Disposed

Shri Kamlkar S. Gawande v. Shri Shekharchandra Sahu and Anr.

Bombay HC2 Sept 2010NMT/27/2009

Case brief

AI extract

What is this about?

This court considered a petition to recall an order of revocation of a probate grant where the respondent was absent from the original hearing. The court held the application maintainable, accepted the explanation for absence, and ordered a stay on both the revoked probate and the revocation order pending a full hearing on merits.

What did the court decide?

Notice of Motion made absolute; order dated 21st November 2008 recalled and implementation stayed; revocation petition adjourned to merits.

Shri Kamlkar S. Gawande Vs Shri Shekharchandra Sahu and Anr. — Property and Title | Bombay HC (2010)

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PGK

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

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Notice of Motion No.27 of 2009
IN
Misc. Petition No.60 of 2007
IN

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Probate Petition No.836 of 2004

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Shri Kamlakar S. Gawande....Petitioner
v/s.

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Shri Shekharchandra Sahu & anr.

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..Respondents

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Mr.Girish Desai i/by Ms.Swati S. Magi for Petitioner.
Mr.Shailesh Shah i/by Mr.Himanshu V. Kode for Res.No.2.

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CORAM : SMT.ROSHAN DALVI, J.

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DATED :2nd September, 2010

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P.C. :

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1.Respondent No.2 is one of the executors of the Will of
the deceased one Manohar Gavande dated 20th February

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2000. She filed a Probate Petition and obtained the
th
Probate on 6July 2005. The Petitioner in

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Miscellaneous Petition No.60 of 2007 filed a Petition
for revocation of that probate. That Petition has been
granted after considering the facts of both the parties
on merits but in the absence of Respondent No.2 and her
Advocate. The order of revocation of the grant of
Probate has been passed on 21st November 2008 by

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Justice Dharmadhikari. The revocation Petition was
accepted on 3rd August 2007. The service was effected
in or about August 2007. An Affidavit-in-reply was
filed on 20th September 2007. An Affidavit-in-

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rejoinder has also been filed thereafter. The Petition
came up for hearing on 22nd February 2008 and was
thereafter adjourned to 10th October 2008, 17th August
2008, 14th August 2008 and 21st November 2008 when it

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came to be disposed of. On each of these dates of
hearing Respondent No.2 never appeared in Court, though
having filed her Affidavit-in-reply. The Court,
therefore, correctly considered the facts placed on
record and argued by the Advocate of the Petitioner
seeking revocation of the probate obtained by
Respondent No.2 and passed its order of revocation of
the grant of such probate. Respondent No.2 has filed
this Notice of Motion for recalling the order dated
21st November 2008 and staying the implementation of
that order.

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2.Mr.Desai on behalf of the Petitioner contended that the
Notice of Motion recalling an order of revocation of
grant is not maintainable. He has not shown any
provisions of law in that behalf. He drew my attention
to Section 263 in Chapter III of the Indian Succession
Act, 1925 (the Act) which deals with revocation of the
probate granted and not with an application taken out

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for recalling the order of revocation.

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3.Mr.Shah on behalf of Respondent No.2 drew my attention
to Section 268 of the Indian Succession Act, which
deals with the practice in granting and revoking the
Probates and the Letters of Administration. Under
Section 268 of the Act, the procedure is regulated by
the Civil Procedure Code (CPC). Mr.Shah, therefore,
contends that Order IX of the CPC would be applicable
in such a case.

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4.He has relied upon a judgment of the Patna High Court
in the case of Mst. Tribeni Kuer & anr. vs. Shankar
Tiwari & ors., AIR 1971 Patna 391 in which an
application for recalling an order for grant of probate
has been allowed under Order IX Rule 13 of the CPC as
being applicable to probate proceedings.

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5.Mr.Desai on behalf of the Petitioner drew my attention to an order passed by a Division Bench of this Court dated 22nd June 2010 in the case of Madhu Fantasy Land

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Pvt. Ltd. & ors. vs. Mrs.Maki Homi Chibber & ors. in
Notice of Motion No.1099 of 2010 in Appeal (Lg.) No.608
of 2007 in S.C. Suit No.435 of 1980.In that case a
similar application was made for making out the case on
merits and certain facts were suppressed. The Division
Bench relied upon two decisions of the Supreme Court

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and the application was not entertained. That order
does not hold that such application is per se not
maintainable.

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6.The application being maintainable, it will have to be seen whether sufficient cause is shown for the absence of Respondent No.2 on 29th November 2008 when the order of revocation of the probate came to be granted.

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7.As aforesaid, Respondent No.2 was absent not only on the date of the order but also on four earlier dates of hearing.

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8.The Petition is shown to have reached hearing initially in February 2008 after which it did not appear on Board. The Affidavit-in-support of Respondent No.2 shows that she kept on inquiring with her Advocate about the Petition and was informed that it did not reach hearing. The Affidavit further shows that the th

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Petition reached hearing essentially on and after 10 October 2008. Respondent No.2 has explained how she did not remain present on those dates under four separate reasons. She has stated that her daughter, who was pursuing her medical examination and specialisation in Anesthesiatic had to be enrolled in a specialised course. She was busy being attached to the hospital. Respondent No.2 had to pay fees for her

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course on 28th July 2008. Her daughter also met with an
accident on 10th August 2008. Further Respondent No.2
as mentioned about her pre-occupation with certain
colleagues at work. She is the Director of one Adarsh
Classes. Two of the professors in the Adarsh Classes
had taken ill and later expired. She claims that she
had cared for those two persons, one of whom was in
advanced years and alone. She has produced certain
hospitalisation papers of that person. She has relied
upon the death certificates of both the persons. The
fact remains that both of them expired soon after the
order was passed being on 4th December 2008 and 13th
January 2009.

