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 proceedings.

JUDGMENT :

1. This Revision Application is directed against an Order dated 19^th 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 13^th 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 18^th 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 28^th October 2016, under which the Testator had appointed the Applicant as an Executor. The Applicant thus prayed for grant of Probate in respect of the said Will dated 28^th October 2016.

4. It seems the plaintiffs conceded that the Will propounded by the Applicant dated 28^th October 2016 was the last Will and Testament of the Testator and the earlier Will dated 18^th April 2013, propounded by them, stood revoked. Thus, by a Judgment and Order dated 16^th November 2021, the learned Civil Judge was persuaded to grant Probate of the Will dated 28^th October 2016 to the Applicant.

5. Respondent No.1 herein filed Civil Misc Application seeking revocation of the Probate under Section 263 of the Indian Succession Act 1925. Respondent No.1 claimed to have worked with the Testator as a housekeeper and caretaker. Under the Will dated 18^th April 2013, respondent no.1 was a beneficiary. Respondent no.3, who was appointed as the Executor under the said Will, gave assurances to respondent no.1 that after the Court passes an Order granting Probate the bequest in favour of respondent no.1 would paid. Asserting that the Applicant obtained the Probate on the basis of false and forged documents, the Respondent No.1 prayed for revocation or annulment of the Probate granted in favour of the Applicant.

6. In the said Application for revocation of Probate, the applicant filed an Application for rejection of the said Application purportedly under Order VII Rule 11 of the Code primarily on the ground that once the Application for Probate is converted into a Suit, the decree passed by the Civil Court granting Probate is amenable to appeal under the provisions of the Code and an Application for revocation of the Probate is not tenable.

7. The said Application was resisted by respondent no.1.

8. The learned Civil Judge was of the view that in terms of Section 263 of the Indian Succession Act, a party could ask for revocation or annulment of Probate where it was obtained fraudulently either by making a false assertion or by concealing material facts. Since respondent no.1 claimed that the purported Will dated 28^th October 2016 is forged and fabricated document, on the strength of which the Probate was obtained, an Application for revocation of Probate was tenable.

9. Being aggrieved, the applicant has invoked the revisional jurisdiction of this Court.

10. On 18^th December 2023 while issuing notice this Court had framed the following issues which arise for determination.

“1) Whether, provisions of Order 7 Rule 11 of the Code of Civil Procedure, 1908 are applicable to the proceedings for revocation of probate under Section 263 of the Indian Succession Act, 1925.

2) What are the parameters for applying Section 141 of the Code of Civil Procedure, 1908 to proceedings under Section 263 of the Indian Succession Act, 1950 in view of judgment in the case of Nalini Navin Bhagwati Vs Chadravadan M. Mehta, (1997) 9 SCC 689.