Allowed

Ragini Narayan v. Minnie Narayan

Bombay HC15 Oct 2007APP/264/2002

Case brief

AI extract

What is this about?

This appeal concerned the revocation of a grant of probate due to alleged suppression of facts regarding property ownership. The bench held that the probate court does not decide title to property, thus the petitioner had no duty to disclose ownership details. Consequently, the revocation order was quashed.

What did the court decide?

The appeal is allowed and the impugned order dated 27.9.2001 revoking probate is set aside.

Ragini Narayan Vs Minnie Narayan — Succession and Inheritance | Bombay HC (2007)

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 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO. 264 OF 2002

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IN

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 MISCELANEOUS PETITION NO. 83 OF 2000

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IN

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 PROBATE PETITION NO. 157 OF 2000

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 Smt. Ragini Narayan ... Appellant

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 (Org.Respondent)

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Vs.

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 Smt. Minnie Narayan ... Respondent

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 (org. petitioner)

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 Mr. B.B.Saraf with Mr. S.P.Dalal i/b. Dalal & Co. for

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 the appellant.

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 Mr. P.N.Patwardhan with S.B.Shenoy for Respondent.

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CORAM: D.K.DESHMUKH &

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 J.H.BHATIA,JJ.

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 DATE: 15th October,2007.

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P.C.

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 1. By this Appeal, the appellant challenges the
 order dated 27.9.2001 passed by a learned Single Judge
 of this Court in Misc. Petition No.83 of 2000.

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 2. The facts relevant for deciding this Appeal

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 are:-

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 That one B.M.Srinivasaiah, who expired on 15.9.1953, was
 married to one Lakshamma. Srinivasaiah and Lakshamma
 had a son by name B.S.Narayan. His first wife was one
 Minnie Narayan. Admittedly, she was divorced and then
 he married Ragini. Lakshamma expired on 1.9.1999.
 Ragini filed Probate Petition No.157 of 2000 for probate
 of the Will left behind by Lakshamma. The Court granted
 probate of that Will by an order dated 17.5.2000.
 Minnie filed Misc. Petition No.83 of 2000 for
 revocation of the probate granted of the Will of
 Lakshamma. The petition for revocation of probate was
 filed by Minnie on the ground that one of the properties
 disclosed in the Will of Lakshamma as the property
 belonging to deceased Lakshamma is actually the property
 owned by Minnie and not by Lakshamma. According to
 Minnie, Ragini who had filed the petition for probate
 was aware of this. Still, she suppressed that fact in
 the probate petition that was filed by her and,
 therefore, the probate should be revoked. The learned

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 Single Judge has held that as Ragini knew that the
 property is actually owned by Minnie, it was her duty to
 disclose that fact to the Court when she filed Probate
 Petition and, therefore, according to the learned Judge,
 it was just cause for revocation of the probate.

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 3. Learned Counsel appearing for the
 appellant/original petitioner - Ragini submits that
 firstly, as Minnie was not and does not claim to be the
 next-of-kin of deceased Lakshamma, in view of the
 provisions of Rule 397 of the High Court (Original Side)
 Rules, it was not necessary for the petitioner - Ragini
 to cite her in the Probate Petition. The learned
 Counsel relies on a Judgment of a learned Single Judge
 of this Court in the case of Bai Parvatibai vs.

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Raghunath Lakshman, AIR 1941 Bom.60 as also the
 observations in the Judgment of the Supreme Court in the

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 case of Ishwardeo Narain Singh vs. Kamta Devi & Ors.

