This miscellaneous petition sought to revoke a probate previously granted. The court dismissed the petition, holding that it was maintainable neither due to defective title, insufficient explanation for delay, nor as an indirect attempt to appeal a prior order discharging a caveat.
Petition dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
913-MPT6-16.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION MISCELLANEOUS PETITION NO. 6 OF 2016
IN
TESTAMENTARY PETITION NO. 314 OF 2008
Shri Gopal Nayak…Petitioner
Versus
Mr. Ammembal Anant Pye…Respondent
Mr. Sujeet Kurup, i/b Kurup Shivaji & Co., for the Petitioner.
Mr. S. G. Bhandary, i/b M/s. Bhandary & Bhandary, for the
Respondent.
CORAM: G.S. PATEL, J DATED: 21st April 2016
PC:-
1.The only reason this Petition is not being dismissed with
costs is on account of the ill health of the Applicant.
2.In this matter everything that could possibly have been done
wrong has been done wrong. The title is thoroughly defective. Mr.
Ammembal Anant Pye is the Petitioner in this Revocation Petition.
Mr. Gopal Nayak is the Respondent to the Revocation Petition. The
title is inverted. The subject matter is wrongly shown. It is not a
petition for “probate/succession certificate” at all. It is a petition
seeking revocation of probate previously granted.
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913-MPT6-16.DOC
3.The delay is also considerable. It is of 953 days. There is no
sufficient explanation for it beyond saying that the Revocation
Petitioner Mr. Pye has had acute renal failure and requires dialysis
several times a day today. How long he has been in that condition is
unknown.
4.Prima facie, it appears that at least between 2008 and 2010,
Mr. Pye was in a position to attend to his affairs. It is true that Mr.
Nayak, the Respondent to the Revocation Petition, had filed a
Petition for probate. This was Testamentary Petition No. 314 of
2008. The Revocation Petitioner, Mr. Pye, entered a Caveat. Mr.
Gopal Nayak’s probate Petition was renumbered as a Testamentary
Suit No. 15 of 2010. By an order dated 1st December 2010, a copy
of which is at page 42 (even the exhibit numbering is incorrect), Mr.
Pye’s Caveat was discharged/dismissed. There was no Appeal from
that order. No application was made at any time for a recall of that
order.
5.Mr. Pye himself had filed a Testamentary Petition No. 504 of
2007. That was for Letters of Administration in respect of the same
deceased. That Petition for Letters of Administration by Mr. Pye
was dismissed on 22nd July 2013. Mr. Pye filed Notice of Motion
No. 163 of 2014 for a recall of that order of dismissal. On 17th
March 2015, I heard both Mr. Kurup and Mr. Bhandary on that
Notice of Motion. At that time, Mr. Bhandary submitted that the
Respondent in that matter, i.e., the Respondent to this Revocation
Petition, Mr. Gopal Nayak had already filed a Testamentary
Petition in which Mr. Pye’s Caveat has been dismissed and which
has proceeded to probate. In paragraph 3 of my order of 17th March
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913-MPT6-16.DOC
2015, a copy of which is at page 35 to the present Petition, I said
that there could therefore be no question of grant of Letters of
Administration and that Mr. Kurup would need to take appropriate
steps in regard to the probate granted. I therefore held that the
Petition for Letters of Administration was not maintainable. This
position was conceded by Mr. Kurup.
6.As a result, the delay was condoned, and the Testamentary
Petition No. 504 of 2007 was restored to file. In any case, no order
could possibly be passed on that Testamentary Petition for Letters
of Administration till such time as the probate remained
outstanding.
7.It is for this reason that Mr. Kurup now seeks revocation of
the probate in this thoroughly defective Petition. However, allowing
this Petition effectively means sitting in appeal over Mrs. Dalvi J’s
order dated 1st December 2010 by which Mr. Kurup’s client’s
caveat was discharged. I am not prepared to do this. I also find there
is insufficient pleading as to the delay. The caveat having been
discharged, the probate was properly granted and there is no
question of its revocation. In the guise of revocation, the present
applicant/revocation Petitioner cannot seek recall of the Mrs. Dalvi
J’s order of 1st December 2010 in this roundabout and indirect
fashion.
8. The Petition is dismissed. There will be no order as to costs.
(G. S. PATEL, J.)
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3 issues framed by the court
Whether a petition for revocation of probate can be used to indirectly seek a recall of a prior order discharging a caveat and allowing probate.
Whether the significant delay in filing the revocation petition (953 days) justifies condonation despite insufficient explanation.
Whether the court can allow a revocation petition that results in a retrospective appeal over a substantive order granting probate.
1 provisions across 1 enactments
Shri Gopal Nayak
Mr. Ammembal Anant Pye
G. S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court