Purshottam Vasudev Nagpal vs Rani Lalchand Kalro And Ors on 10 October, 2017

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vai

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY INTESTATE JURISDICTION

MISCELLANEOUS PETITION NO.17 OF 2013

Purshottam Vasudev Nagpal )
Hindu Male Inhabitant of Mumbai )
residing at Flat No.22, 4th Floor )
D.Vatcha Road, Mumbai – 400 020, )
being the son of the deceased’s )
sister above named ) …Petitioner

….Versus….

1. Rani Lalchand Kalro, )
Indian Sindhi, age about 57 years )
Occupation Housewife, residing at )
Flat No.21, Rijhumal Mansion )
Co-operative Housing Society Ltd. )
15/B, Pedder Road, Mumbai – )
400 026 being the Sole Executrix )
named under the Will dated )
rd
3 November, 2004 of the deceased )
above named) )

2.Mr.Shivaji B. Chandani, )
of Mumbai Indian, Inhabitant, having )
his address at 205, Ocean View,Union )
Park, Khar (W), Mumbai – 400 052. )

3.Shirin Bahadurji of Mumbai Indian )
Inhabitant, having his address at )
Neelkanth Niranjan Premises )
Co-operative Society Ltd, 308-A, )
“Niranjan” 99, Marine Drive, )
Mumbai – 400 002. )
)
4.Neelkanth Niranjan Premises )
Co-operative Society Limited, a )
Co-operative Society registered under )

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the provisions of Maharashtra )
Co-operative Societies Act, 1960 )
bearing Registration No.BOM/HSG )
/87 OF 1967 having its address at )
Ground Floor, “Niranjan” 99, )
Marine Drive, Mumbai – 400 002. ) …Respondents

Mr.U.J. Makhija i/b Thakore Jariwala Associates for the Petitioner.

Ms.F.Mussa i/b Mr.Prakash L. Mahadik for the Respondent No.1.

Mr.G.R.Joshi, Senior Advocate with Mr.Piyush Raheja i/b Federal
Rashmikant for the Respondent No.2.

Mrs.F. Behram Kamdin with Ms.Bhansali i/b FZB Associates for the
Respondent No.3.

CORAM : R.D. DHANUKA, J.

RESERVED ON : 4th AUGUST, 2017
PRONOUNCED ON : 10th OCTOBER, 2017

JUDGMENT :-

1] By this petition filed under section 263 of the Indian

Succession Act, 1925, the petitioner has prayed for revocation and

cancellation of the original grant of Probate dated 29 th September,

2010 with the Will annexed and seeks a direction against the

respondent no.1 to deposit the said Will and the grant of Probate

dated 29th September, 2010 with the learned Prothonotary Senior

Master of this Court and for other reliefs.

2] This Court framed the following issues:-

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Sr.No. Issues Findings
1] Whether the Petitioner proves that the
probate granted to the alleged Will dated
3rd November, 2004 was not validly and
No
properly granted for the reasons and on
the grounds set out in paragraph 30 of
the Miscellaneous Petition ?
2] Whether the Respondent no.1 proves
that she was legally adopted daughter of Yes
the deceased ?
3] Does the Petitioner prove that he has a
caveatable interest and the necessary No
locus to file the instant Petition ?
4] What orders ? As per order

3] The petitioner is a son of the sister of the deceased late

Sattabai Lakhmichand Chhabria, who expired at Mumbai on 7th May,

2008 (hereinafter referred to as the ‘said deceased’). It is the case of

the petitioner that since the respondent nos.2 and 3 are claiming to

be entitled to a portion of the estate of the said deceased i.e.

Sattabai Lakhmichand Chhabria, they are impleaded as necessary

parties to the petition. It is the case of the petitioner that since the

respondent no.4 society is illegally threatening to transfer the flat in

question which belonged to the said deceased, the said society has

been impleaded as the respondent no.4 to the petition. It is the case

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of the petitioner that he was a constituted attorney of the said

deceased under a General Power of Attorney, which was executed in

the year 1996 and was registered with the Reserve Bank of India.

The said General Power of Attorney was executed in favour of the

petitioner by the said deceased being the maternal aunt of the

petitioner and also on account of proximity and trust, the said

deceased executed the said General Power of Attorney in favour of

the petitioner. It is the case of the petitioner that the said deceased

died issueless. The respondent no.1 is neither the daughter nor

adopted daughter of the deceased. According to the petitioner, the

said deceased died intestate leaving behind no testamentary writing

or Will and did not find any Will or testamentary writing of the said

deceased inspite of due and diligence search taken by the petitioner.

4] The petitioner, however, was informed by Mr.Ramesh

Baldev Gwalani through his Advocate’s letter dated 20th June, 2008 in

respect of the said Will dated 3rd November, 2004. A copy of the said

alleged Will was handed over to the petitioner and the respondent

no.1 along with the said letter dated 20th June, 2008. On 7th May,

2008, the said deceased expired. Some time in the year 2009, the

respondent no.1 filed testamentary petition (139 of 2009) inter-alia

praying for Letter of Administration to the property and credits of the

said deceased with the Will annexed. The respondent no.1 filed the

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supporting affidavits of other persons, including the alleged witnesses

to the said alleged Will dated 3rd November, 2004.

5] It is the case of the petitioner that the name of another

sister of the deceased was though initially mentioned as the legal heir

and next of kin of the said deceased in the petition, pursuant to an

objection raised by the office of this Court, the name of the said sister

of the said deceased was deleted from the petition. The name of the

brother in law of the deceased was however, included by carrying

out an amendment to the testamentary petition.

6] On 9th February, 2010, this Court granted a Probate in

favour of the respondent no.1. Mr.Makhija, learned counsel appearing

for the petitioner invited my attention to a copy of the alleged Will

annexed to the petition and would submit that the alleged signature of

the said deceased on the alleged Will was in Hindi. There was no

signature on page no.2. Mr.B.B. Parekh, advocate was one of the

alleged attesting witness to the said alleged Will. There was no

endorsement made on the said alleged Will that the said Will was

explained to the said deceased in Hindi. He submits that Mr.B.B.

Parekh, advocate had filed an affidavit in this Court as attesting

witness. Even in the said affidavit, no averment was made by the said

Mr.B.B. Parekh, advocate that the said alleged Will was explained to

the said deceased in Hindi. Learned counsel for the petitioner placed

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reliance on section 283(1)(c) of the Indian Succession Act, 1925 and

also Rule 397 of the Bombay High Court (Original Side) Rules and

submits that it was mandatory for the petitioner in the testamentary

petition to serve a citation on the legal heirs and next of kin of the

said deceased.

7] Learned counsel placed reliance on section 15(2)(a) of the

Hindu Succession Act and would submit that since the said deceased

had inherited the property from her father, the petitioner herein would

be a legal heir of the said deceased for all purposes under the

provisions of the Hindu Succession Act and the Indian Succession

Act, 1925. He also placed reliance on Rules 397, 399 and 400 of the

Bombay High Court (Original Side) Rules. He invited my attention to

the affidavit of service filed by the bailiff on 1 st April, 2010 and would

submit that there was no personal service on any of the parties or the

legal heirs and/or next of kin of the said deceased of the citation as

contemplated under Rule 399 of the Bombay High Court (Original

Side) Rules. Learned counsel invited my attention to a copy of the

alleged Will and would submit that the wife of the petitioner is one of

the beneficiary under the said alleged Will, who has not accepted the

said Will.

8] Learned counsel for the petitioner placed reliance on Form

No.97 of the Bombay High Court (Original Side) Rules and submits

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that the names of all the heirs and next of kin have to be disclosed in

the testamentary petition and a citation has to be served upon them.

The said deceased had three sisters. The name of however only one

sister was mentioned initially in the testamentary petition. The mother

of the petitioner was not alive on the date of death of the said

deceased. Learned counsel invited my attention to the answers given

by the petitioner in his cross-examination in reply to questions 69 to

76 and submits that the petitioner had categorically deposed that his

wife Mrs.Sarla P. Nagpal, who was one of the beneficiary named in

the Will did not inform him when she was served with citation in the

probate petition about filing of the testamentary petition. He answered

the question in negative when he was asked whether his sister had

told him that the petition had been filed for Probate of the alleged Will

of the deceased. He also denied the suggestion given to him that he

was personally aware that Probate Petition No.139 of 2009 had been

filed and that citation had been served on his sister.

9] Learned counsel for the petitioner also invited my attention

to the cross-examination of the petitioner by the learned senior

counsel, who appeared on behalf of the respondent no.2. He invited

my attention to some part of the deposition of the petitioner from his

affidavit of evidence dated 21st January, 2015 and more particularly

paragraph 23 and submits that it was a specific plea of the petitioner

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that various properties were inherited by the said deceased from her

father. He invited my attention to the family tree annexed to the

petition and submits that in the said family tree, the name of the

mother of the petitioner is also mentioned. He invited my attention to

the cross-examination of the petitioner by the respondent no.2 and

more particularly his reply to question nos.34, 35 to 39, 41 and 45. He

submits that though the witness examined by the petitioner was put

various suggestions by the respondent no.1 during the course of the

cross-examination, none of the respondents entered the witness box

to prove their case. Learned counsel invited my attention to the

issues framed by this Court and would submit that though in respect

of one of the issue at least, the onus was on the respondent no.1 to

prove that she was adopted daughter of the said deceased, she did

not enter the witness box.

10] It is submitted that the respondent no.1 had filed various

affidavits of the alleged beneficiaries under the said alleged Will. The

affidavits of the wife and the sister of the petitioner who were also the

beneficiaries under the said Will however, were not filed. Learned

counsel invited my attention to the affidavit dated 16 th July, 2010

which was a new affidavit filed by Mr.B.B. Parekh, advocate. He

submits that even in the said affidavit, Mr.B.B. Parekh, advocate did

not make any averment that the said alleged Will was explained to

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the said deceased in Hindi. He submits that the averments made in

the new affidavit dated 16th July, 2010 filed by Mr.B.B. Parekh,

advocate was inconsistent with the statement made in the affidavit

dated 16th August, 2008.

11] Learned counsel submits that since the probate petition

was uncontested, the respondent no.1 did not lead any oral evidence.

None of the parties to the probate petition verified whether the

alleged Will was proved by the respondent no.1 or not. He invited my

attention to the affidavit of Dr.Deepti Mukesh, Advocate, who was

alleged to be the second attesting witness to the alleged Will. He

submits that even in the said affidavit of the alleged second attesting

witness, no statement was made by her that the said alleged Will was

explained to the deceased in Hindi.

12] Mr.Makhija, learned counsel for the petitioner invited my

attention to the affidavit dated 16th July, 2010 filed by Mr.B.B. Parekh,

advocate and submits that in the said affidavit of the said deponent, it

was alleged that the said alleged Will was executed at the house of

the deceased at Flat No.12, 3rd Floor, 94, Krishna Kunj, Marine Drive,

Mumbai – 400 002. He also invited my attention to the affidavit cum

declaration dated 7th November, 2008 filed by Mr.Shivaji Bhagwandas

Chandani and Ms.Ishwari Baldevdas Gwalani who were also the

beneficiaries under the said alleged Will that they were also present

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when the deceased had alleged to have executed the said Will dated

3rd November, 2004 in the presence of advocate Mr.B.B. Parekh and

Dr.Deepti Mukesh in the office of Mr.B.B. Parekh, advocate on 3 rd

November, 2004. He submits that there is a clear inconsistencies and

contradictions in the affidavit filed by the alleged two attesting

witnesses and the alleged beneficiaries under the said alleged Will

about the place of execution of the alleged Will by the said deceased.

13] Learned counsel for the petitioner invited my attention to

the affidavit in reply filed by the respondent no.1 alleging that she

had got a copy of the Will from Mr.Ramesh Gwalani. He invited my

attention to the affidavit in reply dated 7th April, 2014 filed by

Mr.Shivaji Bhagwandas Chandani, the respondent no.2 herein

alleging that after execution of the said alleged Will, the same had

been handed over to him by the said deceased for safe custody and

in turn he had alleged to have handed over the same to the petitioner

as he had asked for it on the ground that he was handling the

business affairs of the deceased. In the said affidavit it was alleged

subsequently that the petitioner gave a Will to Mr.Ramesh Gwalani

and asked him to keep the Will in safe custody. The said deponent

alleged that the petitioner was always aware of the existence of the

alleged Will. Learned counsel for the petitioner submits that there are

different stories of the respondent nos.1 and 2 as to how the said

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alleged Will was surfaced.

14] Mr.Makhija, learned counsel for the petitioner invited my

attention to the copy of letter dated 17th June, 2008 addressed by the

learned advocate for the respondent no.1 to Mr.B.B. Parekh,

advocate calling upon him to furnish the true copy of the Will and also

requesting him to inform in writing as regards to the progress made

for the Probate of Will in which the respondent no.1 was appointed as

executrix and was also a beneficiary under the said alleged Will. On

6th January, 2009, the respondent no.1 filed Probate petition in this

Court. There was no reply to the said letter dated 17th June, 2008

addressed by the respondent no.1 through her advocate on 20th June,

2008.

