The explanations under Section 263 of the Indian Succession Act, 1925 are illustrative, allowing for revocation of probate based on just causes not explicitly listed.

ORDER :

Manish Pitale, J.

In the light of the submissions made by the learned counsel for the rival parties, as also certain judgments of this Court passed by learned Single Judges and in view of the importance of the questions involved, this Court is inclined to invoke Rule 28(C) of the Bombay High Court (Original Side), Rules, 1980, to formulate questions for decision by a Larger Bench and in that backdrop to place the papers of this case before the Hon'ble the Chief Justice.

2. Before adverting to the rival contentions and the questions arising in the present petition, a brief reference to the chronology of events would be appropriate.

3. Testamentary Petition No. 109 of 2021 was filed by the respondent for grant of Probate of a Will allegedly executed on 03rd March, 2020, by the deceased Rajesh Chowdhary. The aforesaid Rajesh Chowdhary died in Ecuador on 25th July, 2020, having committed suicide. This is evident from the copy of the death certificate placed on record with the testamentary petition, wherein the cause of death is recorded as suffocation by means of hanging. On 09th December, 2020, the respondent filed the aforesaid testamentary petition for grant of probate. On 20th May, 2021, the petitioner filed caveat and his affidavit in support of the caveat. The caveat was allotted lodging number 11828 of 2021. By an order dated 19th December, 2022, delay in filing the caveat and affidavit in support was condoned. On 03rd August, 2023, the Prothonotary and Senior Master of this Court granted the petitioner / caveator last chance to remove office objections, within four weeks in respect of the caveat, so that it could be numbered, failing which the caveat was to stand rejected under Rule 986 of the aforesaid Rules.

4. The advocate for the petitioner / caveator failed to remove the office objections, as a consequence of which, by operation of the said order, the caveat stood dismissed. On 10th November, 2023, the Additional Prothonotary and Senior Master of this Court noted that caveats of some of the caveators, including that of the petitioner, stood dismissed due to nonremoval of office objections and the only remaining caveat was withdrawn. On this basis, the petition was granted and the office was directed to issue probate.

5. On 01st January, 2023, the petitioner filed Interim Application (Lodging) No. 34288 of 2023, for restoration of his caveat, but in the meanwhile the office issued the grant. In this backdrop, the petitioner filed the present miscellaneous petition for revocation of the grant and thereupon, on 14th February, 2024, the petitioner withdrew the aforesaid application for restoration of his caveat.

6. Ms. Yashhvi Panchal, learned counsel appearing for the petitioner submitted that in the present case, the petitioner (original caveator) was invoking Section 263(a) of the Indian Succession Act, 1925 (hereinafter referred to as the "Succession Act.") for revocation of the probate granted in favour of the respondent. It was submitted that the deceased had died in suspicious circumstances, having committed suicide in Ecuador. It was submitted that the affidavits of the two attesting witnesses themselves stated that while the subject Will was signed and executed by the deceased - testator in Ecuador, the attesting witnesses had signed on the same in India when the subject Will, bearing only the signature of the deceased testator, was sent from Ecuador to India. It was submitted that therefore, the grant could be said to be defective in substance.

7. It was further submitted that the mandatory requirement of Section 63 of the Succession Act, was not satisfied in as much as the attesting witnesses had not signed the Will in the presence of the testator. Therefore, the grant ought to be revoked. It was further submitted that in the present case, although the delay in filing the caveat and affidavit in support thereof was condoned, due to default and mistake on the part of the advocate representing the petitioner (ori