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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J. JAMADAR
Shaikh Mohammad Azahar Mohammad Gouse – Appellant
Versus
Ishwar Pralhad Dham – Respondent
JUDGMENT :
1. This Revision Application is directed against an Order dated 19th October 2023 passed by the learned Civil Judge, Senior Division, Pune in CMA No. 645 of 2022, whereby an Application (Exhibit “29”) preferred by the applicant-respondent no.2 under the provisions of Order VII Rule 11 of the Code of Civil Procedure 1908 (“the Code”), came to be rejected.
2. Ashok Chokshi (the Testator) was endowed with movable and immovable properties. The Testator passed away on 13th November 2016, purportedly unmarried. Respondent Nos. 3 and 4 herein had preferred an Application for grant of Probate bearing CMA No. 645 of2022, in respect of the purported last Will and Testament of the Testator dated 18th April 2013.
3. The applicant appeared in the said Probate Application and filed a Caveat. In view of the objection to the grant of Probate, the said Application was converted into a Suit being SCS No. 1790 of 2021. Thereupon, the Applicant-Defendant No.9 in the said Suit filed a Say and Counter-claim in the said Suit. The Applicant propounded a purported Will dated 28th October 2016, under which the Testator had appointed the Applicant as an Executor. The Applicant thus prayed for grant o
The court affirmed that revocation of probate under Section 263 of the Indian Succession Act is tenable despite the existence of an appeal, and that Order VII Rule 11 of the CPC applies to such proce....
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.
Revision petitions under Section 115 are non-maintainable against orders passed under Section 96; appeal should be under Section 100 of the Code of Civil Procedure.
The court ruled that failure to disclose necessary parties with caveatable interest justifies revocation of probate under Section 263 of the Indian Succession Act.
Revocation of grant of Probate – In absence of plea or evidence on issue of limitation, High Court cannot set aside order of District Court.
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