A petition under Section 263 of the Succession Act sought revocation of letters of administration with will granted to the respondent, alleging suppression of an immovable property and misuse of the grant in a Gujarat suit. The court found no grounds under Explanations a, b or e made out and dismissed the petition.
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Kanchan P Dhuri
Digitally signed by KANCHAN KANCHAN PRASHANT PRASHANT DHURI DHURI Date: 2024.04.26 16:07:07 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION MISCELLANEOUS PETITION NO. 96 OF 2022
IN
TESTAMENTARY PETITION NO. 816 OF 2015
Kantilal Dharshi Shah
…Petitioner
vs.
Jayesh Jayant Shah…Respondent
************
Mr. Ashish Kamat, Senior Advocate alongwith Mr. Chandra K.
Naik, Ms. Akanksha Saxena and Ms. Diti Joshi for the Petitioner.
Mr. Ankit Lohia alongwith Ms. Pooja Batra instructed by Mr. Rajiv
Jadhav for the Respondent.
************
CORAM : MANISH PITALE, J.
DATE :22nd APRIL, 2024
P.C.:
.Heard the learned Counsel for the parties.
2.By this petition filed under Section 263 of the Indian
Succession Act, 1925 (hereinafter referred to as “Succession
Act”), the petitioner seeks revocation of letters of administration
alongwith the will (hereinafter referred to as “LOA”) granted on
16th January 2018.
3.The respondent in the present case had filed a
testamentary petition bearing No. 816 of 2015 in this court,
seeking grant of LOA in the context of will dated 13th May 2005
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executed by the deceased. The respondent was the beneficiary
under the said will and since the sole executor had renounced
executorship, the respondent was constrained to file the
aforesaid petition for grant of LOA. In the testamentary petition,
the only legal heir of the deceased gave her consent and
accordingly, the LOA was granted on the basis of the
testamentary petition being treated as an uncontested
proceeding.
4.Subsequently, the petitioner filed third party
application seeking copies of the record of the testamentary
petition. The said application was allowed by the department
against which the respondent filed a notice of motion in the
testamentary petition, challenging the said order of the
Prothonotary and Senior Master.
5.By an order dated 29th November 2018, the learned
Single Judge of this Court allowed the notice of motion and set
aside the order of Prothonotary and Senior Master of this Court
with a clarification that if any suit is filed by the respondent
herein based on such LOA and it is relied upon, the Petitioner
herein may take recourse to the provisions of the Code of Civil
Procedure, 1908, for seeking inspection and copies thereof.
6.The Petitioner filed an appeal bearing No.31 of 2021
against the said order of the learned Single Judge of this Court.
The Division Bench of this Court by an order dated 18th August
2021, allowed the Petitioner to withdraw the appeal with liberty
to file a review petition before the learned Single Judge. The
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Appeal was disposed of as withdrawn with liberty as sought by
the Petitioner and it was clarified that the learned Single Judge
was to decide the review petition strictly on merits, by keeping
all contentions of the parties open, including the issue of
maintainability.
7.By an order dated 20th October 2021, the learned
Single Judge of this Court dismissed the review petition with
costs of Rs.25,000/- after taking note of the fact that the
respondent had already filed two civil suits and it was recorded
that the petitioner had already taken inspection and certified
copy of the record from the office of the Prothonotary and Senior
Master of this Court.
8.The said order was again challenged by the petitioner
by filing Appeal (L) No.26842 of 2021. The said Appeal was
disposed of by an order dated 10th December 2021, whereby it
was clarified that the petitioner could file a petition under
Section 263 of the Succession Act in the context of the said LOA.
All contentions of parties, including issue of maintainability, were
kept open.
9.The present revocation petition filed under Section
263 of Succession Act was taken up for consideration in this
backdrop.
10.At the outset, Mr. Lohia, learned Counsel appearing
for the respondent raised issue of maintainability and submitted
that the petitioner does not have any caveatable interest as he
cannot be said to be an heir required to be cited when the
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original testamentary petition was filed by the respondent as the
beneficiary under the subject will. It is submitted that the
petitioner is neither a class I nor a class II heir under the Hindu
Succession Act, 1956. It is further submitted that therefore,
present petition is not maintainable. It is further submitted that
the grounds stated in the present petition are not covered under
grounds available under Section 263 of the Succession Act while
seeking revocation of the grant. It was emphasised that
contentions sought to be raised in the present petition were
considered and rejected in the earlier round of litigation between
the parties in the context of the application filed on behalf of the
petitioner for grant of certified copies of the record of the original
testamentary petition. It is submitted that none of the grounds
available under Section 263 of the Succession Act are made out
by the petitioner and therefore, the present petition deserves to
be dismissed on the ground of maintainability as well as on
merits.
