Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Bom) 887

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N. J. JAMADAR, J.
Arnold Samson – Petitioner
Versus
Ramesh Baldev Gwalani – Respondent
Miscellaneous Petition No. 86 of 2010 In Testamentary Petition No. 917 of 2008
Decided On : 08-06-2026

Advocates Appeared:
For the Petitioner:Mr. Shailesh Shah, Senior Advocate, with Shanay Shah, Jonathan Soloman, Soniya Putta, Karan Mehta, Souparnika S and Priyanka Singh, i/b M/s Solomon And Co.
For the Respondent: Mr. Tushad Kakaliya, with Kayomars Kerawalla and Kumar Kothari, i/b Vohuman Legal.

A grant of probate may be revoked for 'just cause' if the proceedings were defective in substance due to the intentional suppression of an heir's existence or the failure to serve mandatory citations to parties with a potential caveatable interest in the estate.

Headnote:(A) Indian Succession Act, 1925 - Sections 263 and 283 - Revocation of grant - Suppression of material facts - Proceedings defective in substance - Failure to issue citation to a person claiming an interest in the estate renders the proceedings defective in substance - Court has discretion to revoke a grant for 'just cause' where there are prima facie reasons to believe the Will requires to be proved afresh in the presence of interested parties. (Paras 34, 37, 39, 43)

(B) Indian Evidence Act, 1872 - Section 35 - Public records - Admissibility and evidentiary value - Birth certificate issued under statutory authority acts as a public document - Presumption of correctness attaches to entries made in statutory registers - While birth records do not definitively prove paternity in isolation, they serve as evidence that can establish a persona's lineage when corroborated by other documents - Reliability depends on the nature of information provided and existence of supporting material. (Paras 46, 48, 56, 74)

(C) Evidence - Admissibility of statements by deceased persons - Section 32(5) of the Indian Evidence Act - Statements by a deceased person regarding blood, marriage, or adoption are relevant if the declarant had special means of knowledge and the statement was made before the dispute arose - Such statements have evidentiary value and cannot be excluded merely because the correctness of contents was not proven by the author post-mortem. (Paras 84, 86)

Facts of the case:
The Petitioner challenged the grant of a probate, claiming to be the sole biological child of the deceased. The original grant was sought by an executor based on an alleged Will which named other parties as beneficiaries. The Petitioner asserted that the respondents knowingly suppressed his existence as an heir to obtain the probate, and he was never issued a citation by the court. The respondents contended the petitioner was not related to the deceased and that the testatrix had consistently represented herself as someone without such heirs.

Findings of Court:
The court analyzed the birth documents and correspondence produced by the petitioner. It noted that the petitioner established a strong prima facie case regarding his status as the biological child. Although the respondents argued that the petitioner failed to prove parentage conclusively, the court held that in a revocation proceeding, the focus is on whether a party should have been allowed to participate in the original proceedings. The failure to cite a party who demonstrates a potential caveatable interest constitutes a substantial defect.

Issues: Whether the petitioner was the biological child of the deceased and whether a 'just cause' existed for the revocation of the probate due to the failure to issue a citation.

Ratio Decidendi: The court maintained that a grant obtained in an uncontested proceeding by suppressing the existence of a potential heir is defective in substance. Once a petitioner establishes a prima facie interest in the estate, the court must exercise its discretion to ensure the Will is proved in the presence of that person, thereby safeguarding the integrity of the succession process.

Result: Petition allowed. The probate is revoked, and the original testamentary matter is restored to the file for fresh determination.

JUDGMENT :

N. J. JAMADAR, J.

1. This Miscellaneous Petition is for revocation of Probate dated 10th July 2009 in respect of the purported last Will and Testament dated 6th February 2008 of late Rosalind Samson (“the deceased”) gratned in favour of Ramesh Baldev Gwalani, Respondent No.1, the Executor, in Testamentary Petition No. 917 of 2008, under Section 263 of the Indian Succession Act, 1925 (“the Succession Act”).