15] Learned advocate for Mr.Ramesh Gwalani addressed a

letter to Mr.A.K. Chavan, advocate, who was representing the

respondent no.1 herein and alleged that the Will of the said deceased

dated 3rd November, 2004 was in possession of her client and

custody i.e. Mr.Ramesh Gwalani and stated that the said Mr.Ramesh

Gwalani was ready and willing to hand over the original Will to the

respondent no.1. The said Mr.A.K. Chavan, advocate representing

the respondent no.1 was requested to attend his office on 23 rd June,

2008 to collect the original Will and to give his acknowledgement. The

said Mr.A.K. Chavan, advocate was further informed that the said

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Mr.Ramesh Gwalani had made three notarized copies of the Will

dated 3rd November, 2004 and one of the copy would be kept in the

custody of Mr.Ramesh Gwalani and the other two copies will be given

to Purushottam V. Nagpal and Shivaji B. Chandani. It is submitted by

the learned counsel that Mr.Ramesh Gwalani is not the beneficiary

under the said alleged Will.

16] Mr.Makhija, learned counsel placed reliance on the

judgment of the Supreme Court in case of Mrs. Elizabeth Antony

vs. Michel Charles John Chown Lengera (2000) 3 SCC 333 and

more particularly paragraphs 5 and 9 thereof and submits that any

person even having slight and even a bare possibility of interest is

sufficient to entitle a person to enter caveat in a probate proceeding.

It is held in the said judgment that the findings regarding that the

caveatable interest of the party have a limited effect and are relevant

only to the extent of granting probate but that can deprive his right, if

he has only to invoke section 263 of the Indian Succession Act, and

it is up to that party to satisfy the Court. He submits that even if

caveatable interest of the petitioner is not proved, the petitioner has

still right to file a petition under section 263 of the Indian Succession

Act, 1925 for revocation of the grant of Letters of Administration.

Mr.Makhija, learned counsel for the petitioner has placed reliance on

the judgment of the Supreme Court in case of Krishna Kumar Birla

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vs. Rajendra Singh Lodha, 2008(4) SCC 300 and in particular

paragraphs 76, 86, 88 to 95, 100 to 103, 109 and 110.

17] Insofar as issue nos.1 and 2 framed by this Court as to

whether the respondent no.1 proves that she was an adopted

daughter of the said deceased or not, is concerned, it is submitted by

the learned counsel that the respondent no.1 has admittedly not led

any evidence on the said issue, though the onus to prove the issue

issue was on the respondent no.1. He submits that though this Court

had granted second opportunity to the respondent no.1 to prove that

the alleged Will of the said deceased was validly executed, in

accordance with law and to prove that she was an adopted daughter

of the said deceased, the respondent no.1 admittedly did not enter

the witness box. This Court thus shall draw an adverse inference

against the respondent no.1.

18] It is submitted that the alleged Will of the said deceased

has not been proved in accordance with the provisions of section 68

of the Indian Evidence Act. The documents on record does not prove

the Will even in absence of the cross-examination. He submits that

the Probate granted by this Court was without complying with the

legal requirements and thus cannot remain on record and has to be

recalled. Learned counsel submits that the order passed by this Court

granting Letters of Administration with the Will annexed in favour of

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the respondent no.1 is in rem and thus affects the world at large.

19] It is submitted by the learned counsel for the petitioner that

unless the issue nos.1 and 2 framed by this Court are decided in

favour of the respondent no.1, all the questions of intestacy can be

considered by this Court in an appropriate proceedings. This Court

has also to consider the effect of the respondent no.1 not having

entered the witness box to prove that she was an adopted daughter

of the said deceased. Learned counsel for the petitioner invited my

attention to the order passed by this Court thereby directing the

parties to delete some portion of the affidavit in lieu of examination of

chief filed by the petitioner.

20] It is submitted by the learned counsel that the respondent

no.1 did not prove the alleged Will left by the said deceased. None of

the attesting witnesses or other witnesses were able to show whether

the said alleged Will was ever interpreted to the said deceased in

Hindi. Mr.B.B. Parekh, Advocate gave the alleged Will to the third

party is not proved. Since the citation was though served on the

beneficiaries under the alleged Will, it was not served on the person

like the petitioner having like interest in the estate of the said

deceased and thus the Probate granted by this Court deserves to be

revoked.

21] It is submitted by the learned counsel that if the alleged

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Will is not proved, the respondent no.1 would inherit the properties

and estate of the said deceased as the daughter of the said

deceased only if she would have proved that she was an adopted

daughter of the said deceased. She however, did not enter the

witness box in this petition and was not able to show that she was an

adopted daughter of the said deceased. He invited my attention to the

averments made in the miscellaneous petition and also the stand

taken by the respondent no.1 alleging that she was an adopted

daughter of the said deceased.

22] Insofar as issue no.3 that he has a caveatable interest and

the necessary locus to file the instant petition is concerned, it is

submitted by the learned counsel that even if the petitioner had

slightest interest in the estate of the said deceased, the petitioner had

locus to file the miscellaneous petition under section 263 of the Indian

Succession Act, 1925, the Court has to independently satisfy itself

that the Probate could be granted or not irrespective of the fact

whether the petitioner had locus and/or caveatable interest or not. It

is submitted that since the respondent no.1 obtained the Probate ex-

parte without service of citation, this Court had no opportunity to

make any enquiry as to whether the alleged Will was genuine or not.

23] It is submitted that the conscious of the Court has to be

satisfied that the alleged Will executed by the said deceased was a

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genuine Will and was executed in accordance with law. He submits

that once these facts are brought to the notice of this Court by the

petitioner at this stage, which were not brought to the notice of this

Court by the respondent no.1, the Court can make an enquiry as to

whether the Probate ought to have been granted to the respondent

no.1 or not. He submits that even after grant of Probate granted in

favour of the respondent no.1 is set aside in this petition, no prejudice

would be caused to the respondents. The respondents in that event

will have to prove the execution of the alleged Will in accordance with

law, the Probate petition in that event would be restored to file and

would not be dismissed in this petition itself. He submits that the said

judgment of the Supreme Court in case of K.K. Birla (supra) has

been referred to the Larger Bench in the case in Jagjit Singh Ors.

vs. Pamela Manmohan Singh (2010) 5 SCC 157.

24] Learned counsel for the petitioner placed reliance on an

unreported judgment of this Court in case of Peter John D’Souza

Ors. vs. Armstrong Joseph D’Souza in Miscellaneous Petition

No.69 of 2012 delivered on 28th March, 2014 and in particular

paragraphs 13 to 17. Learned counsel submits that since the

respondent no.1 had suppressed the true and correct facts and had

not served the citation upon the petitioner and had fraudulently

obtained the Probate, the Court has even suo-moto powers to look

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into such allegations of fraud and can revoke such Probate obtained

by a party by committing fraud upon the Court.

25] Learned counsel for the petitioner placed reliance on

section 114(g) and (h) of the Indian Evidence Act and submits that

since the respondent no.1 did not enter the witness box, though the

onus to prove was on the respondent no.1 in respect of the two

issues framed by this Court in this miscellaneous petition, this Court

has to draw an adverse inference and has to draw a presumption

against the respondent no.1. In support of this submission, learned

counsel for the petitioner placed reliance on the judgment of this

Court in case of Sardar Gurbaksh Singh vs. Gurdial Singh Another

AIR 1927 PC 230 and in particular paragraphs 29 to 34. He also

placed reliance on the judgment of the Supreme Court in case of

Vidhyadhar Vs. Manikrao Another (1999) 3 SCC 573 and in

particular paragraphs 16 and 17.

26] Learned counsel for the petitioner placed reliance on the

judgment of the Supreme Court in case of Basantidevi Vs. Ravi

Prakash Ramprasad Jaiswal (2008) 1 SCC 267 and in particular

paragraphs 12, 18 to 24 and would submit that the Testamentary

Court is not concerned with the title of the property of the said

deceased.

27] Ms.Mussa, learned counsel for the respondent no.1, on the

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other hand, submits that the respondent no.1 was appointed as an

Executrix and was the beneficiary under the said Will and last

testament of the deceased Smt.Satabai Lakmichand Thakurdas

Chhabria. It is submitted that though the name of one of the sisters

of the said deceased was mentioned in the testamentary petition as

one of the next of kins, the same was subsequently deleted in view

of the fact that the said sister was not entitled to inherit any part of

the estate of the said deceased even on intestacy.

28] It is submitted by the learned counsel that the petitioner in

miscellaneous petition has alleged that the respondent no.1 was not

a daughter or an adopted daughter of the said deceased. In reply to

the miscellaneous petition, the said allegation is denied by the

respondent no.1. She submits that in any event, the respondent

no.1 had not filed the testamentary petition for grant of probate in

respect of the last Will and Testament of the said deceased as an

adopted daughter but was filed as an Executrix and one of the

beneficiaries under the said Will. She invited my attention to the

issues framed by this Court in this miscellaneous petition. She

submits that though the issue of adoption has been framed by this

Court in this miscellaneous petition, no such issue was required to

be framed in the testamentary petition filed by her client. She

submits that the respondent no.1 is even otherwise falls in Class-I

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category of heirs under the Hindu Succession Act, 1956.

29] Learned counsel for the respondent no.1 invited my

attention to the affidavit-cum-declaration dated 7th November 2008

filed by Mr.Ramesh B. Gwalani who is the son of one of the sisters of

the said deceased. She submits that in the said affidavit, the said

Mr.Ramesh B. Gwalani has stated that the said deceased had

nominated the respondent no.1 being treated as her daughter in

respect of the amounts lying in the HDFC Bank at Lower Parel

Branch. She invited my attention to the cross-examination of the

original petitioner Mr.Purshottam Vasudev Nagpal in reply to

question nos.35 to 37 and would submit that in the said deposition,

the petitioner was confronted with the said affidavit dated 29 th

December 2008.

30] My attention is also invited to the affidavit-cum-declaration

dated 20th December 2008 signed by Mr.Vasudev Gurmukhdas

Chhabria and Mr.Girdhari Lalchand Chhabria and in particular

paragraph 3 thereof stating that the respondent no.1 had been

treated as their loving and caring daughter and had been the

supporting pillar through their entire lifetime. At every stage, the

said respondent no.1 was treated more than as a real daughter of

the said deceased and her husband till they were alive. It is stated

that the said deceased also performed ‘KANYA DAN’ of the

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respondent no.1 on 30th January 1971.

31] It is submitted that the respondent no.1 and her son had

performed the last rites of the said deceased as per her wishes in

the presence of all the close family members, relatives and family

friends wherein the said deceased had declared openly that her flat

no.12 at Krishna Kunj, her wealth, money, jewellery articles, shares,

bonds and all other movable and immovable assets and property

were given to the respondent no.1 which desire was expressed by the

said deceased in the last Will and Testament dated 3rd November

2004. It is stated that the respondent no.1 had not only stood as

daughter but also provided the emotional support through out the

life to the said deceased which had been witnessed by the deponent

of the said affidavit from the very inception.

32] Learned counsel for the respondent no.1 invited my

attention to the letter dated 22nd May 2008 of the petitioner herein to

the respondent no.1 and would submit that along with the said letter,

the petitioner herein had handed over to the respondent no.1 one

bank statement of saving account in Bank of Baroda in the name of

the said deceased and other various documents including cheque

books. It was mentioned in the said letter that the said cheque books

were kept with the petitioner herein at the request of the said

deceased and also due to close relationship. She submits that since

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the petitioner herein himself had handed over various documents to

the respondent no.1 of the said deceased, it is clear that the

petitioner herein recognized the close relationship of the respondent

no.1 with the said deceased.

33] Learned counsel for the respondent no.1 invited my

attention to the passbook issued by the Bank of Baroda in respect of

the Account No.04050100005559 standing in the name of the

deceased jointly with the respondent no.1 which was marked as

Exhibit ‘Y-1/1.’ My attention is also invited to the another passbook

of the same bank marked as Exhibit ‘Y-1/2.’ She invited my attention

to various photographs marked as Exhibits ‘R-1/5’, ‘R-1/6’, ‘R-1/7’

and ‘R-1/10’ in support of her submission that Kanya Dan of the

respondent no.1 was performed by the said deceased and her

husband. She also invited my attention to the Nomination Form

submitted by the said deceased to “Neelkanth Niranjan” premises

Co-operative Housing Society Ltd. nominating the respondent no.1

in respect of the said flat bearing no.99 in the said ‘Neelkanth

Niranjan’ premises as her husband brother’s grand daughter. She

submits that the said flat was thus bequeathed by the said deceased

in favour of the respondent no.1.

