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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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