012 with Interim Application No. 150 of 2023 in Miscellaneous Revocation Petition No. 62 of 2021 in Petition No. 1124 of 2012
Decided On : 07-02-2023

Advocates appeared:
Rajesh Kachare, Advocate, V.S.R.Singh, Advocate, C.M.Lokesh, Advocate

Fraudulent obtaining of probate by making false statements in the Testamentary Petition is a gross abuse of the process of law and amounts to a nullity.

Headnote:
Revocation of Probate - Indian Succession Act, 1925 - Sec. 263(b) - The court found that the Respondent obtained probate fraudulently by making false statements in the Testamentary Petition. The probate was revoked and directed to be deposited with the High Court. Costs of Rs.25,000 were awarded to the Petitioner.
Fact of the Case:

The Petitioner filed a Miscellaneous Petition seeking revocation of the probate granted in respect of the deceased's Will, alleging that the Respondent obtained probate fraudulently by falsely representing as the only legal heir and next of kin of the deceased.
Finding of the Court:

The court found that the Respondent obtained probate fraudulently by willfully and deliberately making a false declaration in the Testamentary Petition. The probate was revoked and directed to be deposited with the Prothonotary and Senior Master, High Court, Bombay. Costs of Rs.25,000 were awarded to the Petitioner.
Issues: The main issue was whether the Respondent obtained probate fraudulently by making false statements in the Testamentary Petition.
Ratio Decidendi: The court held that the Respondent obtained probate fraudulently by willfully and deliberately making a false declaration in the Testamentary Petition, which sullied the course of justice. Any order obtained by playing a fraud on the Court is a nullity.
Final Decision: The probate was revoked and directed to be deposited with the Prothonotary and Senior Master, High Court, Bombay. Costs of Rs.25,000 were awarded to the Petitioner.

JUDGMENT

1. The present Miscellaneous Petition has been filed for revocation of the probate dtd. 31/3/2016 granted by this Court in respect of the Will dtd. 22/6/1989 of one Malatibai Rajaram Parshetye ("the deceased").

2. Petitioner seeks revocation of probate under Sec. 263(b) of the Indian Succession Act, 1925 ("the said Act") which reads thus:-

"263. Revocation or annulment for just cause---The grant of probate or letters of administration may be revoked or annulled for just cause.

Explanation.-- Just cause shall be deemed to exist where-

(a) .....

(b) the grant was obtained fraudulently by making a false suggestion, or by concealing from the Court something material to the case; or

(d) .....

(e) .....

The main ground on which revocation is sought is that the Respondent had obtained probate fraudulently by falsely representing in Testamentary Petition LGC 2 of 20 3 MPT-62.21&IA-150.23.doc No.1124 of 2012 ("the Testamentary Petition") that the Respondent was the only legal heir and next of kin of the deceased in accordance with the provisions of the Hindu Succession Act, 1956 when in fact:-

(a) the deceased had other legal heirs through the late husband of the deceased (i.e. one Rajaram Appa Parshetye);

(b) the Petitioner was a Class - II legal heir of the deceased as per the provisions of the Hindu Succession Act, 1956;

3. Petitioner in support of his contention that Petitioner is a Class - II legal heir of the deceased has relied upon a family tree (Exhibit-C to the Petition) which shows that the Petitioner is the nephew of the deceased, being the son of one Madhukar Dhondu Parshetye, who is deceased cousin of Rajaram Appa Parshetye (the predeceased husband of the deceased) and is thus a Class - II legal heir of the deceased. The Petition additionally set out (in Exhibit-D to the Petition) that the deceased and the Respondent had other surviving family members through the father of the deceased.

4. In the aforesaid backdrop of facts, Mr. Kachare, Learned Counsel appearing on behalf of the Petitioner invited by attention to the Testamentary Petition and pointed out therefrom that the Respondent i.e. Petitioner in the Testamentary Petition had specifically pleaded therein as follows viz.:-

"Parents of the deceased and parents of the husband of the deceased predeceased the deceased. The husband of the deceased predeceased the deceased. Deceased died as a widow and issueless. The husband of the deceased had no brother and no sister. The deceased had no legal heirs from husband her side. Deceased had only brother viz. Shridhar Tukaram Shetye and no sister. The said Shridhar Tukaram Shetye expired on 14th day of April, 2000. The said Shridhar Tukaram Shetye, brother of the deceased had only son viz. Abhay Shridhar Shetye, the Petitioner herein. The said Shridhar Tukaram Shetye, brother of the deceased had no daughter."

Mr.Kachare submitted that the aforesaid averments; (i) that the husband of the deceased had no brother and no sister; (ii) that the deceased had no legal heirs from her husbands side; (iii) that deceased had only a brother viz. Shridhar Tukaram Shetye and no sister; (iv) that the said Shridhar Tukaram Shetye, had only son viz. Abhay Shridhar Shetye; and (v) that Shridhar Tukaram Shetye had no daughter, were all patently false to the knowledge of the Petitioner herein.

5. In support of his contention that the declaration made in the Testamentary Petition was false to the knowledge of the Respondent, Mr.Kachare invited my attention to the Affidavit in Reply filed by the Respondent to the present Miscellaneous Petition and pointed out therefrom that the Respondent had specifically pleaded therein as follows:-

"I say that Respondent was born on 24/08/1957 herein Bombay and brought up in Mumbai and completed all his education right from his Primary School to Engineering College herein at Mumbai