Dismissed

Yogesh @ Yogi Nanik Motwane and Anr. v. Girdhar Nanik Motwane

Bombay HC7 Sept 2010MPT/84/2010

Case brief

AI extract

What is this about?

In this miscellaneous petition, the petitioner, a brother and alleged creditor of the deceased, sought revocation of probate granted to the wife and son. The court dismissed the petition, holding that probate courts are not concerned with creditor liabilities, which should be addressed in civil suits or by court-appointed administrators.

What did the court decide?

The Miscellaneous Petition for revocation of probate was dismissed.

Yogesh @ Yogi Nanik Motwane and Anr. Vs Girdhar… — Succession and Inheritance | Bombay HC (2010)

MP-84

PGK

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

¶5

Misc. Petition No.84 of 2010
IN
Probate Petition No.921 of 2009

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Yogesh alias Yogi Nanik Motwane
v/s.

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....Petitioner

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Sudha Girdhar Motwane & anr.....Respondents

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Mr.Laxman Venkatesan for Petitioner.

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Ms.Pooja Patil i/by M/s.Malvi Ranchoddas & Co. for
Respondents.

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CORAM : SMT.ROSHAN DALVI, J.

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DATED :7th September, 2010

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P.C. :

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1.Testamentary Petition No.921 of 2009 came to be filed
by Respondent No.1-wife herein and her son Respondent
No.2 herein for obtaining probate of the last Will and
Testament of her deceased husband. The husband left
behind the said Respondents as the only heirs in Class-
I of Section 8 of the Hindu Succession Act. The son
had filed the Affidavit consenting to the grant of
probate. There were no other heirs of the deceased as
Class-I heirs entitled to succeed in his estate; the
mother of the deceased had expired before the death of
the deceased. Probate would, therefore, be granted of

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MP-84

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the last Will and Testament of the deceased husband of
Respondent No.1 herein upon complying the formalities
required in the Probate Petition.

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2.The Petitioner herein is the brother of the deceased.
He is not a Class-I heir. He is not entitled to succeed
to the estate of the deceased when the wife and the son
of the deceased, who are Class-I heirs, are alive. He,
therefore, had not to be served any citation. He
claims that he filed a Caveat, though citation was not
served upon him. He claims that that Caveat has not
been considered. Given his relationship, his Caveat did
not have to be considered by the Testamentary Court to
grant probate in the Probate Petition.

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3.This Petition is filed by him showing that he
�happened to be the younger brother and creditor of
the deceased�. He claims that the deceased had to
discharge a liability of Rs.7.34 Lakhs to him. He
claims that that amount was given as a loan. A

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separate Civil Suit in that behalf is filed and would
be contested. He further claims that the deceased held
certain properties jointly with him and tax liability
to the extent of Rs.2.21 Crores has to be discharged.
He also claims that HDFC Limited has taken certain
property of the deceased as well as himself and two
other brothers for which a security deposit is given by

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HDFC Limited. That deposit has to be returned by the
brothers to whom the deposit is given for whom they are
jointly and severally liable. He claims that that
liability has not been shown in the Petition and hence
the probate should not be granted.

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4.He has applied for revocation of the probate not in his
capacity as heir who is entitled to a part of the
estate of the deceased and who had not been served the
citation, but to oversee the administration of the
estate with regard to the liability claimed by him, the
tax liability and the joint and several liability to be
discharged. These aspects would be considered in
administration of the deceased which can be considered
upon the power to be given by the Court to administer
such estate. That precisely is the power given under
the probate granted by the Court.

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5.The Testamentary Court would not be concerned with the
discharge of liability of the creditors of the
deceased. The creditors would be entitled to claim
from the beneficiaries who obtain the estate of the
deceased to the extent of the estate coming to their
hands. That would be claimed by the Petitioner herein
in the Civil Suit which is filed which shall be
considered by the competent Court in accordance with
law.

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6.Similarly the question of discharge of the joint liability with regard to tax or otherwise would be a part of the administration of the estate of the deceased which the Petitioner can claim legally under process established by law. Revocation of the grant is not the answer to the Petitioner�s rights.

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7.The Advocate for the Petitioner contended that the Petition has not been proved and hence the probate must be revoked. He argued that the Affidavit of one of the two attesting witnesses was not filed to the Petition. One attesting witness had expired. His Death Certificate was filed. The whereabouts of the other attesting witness were not shown. A witness has filed an Affidavit identifying the signatures of the deceased which has been accepted by the Court granting probate. In the Petition filed by the Petitioner, who has claimed, as aforesaid, in his capacity as a creditor or for discharge of contingent and joint liability, that aspect cannot be reopened.

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8.The Advocate for the Petitioner has relied upon two judgments of the Supreme Court (i) in the case of Girja Datt Singh vs. Gangotri Datt Singh, AIR 1955 SC 346 and (ii)in the case of Kannian & anr. vs. Sethurama, AIR 2000 SC 3522 . In those cases the Will was required to

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5 MP-84

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be proved and the evidence led was challenged by the
heir who was entitled to be served the citation. The
Petitioner is not one such heir. Hence those judgments
are not applicable to the facts of this case.

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9.Consequently, the Miscellaneous Petition is dismissed.

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( SMT.ROSHAN DALVI, J.)

Yogesh @ Yogi Nanik Motwane and Anr. v. Girdhar Nanik Motwane

Case brief

What is this about?

What did the court decide?

Yogesh @ Yogi Nanik Motwane and Anr. v. Girdhar Nanik Motwane

Case brief

What is this about?

What did the court decide?

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