Appeal against dismissal of a petition to revoke probate of the deceased's will, filed on the ground that the mother's consent was obtained by undue influence. The court held the appellant had interest only in his mother's estate, not the deceased's estate, noted gross unexplained delay, and dismissed the appeal.
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.
Digitally signed by MUGDHA MUGDHA MANOJ MANOJ PARANJAPE PARANJAPE Date: 2024.03.04 17:06:26 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION APPEAL NO.60 OF 2023
IN
MISCELLANEOUS PETITION NO.60 OF 2016 IN
TESTAMENTARY PETITION NO.1353 OF 2012
Vispy Keki Dalal … Appellant
V/s.
Tanaz Rumi Dalal & Anr. … Respondents
Mr. Agnel Carneiro a/w Mr. Shahvir Dastur i/by Mulla & Mulla and Craigie Blunt & Caroe for the Appellant.
Mr. Cyrus Ardeshir, Mr. Punit Damodar, Ms. Nikita Vardhan and Ms. Nidhi Pathak i/by Kanga & Company for the Respondents.
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. & ARIF S. DOCTOR, J.
DATE : 27th FEBRUARY 2024
P.C. :
The present Appeal impugns an order dated 18th
January 2018, dismissing the captioned Miscellaneous Petition
filed by the Appellant seeking revocation of the Probate granted
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by this Court on 12th December 2012 in respect of the Last Will and Testament of one Rumi Keki Dalal ( “the Deceased”).
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citation was served upon the Appellant and (b) Respondent No. 2 and the mother of the Deceased consented to the grant of Probate in respect of the said Will. It was in these circumstances that this Court on 12th December 2012 granted Probate in respect of the said Will.
the Appellant submitted that the Learned Judge had erred in dismissing the Miscellaneous Petition on the ground that the
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Petitioner did not have a caveatable interest. He submitted that to seek revocation of probate under Section 263 of the Succession Act it was not necessary to have a caveatable interest but what was essential was that a person so applying should have a substantial interest in the estate of the deceased. In support of his contention, he placed reliance upon the following judgements of the Hon’ble Supreme Court in the case of Elizabeth Antony Vs. Michel Charles John Chown Lengera1 and G. Gopal Vs. C. Baskar And Others2 .
the sole legatee under the Will of his late mother i.e. Gool Keki Dalal. He submitted that since the consent of his late mother to the probate of the Will of the deceased was obtained by undue influence and coercion, the same affected his interest in her estate. He pointed out that it was basis this that the Appellant sought to challenge the grant of probate in respect of the Will of
the deceased and thus the Miscellaneous Petition was
1 (1990) 3 Supreme Court Cases 333
2 (2008) 10 Supreme Court Cases 489
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maintainable under Section 263 of the Succession Act. He pointed out that this aspect had been completely overlooked by the Learned Judge in the Impugned Order.
behalf of the Respondents pointed out that the Appellant had absolutely no locus to seek revocation of the Probate granted by this Court. He pointed out that the only ground on which revocation was sought was that the consent of the mother of the Deceased had been obtained by exerting undue influence. He submitted while this ground was itself ex facie untenable, since the Respondents both live overseas and the mother of the Appellant and the Deceased infact lived with the Appellant hence the occasion of the Respondents exerting any undue influence upon the mother of the deceased i.e. Gool Keki Dalal did not arise.
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that the Appellant had not put forth any other ground of challenge much less shown what interest, let alone substantial interest the Appellant had in the estate of the deceased. He submitted that the Appellant’s challenge was solely on the ground that the Appellant was the legal heir of his late mother and nothing more.
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A. The sole ground on which revocation was sought was that the consent of the Appellant’s mother i.e. Gool Keki Dalal was obtained by undue influence, which in turn affected the Appellant’s rights under the will of his late mother i.e. Gool Keki Dalal. Therefore, it is clear that the interest of the Appellant which is stated to be affected is in the estate of his late mother and not in the estate of the deceased. Given this, we find that the judgments relied upon by the Appellant, in the case of Elizabeth Antony (supra)and G. Gopal (supra) would be of no assistance to the Appellant. Therefore, the Appellant would not in our view have any locus to seek revocation of the probate of the Will of the deceased under the provisions of Section 263 of the Succession Act given that it is the Appellant’s own case that his interest in the estate of his late mother was affected by the grant of probate and not any interest in the estate of the deceased.
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B. Also, we must note that probate of the will of the deceased was granted in the year 2012. If infact the Appellant had any interest in the estate of the deceased independent of his late mother or believed that the consent of his late mother was obtained by undue influence nothing precluded the Appellant from filing a Petition for revocation earlier i.e. at the time when the Appellant alleged the undue influence was exerted. The Appellant has admittedly did not do so. The Appellant has instead filed the captioned Miscellaneous Petition after over four years from the date of the grant of probate. There is absolutely no explanation for this delay. The gross and unexplained delay to our minds lends credence to the Respondents’ contention that the captioned Miscellaneous Petition has been filed solely for ulterior reasons.
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Indian Succession Act, as applicable to Parsis, the admitted position is that the Appellant would not stand to inherit any portion of the estate of the deceased in terms thereof. It is only the Respondents and the late mother of the deceased who would inherit in terms of Section 50 and 51 of the Indian Succession Act. Thus, the Appellant being a stranger to the estate of the deceased and all those who had any interest in the estate of the deceased having granted their respective consents, we do not see how the Appellant could maintain such a Petition.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
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1 issue framed by the court
Whether the brother of the deceased, whose claimed interest lay in his late mother's estate and not the deceased's estate, had locus under Section 263 to seek revocation of probate.
Colour shows how this judgement treated each authority
Elizabeth Antony Vs. Michel Charles John Chown LengeraDistinguished¶12
(1990) 3 Supreme Court Cases 333
G. Gopal Vs. C. Baskar And OthersDistinguished¶12
(2008) 10 Supreme Court Cases 489
3 provisions across 1 enactments
Vispy Keki Dalal
Tanaz Rumi Dalal
Neville Rumi Dalal
Devendra Kumar Upadhyaya
Arif S. Doctor
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