12.Mr. Kamat, learned Senior Counsel appearing for the
petitioner submitted that so long as the petitioner is able to show
that he has interest in the property in respect of which the
respondent herein has initiated litigation, he has locus to
approach this Court to demonstrate that the respondent indulged
in suppression of material facts, misled this Court and violated
Rule 414 of the Bombay High Court Original Side Rules, 1980,
giving rise to grounds for revocation of grant under Explanations
a, b and e to Section 263 of the Succession Act. It is submitted
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that even if the petitioner cannot qualify as a legal heir of the
deceased, in the light of the peculiar facts and circumstances of
the present case, the objection raised purely on the ground of
maintainability cannot survive, as sufficient material is available
before this Court to indicate that grounds under Explanations a,
b and e to Section 263 of the Succession Act are clearly made
out.
13.As regards the earlier rounds of litigation and orders
passed by the Division Bench of this Court, it is submitted that
the said orders cannot come in the way of the petitioner in
pursuing the present petition. The Court’s attention was drawn
to the contents of the subject will, the LOA issued in favour of the
respondent, particularly the schedule appended thereto. It was
further submitted that reference was being made to the suit filed
by the respondent before the Court of Principal Senior Civil
Judge, Mandvi-Kachchh and the order passed below Exhibit–5
therein, only for the purpose of demonstrating the manner in
which the respondent has proceeded to misuse the grant issued
by this Court.
14.This Court has considered the rival submissions. In
order to succeed in the present petition, the petitioner is required
to make out any one of the grounds available under Explanations
a to e to Section 263 of the Succession Act. In the present case,
the petitioner claims that the grounds available under
Explanations a, b and e to Section 263 of the Succession Act have
been made out. Hence, it would be appropriate to refer to the
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said Section which reads as follows :
“263.Revocation or annulment for just cause. The
grant of probate or Letters of Administration may be
revoked or annulled for just cause. Explanation – just
cause shall be deemed to exist where--
a.the proceedings to obtain the grant
were defective in substance; or
b.the grant was obtained fraudulently by
making a false suggestion, or by concealing from the
Court something material to the case;
c.the grant was obtained by means of an
untrue allegation of a fact essential in point of law to
justify the grant, though such a allegation was made
in ignorance or inadvertently; or
d.the grant has become useless and
inoperative through circumstances; or
e.the person to whom the grant was made
has wilfully and without reasonable cause omitted to
exhibit and inventory or account in accordance with
the provisions of chapter VII of this part, or has
exhibited under that chapter an inventory or account
which is untrue in a material respect.”
15.In the present case, the LOA was granted on 16th
January 2018. A perusal of the same, read with the schedule
annexed thereto shows that the schedule refers to movable
properties. In order to appreciate the contentions raised by the
rival parties, it is also necessary to consider the contents of the
subject will in the context of which the LOA was granted.
16.The relevant portion of will dated 13th May 2005
reads thus :
“As of today I do not have any immovable
property in my possession, however, my movable
properties consist of my ornaments – trinkets,
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cash amount, investments and equity shares etc.
I myself am making the entire management
thereof.
As regards my diamonds, gold, silver
ornaments as well as silver utensils, which my
middle son Kantilal Dharshi has usurped from
me, I have given absolute authority to my
grandson Jayesh Jayant Shah to take all the
actions to retrieve the same. It is okay if I get
the above mentioned articles during my life time,
otherwise, after my death, I give and bequeath
all these articles to my grandson Jayesh Jayant
Shah.
There is a bungalow by name Dhan Villa,
which bears survey number 27 and 876, in
Vaniya Fariya and Mota Layaja, Kutch. The said
bungalow was in my possession for the last 37
years. My middle son Kantilal Dharshi has
broken open the lock of the said bungalow and
put his lock to it. In order to recover the
possession of the said bungalow and to retrieve
my furnitures and fixtures lying in the bungalow,
I request Jayesh Jayant Shah to initiate the legal
action and recommend to initiate court
proceeding in Kutch and to recover my things
and articles – furniture and fixture as well as
tenancy right / possession of the premises. If all
these things are implemented after my death,
then, I give all the properties responsibilities to
my grandson Jayesh Jayant Shah.
My middle son Kantilal Dharshi Shah has
obtained my signatures on totally blank papers
by way of intimidation and coercion. And he has
even forged the signature of my deceased
husband Dharshi Narshi Shah on some papers in
front of me. I suspect that Kantilal Dharshi
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might have made (executed) some kind of
writing on the said blank papers. It it is so, then
all such writing is not approved of by me.
Therefore, I rescind all such writings. Now, after
complying with all the action, now I request my
executors to distribute all my remaining
properties, as they may deem proper, only
among the two families that is to say the family
of Shri. Kishorbhai Liladhar Shah and the family
of Shri. Jayant Dharshi Shah.”
17.It is the case of the petitioner that the respondent
indulged in suppression for the reason that the schedule filed
alongwith the testamentary petition on the basis of which LOA
was granted, referred to only movable properties that could be
referred to in the subject will. There was no reference to any
immovable property, much less the property which is subject
matter of the proceedings initiated in the appropriate Court at
Kachchh i.e. Special Civil Case No.195 of 2018. It is the case of
the petitioner that the entire suit proceeds on the strength of the
aforesaid LOA granted by this Court, despite the fact that the
schedule annexed to the grant does not mention the aforesaid
property in Gujarat in respect of which the said suit has been
filed. According to the Petitioner, the aforesaid act of the
respondent in filing the suit on the strength of LOA granted by
this Court, not only amounts to misuse of the grant but it also
demonstrates that the respondent has willfully and without
reasonable cause suppressed relevant material facts from this
Court while obtaining the LOA. According to the petitioner, the
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respondent ought to have included in the schedule the said
property referred to in the subject will wherein the deceased
testator claimed right of possession.
18.It is case of the petitioner that by filing the aforesaid
suit in the manner in which it has been filed, sufficient grounds
arise under Explanations a, b, and e to Section 263 of the
Successions Act.
19.Perusal of Explanations a, b and e to Section 263 of
the Succession Act indicates that the grant can be revoked as per
Explanation a, where proceedings for obtaining the grant are
defective in substance. Explanation b pertains to false suggestion
made while obtaining grant. Explanation e indicates that the
grant can be revoked where the person to whom the grant was
issued willfully and without reasonable cause omitted to exhibit
an inventory or account in accordance with the provisions of
Chapter VII of the Succession Act.
20.The basis on which the petitioner alleges that the said
grounds have arisen, also concerns violation of Rule 414 of the
High Court Original Side Rules and failure to exhibit inventory of
the properties that form subject matter of the will. This Court has
perused Rule 414 of the aforesaid Rules. The testamentary
petition read with the schedule annexed thereto forming the
basis of grant in the present case cannot be said to be violating
Rule 414 of the aforesaid Rules, simply for the reason that the
concerned movable properties finding mention in the will have
all been stated in the schedule filed with the testamentary
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petition. The dispute pertaining to possession of the property in
question with which the suit filed in the said Court at Gujarat is
concerned, can be relatable to tenancy rights that the deceased
testator may have had in the said property. It is a settled position
of law that tenancy rights cannot be bequeathed under the will.
Therefore, it cannot be said that the respondent violated Rule
414 of the aforesaid Rules in any manner by stating only movable
properties that form part of the estate. Besides, the above quoted
portion of the will shows that even according to the testator, she
was not in possession of any immovable property.
21.It is a completely different matter that the subject
matter of controversy in the suit before the Court at Gujarat may
eventually consider the nature of rights of the deceased testator
in the suit property. But, that in itself cannot be a ground to
claim that the respondent in the present case indulged in any
suppression or that the respondent gave a false suggestion or
further that the grant itself was rendered defective in the facts
and circumstances of the present case.
22.The question of grant being revoked under
Explanation e, to Section 263 of the Succession Act would arise
only if it could be demonstrated that the respondent had willfully
and without reasonable cause omitted to execute an inventory or
account in accordance with the provisions of Chapter VII of the
Succession Act. This Court fails to understand how the said
ground can be available in the facts and circumstances of the
present case.