34] Learned counsel for the respondent No.1 invited my

attention to the cross-examination of the petitioner herein and more

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particularly to question at serial nos.52 to 54, and 59. She submits

that admittedly the petitioner herein had attended the wedding of

the respondent no.1. He has recognised the said deceased

Smt.Satabai, her husband, from the photographs shown to him. He

has also confirmed that those photographs were taken at the

wedding of the respondent no.1. She submits that the petitioner,

however, did not deliberately identify the respondent no.1 and her

husband though identified the said deceased and her husband in the

photographs.

35] Learned counsel invited my attention to the averments

made in paragraph 22 of the miscellaneous petition and would

submit that the petitioner himself has admitted that the said deceased

had given a gift to the respondent no.1. My attention is also invited to

the cross-examination of the petitioner in reply to question no.59

admitting that a Gift Deed was executed by the said deceased in

favour of the respondent no.1.

36] Learned counsel for the respondent no.1 invited my

attention to the letter dated 17th June 2008 (Exhibit-‘P-8’) addressed

by the learned advocate on behalf of the respondent no.1 herein to

Mr.B.B. Parekh, Advocate informing that being the daughter of the

said deceased, the respondent no.1 was legally entitled to the copy

of the Will made by the said deceased during her lifetime. In the

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said letter, the respondent no.1 had contended that she was the sole

executrix in respect of immovable and movable properties of her

late mother. She had alleged to have performed the rituals being

the dearest daughter of the said deceased and had been herself

under the serious grief. She submits that there was no reply to the

said letter given by the petitioner herein denying that the respondent

no.1 was not the daughter of the said deceased or any other facts

mentioned in the said letter dated 17th June 2008. Learned counsel

for the respondent no.1 invited my attention to the public notice

dated 9th May 2008 in respect of “Chautha” ceremony in respect of

the said deceased in which the name of the respondent no.1 was

mentioned as daughter of the said deceased.

37] Learned counsel for the respondent no.1 invited my

attention to the complaint dated 23rd January 2009 (Exhibit-‘P-10’)

made by the petitioner herein to the Marine Drive Police Station

against the respondent no.1, Mr.Shivaji Chandani and Mr.Ramesh

Gwalani alleging that those persons were pressuring him to part

away with the premises no.307, Niranjan Building, 99 Marine Drive,

Mumbai – 400 002 and in respect of the other properties in their

favour under a Will dated 3rd November 2004 and alleging that the

same was forged. Learned counsel submits that in the said

complaint, the petitioner had himself stated that he had told the

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respondent no.1 and two others to obtain probate of the said Will

and he was assured by respondent No.1 that she would get

probate.

38] The petitioner showed his willingness to hand over

possession upon the respondent no.1 and two others upon getting

probate of the said alleged Will by the respondent No.1. She also

invited my attention to the reply of the petitioner to question nos.39

in cross-examination and would submit that the petitioner replied that

he did not recollect whether he had written any letter in protest or

complaint after the announcement of the death of the said deceased

about the alleged false representation of the respondent no.1 as the

daughter of the said deceased. She submits that the respondent

no.1 though had initially made averment in the testamentary petition

filed by her that she was an adopted daughter of the said deceased,

the said averment was subsequently deleted.

39] Learned counsel submits that the respondent no.1 though

had not led oral evidence in this miscellaneous petition however by

producing various documents and by cross-examining the petitioner

and his witnesses, the respondent no.1 has proved before this Court

that she was an adopted daughter of the said deceased though she

had filed testamentary petition inter alia praying for probate not as an

adopted daughter but as an executrix and beneficiary under the said

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Will.

40] In so far as the allegations of fraud made by the petitioner

against the respondent no.1 in the miscellaneous petition are

concerned, learned counsel for the respondent no.1 submits that

the petitioner has invoked Section 263 of the Indian Succession

Act, 1925, Explanations (b) and (c) and Illustrations (ii) and (iii).

Learned counsel invited my attention to paragraph 21 of the

miscellaneous petition alleging fraud against the petitioner by the

respondent no.1. In the said paragraph, it has been alleged by the

petitioner that on the death of her father late Tawarmal Hinduja in the

year 1960, the said deceased had inherited the substantial sum

along with her other sisters being the legal heirs. The amount was

inherited by the deceased from her father as per the last wishes

and as per desire of her father partly invested in the partnership firm

with her husband.

41] It is alleged that various properties had been inherited by

the deceased through her father. It is submitted that it is the case of

the petitioner in the miscellaneous petition that as the son of one of

the sisters of the said deceased, the petitioner is entitled to share in

the said property under Section 15(1) of the Hindu Succession Act,

1956. The petitioner has alleged that the respondent no.1 had

committed fraud by not showing the name of the petitioner in the

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petition as the legal heir and also concealed from this Court that the

part of the estate of the deceased was inherited by the deceased

from her parents and the same in law was to devolve by

succession as provided under the law to the legal heirs of the

parents/father. It is the case of the petitioner that as part of the

estate left behind by the deceased is to be governed by sub-section

(2) of Section 15 of the Hindu Succession Act, 1956 and

consequently, the interest of the petitioner, who is the legal heir of the

deceased, is prejudiced by the probate proceedings.

42] Learned counsel for the respondent no.1 invited my

attention to the grounds raised in the miscellaneous petition and

more particularly ground (xxiv) alleging that the said grant was

obtained by the respondent no.1 by means of an untrue allegation

to the effect that other than the legal heirs mentioned in paragraph 9

of the Testamentary Petition No.139 of 2009, there were no other

legal heirs.

43] Learned counsel appearing for the respondent no.1 invited

my attention to ground No.(xxxii) raised by the petitioner in the

Miscellaneous Petition and paragraphs 23 and 24 of the affidavit in

lieu of the examination-in-chief filed by the petitioner. She also invited

my attention to the answers of the petitioner in his cross-examination

and in particular to questions 17 to 24, 45 and 106 and 107 and

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would submit that the petitioner has in his cross-examination admitted

that he did not have any documents on record to show that the said

deceased had inherited any property from her father. He was also

not a party to any transactions. He also admitted that the said

deceased had given the gift of Rs.40,00,000/- to the respondent no.1.

44] Learned counsel invited my attention to the wealth tax

return of the said deceased for the assessment year 1998-99

showing various movable assets and immovable assets standing in

the name of the said deceased. She also invited my attention to the

fixed deposit made by the said deceased with HDFC Bank which was

in the joint name of the said deceased, the petitioner herein and

Mr.Ramesh Gwalani. He submitted that though the petitioner had led

oral evidence, he could not prove before this Court that the said

deceased had inherited any properties from her father and thus the

claims of the petitioner fell on that ground itself under section 15(2) of

the Hindu Succession Act, 1956. She submits that since the petitioner

or his mother were not class-I heirs, the citation could not have been

served on the mother of the petitioner or the petitioner himself.

45] Learned counsel for the respondent no.1 invited my

attention to the answers given by the petitioner in his cross-

examination in particular to questions 77 to 81 and would submit that

the petitioner has identified the signature of Smt.Ishwari Baldevdas

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Gwalani who was the maternal aunt i.e. the sister of the mother of the

petitioner on the affidavit dated 11th April, 2014. The said affidavit is

marked as Exhibit Y-1/4 for identification.

46] It is submitted by the learned counsel for the respondent

no.1 that the petitioner has all through out acted prejudicial to the

interest of all by using the funds of the estate after the death of the

said deceased. Some of such instances are on record of the present

proceedings. She invited my attention to a letter dated 13 th October,

2008 addressed by Mr.Ramesh Gwalani to the petitioner herein

alleging that after the demise of the said deceased, the petitioner had

withdrawn various amounts from her bank account without the

knowledge of the said Mr.Ramesh Gwalani and the same were

without any authority. He also invited my attention to paragraph 14 of

the miscellaneous petition filed by the petitioner admitting withdrawal

of some of the amounts from the joint account of the said deceased

by the petitioner.

47] It is submitted that in his cross-examination, the petitioner

admitted that the letter dated 13th October, 2008 was addressed by

Mr.Ramesh Gwalani to the petitioner alleging withdrawal of various

amounts of the deceased after her demise. The petitioner did not give

any response to the said letter. She submits that the petitioner was

fully aware of the Will of the said deceased. A copy of the said Will

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was sent to the petitioner by Mr.Ramesh Gwalani. She submits that

the wife and the sister of the petitioner are the beneficiaries of the

said Will. The petitioner was also aware of filing of the Probate

petition. Learned counsel invited my attention to the cross-

examination of the petitioner on this issue in reply to the questions

and more particularly his reply to questions 66 to 70, 73 to 77. She

submits that the wife of the petitioner was served with citation in the

testamentary petition filed by the respondent no.1. The petitioner

admitted that the wife of the petitioner was the beneficiary under the

said Will.

48] Learned counsel for the respondent no.1 placed reliance

on Rule 373 of the Bombay High Court (Original Side) Rules and

would submit that the respondent no.1 had fully complied with the

procedure described under the said provision. She invited my

attention to the affidavit of the attesting witness Mr.B.B. Parekh,

Advocate dated 16th October, 2008 annexed at page 585 of Volume

E2. She also relied upon the affidavit of the attesting witness

Dr.Deepti Mukesh, Advocate, which was identical to the affidavit of

Mr.B.B. Parekh, Advocate. She also placed reliance on the affidavit

dated 16th July, 2010 filed by Mr.B.B. Parekh, Advocate and would

submit that the affidavit of the attesting witness was not mandatory

under Rule 374 of the Bombay High Court (Original Side) Rules at all.

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She submits that the affidavit dated 16 th July, 2010 was filed by

Mr.B.B. Parekh, Advocate after two years of filing the first affidavit i.e.

dated 16th October, 2008. She submits that there is no inconsistency

between the affidavits filed by Mr.B.B. Parekh, Advocate and

Dr.Deepti Mukesh, Advocate. She submits that in any event, the

Court has to consider the entire evidence on record.

49] Insofar as the name of Mrs. Ishwari Baldevdas Gwalani

originally mentioned in the testamentary petition filed by the

respondent no.1 is concerned, it is submitted by the learned counsel

for the respondent that the said Mrs.Ishwari Baldevdas Gwalani was

also not the heir and next of kin of the said deceased and thus even

her name could not have been cited in the said testamentary petition.

The said name was thereafter deleted. She submits that all the legal

heirs and next of kin of the said deceased had filed the consent

affidavits and had waived service of citation and granted the consent

for grant of Probate in favour of the respondent no.1. Some of the

legal heirs and next of kin were the beneficiaries under the said Will.

She submits that the wife and two sisters of the petitioner who were

also the beneficiaries under the said Will did not file any consent

affidavits. They however, did not challenge grant of Probate granted

by this Court also.

50] Learned counsel for the respondent no.1 invited my

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attention to ground No.(xxiv) raised in the Miscellaneous Petition

alleging that grant of Probate obtained by the respondent no.1 was

defective in substance. She submits that the petitioner not being the

heir or next of kin of the said deceased, could not have raised such

ground in the petition.

51] Insofar as the submission of the learned counsel for the

petitioner that the respondent no.1 not having entered the witness

box and thus an adverse inference shall be drawn against her under

Section 114 of the Indian Evidence Act, 1872 is concerned, learned

counsel for the respondent no.1 placed reliance on Section 114 of the

Indian Evidence Act and would submit that presumption under

Section 114 is rebuttable. The respondent no.1 has proved her case

by documentary evidence and by cross-examining the petitioner.

She submits that the case of the respondent no.1 has been admitted

by the petitioner in his cross-examination. Learned counsel placed

reliance on an unreported judgment of this Court dated 28th April,

2014 in Second Appeal No.437 of 2008 in case of Smt.Kunda wd/o

Mahadeo Supare Ors. vs. Haribhau s/o Husan Supare in

support of the said submission.

52] Learned counsel for the respondent no.1 distinguished the

unreported judgment of this Court in case of Peter D’Souza and

would submit that in that case the original petitioner had suppressed

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the Will. In this case the petitioner was fully aware of the existence of

the Will and has acted prejudicial to the interest of the testatrix and

her estate. She submits that the petitioner has not been able to show

even the slightest interest in the estate of the said deceased in the

miscellaneous petition and thus this miscellaneous petition is not

maintainable. She submits that the only allegation of fraud made by

the petitioner is on the false premise that the citation was not served

upon the petitioner. She submits that the facts before this Court in

case of Peter John D’Souza Ors. (supra) are totally different.

53] Learned counsel appearing for the respondent no.1

distinguished the judgment of the Supreme Court in case of Jagjit

Singh Ors. (supra) on the ground that the facts before the

Supreme Court were totally different than the case before this Court.

She submits that in any event, the issue in respect of caveatable

interest is referred to a Larger Bench by the Supreme Court in the

said judgment.

