IMPORTANT POINT
No probate petitioner can ever withdraw a probate petitioner. He may renounce executorship at any time, or petition may simply be dismissed but it cannot be simpliciter withdrawn.

JUDGMENT

G.S. Patel, J.—This is a probate petition. The probate Petitioner (“Nazareth”) is an Australian resident. He was appointed as the sole executor of a Will allegedly dated 23rd December 2013, said to have been made by one Lena John D’Souza. Nazareth applied for probate. This was/is opposed by one Maureen Jyothi Furtado, one of the two heirs who survived Lena. Apart from Maureen there is one other heir, Lolita Kiran Lazrado. Maureen also lives in Australia. Lolita is apparently in Mumbai, though presently with her son, also in Australia.

2. All concerned, including the Testator, Lena, are Christians.

3. The Advocate for the Petitioner says that the heirs are ‘not co-operating’.

4. The Application today is for an ‘unconditional withdrawal’ of the probate petition. On a correct reading of the Succession Act, 1872, I believe that is impermissible.

5. To appreciate the contours of the controversy, a few sections of the Succession Act need to be considered. These are Sections 57, 213, 222, 227, 229 and 231.

6. Section 57 is in Part VI, which deals with Testamentary Succession. Some portions of Part VI set out in Schedule III (and subject to the restrictions there, with which we are not presently concerned) apply to a defined class of Wills. The Section reads:

57. Application of certain provisions of Part to a class of wills made by Hindus, etc.—The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and

(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):

Provided that marriage shall not revoke any such will or codicil.

(Emphasis added)

7. Straight away, we notice, first, that Section 57 applies — and consequently makes applicable some sections of Part VI — only to Wills and Codicils made by Hindus, Buddhists, Sikhs or Jains. Where a Will is made by a person of any of those denominations, and the Will is made in (for our present purposes), Mumbai, or where it relates to immovable property within the local limits of the ordinary original civil jurisdiction of this Court, some provisions of Part VI apply. One of these, as we shall see, is the need to apply for probate. Sub-clauses (a) and (b) are not a conjoint requirement; i.e., they cannot be read to mean that the provisions of Part VI as specified in Section 57 apply only to those wills (by Hindus, etc) that are both made in Mumbai and pertain to immovable property in Mumbai. This branch of the law is settled and really admits of no debate. To say otherwise would mean that the applicable provisions of Part VI would be defeated simply by making wills outside Mumbai though relating to immovable property in Mumbai. See: Kanta Yadav v. Om Prakash Yadav & Ors., 2019 SCC Online SC 920. The Supreme Court approved a view taken by the learned single Judge of the Delhi High Court in Winifred Nora Theophilus v. Lila Deane, AIR 2002 Del 6, where the Court said:

11. On interpretation of Section 213 read with Section 57 (a) and (b), the Courts have opined that where the will is made by Hindu, Buddhist, Sikh and Jaina and were subject to the Lt. Governor of Bengal or within the local limits of ordinary, original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories t