2024:BHC-OS:3104 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION MISCELLANEOUS PETITION (L) NO. 34745 OF 2023 WITH INTERIM APPLICATION (L) NO. 308 OF 2024 IN TESTAMENTARY PETITION NO. 534 OF 2022 Lata Rajesh Shetty @ Latha Rajesh Shetty … Petitioner Versus Satish Surappa Poojari … Respondent ******

Mr. B. G. Saraf a/w Samir A. Vaidya, Kaivalya Raul, Suyash Kalbhor and Shailesh Dubey for the Petitioner.

Mr. Madhav Shah a/w Mr. Ibrahim Shaikh for Respondent.

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CORAM: MANISH PITALE, J.

DATE : 21st FEBRUARY, 2024 ORDER :

. Heard learned counsel for the parties.

2. By this petition, the petitioner is seeking revocation of letters of administration granted on 17^th May, 2023. It is her case that she is entitled to invoke Explanations (a) and (b) to Section 263 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the Succession Act’), in order to seek revocation of the grant.

3. The respondent i.e. the original petitioner in Testamentary Petition No. 534 of 2022, had filed the petition for grant of letters of administration with Will annexed. The respondent sought the grant in the context of Will dated 4^th December, 2018. The petitioner claims to be a beneficiary under the said Will. He claims to be related to the deceased from the side of the mother.

4. In the aforesaid petition filed by the respondent, the petitioner in the present revocation petition was also shown as one of the surviving legal heirs of the deceased. It was stated that she was the sister-in-law of the deceased and in the column pertaining to the address, it was submitted that her whereabouts were not known.

5. It appears that in such circumstances, the respondent caused publication of citation to the surviving heirs of the deceased, including the petitioner herein. The proof of publication along with an affidavit was placed on record. The department proceeded on the basis that despite service of citation, the heirs did not come forward to raise any objection and on that basis, the letters of administration with Will annexed were granted in favour of the respondent (original petitioner in the testamentary petition).

6. The petitioner in the present petition has sought revocation of the grant, on the ground that the respondent violated mandatory requirements of Rules 398, 399 and 400 read with Rule 445 of the Bombay High Court (Original Side) Rules, 1980 (hereinafter referred to as ‘the said Rules’).

7. The learned counsel appearing for the petitioner relied upon the said Rules and he submitted that unless the respondent complied with Rule 399 of the said Rules and made an attempt to personally serve the citation, recourse to publication of citation under Rule 400 of the said Rules could not have been taken.

8. It was submitted that the respondent could not have been permitted to bypass Rule 399 of the said Rules by simply stating that the whereabouts of the petitioner herein, who was admittedly stated to be the sister-in-law of the deceased, were not known. On this basis, it was submitted that there was a substantial defect in the manner in which the petition for grant of letters of administration with Will annexed was proceeded with, giving rise to a ground for revocation under Section 363 of the Succession Act, apart from the fact that according to the petitioner the said grant was obtained on a basis of a false suggestion. The learned counsel appearing for the petitioner placed reliance on the judgment of this Court in the case of Abhiraji Bansraj Singh v/s. Vimal Narsingh Bahadur Singh, 2010 (3) Mh.L.J. 28 and judgment in the case of Kamal Prasad v/s. Kumud Vaidya, 2019 (4)

Bom.C.R. 713.

9. On the other hand, the learned counsel for the respondent submitted that when the whereabouts of the petitioner were not known and this was candidly stated in the petition filed for grant of letters of administration with Will annexed, the respondent had no other alternative but to approach the Prothonotary and Senior Master of this Court