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23.The tenor of submissions made before this Court, on
behalf of the petitioner indicates that according to the petitioner
the respondent could not have filed the aforesaid suit in the court
at Gujarat on the strength of LOA granted by this Court. This is
indeed the stand taken on behalf of the Petitioner before the
Court at Gujarat. The same is reflected in the submissions made
on behalf of the Petitioner when the Court at Gujarat decided the
application for temporary injunction at Exhibit 5. The record
shows that despite the aforesaid stand taken on behalf of the
petitioner, the Court at Gujarat granted the order of status quo,
indicating that the submissions made on behalf of the Petitioner
could certainly be considered at the time of trial.
24.Thus, it is evident that the Petitioner has indeed
canvassed his case before the Court at Gujarat in the suit filed on
behalf of the respondent. The petitioner can very well
demonstrate on merits that the suit deserves to be dismissed.
But, the grievance of the petitioner on alleged misuse of the
grant cannot become the basis for revocation of the grant itself.
This court can exercise jurisdiction to revoke the grant only if any
of the grounds under Section 263 of the Succession Act are made
out.
25.As noted hereinabove, none of the grounds agitated
on behalf of the petitioner can be accepted in the facts and
circumstances of the present case.
26.The petitioner has not even claimed that he could
have any caveatable interest in the facts and circumstances of the
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present case and therefore, there is a serious question with
regard to the very maintainability of the present petition at the
behest of the present petitioner.
27.The learned Senior Counsel for the petitioner relied
upon the Judgment of Madras High Court, in the case of Dr. R.A.
Venkatesan v/s. D. Jenbagalakshmi, O.S.A. No.324 of 2010. This
court has perused the portion upon which the learned Counsel
for the petitioner placed reliance. There is nothing therein to
assist the petitioner in his claim that grounds under Explanations
a, b and e of Section 263 of the Succession Act are made out.
28.Reliance placed on the Judgment of this Court in the
case of Peter John D’Souza and others v/s. Armstrong Joseph
D’souza, Misc. Petition No.69 of 2012 in Testamentary Petition
No.722 of 2010, can also not assist the petitioner. Reliance is
placed on the observations made in paragraph 20 of the said
judgment. But, in the said case, the observations in respect of
fraud and false suggestions were made in the backdrop that the
petitioner therein obtained LOA without will by suppressing the
will left behind by the deceased. On facts the present case is
different and therefore, reliance placed on the said Judgment is
completely misplaced.
29. As regards the orders passed by the Division Bench of
this Court in the previous round of litigation, suffice it to say that
several grounds were considered while deciding the application
filed on behalf of the petitioner for certified copies of the record
of the testamentary suit. It is a different matter that certain
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grounds sought to be agitated in the present petition also find
mention in the appeals filed on the behalf of the petitioner. In
any case the division bench of this Court, reserved liberty for the
petitioner to file the present petition under Section 263 of the
Succession Act.
30.Therefore, this Court has considered the present
petition on merits. But, for the reasons noted hereinabove, it is
found that the petitioner has not been able to make out any
grounds under Section 263 of the Succession Act to seek
revocation of the grant.
31.In view of the above, the petition is dismissed. It is
clarified that the dismissal of the present petition will not be
come in the way of the petitioner agitating his grievance in
accordance with law, before the Court of Principal Senior Civil
Judge, Mandvi-Kachchh in Special Civil Case No.195 of 2018.
Needless to say that the said clarification would also apply to Suit
no.944 of 2019 pending before the City Civil Court at Bombay.
MANISH PITALE, J.
3 issues framed by the court
Is the petitioner's Section 263 revocation petition maintainable given his lack of caveatable interest or heir status?
Do Explanations a, b and e to Section 263 apply due to alleged suppression of material facts or omission of inventory by the grantee?
Does filing a suit in Gujarat on the strength of the LOA justify revocation of the grant?
Colour shows how this judgement treated each authority
Dr. R.A. Venkatesan v/s. D. Jenbagalakshmi (Madras High Court)Distinguished¶27
O.S.A. No.324 of 2010
Peter John D'Souza and others v/s. Armstrong Joseph D'souzaDistinguished¶28
Misc. Petition No.69 of 2012 in Testamentary Petition No.722 of 2010
3 provisions across 3 enactments
Kantilal Dharshi Shah
Jayesh Jayant Shah
Manish Pitale
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court