Allowed

Paul Duming Ferreira v. 1.GENEVIEVE Henriques and Anr.

Bombay HC7 Aug 2013MPT/76/2011

Case brief

AI extract

What is this about?

This petition sought revocation of a grant of probate obtained in 2008. The court found that the respondent had fraudulently obtained the probate by relying on forged documents, including a death certificate, and practice of fraud upon the court. Consequently, the petition for revocation was allowed.

What did the court decide?

Petition made absolute; grant of probate dated 18th January 2008 revoked.

Paul Duming Ferreira Vs 1.GENEVIEVE Henriques and… — Succession and Inheritance | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION

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MISC. REVOCATION PETITION NO. 76 OF 2011 IN

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PETITION NO. 920 OF 2007

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Rose Mary Cosmos Prementa ..... Deceased Nelson Paul Ferreira & Ors. ..... Petitioners VERSUS Genevieve Henriques & Anr. ..... Respondents

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Mr.Amit Rajgole, i/b. Mr.Vijay Kokitkar for the Petitioners.

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CORAM : R.D. DHANUKA, J. DATED : 7^th AUGUST, 2013

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P.C.

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By this petition filed by the petitioner who claims to be the owner of the properties claimed in the scheduled annexed to the petition seeks revocation of the grant of probate dated 18^th January, 2008 and for other reliefs. Some of the relevant facts for the purpose of deciding this petition are as under :-

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It appears that in the Testamentary Petition No. 920 of 2007 filed by the respondent herein, it was case of the respondent that the deceased Rose Mary Cosmos Prementa who died on or about 3^rd August, 2007 left a Will dated 9^th May, 1990. Under the said alleged Will Mr. Trevor F. Gudhine and Mr.Gulab Sharma were alleged to have been appointed as executrix. This court passed an order granting probate in favour of the respondents on 18^th January, 2008.

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It is the case of the petitioner that in the said probate petition, respondent no. 1 has shown the property i.e. agricultural land at Village Manori, Taluka Borivali, Mumbai bearing Survey No. 74, Hissa No. 4, Survey No. 79, Hissa No. 10, Survey No.84, Hissa No.17, 28 and 2 which property never belong to the said deceased at the time of her death. It is the case of the petitioner that the said property always stood in the name of the original petitioner to this petition since long in all government records including 7/12 extract. The petitioner has annexed copy of the 7/12 extract which discloses the names of the original petitioner in the books of record as far back as in the year 1968. It is the case of the petitioner that the original petitioner was born and has been residing in the said premises since his birth. Prior to the birth of the petitioner, his father used to reside in the same premises.

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Learned counsel appearing for the petitioner submits that the respondent no. 1 obtained a letter by making forged documents from Holy Magi Church stating that the said deceased died and her funeral took place on 3^rd August, 2007. On the basis of said forged documents, Municipal Authorities issued death certificate. Learned counsel invited my attention to the letter addressed by Holy Magi Church confirming that no funeral took place on the date mentioned on the alleged certificate and the certificate relied upon by first respondent was forged. The petitioner had also inquired whether name of the said deceased was recorded in any election record and did not find any such record reflecting the name of the deceased in the voters list. The petitioner thereafter filed police complaint. Respondent no.1 applied for anticipatory bail (46 of 2011) in the Court of Sessions at Dindoshi. Learned counsel invited my attention to the order passed by learned Sessions Judge on 11^th February, 2011 rejecting the anticipatory bail applied by the 1^st respondent. On perusal of the said order, it is clear that the learned Judge

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considered the papers of police investigation and noticed that the said deceased was not residing at Village Kulvem, Gorai, Manori Road prior to her death. Death certificate was found forged. An enquiry was made with the Head of the Church and it was found that no last rites were performed on 4^th August, 2007 on a dead body of the said deceased. It was also found that Dr.Mojesh who had issued death certificate was also found false and fabricated. Dr.Mojesh was arrested and was in police custody upto 21^st January, 2011. During the investigation, number of fabricated papers were found used as death certificate, papers related with the last rites of the said deceased. The alleged witness to the said alleged Will stated that he had never seen the said deceased signing her last Will and Testament. He did not know English. He has also stated that he had never visited this Court nor had signed any papers. Considering these facts, the Additional Sessions Judge passed an order dated 11^th February, 2011 rejecting the anticipatory bail applied by the 1^st respondent.

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Mr.Trevor F. Gudhine who was another witness to the said alleged Will is also missing for quite sometime. Petitioner has placed reliance on the certificate issued by Holy Magi Church to demonstrate that father of the present petitioner died on 20^th September, 1964 and his all ceremonies were conducted at Holy Magi Church. Burial Certificate and also election card issued by Borivali Assembly Constituency Certificate are annexed to petition confirming that petitioner was residing in the said premises since his birth.

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None appeared for the respondents though served by publication. Affidavit of service has been filed and is already taken on record.

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On perusal of the record and order passed by the learned Additional and Sessions Judge, it is clear that the 1^st respondent has fraudulently obtained probate

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from this court by placing reliance on various fraudulent documents and has practiced fraud upon this court while obtaining probate. Petitioner has made out case that the original petitioner as well as his legal heirs have been staying in the premises in question for quite sometime. Case is made out for revocation of the probate under sections 263 of the Indian Succession Act.

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Petition is made absolute in terms of prayers (a), (b), (c) and (d).

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No order as to costs.

Paul Duming Ferreira v. 1.GENEVIEVE Henriques and Anr.

Case brief

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Paul Duming Ferreira v. 1.GENEVIEVE Henriques and Anr.

Case brief

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