2. Shorn of superfluities, the background facts can be stated as under:

2.1 Late Rosalind Samson passed away on 22nd February 2008. At the time of her death the deceased had a fixed place of abode at Flat No. 6, 2nd Floor, Bueno Vista, Windy Hall Lane, Near Colaba Post Office, Colaba, Mumbai – 400 005 (“the subject flat”). Respondent No.1 claimed that the deceased has left behind her last Will and Testament dated 6th February 2008. Respondent No.1 was named the sole Executor in the said Will. Under the said Will, the deceased had bequeathed her immovable and movable properties including the subject flat to Vimla Rama Rao, the deceased-Respondent No.2, her caretaker, and Rahim the son of Jawat Mohammed, Respondent No.3, whom the deceased considered her foster-son.

2.2 Respondent No.1 thus filed Petition No. 917 of 2008 for grant of probate in respect of the aforesaid last Will and Testament of the deceased. It was averred, the deceased had left behind no surviving heir and next of kin.

2.3 As there was no contest, the Petition came to be allowed and the probate came to be granted in favour of Respondent No.1 on 10th July 2009.

3. The Petitioner claims to be the son and sole heir of the deceased. The Petitioner has instituted the instant Petition seeking revocation of the Probate on the ground that the Probate was obtained by suppressio veri and suggestio falsi. No citation was issued to the Petitioner though the Respondents were fully cognizant that the Petitioner was the son of the deceased. A deliberate false statement was made that the deceased had not left behind any heir. The prayer for revocation of the probate is premised on the following facts:

3.1 The deceased, a Jew by religion, was married to Mr Hari M Kapur. The Petitioner was born out of the said wedlock. However, in the year 1956, the parents of the Petitioner got divorced. Till the year 1962, the Petitioner was in the custody of the deceased, his mother. In 1962, the Petitioner initially went to Israel and, thereafter, travelled to, and settled in, Sweden since the year 1970.

3.2 The deceased, the Petitioner contends, died intestate without leaving any testamentary instrument. After the demise of the deceased, the Petitioner became solely entitled to the estate left behind by the deceased. Hence, on 12th February 2009, the Petitioner called upon the Secretary of the Buena vista Cooperative Housing Society Ltd, wherein the subject flat is situated, to transfer the said flat and the shares in favour of the Petitioner. Thereupon, it transpired that the deceased had purportedly effected a nomination of 50% undivided share in the said flat each in favour of Vimla Rama Rao (R2) and Rahim Jawat Mohammed (R3). Thus, the Petitioner addressed communication to Respondent Nos. 2 and 3 asserting the sole and exclusive right of the Petitioner over the property left behind by the deceased. However, there was no response from Respondent Nos. 2 and 3.

3.3 The Petitioner was thus constrained to institute Suit No. 1175 of 2010 against Respondent Nos. 2 and 3 and the Secretary of the Bueno Vista, inter alia, for a declaration that the Petitioner was the sole heir of the deceased and thus entitled to the subject flat and other property left behind by the deceased.

3.4 In the Affidavit in Reply filed to the Notice of Motion taken out by the Petitioner in the said suit, Vimla Rama Rao (R2) contended that the deceased died as a spinster and the deceased had bequeathed her property including the subject flat under the Will dated 6th February 2008 in favour of Respondent Nos. 2 and 3 in

Click Here to Read the rest of this document

2026 Supreme(Bom) 887

IN THE HIGH COURT OF JUDICATURE AT BOMBAYN. J. JAMADAR, J.Arnold Samson – Petitioner VersusRamesh Baldev Gwalani – Respondent Miscellaneous Petition No. 86 of 2010 In Testamentary Petition No. 917 of 2008Decided On : 08-06-2026

A grant of probate may be revoked for 'just cause' if the proceedings were defective in substance due to the intentional suppression of an heir's existence or the failure to serve mandatory citations to parties with a potential caveatable interest in the estate.

Cases Referred (6)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N. J. JAMADAR, J.
Arnold Samson – Petitioner
Versus
Ramesh Baldev Gwalani – Respondent
Miscellaneous Petition No. 86 of 2010 In Testamentary Petition No. 917 of 2008
Decided On : 08-06-2026