54] Insofar as the judgment of the Supreme Court in case of

Basanti Devi (supra) relied upon by the learned counsel for the

petitioner is concerned, the said judgment is distinguished by the

learned counsel for the respondent no.1 on the ground that the said

matter was filed by grand-son of the deceased, who had caveatable

interest. He submits that the facts before the Supreme Court are

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clearly distinguishable in the facts and circumstances of this case and

the said judgment would not assist the case of the petitioner.

55] Learned counsel for the respondent no.1 placed reliance

on section 15 of the Hindu Succession Act, 1956 and would submit

that the petitioner in this petition falls in class (d) if the petitioner

proves that the properties were acquired by the said deceased from

her parents which the petitioner has failed. She submits that under

section 15(2) of the Hindu Succession Act, only if the said deceased

would have inherited the property from her parents, the heirs of the

deceased would have inherited some share and would have

caveatable interest which conditions are not satisfied by the

petitioner. My attention is also invited to the family tree annexed at

page no.524 of the compilation of documents. She also invited my

attention to page no.25 of the Miscellaneous Petition and submits that

admittedly the petitioner had visited the office of the Collector and

was thus fully aware of the execution of the Will by the respondent

no.1.

56] Learned counsel for the respondent no.1 invited my

attention to the affidavit of Mr.B.B. Parekh and Dr.Deepti Mukesh,

Advocate and would submit that both the attesting witnesses had

categorically mentioned in their respective affidavits that the said

deceased was of sound and disposing mind on the date of execution

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of the Will. She submits that the judgment of the Supreme Court

reported in (1999) 3 SC 573 has been dealt with by the learned single

Judge of this Court in an unreported judgment rendered in Second

Appeal No.437 of 2008 in case of Smt.Kunda wd/o Mahadeo

Supare Ors. vs. Haribhau s/o Husan Supare. She placed

reliance on an unreported judgment of this Court delivered on 8 th July,

2014 in case of Jagdish Asarpota Anr. in the matter between

Smt.Kusum Bharat Asarpota vs. Jagdish Damodardas Asarpota

Anr. in Chamber Summons No.64 of 2014 and in particular

paragraphs 19, 28 to 31, 34 and 39 in support of her submission that

the petitioner in this case did not even have slightest caveatable

interest and thus was not entitled to be served with the citation. She

also placed reliance on the judgment of this Court in case of

Mrs.Perviz Sarosh Batliwalla Anr. vs. Viloo Plumber Anr.,

AIR 2000 Bombay 189 and in particular paragraphs 7 and 8 in

support of her submission that the petitioner does not have even

slightest interest in the estate of the said deceased and is thus not

entitled to maintain the present petition for revocation of the Probate

granted in favour of the respondent no.1.

57] Mr Joshi, learned Senior Counsel for respondent No.2

submits that the petitioner has no locus or caveatable interest for

filing this petition under section 263 of the Indian Succession Act,

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1925, for revocation of probate granted by this Court on 29 th

September 2010. He submits that to maintain an application for

revocation of grant of probate, some interest in the estate of the

deceased has to be established by a person, who claims through the

testator or through a legal heir or representative of the testator. He

submits that the petitioner has to establish that by virtue of issuance

of grant of probate in favour of respondent No.1, the interest of the

petitioner is adversely affected. Learned Counsel submits that the

petitioner has not established before this Court that he was entitled to

contest the grant of probate in favour of respondent No.1.

58] In support of this submission, the learned Senior Counsel

placed reliance on the judgment of this Court in case of Prakash P.

Bambardekar Vs. Avinash Vishwanath Ajgaonkar {2013 (5)

Mh.L.J. 399}, and in particular, paragraph 21 thereof. It is submitted

by the learned Counsel that the petitioner has not established before

this Court that he would be entitled to estate of the deceased in case

of intestacy and to show as to how he has any interest in the property

of deceased. He submits that the petitioner admittedly does not fall in

the list of Class I heirs under the provisions of the Hindu Succession

Act, 1956. In support of this submission, learned Senior Counsel

placed reliance on the judgment of this Court in case of Ramesh

Nivrutti bhagwat Vs. Dr. Surendra Manohar Parakhe (AIR 2001

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Bombay 461), and in particular, paragraph 10 thereof.

59] It is submitted by the learned Senior Counsel that since the

petitioner does not fall in Class I heirs, the petitioner cannot claim any

interest in the estate of said deceased. It is submitted that the claim

of the petitioner as an heir is based upon Section 15(2)(a) of the

Hindu Succession Act, 1956. He submits that under the said

provision, since heirs of husband of the said deceased are alive, who

are entitled to inherit in case of intestate of property of a female Hindu

dying intestate, the petitioner is not entitled to any share in the

property of said deceased , even in case of intestacy. He submits

that the petitioner has failed to prove before this Court that any of the

property is inherited by said deceased from her father or mother and,

thus, the petitioner would not get any share in the property, even

under section 15(2)(a) of the Hindu Succession Act.

60] Learned Senior Counsel placed reliance on the judgment

of this Court in case of Arjundas s/o Narayandas Panjwani and

others Vs. Vera Mishra of Bombay and another, {1995(3) Bom.

C.R. 497} and, in particular, on paragraphs 10 to 12 of the said

judgment. He also placed reliance on the judgment of this Court in

case of George Anthony Harris Vs. Millicent Spencer {1932

Bombay Law Reporter (Volume XXXV) 708}, and in particular, 11th

Paragraph at page 712, and would submit that the person applying for

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revocation of grant of probate or letter of administration, has to show

that he is interested in alleged will though the said interest may be

very slight, which the petitioner is entitled to claim in estate of the said

deceased.

61] Learned Senior Counsel for respondent No.2 placed

reliance on an un-reported judgment of this Court delivered on 28 th

March 2014 in Miscellaneous Petition No.5 of 2013 in

Testamentary Petition No. 722 of 2010 in case of Peter John

D’Souza and others Vs. Armstrong Joseph D’Souza and would

submit that the Court can take cognizance of the allegation of fraud,

fabrication or concealment even at the instance of a party, however,

he should establish the interest in the property of the deceased,

though the said interest may be even slightest interest. He also

placed reliance on the judgment of the Supreme Court in the case of

G. Gopal Vs. C. Baskar and others, {(2008) 10 Supreme Court

Cases 489} and submits that the petitioner not having even slightest

interest in the estate of the testator was not entitled to be served with

citation, and consequently, could not maintain this petition for

revocation of grant of probate. He submits that in view of the

conflicting view taken by the Supreme Court on the issue of

caveatable interest for grant of probate in case of K.K. Birla reported

in (2008) 4 Supreme Court Cases 300 and in case of G. Gopal,

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cited supra, the issue has been referred to a Larger Bench by the

Supreme Court in case of Jagjit Singh and others Vs. Pamela

Manmohan Singh, {(2010) 5 Supreme Court Cases 157}.

62] Learned Senior Counsel for the respondent No.2

distinguished the judgment in the case of Basanti Devi Vs. Ravi

Prakash Ram Prasad Jaiswal {(2008) 1 Supreme Court Cases

267}, relied upon by the learned Counsel for the petitioner on the

ground that in the said judgment, appellant was held to be an heir of

deceased. It was held by the Supreme Court in the said judgment

that a person, who is aggrieved by grant of probate, is entitled to file

an application for revocation. He submits that in this case, petitioner

is not aggrieved by grant of probate in favour of respondent No.1 in

any manner whatsoever, and thus, not entitled to maintain this

application for revocation of grant of probate. He submits that the

facts before the Supreme Court in the case of Basanti Devi, are

clearly distinguishable.

63] Learned Senior Counsel invited my attention to the order

dated 8th December 2014 passed by this Court rejecting the request

of respondent No.1 to frame an issue as to “Whether petitioner proves

that he is class I heir of the deceased and is entitled to a share in her

property “. He submits that however, while rejecting the said request

for framing such issue, this Court had clarified that said issue was

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entirely covered by issue No.3, which requires petitioner herein to

establish that he has and is entitled in law to a share, right, title and

interest in the property of the deceased. He submits that in this case,

the said deceased had no natural children admittedly and her

husband had predeceased her.

64] It is submitted that notwithstanding the claim of

respondent No.1 to be an adopted daughter of the deceased, which is

an issue in the present proceedings, even if it is assumed that there

are no children of the deceased, the heirs of said deceased would be

as per section 15(1)(b) of the Hindu Succession Act, 1956, the heirs

of the late husband of said deceased. Learned Senior Counsel

invited my attention to some of the averments made in the petition

making a claim of heirship under section 15(2)(a), which is an

exception of general rule of succession in section 15(1) on the

ground that the petitioner is the son of pre-deceased son of the

deceased, and therefore, he is an heir of father of the deceased. It

was alleged that the said deceased had allegedly inherited substantial

amount upon the death of her father, which was particularly invested

by the said deceased in property at Warali, in Niranjan building,

Marine Drive and property at Warali. It is further alleged by the

petitioner that said deceased had inherited substantial amount,

jewelery upon her mother’s death and invested in purchase of

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property, and therefore, upon her intestacy, this part of her estate

purchased from sums inherited from her parents, would revert to the

heirs of father of the deceased under section 15(2)(a) and not upon

the heirs of husband of the deceased under section 15(1)(b) of the

Hindu Succession Act, 1956.

65] Learned Senior Counsel invited my attention to the

deposition of the petitioner, and more particularly, in paragraph 23

and 24 of his affidavit in lieu of his examination-in-chief in this regard.

He submits that apart from assertions of petitioner in paragraphs 23

and 24 of affidavit of examination-in-chief, he has not led any

independent evidence, either documentary or parole to corroborate

any of the claims made by him in said two paragraphs.

66] Learned Senior Counsel for the respondent No.2 invited

my attention to various answers given by the petitioner during the

course of his cross-examination and would submit that the petitioner

had admitted that he was not a party to any transactions mentioned in

paragraph 23 of his affidavit in lieu of his examination-in-chief. He did

not have any document on record in relation to any of the transactions

as mentioned in paragraph 23 of his affidavit. Though he claims to

have acted as a witness to a sale deed, he neither produced alleged

document nor has mentioned about he being a witness to such a

alleged sale deed in his affidavit in lieu of examination-in-chief.

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67] It is submitted by the learned Senior Counsel that the

petitioner also admitted that he had access to all the documents lying

in the office of the said deceased and that he was providing

assistance to said deceased in managing her money lending

business. The said deceased was also consulting him for filing her

returns in tax matters. He submits that petitioner also admitted that

amounts of Rs. 1.15 crore and 32 lacs, which the petitioner claimed

that the same were obtained by the said deceased from sale of suit

premises, was not reflected in the tax returns produced by him. He

also admitted that he has not produced any tax record of the said

deceased except tax returns of 1998-1999. The petitioner could not

identify even single document, which according to him, was

supporting his case that the said deceased has inherited various

amounts from her late father or mother.

68] Learned Senior Counsel for the respondent also invited my

attention to some of the answers given by the petitioner in his cross-

examination by learned Counsel for respondent No.2. He submits

that the petitioner admitted in his cross-examination that he has not

produced any document to show that the said deceased has inherited

substantial sums from her father. He submits that petitioner also

admitted that husband of said deceased had passed away in 1980

and that premises of “Niranjan” building was acquired in the year

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1965. The petitioner also admitted that husband of deceased was a

money lender and does not know whether parents of said deceased

were money lenders. Deceased was carrying on money lending

business with her husband. Learned Senior Counsel submits that the

petitioner has categorically admitted that he had no personal

knowledge of any such transaction, as alleged in affidavit in lieu of his

examination-in-chief.

69] It is submitted by the learned Senior Counsel that the

petitioner has not led any independent evidence of any other witness,

who would have personal knowledge of the alleged inheritance

including sole surviving sister of the deceased i.e. Ishwari Gwalani,

who would have been the best person to confirm or deny whether

any such inheritance was actually received by sisters, as alleged by

the petitioner. In the alternate, the learned Senior Counsel submits

that it is not the case of the petitioner that the property, allegedly

inherited by said deceased, is available even today, and has also

failed to show as to how the alleged inheritance was being used by

deceased. The petitioner himself has admitted that said amounts or

jewelery in specie are not available but had been used by the said

deceased herself.

70] It is submitted by the learned Senior Counsel that since the

property in its original form itself is not available but is mixed up with

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property of the deceased or her husband, Section 15(2)(a) would

have no application. In support of this submission, the learned Senior

Counsel placed reliance on the judgment of the Andhra Pradesh High

Court in case of Emana Veeraraghavamma Vs. Gudiseva

Subbarao and another (AIR 1976 AP 337 and at page 339.) It is

submitted that the ownership of the said deceased cannot be traced

in such property, or that as to whether such property was inherited by

parents of the said deceased cannot be decided.

71] It is submitted by the learned Senior Counsel that since the

petitioner has no chance of succeeding to the estate of the testator,

he cannot maintain this application for revocation of probate. In

support of this, the learned Senior Counsel placed reliance on the

judgment in the case of Dular Khan Vs. Kesar Kuer (AIR 1964

Patna 518).