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reported in AIR 1954 SC 280 and another judgment of the
 Supreme Court in the case of Chiranjilal Shrilal Goenka

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(deceased) through L.Rs vs. Jasjit Singh & Ors. (1993)

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2 SCC 507. Learned Counsel submits that recently a
 Division Bench of this Court in its judgment in the case

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 of Thrity Sam Shroff vs. Shriraz Byramji Anklesaria &

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anr. 2007(2) Bom.C.R. 560 has followed both the
 judgments and held that in a probate petition title to
 the property of the deceased is not decided and,

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 therefore, there was no duty cast on Ragini-petitioner

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 to disclose even if it is assumed that she knew that
 some of the properties mentioned in the Will are not
 owned by the testator, that those properties according
 to her are not owned by the testator and disclose the
 names of the persons who, according to her, are the
 owners of the property. Learned Counsel submits that
 the petitioner could have been charged with concealment
 of facts only if there was a duty to disclose those
 facts imposed on her by law. As the subject matter of
 the probate petition was only the Will and not the
 property mentioned in the Will, there was no duty on the
 petitioner to disclose anything about the ownership of
 the property and, therefore, it cannot be said that the
 petitioner was guilty of concealment of any facts.
 According to him, the learned Judge was not justified in
 revoking the probate.

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 4. Learned Counsel appearing for the respondent, on
 the other hand, submits that it is clear that the
 deceased had no title to the property. Ragini was aware
 of it and, therefore, it was the duty of Ragini to
 disclose to the Court these facts. He submits that
 Ragini is guilty of suppressing facts from the Court.

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 5. Now, it is clear from the judgment of the
 learned Single Judge of this Court which is reported in

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 AIR 1941 Bom.60 (cited supra) that a testamentary Court
 dealing with the question of issuing a grant of probate
 is concerned to see whether the will is duly executed as
 required by law by a testator of sound and disposing
 state of mind. It is no part of the duty of the
 Testamentary Judge to consider the question of title to
 property. The learned Judge has held that a caveat
 cannot, therefore, be sustained on the mere ground that
 the property which is attempted to be disposed of by the
 deceased by the will are not the property of the
 deceased, but the properties of the caveator. The
 learned Judge has held that the remedy of such a
 caveator is to file a civil suit to establish title. We
 are in respectful agreement with the view taken by the
 learned Single Judge in the case of Bai Parvatibai. We
 find that the same law has been laid down by the Supreme
 Court in the case of Ishwardeo Narain Singh vs. Kamta
 Devi & Ors. as also in the case of Chiranjilal S.
 Goenka. As the Probate Court does not consider the
 question of title of the deceased to the property
 mentioned in the Will, there was no duty cast on
 Ragini-petitioner to disclose to the Court even assuming

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 that she knew that the deceased was not the owner of a

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 part of the property disclosed in the Will that fact.
 Grant of probate in favour of Ragini of the Will of
 deceased which disclose the property to which Minnie
 lays her claim does not make Ragini owner of the

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 property. The question whether Minnie is the owner of

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 the property or deceased was the owner of the property

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 will be decided only by the Civil Court which is the
 only Court competent to make declaration about title to
 the property. No other Court including a Testamentary
 Court has that jurisdiction and, therefore, in our
 opinion, the learned Single Judge was not justified in
 holding that Ragini is guilty of suppressing facts from
 the Court. In our opinion, Minnie ion the basis of her
 claim to property of the deceased did not have any
 caveatable interest and, therefore, she could not have
 been cited as the next-of -kin. She had no caveatable
 interest. Therefore, she could not have filed the
 caveat and, therefore, at her instance, the probate
 granted should not have been revoked. The order of the
 learned Single Judge impugned in the Appeal revoking
 probate granted in favour of Ragini passed in Misc.
 Petition No.83 of 2000 at the instance of Minnie
 therefore, is liable to be set aside.

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 6. In the result, therefore, the Appeal succeeds
 and is allowed. The order dated 27.9.2001 passed by the
 learned Single Judge in Misc. Petition No.83 of 2000 is
 set aside.

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--

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(D.K. DESHMUKH,J.)

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(J.H.BHATIA,J.)

Ragini Narayan v. Minnie Narayan

Case brief

What is this about?

What did the court decide?

Ragini Narayan v. Minnie Narayan

Case brief

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What did the court decide?

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