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9.She further claims that she was not informed by her Advocate about the matter. It is her case that her Advocate failed in his duty. In this application, she only claims to be heard on merits.

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10.On merits it is her case that the Will left by the deceased was executed on the same date as the Will left by his wife. Both the Wills were registered. Under the Will of the husband, part of the estate has been bequeathed to the wife and part of the estate has been bequeathed to the staff of Adarsh Classes which her husband had founded. The wife has challenged the Will. The wife has written a letter dated 21st May 2004,

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making allegations about the execution of her husband�s
Will. She has thereafter filed an Affidavit in the
Petition for probate taken out by Respondent No.2

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stating that she had not intermeddled with the property
of the deceased and had renounced her right, title and
interest and would not hereafter intermeddle also. She
is thereafter shown to have filed a consent Affidavit
consenting to the grant of probate. Mr.Shah on behalf
of Respondent No.2 had laid much stress upon the fact
that that was affirmed at her residence and was
explained to her in Marathi.

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11.The order dated 21st November 2008 legitimately takes
exception to the fact that a letter of the widow of the
deceased dated 21stMay 2004 was suppressed by
Respondent No.2 whilst obtaining probate. Mr.Shah on
her behalf argued that that letter lost significance in
view of the later Affidavits filed by her in March and
April 2005. Mr.Desai took exception to the Affidavit
filed in March 2005 and questioned how and why the
widow of the deceased who sought to challenge the Will
of the deceased which did not give her the entire
property could show that she had not intermeddled in
the estate and would not intermeddle in future or
renounce her rights.

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12.After drawing my attention to the facts which are

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considered by the Petitioner to be so gross as to have
rightly touched the conscience of the Court in passing
the order dated 21st November 2008, Mr.Desai preferred

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not to have the Petition heard on merits right now.
Mr.Shah, however, states that he is prepared to be
heard on merits at this juncture itself.

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13.Part merits of the case are referred by Mr.Desai

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himself. Indeed it is seen that the widow of the
deceased who was the only heir of the deceased has not
been the sole legatee in his Will. Part estate is
stated to have been bequeathed to outsiders who were
his business acquaintances and colleagues in the class
that he had founded. She has challenged such a Will.
Hence, the probate granted to Respondent No.2 cannot be
allowed to prevail unquestioned.

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14.The case of Respondent no.2 that both the husband and
wife had executed two Wills on the same day and got
them registered is also worthy of note and cannot be
simply bypassed. Similarly the fact that after writing
the letter dated 21st May 2004 alleging fraud the widow

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has, in fact, given the consent Affidavit in the
Petition, which was the most essential requirement for
the grant of probate would also have to be considered
if the case of the widow of forgery and fabrication of
the Will and other documents would have to be

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considered. That case has naturally not been
considered in the order dated 21st November 2008. Just
as it is the case of the widow that her earlier letter
dated 21st May 2004 was not brought to the notice of
the Testamentary Court at the time of obtaining the
probate, it is seen that her consent Affidavit which
was interpreted and explained to her in Marathi
language was not brought to the notice of the Court by
the Advocate of the widow herself when the order dated
21st November 2008 was passed.

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15.Interest of justice demands that full and entire facts
be brought to the notice of the Court after which a
final order is required to be made between such
contesting parties. Full facts were not brought to the
Court and for which only the representation made by the
widow before the Court could be questioned.

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16.Under these circumstances, it is seen that indeed the entire merits of the case are required to be seen and this is not a fit case in which Respondent No.2 must be left unheard.

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17.I asked Mr.Desai as well as Mr.Shah as to whether they would be prepared to have the Petition for revocation of the grant of probate itself heard on merits since part merits have been referred to by both the parties.

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Mr.Shah agreed to the proposition. Mr.Desai chose to
consider this aspect. Consequently, the merits of the
Petition cannot be heard at present.

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18.The Notice of Motion is, therefore, made absolute in terms of prayers (a) and (b). Both the parties shall not act upon the grant of the probate or upon the order of revocation until Miscellaneous Petition No.60 of 2007 is heard on merits. Miscellaneous Petition No.60 th

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of 2007, which is restored to file, is adjourned to 4 October 2010.

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19.In view of the order passed in this Motion, Chamber Summons No.56 of 2010 does not survive and it is disposed of accordingly.

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20.Notice of Motion No.60 of 2010 is made absolute in terms of prayer (a) in terms of the order passed in Notice of Motion No.27 of 2009.

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( SMT.ROSHAN DALVI, J.)

Shri Kamlkar S. Gawande v. Shri Shekharchandra Sahu and Anr.

Case brief

What is this about?

What did the court decide?

Shri Kamlkar S. Gawande v. Shri Shekharchandra Sahu and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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