72] It is submitted by the learned Senior Counsel for the

respondent No.2 that the petitioner is not a credible witness and his

testimony cannot be believed. He submits that in paragraph 32(xv) of

his affidavit in lieu of examination-in-chief, the petitioner had claimed

that at the time when the will was executed, deceased was sick,

infirm and was not in a position to have independent advice or to

resist the influence of the presence of the witnesses present at the

time of execution of the will. The petitioner has relied upon the bank

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account opening form for a fixed deposit account where he was a co-

applicant with the deceased, which was dated 24 th March 2004 while

the will was executed on 3rd November 2004. In his cross-

examination, he admitted that in 2004 deceased was in a sound state

of mind and good physical health. He agreed with the suggestion that

the statement made by him in paragraph 32(xv) of affidavit in lieu of

his examination-in-chief was incorrect.

73] It is submitted by the learned Senior Counsel that the

petitioner has produced a letter dated 17th February, 2009 seeking

information from respondent No.4 society in respect of the nomination

form executed by the said deceased. However, in his cross-

examination, the petitioner denied that he was aware of nomination

made by the deceased in respect of premises of the said society. He

also pleaded ignorance about the nominations made by said

deceased in respect of her flats in “Krishnakunj” building and

“Neelkanth Niranjan” building. He further claimed that he had never

asked the said deceased about nomination made by her in the

“Neelkanth Niranjan” Society despite being member of the society.

74] It is submitted that when the witness was confronted in

respect of his deposition relating to the letter dated 17th February,

2009, in paragraph 18 of his affidavit in lieu of examination-in-chief

with the photo copy of the nomination forms by the deceased initially

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in favour of respondent No.1 and subsequently in favour of

respondent No.2, he admitted those documents in the cross-

examination. He submits that the petitioner was also aware of the

existence of those nomination forms but deliberately claimed

ignorance of the same.

75] It is submitted that the petitioner was referred to certain

payments made by him and claimed that he might have been mis-

advised in respect of such payments. In his cross-examination, he

alleged that he had sought advice from the Counsel, mentioned in

paragraph 16, after the death of the deceased and he made

payments on the basis of power of attorney granted by the said

deceased to look-after the estate. Petitioner subsequently deposed in

cross-examination that he had made a mistake in claiming that he

had taken any legal advice after the death of the deceased and

claimed that he had only paid Counsel’s fees. It is submitted by the

learned Senior Counsel that the evidence of the petitioner would

clearly indicate that he had made various inconsistent and

contradictory statements, and thus, his evidence cannot be believed

by this Court on the ground that he is not a credible witness.

76] In so far as issue No.1 is concerned, it is submitted that

while considering an application for revocation under section 263 of

the Indian Succession Act, 1925, it is necessary that there should be

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strict proof of existence of one or the other circumstances,

enumerated in the Illustrations of Section 263. The grant of

revocation is a matter of substance and not merely a matter of form.

He submits that powers, which could be exercised by Court under

Section 263 of the Indian Succession Act, are discretionary, and

unless the Court comes to the conclusion that the cause mentioned in

Explanation to Section 263 of the Indian Succession Act is made out

by the petitioner, Court cannot pass order of revocation of grant of

probate or letter of administration. In support of this submission, the

learned Counsel placed reliance on the judgment of the Hon’ble

Supreme Court in the case of Anil Behari Ghosh Vs. Smt. Latika

Bala Dassi and others (AIR 1955 Supreme Court 556), and in

particular, paragraphs 16 to 19, 21 22. He submits that the Court

has power to refuse to grant revocation, where there is no likelihood

of proof being offered that the will admitted to probate was either not

genuine or has not been validly executed. He submits that the

petitioner has failed to prove that his case falls in any of the just

cause, mentioned in Explanation to Section 263 of the Indian

Succession Act.

77] Learned Senior Counsel placed reliance on the judgment

of this Court in case of Lydia Agnes Rodrigues and others Vs.

Joseph Anthony D’Cunha and others, delivered on 14th October

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2013 in Miscellaneous Petition No.86 of 2013, in support of his

submission that the petitioner has not led any foundation in the Misc.

Petition about his allegations of forgery of will, and thus, on that

ground itself, no order of revocation can be passed by this Court.

78] Learned Senior Counsel placed relied on the judgment of

the Madras High Court in case of Shanmugham Chetti Vs.

Chinnammal {(1978) 91 L.W. 237 (Mad.)(DB) 239}, and more

particularly, on paragraph 6 thereof, and submits that since the

petitioner has suppressed various true and correct facts, this petition

for revocation of grant of probate deserves to be dismissed on that

ground itself.

79] Learned Senior Counsel submits that the will had been

executed by said deceased on 3rd November 2004. The petitioner in

his cross-examination has admitted that in the year 2004, the

deceased was in a sound state of mind and in good physical health.

The deceased had signed a form in the year 2004 opening a fix

deposit. The petitioner himself was the second applicant in the said

application form. In support of this submission, the learned Senior

Counsel placed reliance on the answers of the petitioner in his cross-

examination, and more particularly, to question Nos. 66 to 70 by

respondent No.2. He invited my attention to the reply given by the

petitioner to question No. 71 and would submit that when the witness

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was shown paragraph No. 32(xv) of his affidavit in lieu of

examination-in-chief and was asked whether his statement in

paragraph 32 (xv) that the said deceased was aged, thin, infirm and

was not in a position to have independent advice or to resist

influence, is incorrect, the said witness deposed that what he had said

in Court was correct and agreed to the said suggestion made by

respondent No.2 to the witness. It is submitted that the petitioner has

also admitted that several contemporaneous documents were signed

by the said deceased, which clearly match the signature of the

deceased on the will. He submits that petitioner has accepted that

nomination form was filed by said deceased on 9th November 2004.

80] It is submitted by the learned Senior Counsel that the

petitioner was required to furnish better particulars under Order VI

Rule 4 of the Code of Civil Procedure 1908 while alleging fraud,

undue influence and coercion, which in this case petitioner has failed,

and thus, this Court shall dismiss the petition on this ground alone. In

support of this submission, learned Senior Counsel placed reliance on

the judgment of the Supreme Court in case of Bhishundeo S/o

Seogeni Rai (AIR 1951 Supreme Court 280), in particular

paragraphs 24 and 25.

81] Learned Senior Counsel for respondent No.2 invites my

attention to various grounds raised by the petitioner in Misc. Petition

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and made various submissions on each of those grounds. He

submits that since the petitioner was not a legal heir or next of kin of

the deceased and does not have caveatable interest, he was not

entitled to be served with the citation. He submits that all the heirs of

the said deceased under section 15(1)(b) of the Hindu Succession

Act, 1956, i.e. the heirs of her late husband had been already

disclosed in the Testamentary Petition filed by respondent No.1. He

submits that Testamentary Petition was, thus, not defective in

substance or that the grant of probate was not obtained by false

suggestion that there was no other heirs than disclosed in paragraph

No. 9 of the petition.

82] In so far as the submission of the learned Counsel for the

petitioner that the signature of the said deceased on the will was not

genuine is concerned, it is submitted by the learned Senior Counsel

for respondent No.2 that the said will has been duly proved by

respondent No.1, as required by law under section 63 of the Indian

Succession Act, 1925. The signature on the will is the same as that

on another contemporaneous document i.e. nomination form filed by

said deceased in favour of respondent No.2 in respect of Flat in

“Niranjan” building. The said nomination form also contains mark of

the office bearer of the society accepting that the signature was

verified and that the person signing it was genuine. He submits that

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to prove the allegations made by the petitioner in the Misc. Petition

regarding specimen signature of the said deceased on the will, the

petitioner did not lead any evidence to prove such allegations

specifically. Petitioner also did not examine any expert evidence

though has stated that the will was required to be examined by an

examiner of the documents for ascertaining whether the same was

original or copy or forged. He submits that there is no requirement in

the probate proceedings to produce any specimen signature.

83] In so far as alleged variance in affidavits of Mr. B.B.

Parekh Advocate (attesting witness), Ishwari Gwalani and Ramesh

Gwalani as to the discrepancies shown by the petitioner regarding the

attesting witness Mr. B.B. Parekh that the deceased had signed on

each page, whereas there was no signature on page No.2, the

second attesting witness had projected as a doctor though the said

doctor was conferred doctorate other than in medicine is concerned, it

is submitted by the learned Senior Counsel that there was no

irreconcilable variance between the affidavits of attesting witnesses

i.e. Mr. B.B. Parekh and Dr. Dipti Mukesh. He submits that only

discrepancy in the two statements by two attesting witnesses was that

one of the attesting witness had stated that the will was executed at

the house of the deceased, while in the affidavit dated 7 th November,

2008 filed by other witnesses, it was claimed that the will was signed

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at the office of the Advocate.

84] It is submitted that for grant of probate, due execution was

to be proved by the attesting witness. The petitioner himself has

admitted in the petition that the contents of affidavit filed by the

relatives of the deceased are genuine. He submits that the alleged

discrepancy does not in any manner affect the genuineness of the will

or create any suspicious circumstance. It is submitted that it is not

the case of the petitioner that deceased was not in a position to

execute will at her residence or at the office of the Advocate. He

submits that alleged discrepancy pointed out by the petitioner is not of

such egregious nature so as to enable the petitioner to claim just

cause on the ground of any false suggestion or concealment of any

material fact.

85] In so far as the grounds raised in paragraphs XII and

XXXIV of the Misc. Petition is concerned, it is submitted by the

learned Senior Counsel that the petitioner has not led any evidence to

show that the same was willful or done fraudulently, and thus, it

cannot amount to just cause under section 263 of the Indian

Succession Act. He submits that grounds raised in paragraph XXII

are without any basis.

86] In so far as the grounds raised by the petitioner that

respondent No.1 in her Testamentary Petition has not given complete

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list of brothers and sisters of the said deceased as well as the

complete list of brothers and sisters of husband of said deceased in

Paragraph 9 of the petition is concerned, it is submitted by the

learned Senior Counsel that respondent No.1 had given names of

next of kins under Section 15(1) of the Hindu Succession Act, 1956,

in paragraph 9 of the amended petition.

87] It is submitted by the learned Senior Counsel that the

petitioner in his cross-examination in response to question Nos. 30

and 31 has admitted that respondent No.1 was in occupation of

premises of deceased and that he had not objected to the same at

any point of time. The petitioner has also not furnished any details of

any alleged property collected, which was omitted to be mentioned

and did not produce any material in support of these allegations. He

submits that the petitioner has also failed to produce any material in

support of his allegation that respondents No.1 and 2 had inter-

meddled with the property of the deceased before grant of probate.

Petitioner admitted that he had retained the passbooks and cheque

books of various accounts of the said deceased and had returned the

same to respondent No.1 alongwith his letter dated 22nd May 2008.

The petitioner admitted that those documents were returned to

respondent No.1 as she was a joint holder of the account with the

said deceased. The petitioner also did not lead any evidence to

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establish that the amounts in those accounts belonged to the said

deceased.

88] Learned Senior Counsel for the respondent No.2 submits

that the petitioner has failed to prove the allegation that respondent

No.2 had practiced fraud in purchase of flat in “Niranjan” building in

capacity as a nominee of the deceased. The petitioner himself has

admitted that the signature on the said nomination form filed was of

the said deceased. He submits that on the contrary, the petitioner

himself has intermeddled with the estate of the deceased. In support

of this submission, the learned Senior Counsel placed reliance on

letter dated 13th October 2008 addressed by Mr. Ramesh Gwalani

alleging that the petitioner had withdrawn funds from the account of

the deceased after her demise.

89] In so far as the issue as to whether respondent No.1 was

an adopted daughter of the said deceased or not, is concerned, the

learned Senior Counsel for respondent No.2 adopted the arguments

advanced by the learned Counsel for the respondent No.1.

90] In so far as the submission of the learned Counsel for the

petitioner that the execution of the will was surrounded by suspicious

circumstances is concerned, he submits that the petitioner has not led

any evidence to prove these allegations and these allegations are

based on conjectures. He submits that the said deceased had lot of

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love and affection towards respondent No.2. The petitioner has

named only respondent No.1 and respondent No.2 as being

recipients of gifts from the deceased during her life time. Petitioner

also admitted that only loans and not gifts were given to his family by

the said deceased. Petitioner has also admitted that the deceased

had her own money lending business, huge investments and several

litigations. The said deceased died after four years of making will.

