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BOMBAY HIGH COURT
Mohit S. Shah and M.S. Sanklecha, JJ.
Nina Agarwalla —Plaintiff
versus
Ashok Gupta & Others —Defendants
Appeal (L) No.180 of 2013 In Notice of Motion No.2213 of 2012 In Suit No.3069 of 2011 Along With Appeal (L) No.181 of 2013 In Miscellaneous Petition No.67 of 2011 In Testamentary Petition No.8 of 1969
Decided on 10-05-2013
For the Plaintiff:Ms. Rajni Iyer, Sr. Advocate with Gautam Ankhad, J.S. Soloman, Ms. Shruti Maniar i/b. M/s. Solomon & Co., Advocates.
For the Defendants:D1 to D4, Venkatesh Dhond, Sr. Advocate with Sharan Jagtiani, Parag Sawant i/b. Desai & Diwanji, D5, Deepan Dixit i/b. Siddharth Sangal, Advocates.
IMPORTANT POINT
The order granting a probate, is conclusive evidence as to the execution and validity of the Will till such a grant of probate is revoked.
Headnote:Indian Succession Act, 1925—Section 263 —Appeals against common order passed by Single Judge dismissing Petition seeking to set aside probate granted in respect of Will of one D—Probate granted almost 38 years ago cannot be revoked unless the requirement of Section 263 of the Indian Succession Act, 1925 were satisfied/justified—Case of Appellant that Court should revoke the probate as proceedings leading to the grant of the probate were defective in substance in as much as the citation required to be served were not served upon her before the grant of the Probate—This submission was completely negative by the finding of fact recorded in impugned order that in the original record of the probate proceedings in the Testamentary department called for by her, showed the hand written record of service of citation on the next of kin on 12.05.1971 as well as affixing the citation on the notice board on 20.04.1971—Appellant failed to show any evidence to establish that citation was not served upon her—Held difficult to accept on her mere statement that citation was not served upon her, particularly in view of records of testamentary department of Court and the fact that probate was granted more than 38 years ago—No reason to entertain both the Appeals filed by Appellant- Appeals dismissed. (Paras 12 to 15)
Result: Appeals dismissed.
M.S. Sanklecha, J. —These two Appeals arise from a common order dated 13 March, 2013 passed by the learned Single Judge dismissing:-
(a) a Miscellaneous Petition seeking to recall/ cancel/ set aside the probate granted on 12 March, 1973 in respect of the Will dated 28 March, 1964 of one Devraj Gupta; and
(b) a Notice of Motion taken out in a suit for partition bearing no.3069 of 2011 seeking appointment of Receiver in respect of the suit property described in Ex. “B” to the plaint and an injunction restraining the Defendants/ Respondents in the suit from in any way dealing with the suit properties mentioned in Ex. “B” to the plaint.
2. The Appellant and the Respondents in both the Appeals are essentially heirs of one Devraj Gupta who expired on 13 October, 1965 save and except Defendant No.8 in suit No.3069 of 2011 who is a transferee of the suit properties.
3. On 13 October, 1965 the said Devraj Gupta expired, having executed the Will dated 28th March, 1964. In terms of the Will dated 28 March, 1964 Devraj Gupta bequeathed all his properties to his wife and two sons absolutely in equal shares. The widow of the deceased Devraj Gupta was one Mrs. Usharani Gupta who applied for probate in 1969 by filing the above Probate Petition. At the time when an application for probate was made, the Appellant was as unmarried adult daughter staying with her mother who was the widow of the deceased Devraj Gupta and her two brothers who were sons of the deceased Devraj Gupta, who were minors at that point of time. The other heirs of the deceased Devraj Gupta were married daughters. This Court on 12 March, 1973 granted the probate to the Will dated 28 March, 1964 of the deceased Devraj Gupta.
4. The present Miscellaneous Petition was filed in 2011 seeking revocation of the probate granted almost 38 years ago on 12 March, 1973. It is the case of the Appellantthat she was not aware about the filing of the probate petition before this Court nor she had any idea about the existence of the alleged Will of her late father. It was only in February, 2010, that she learnt that one of the ancestral properties to which she was entitled was being put up for sale by her brother-Respondent No.1 herein that she filed a suit in the City Civil Court at Mumbai seeking permanent injunction restraining the sale, alienation and/or creation of any third party rights in respect of the ancestral property as described in Ex. “D” to the plaint in the City Civil Court without the written permission of the Appellant. It is in the City Civil Court proceedings that she learnt about the alleged Will of her late father Devraj Gupta and grant of probate to the Will on 12 March, 1963. Therefore, in 18 April, 2011, she filed the present Petition for revocation of the probate granted on 12 March, 1973.
5. Besides the filing of the present Miscellaneous Petition in this Court, seeking revocation of the Will, the Appellant has also filed suit for the partition of the property of deceased Devraj Gupta. This suit for partition is filed by the Appellant on the basis that her father one Devraj Gupta had died intestate on 13 October, 1965 entitling her to 1/6th share in the property of her father, the late Devraj Gupta. In the above partition suit, Appellant also took out the present Notice of Motion, seeking an injunction to restrain the Defendants/ Respondents i. e. the other heirs of the deceased Devraj Gupta and Defendant No.8 who is alleged to be a transferee of the suit property from dealing with the suit property.
6 The learned Single Judge disposed of both the Miscellaneous Petition filed in the Testamentary Petition as well as the Notice of Motion filed in the suit by a common order dated 13 March, 2013.
7. So far as the Miscellaneous Petition is concerned, the impugned order records a finding of fact that from the record available in the testamentary department of the Court, there is a noting to the effect that citation with regard to the probate proceeding