91] In so far as submission of the learned Counsel for the

petitioner that there was no statement made in the will that the will

was read-over to the deceased is concerned, he submits that no such

ground has been raised by the petitioner in the Misc. Petition. He

submits that since there was no plea in the Misc. Petition to this

effect, no evidence could be led by the petitioner beyond the

pleadings. He submits that no evidence was led by the petitioner to

show that the deceased did not understand English. On the other

hand, the petitioner himself has produced various documents of the

said deceased, the contents of which were in English, and while

referring to those documents, the petitioner had not claimed that the

deceased was required to be explained the contents of those

documents before the same was signed by the said deceased. He

submits that there is no substance in the submission of the learned

Counsel for the petitioner, made across the bar, that there was no

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statement in the will that the same was read-over to the said

deceased.

92] The learned Senior Counsel for respondent No.2 also filed

written submissions on behalf of his client in addition to oral

submissions made by him.

93] Learned Counsel for respondent No.3 tendered a list of

events and would invite my attention to various documents annexed

to the documents on record. She also invited my attention to order

dated 10th December 2013 passed by this Court, holding that the title

of respondent No.3 to the property in question is not a matter that can

be decided in the Misc. Petition for revocation. It is not in dispute

that there are no reliefs claimed by the petitioner against respondent

No.3 in this Misc. Petition. The learned Counsel for respondent No.3

submits that her client has purchased the flat in question from

respondent No.2 after grant of probate by this Court in favour of

respondent No.1. She placed reliance on Section 273 of the Indian

Succession Act, 1925, in support of her submission that grant of

probate granted by this Court is conclusive. Respondent No.3 has

also filed an affidavit in reply opposing this petition.

94] It is submitted that her client was a bona-fide purchaser.

She placed reliance on the judgment of the Madras High Court in

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case of G.F.F. Foulkes and others Vs. A.S. Suppan Chettiar and

another {(1995) ILR Mad 607} and in particular, pages 609, 624,

639 and 640, in support of her submission that the executor or

administrator has power to dispose of the property of the deceased

vested in him under Section 211 and they cannot be followed either

by the creditors or by the legatees into the hands of the alinee.

Learned Counsel for respondent No.3 also placed reliance on the

judgment of the Supreme Court in the case of Crystal Developers

Vs. Smt. Asha Lata Ghosh (Dead) through Les. And others (AIR

2004 Supreme Court 4980), and in particular, on paragraphs 28 to

32 and 53. She submits that once this Court has granted probate, the

same is conclusiveness of the representative title. Grant of probate

operates as judgment-in-rem and cannot be said to be as grant on

fraud or collusion, unless the same is pleaded and proved by the

parties so alleging. Mr. Makhija, learned Counsel for the petitioner,

fairly admits that no relief is sought by his client against respondent

No.3 in Miscellaneous Petition.

95] Mr. Makhija, learned Counsel for the petitioner in rejoinder

submits that in so far as issue of locus raised by respondents against

his client is concerned, though locus of the petitioner was challenged

by the respondents. This Court having been satisfied that the

petitioner had locus to file this petition, has admitted this petition.

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96] In so far as submission of learned Counsel for the

respondents, based on Section 15(2) of the Hindu Succession Act,

1956, is concerned, it is submitted that even if this Court comes to

conclusion that petitioner has not produced any document to show

that said deceased has inherited property from her parents, that

would not take away the rights of the petitioner to apply for

revocation. He submits that the petitioner has interest in the estate

of the said deceased and, thus, even the slightest interest in the

estate is sufficient to maintain the petition for revocation for grant of

probate. Such slightest interest cannot be equated to the caveatable

interest.

97] In so far as reframed issue No.1 is concerned, it is

submitted by the learned Counsel for the petitioner that none of the

respondents led any evidence to show that the testator had

understood the contents of the will, which were in English, though the

testator has signed in Hindi. He submits that though one of the

attesting witnesses had deposed that every page of the will was

signed by the testator, admittedly, even according to the respondents,

page No.2 did not bear any signature of the deceased. He submits

that the power of attorney produced on page 357 of the record was

also signed by the said deceased in Hindi.

98] It is submitted by the learned Counsel for the petitioner

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that alleged will was not in the solemn form. He submits that

signature on nomination forms if compared with the alleged signature

on the will, it will be clear that the alleged signature of the deceased

on the will was fabricated.

99] In so far as issue No.2 regarding adoption is concerned,

the learned Counsel for the petitioner submits that the onus was on

respondent No.1 to prove that she was an adopted daughter of said

deceased. The learned Counsel invites my attention to Sections 5 to

11 of the Hindu Adoption and Maintenance Act, 1956, and would

submit that the adoption has to be proved in accordance with those

provisions, which the respondent No.1 failed to prove by leading any

evidence before this Court. He submits that conditions set out in

Sections 5 to 11 of the said Act are not at all satisfied by respondent

No.1. He submits that affidavits and photographs would not prove

the adoption of respondent No.1. The affidavit relied upon by

respondent No.1 was not marked as exhibit and, thus, no such

affidavit can be relied upon.

100] Learned Counsel for the petitioner placed reliance on the

judgment of the Hon’ble Supreme Court in case of Nilima Mukherjee

Vs. Kanta Bhusan Ghosh {(2001) 6 Supreme Court Cases 660}

and, in particular, paragraphs 4 and 5, on the issue of adoption raised

by the petitioner. He also placed reliance on the judgment of the

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Hon’ble Supreme Court in the case of Pentakota Satyanarayana

and others Vs. Pentakota Seetharatnam and others {(2005) 8

Supreme Court Cases 67}, and in particular, paragraph 35 in

support of aforesaid submission.

101] Learned Counsel for the petitioner placed reliance on the

judgment of this Court in case of Bama Kathari Patil Vs. Rohidas

Arjun Madhavi and another {2004(2) Mh.L.J. 752 (Bom.)}, and

judgment of Hon’ble Supreme Court in the case of Narbada Devi

Gupta Vs. Birendra Kumar Jaiswal and another {(2003) 8

Supreme Court Cases 745}, and in particular, paragraphs 16 and

17; and judgment of this Court in case of Geeta Marine Services

Pvt. Ltd. and another Vs. State and another {2009(2) Mh. L.J.

410}, and in particular, paragraphs 21 and 22, in support of the

submission that merely because some of the documents are marked

as exhibits, proof is not dispensed with without formal proof of the

said document. He submits that since some of the documents, which

were in custody of the petitioner, were returned to respondent No.1

by the petitioner, he could not produce those documents, and thus,

no inference can be drawn by this Court against petitioner for not

producing such documents.

102] It is lastly submitted that this Court has ample power to set

aside the grant of probate if this Court is satisfied that the grant of

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probate was obtained fraudulently by respondent No.1 or on the

ground that the execution and attestation of will was not proved.

103] I shall first deal with issue No.3 i.e. as to “whether the

petitioner proves that he has a caveatable interest and the necessary

locus to file the instant petition ?”

104] It is not in dispute that the petitioner does not fall in Class-I

prescribed under the Hindu Succession Act, 1956. The claim of the

petitioner as an heir is based upon Section 15(2)(a) of the Hindu

Succession Act, 1956. It is also not in dispute that the heirs of the

husband of the said deceased are still alive and in case of intestacy

those heirs of the husband would be entitled to inherit the properties

of the deceased in case of intestacy. If the said deceased would

have died intestate, even in that event the petitioner would not have

been entitled to any share in the property of the said deceased unless

the said properties would have been inherited by the said deceased

from her father or mother.

105] The question that arise for consideration of this Court is

whether the petitioner had proved by leading cogent evidence before

this Court that the said deceased had inherited any of the properties

from her father or mother and thus on intestacy the petitioner would

have a share under Section 15(2)(a) of the Hindu Succession Act,

1956, and consequently will have a locus to challenge the property

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granted by this Court by invoking Section 263 of the Indian

Succession Act, 1925.

106] The petitioner had admittedly entered the witness box in

this Miscellaneous Petition. This Court had passed an order on

8.12.2014 rejecting the request of respondent No.1 to frame an issue

as to “whether petitioner proves that he is Class-I heir of the

deceased and is entitled to a share in her property”. This Court,

however, while rejecting such request for framing such issue clarified

that such issue was entirely covered by Issue No.3, which require the

petitioner to establish that he is entitled in law to share title and

interest in the property of the said deceased. Admittedly, in this case,

the said deceased had no natural children and her husband had

predeceased her. The heirs of the said deceased would be those as

per Section 15(1)(b) of the Hindu Succession Act, 1956 i.e. heirs of

the late husband of the said deceased.

107] A perusal of the averments made by the petitioner in the

Miscellaneous Petition indicates that the petitioner has made a claim

of heirship under Section 15(2)(a) of the Hindu Succession Act, 1956,

which is an exception of General Rule to succession under Section

15(1) on the ground that the petitioner is the son of predeceased son

of the said deceased.

108] A perusal of the deposition made in paragraph Nos.23 and

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24 of the affidavit in lieu of examination-in-chief filed by the petitioner

and the cross-examination of the petitioner and more particularly his

reply to question Nos.17 to 24, 45, 106 and 107 clearly indicates that

the petitioner has admitted that he did not have any document on

record to show that the said deceased had inherited any property

from her father. The petitioner also admitted that he was not a party

to any transactions. The wealth tax return filed by the said deceased

for the assessment year 1998-99 also clearly shows that various

movables and immovable assets had been standing in the name of

the said deceased.

109] A perusal of the evidence thus clearly indicates that the

petitioner has failed to prove that the said deceased has inherited any

properties from her father. In my view, the claim of the petitioner thus

would fall on the ground under Section 15(2) of the Hindu

Succession Act, 1956. In my view, since the petitioner or his mother

were not Class-I heirs admittedly, the respondent No.1 was not

required to serve any citation on the petitioner or his mother in the

Testamentary Petition filed by the respondent No.1.

110] Mr.Makhija, learned counsel for the petitioner could not

point out any other evidence on record whether oral or documentary

in support of his submission that the said deceased had inherited any

of the properties from her father. The learned counsel could not

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dispute before this Court that the petitioner in his cross-examination

had admitted that he had no documents to show that the said

deceased inherited any of the properties from her father or that he

was party to any such transactions. In my view, the petitioner would

have became entitled to claim some share in the assets of the said

deceased only if the petitioner would have proved that the properties

were acquired by the deceased from her parents under Section 15(2)

of the Hindu Succession Act, 1956, and in that event would have

caveatable interest. In my view, the Judgments of this Court in case

of Ramesh Nivrutti Bhagwat (supra) and Prakash P.Bambardekar

(supra), would squarely apply to the facts of this case and would

assist the case of the respondents. I am respectfully bound by the

said Judgments.

111] A perusal of the record further indicates that though the

petitioner has claimed to have acted as a witness to the sale deed,

he has neither produced any alleged documents nor has mentioned

anything about being a witness to such alleged sale-deed in his

affidavit in lieu of examination-in-chief. The petitioner had admitted

that he had access to the documents lying in the office of the said

deceased and had allegedly provided assistance to the said

deceased. The petitioner also admitted that husband of the said

deceased had passed away in the year 1980 and that premises in

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‘Neelkanth Niranjan’ building was acquired in 1965. The deceased

herself was carrying on money lending business with her husband.

The petitioner also admitted that he had no personal knowledge of

any transaction in his affidavit in lieu of examination-in-chief.

112] It is not in dispute that the petitioner also did not lead any

independent evidence of any other witness, including sole surviving

sister of the deceased i.e. Ishwari Gwalani, who was the best person

to confirm or deny whether any such inheritance were actually

received by sisters as alleged by the petitioner. Be it as may, it is not

the case of the petitioner that property allegedly inherited by the said

deceased, is available even today or has also failed to show before

this Court as to how alleged inheritance was being used by the

deceased. The petitioner has admitted in his evidence that the

jewellery and some other property in specie is not available, but had

been used by the said deceased herself during her life time.

113] In my view, since admittedly the properties of the said

deceased are not available in its original form, but has been mixed-up

with the property of her husband or other properties, Section 15(2)(a)

of the Hindu Succession Act, 1956 would have no application. The

Judgment of Andhra Pradesh High Court in case of Emana

Veeraraghavamma (supra) squarely applies to the facts of this case.

I am in agreement with the views expressed by the Andhra Pradesh

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High Court in the said Judgment.

114] In my view, since the petitioner was not having any interest

of any nature in the properties of the said deceased or could not claim

any right therein even in case of intestacy, and since the petitioner

failed to prove that the said deceased inherited any properties from

her parents, the petitioner did not have any caveatable interest and is

thus not entitled to maintain this petition for revocation under Section

263 of the Indian Succession Act, 1925. In my view, the

Testamentary Petition is not defective in substance or that the grant

of Probate was not obtained by respondent No.1 by any false

suggestion that there was no other heir other than disclosed in

paragraph No.9 of the petition.

115] In my view, even though at one stage the name of the

another sister of the said deceased was disclosed in the

Testamentary Petition as one of the heir of the said deceased, fact

remains that the said name was subsequently deleted by carrying out

amendment. If the name of a person is wrongly mentioned in the

Testamentary Petition as one of the heir or next-of-kin, by mentioning

such name in the Testamentary Petition, itself would not create any

caveatable interest in favour of such party unless it is proved that on

intestacy, he or she would have inherited any property from the

deceased. Be that as it may, though the petitioner had ample

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opportunity to prove before this Court by leading cogent evidence that

the said deceased had inherited any properties from her deceased

parents and in that event the petitioner could make claim in respect of

some share in the estate of the said deceased, the petitioner failed to

prove such allegation before this Court. In my view, the entire case

of the petitioner thus falls on the ground that he had caveatable

interest or had locus to apply for revocation of the Probate granted in

favour of the respondent No.1.

116] In so far as submission of the learned counsel for the

petitioner that though various suggestions were put to the petitioner

during the course of his cross-examination, none of the respondents

had entered in the witness box and thus an adverse inference shall

be drawn against them is concerned, in my view, since the

respondents had proved their case by cross-examining the petitioner,

the respondents were not required to lead any separate evidence

once again to prove their case. No adverse inference thus can be

drawn against the respondents by this Court as canvassed by the

learned counsel for the petitioner.

117] In so far as Judgment of the Supreme Court in case of

Mrs.Elizabeth Antony relied upon by the learned counsel for the

petitioner in support of his submission that any person having even

slightest or even a bare possibility of interest is sufficient to entitle a

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person to enter caveat in a Probate petition is concerned, in my view,

in this case, the petitioner has failed to prove that he had even

slightest interest or had even a bare possibility of interest in the estate

of the said deceased. The Judgment of the Supreme Court in case of

Mrs.Elizabeth Antony is squarely distinguishable in the facts of this

case and would not advance the case of the petitioner.

118] Similarly, the Judgment of the Supreme Court in case of

Krishna Kumar Birla (supra) also would not assist the case of the

petitioner. The issue of cavetabe interest is referred to the Larger

Bench in the case of Jagjit Singh Ors. (supra) by the Supreme

Court and the said issue is pending.

119] In so far as Judgment of this Court in case of Peter John

D’Souza and Others, relied upon by Mr.Makhija, learned counsel for

the petitioner is concerned, in my view, the said Judgment would not

assist the case of the petitioner in view of the fact that the respondent

No.1 had not suppressed any true and correct facts that there were

no other legal heir and next-of-kin of the said deceased in the petition

or had suppressed any other facts from this Court. In my view, the

averments made by the petitioner in the Miscellaneous Petition in

respect of the allegations of the fraud against the respondent No.1

are totally vague and without particulars. Even otherwise, the

petitioner has totally failed to prove the allegations of fraud against

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the respondent No.1 or other respondents.

120] The Judgment of this Court in case of Sardar Gurbaksh

Singh (supra) and Judgment of the Supreme Court in case of

Vidhyadhar (supra) relied upon by the learned counsel for the

petitioner for drawing adverse inference against the respondent No.1

would not assist the case of the petitioner in view of the fact that the

respondents had proved their case by leading documentary evidence

and by cross-examining the petitioner. No such adverse inference

thus can be drawn by this Court against the respondents as

canvassed by the learned counsel for the petitioner.

121] In so far as the Judgment of the Supreme Court in case of

Basanti Devi (supra) relied upon by the learned counsel for the

petitioner in support of the plea that Testamentary Court has no

concern with the title of the property of the deceased is concerned,

there is no dispute about this proposition of law. Neither the

Testamentary Court nor this Court has adjudicated the issue of title of

the said deceased.

122] In so far as submission of the learned counsel for the

petitioner that unless Issue Nos.1 and 2 framed by this Court are

decided in favour of respondent No.1, all the questions of intestacy

can be considered by this Court in appropriate proceedings is

concerned, since this Court is of the view that the respondent No.1

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has proved that she was an adopted daughter and since this Court

has also decided Issue No.2 in favour of respondent No.1, there is no

question of deciding question of intestacy in any other appropriate

proceeding by this Court or any other Court. Issue No.3 is

accordingly answered in negative.

123] I shall now decide issue No.1 i.e. “whether the petitioner

proves that the Probate granted to the alleged will dated 3 rd

November, 2004, was not validly and properly granted for the reasons

and on the grounds set out in paragraph no.30 of the Miscellaneous

Petition ?” In so far as submission of the learned counsel that even if

the petitioner had not proved his locus or caveatable interest, this

Court has to be satisfied and convinced that the said deceased had

executed her last Will and Testament and the same was duly attested

in accordance with law and was having sound and disposing mind on

the date of execution of the said Will is concerned, in my view the

petitioner at the first instance failed to convince this court that the said

Will and Testament was forged or fabricated or was not executed by

the said deceased in accordance with law. None of the heir and next-

of-kin of the said deceased or beneficiaries under the Will had

challenged the said Will and Testament. It is not in dispute that the

wife and sister of the petitioner were also beneficiaries under the said

Will and Testament. At no point of time, any of the heir had filed any

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objection to the grant of Probate in favour of the respondent No.1.

124] I am thus not inclined to accept the submission of the

learned counsel for the petitioner that the petitioner was not at all

aware of the filing of the Probate proceedings by respondent No.1.

The petitioner had himself in his complaint with local Police Station

had informed that respondent No.1 had assured him that she will get

grant of Probate of the said deceased and the petitioner had shown

his willingness to handover possession of the Flat situated in

‘Neelkanth Niranjan’ premises Co-operative Housing Society to the

respondent No.1 upon getting probate of the said alleged Will.

125] Though Mr.Makhija, learned counsel for the petitioner tried

to point out the alleged inconsistency in the affidavits filed by the two

attesting witnesses appointed under the said Will and Testament in

support of his submission that in such situation, the Testamentary

Court could not have granted Probate without first being satisfied that

the alleged Will was a genuine Will and was executed in accordance

with Law, a perusal of the affidavits filed by attesting witnesses and

other documents on record, in my view, the respondent No.1 had

even otherwise proved the execution of the said Will and Testament

in accordance with law. The Court has to consider the entire

evidence in toto and not any alleged inconsistency in the affidavits

filed by the attesting witnesses. Though the petitioner was fully aware

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of filing of Probate proceedings by respondent No.1, the petitioner

never objected the grant of the said Probate, even if the petitioner

could have objected to such grant at the relevant time.

126] A perusal of the Testamentary Petition filed by the

respondent No.1 clearly indicates that the respondent No.1 had

complied with rules prescribed under the Bombay High Court

(Original Side) Rules and other provisions, and the Testamentary

Petition was not defective as canvassed by the learned counsel for

the petitioner. A copy of the Will was already sent to the petitioner by

Mr.Ramesh Gwalani. The petitioner also admitted in his cross-

examination that the wife of the petitioner was beneficiary under the

said Will. The petitioner did not give any reply to the letter dated

13.10.2008 addressed by Mr.Ramesh Gwalani to the petitioner

alleging withdrawal of various amounts after demise of the said

deceased.

127] In my view, there is substance in the submission made by

learned counsel for the respondents that the petitioner had all through

out acted prejudicial to the interest of the respondent No.1 and

beneficiaries in the said Will by using the funds of the said deceased

after death of the said deceased. The petitioner had admittedly

withdrawn amounts from the Bank account of the said deceased

without knowledge of Mr.Ramesh Gwalani and without any authority.

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128] In so far as the submissions made by the learned Counsel for

the petitioner that there was no personal service on any of the parties or

the legal heirs and/ or next of kin of the said deceased of the citation as

contemplated under Rule 399 of the Bombay High Court ( Original Side)

Rules is concerned, there is no merit in the submissions made by the

learned counsel for the petitioner. The said deceased had no class I legal

heirs. The persons who were entitled to be served with citation were

already served. Affidavit of service was already filed by Respondent No.1.

There was thus compliance of the said Rule 397 of the Bombay High Court

(Original Side) by the Respondent No.1.

129] In so far as submissions made by the learned counsel for the

petitioner that in the both affidavits filed by Mr. B.B. Parekh, Advocate, he

did not make any averments that the said alleged Will was explained to the

said deceased in Hindi is concerned, or that the averments made in the

affidavit dated 16th July, 2010, was inconsistent with his averments made in

the affidavit dated 16 th August, 2008 is concerned, the petitioner could not

prove before this court that the said deceased was not familiar with any

other language other than Hindi. On the contrary petitioner himself had

produced several documents sent by the deceased in English which were

without any interpretation in Hindi. It is thus clear that said deceased was

familiar with the English. In so far as alleged inconsistency in the affidavit

dated 16th June 2010 and 16th August 2008, is concerned, in my view both

the affidavits have to be read together and not in isolation. The

Respondent No.1 was nominated by the said deceased in respect of the

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said flat bearing No. 99 in the said ‘Neelkanth Niranjan’ premises Co-

operative Housing Society Ltd’ which document was also in English. She

had also signed various Bank Accounts opening forms in English

admittedly.

130] The petitioner has invoked Section 263 of the Indian

Succession Act, 1925, Explanations [b] and [c] and Illustrations (ii) and (iii)

of the Indian Succession Act, 1925. The petitioner, however, has not

made out case for revocation of grant of probate granted in favour of

Respondent No.1 and could not satisfy the conditions prescribed under

Section 263. In my view, Miscellaneous Petition itself was not

maintainable in view of the case of the petitioner not having fallen under

any of the explanations and the illustration provided in Section 263 of the

Indian Succession Act, 1925.

131] In my view, the learned counsel for Respondent No.2 has

rightly distinguished the judgment of the Supreme Court in case of Basanti

Devi ( supra) relied upon by the learned counsel for the petitioner on the

ground that the said matter was filed by grand-son of the deceased, who

had caveatable interest. The said judgment is clearly distinguishable, in

the facts and circumstances of this case. The petitioner admittedly does

not fall in class I category of heirs. The petitioner has not satisfied the

conditions under Section 15(2)(a) of the Hindu Succession Act, 1925.

132] A perusal of the record indicates that the petitioner in his cross-

examination though initially deposed that he had sought advice from the

counsel, after the death of the deceased and he made payments on the

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basis of power of attorney granted by the said deceased in his favour, he

further deposed in the cross-examination that he had made a mistake in

claiming that he had taken legal advice after the death of deceased and

claimed that he had only paid Counsel’s fees. A perusal of the evidence

lead by the petitioner clearly shows that his deposition is full of inconsistent

and contradictions. In my view, the petitioner in these circumstances

cannot be considered as credible witness and his evidence cannot be

believed by this Court.

133] This Court in case of Lydia Agnes Rodrigues and others Vs.

Joseph Anthony D’Cunha and others ( supra) has held that if the petitioner

has not led any foundation in the Miscellaneous Petition about his

allegations of forgery of Will, on that ground itself, no order of revocation

can be passed by this Court in such petition. In my view this judgment

squarely applies to the fact of this case. The pleading of the petitioner is

not only vague and without particulars but a petitioner has also failed to

lead any cogent evidence in support of this vague pleading.

134] A perusal of the cross-examination of the petitioner further

indicates that he has admitted that in the year 2004, the deceased was in a

sound state of mind and was in good physical health and had also signed a

form in the year 2004 for opening a Fixed Deposit. In his cross-

examination, and in particularly, to question Nos. 66 to 70, the petitioner

admitted that, what he had deposed in his cross-examination was correct

and had agreed to the said suggestion made by the learned senior counsel

for the respondent No.2 to the witness and what was stated by him in

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paragraph No.32 (XV) that the said deceased was aged, thin, infirm and

was not in a position to have independent advice or to resist influence, is

incorrect. The petitioner also admitted that several contemporaneous

documents were signed by the said deceased, which clearly match the

signature of the deceased on a Will. He also admitted that nomination

form was filed by the deceased on 9th November, 2004.

135] In my view, the petitioner was bound to furnish better

particulars Under Order VI Rule 4 of the Code of Civil Procedure, 1908, in

support of his pleading of fraud, undue influence and coercion. Perusal of

the averment made in the Misc. petition clearly indicates that the pleading

were totally vague and without particulars. The Judgment of the Supreme

Court in case of Bhishnudeo S/o Seogeni Rai ( supra) relied upon by the

learned senior counsel for Respondent No.2 would clearly apply to the

facts of this case. The Misc. petition alleging fraud, undue influence,

coercion thus cannot be entertained by this Court, the same being vague,

without particulars and not in compliance with the provision of Order VI

Rule 4 of the Code of Civil Procedure, 1908.

136] A perusal of the nomination form placed on record clearly

indicates that the said form contains endorsement mark of the office bearer

of the society accepting that the signature was verified and that person

signing it was genuine. The petitioner did not examine any Handwriting

Expert, though had stated that the Will was required to be examined by an

examiner of the documents for ascertaining whether the same was original

or copy or forged.

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137] On perusal of the record, I am inclined to accept the

submissions made by the learned counsel for the Respondent No.2 that,

there was no irreconcilable variance between the affidavits of attesting

witnesses. The petitioner himself admitted in the petition that the contents

of affidavit filed by the relatives of the deceased were genuine. Be that as

it may, the alleged discrepancy pointed out by the petitioner does not affect

the genuineness of the Will or creates any suspicious circumstance.

138] In my view, Mr.Joshi, the learned Senior counsel for

Respondent No.2 is right in his submission that it is not the case of the

petitioner that deceased was not in a position to execute Will at her

residence or at the office of the Advocate.

139] The petitioner did not furnish any details of the alleged

properties collected by Respondent No.1 which was not mentioned in the

testamentary petition. The petitioner has also failed to plead and to prove

before this court that Respondent No.1 and 2 had intermeddled with the

property of the deceased before grant of probate. On the contrary the

respondent No.1 and 2 have proved on the basis of the material produced

on record and on the cross-examination of the petitioner that the petitioner

had intermeddled with the estate of the said deceased. The petitioner has

not lead any evidence to prove his allegations that the Will and

testamentary of the deceased was surrounded by any suspicious

circumstance. The petitioner himself had admitted that, the deceased had

own money lending business, huge investments, and had died after four

years of making Will.

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140] In so far as submission of the learned counsel for the petitioner

that there was no statement made in the Will that the said Will was read-

over to the said deceased is concerned, on perusal of the Miscellaneous

Petition clearly indicates that no such ground has been raised by the

petitioner in the said Misc. Petition. The petitioner thus could not have lead

any evidence beyond the pleadings. The petitioner also did not lead any

evidence to show that the said deceased did not understand English, and

has produced various documents signed by the deceased contents

thereof were in English. It was not the case of the petitioner that deceased

was required to be explained the contents of those documents before the

same were signed by the said deceased.

141] In so far as the submissions made by the learned counsel for

the Respondent No.3 is concerned, it is not in dispute that no relief are

sought by petitioner against the Respondent No.3 in the Misc. petition.

This Court by order dated 10 th December, 2013 had clearly held that the

title of the respondent No.3 to the property in question is not a matter that

can be decided in the Misc. Petition for revocation. The Respondent No.3

has purchased the property after grant of probate by this Court in favour of

the Respondent No.1. The judgment of the Madras High Court in case of

G.P.F. Foulkes and others Vs. A.S. Suppan Chettiar and another ( supra)

relied upon by the learned counsel for the Respondent No.3 would assist

the case of her client on the issue that the executor or administrator has

power to dispose of the property of the deceased vested in him under

Section 211 of the Indian Succession Act, 1925 and they cannot be

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followed either by the creditors or by the legatees into the hands of the

alienee. The grant of probate operates as judgment-in-rem and cannot be

said to be as grant on fraud or collusion, unless the same is pleaded and

proved.

142] In so far as the submissions made by Mr. Makhija, learned

counsel for the petitioner that one of the attesting witness had deposed

that every page of the Will was signed by the testator whereas in fact there

was no signature of the deceased on the page No.2 is concerned, this

Court has to consider the entire evidence and not isolated line in the

deposition made by the party. Issue No.1 is accordingly answered in

negative. The petitioner failed to discharge the burden cast on him.

143] I shall now deal with the issue No.2 i.e. as to whether the

respondent No.1 proves that she was legally adopted daughter of the

said deceased ?

144] It is not in dispute that it was the case of the petitioner in

the Miscellaneous Petition that the said deceased i.e. Sattabai

Lakhmichand Chhabria died issueless and the respondent No.1 is

neither a daughter nor an adopted daughter of the said deceased.

These allegations made in the Miscellaneous Petition were denied by

the respondent No.1 in the affidavit in reply. In view of such pleading,

this Court has framed issue as to whether the respondent No.1 was

an adopted daughter of the deceased or not ?

145] Mr.Makhija, learned counsel for the petitioner vehemently

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urged before this Court that though the onus is on the respondent

No.1 to prove that she was an adopted daughter of the said

deceased, the respondent No.1 did not enter the witness box to

discharge the said onus and thus adverse inference has to be drawn

by this Court against the respondent No.1. It is vehemently urged that

if the respondent No.1 was not an adopted daughter or a legal heir,

falling in Class-I, of the said deceased, the petitioner will have share

in the said properties of the said deceased including all other legal

heirs falling in Class-II.

146] A perusal of the record indicates that the respondent No.1

has not filed Testamentary Petition for grant of Probate in respect of

the last Will and Testament of the said deceased as an adopted

daughter, but had filed as an executrix and one of the beneficiaries

under the said Will and Testament. The respondent No.1 had placed

reliance on the affidavit-cum-declaration dated 7.11.2008 filed by

Mr.Ramesh B.Gwalani, who is son of one of the sisters of the said

deceased. The petitioner, who had entered in the witness box, was

confronted with the said affidavit dated 7.11.2008 in his cross-

examination and more particularly in question Nos.35 to 37.

147] The respondent No.1 also placed reliance on the affidavit-

cum-declaration dated 20.12.2008 signed by Mr.Vasudev

Gurmukhdas Chhabria and Mr.Girdhari Lalchand Chhabria stating

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that the respondent No.1 had been treated as their loving and caring

daughter and had been the supporting pillar through their entire life

time. The respondent No.1 was all throughout treated as real

daughter by the said deceased and her husband till they were alive.

The said deceased also performed ‘Kanyadan’ of the respondent

No.1 on 30.01.1971. The respondent No.1 and her one son has also

performed last rites of the said deceased in the presence of close

family members, relatives and family friends. It was stated in the

affidavit that respondent No.1 had not only stood as a daughter, but

also provided support throughout the life of the said deceased.

148] It is not in dispute that both the deponents of these two

affidavits were not examined as witnesses by the respondent No.1. It

was vehemently urged by Mr.Makhija, learned counsel for the

petitioner that since those deponents of those affidavits-cum-

declaration were not examined as witnesses, the contents of those

affidavits cannot be considered by this Court as the same were not

proved. I am thus not inclined to consider the contents of those

affidavits relied by the respondent No.1 in support of her case that her

adoption was proved based on such affidavits. However, the

respondent No.1 has not only relied upon these two affidavits-cum-

declaration to prove that she was an adopted daughter of the said

deceased, but has relied upon other documentary evidence and also

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upon some of the portion of the examination of the petitioner.

149] It is not in dispute that the petitioner had handed over to

the respondent No.1 bank statement of saving account in Bank of

Baroda in the name of the said deceased and various other

documents including cheque books to respondent No.1. It is thus

clear that the petitioner himself had accepted the close relationship of

the respondent No.1 with the said deceased and thus had handed

over those crucial documents to the respondent No.1.

150] A perusal of the photographs marked as Exhibits R-1/5, R-

1/6, R-1/7 and R-1/10 also proves that the ‘Kanyadan’ of the

respondent No.1 was performed by the said deceased and her

husband. The respondent No.1 was also nominated by the said

deceased in respect of the Flat bearing No.99 in the “Neelkanth

Niranjan” Premises Co-operative Housing Society Ltd. In the alleged

Will, the said Flat was bequeathed in favour of the respondent No.1.

The petitioner admitted in his cross-examination that he had attended

wedding of respondent No.1. In the photographs shown to him, the

petitioner recognized the said deceased and her husband. He also

confirmed that those photographs were taken at the wedding of the

respondent No.1. The petitioner, however, did not identify the

respondent No.1 and her husband in the photographs.

151] The petitioner admitted in paragraph No.22 of the

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Miscellaneous Petition filed by him that the said deceased had given

a gift to the respondent No.1. He also admitted about such gift in

reply to question No.55 in his cross-examination.

152] A perusal of the record further indicates that respondent

No.1 through her Advocate’s letter dated 17.6.2008 addressed to

Mr.B.B.Parekh, Advocate had informed that being a daughter of the

said deceased, she was entitled to a copy of the Will made by the

said deceased during her life time. In the said letter, it was contended

by the respondent No.1 that she was sole executrix in respect of the

moveable and immovable properties of her Late mother and had

performed rituals being the dearest daughter of the said deceased

and had been herself under the serious grief. There was no reply

given to the said letter by the petitioner, though copy of the said letter

was also forwarded to him. The petitioner did not controvert that

respondent No.1 was not the daughter of the said deceased.

153] A perusal of the public notice dated 9.5.2008, which was

published in a Newspaper in respect of ‘Chautha’ Ceremony in

respect of the said deceased, name of the respondent No.1 was

mentioned as daughter of the said deceased. There was no objection

to the said public notice raised by the petitioner that the name of the

respondent as the daughter of the said deceased could not have

been mentioned.

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154] A perusal of the complaint dated 23.1.2009 filed by the

petitioner with the Marine Drive Police Station against the respondent

No.1 and others, indicates that it was alleged by the petitioner himself

that he had told the respondent No.1 and two others to obtain Probate

of the said Will and that he was assured by respondent No.1 that she

would get the Probate. The petitioner also showed his willingness to

handover possession of the flat upon the respondent Nos.1 and two

others getting Probate of the said alleged Will.

155] It is the case of the respondent No.1 that though initially

respondent No.1 has made an averment in the Testamentary Petition

filed by her that she was an adopted daughter of the said deceased,

the said averment was subsequently deleted. The petitioner did not

lead any evidence even in rebuttal to show that the respondent No.1

was not an adopted or was not a close relative of the said deceased.

In my view, though the respondent No.1 did not enter in the witness

box to prove that she was an adopted daughter of the said deceased,

the respondent No.1 has proved that she was an adopted daughter

by cross-examining the petitioner and by producing various

documentary evidence. Based on such evidence, this Court can

independently arrive at a conclusion that the respondent No.1 was an

adopted daughter of the said deceased.

156] Be that as it may, a perusal of the record clearly indicates

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that the respondent No.1 had not filed Testamentary Petition in this

Court, inter-alia, praying for Probate in respect of the said Will and

Testament of the said deceased, as an adopted daughter, but had

filed in the capacity as an executrix under the said Will and

Testament. The said Will and Testament having been proved before

this Court, the Probate was granted by this Court in favour of the

respondent No.1.

157] In so far as the Judgments of the Supreme Court in case

of Nilima Mukherjee (supra) and in case of Pentakota

Seetharatnam and others (supra) are concerned, in my view, the

respondent No.1 having proved that she was an adopted daughter of

the said deceased irrespective of the fact whether she had applied for

Probate as an executrix of the said Will and Testament of the said

deceased, these two Judgments relied upon by the learned counsel

for the petitioner would be of no assistance to the petitioner.

158] In so far as the Judgment of this Court in case of Bama

Kathari Patil (supra), the Judgment of the Supreme Court in case of

Narbada Devi (supra), the Judgment of this Court in Geeta Marine

Services (supra) in support of the submission that merely because

some of the documents were marked as exhibits, proof is not

dispensed with is concerned, there is no dispute about the

propositions laid down by the supreme Court and this Court in those

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Judgments. This Court has not considered those two affidavits-cum-

declaration relied upon by the respondent No.1 in view of the fact that

deponents of those two affidavits were not examined as witnesses by

the respondent No.1.

159] In my view, there is no merit in the submission of the

learned counsel for the petitioner that respondent no.1 having not

entered in the witness box to prove that she was an adopted daughter

of the said deceased, an adverse inference shall be drawn by this

Court. The presumption under Section 114 of the Indian Evidence

Act, 1872, is rebuttable. The respondent No.1 has already proved her

case by documentary evidence and by cross-examining the petitioner.

The case of the respondent No.1 has been admitted by the petitioner

in his cross-examination on this issue. The unreported Judgment of

this Court in case of Smt.Kunda Mahadeo Supare and Others

(supra) would apply to the facts of this case and would assist the case

of respondent No.1. I am respectfully bound by the said Judgment.

Issue No.2 is accordingly answered in affirmative.

160] In so far as the submissions made by the learned counsel for

the petitioner that alleged adoption of the Respondent No.1 was not in

compliance with the provision of Section 5 to 11 of the Hindu Adoption and

Maintenance Act, 1956 is concerned, in my view there is no merit in the

submissions of the learned counsel for the petitioner. The respondent

No.1 has proved that she was adopted daughter of the said deceased

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which issue is already discussed at length in the aforesaid paragraphs of

this judgment.

161] In my view, the petition is totally devoid of the merit. I,

therefore, pass the following order.

ORDER

1. Miscellaneous Petition No.17 of 2013 is

dismissed.

2. There shall be no order as to costs.

( R.D. DHANUKA, J.)

At this stage, learned counsel for the petitioner seeks

continuation of the ad-interim protection granted by this Court for a

period of four weeks. The application for stay is vehemently opposed

by Ms.Mussa, learned counsel for the respondent no.1.

Ad-interim protection granted by this Court to continue for

a period of four weeks from today. It is made clear that if any appeal

is filed by the petitioner against this judgment and order, the copies of

such proceedings shall be served upon the respondents well in

advance.

(R.D. DHANUKA, J.)

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