1 MISC. PTN.83/09-TP.31/97 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION MISC. PETITION NO. 83 OF 2009 IN TESTAMENTARY PETITION NO. 31 OF 1997 Vijay Mahadev Indulkar ...Petitioner Vs. Pratap Mahadev Indulkar ...Respondent And M/s. G.M. Arch Pvt. Ltd. ...Applicants Mr. S.R. Ganbavale for Petitioner Mr. R.V. Govilkar for Applicant in CHS. No.98/2010 Mr. Deepak Natu for Respondent No.1 Mr. Mehul Shah for Respondent Nos.2 to 9 CORAM : SMT. ROSHAN DALVI, J. DATED : 30TH SEPTEMBER, 2010 P.C. : 1. This Petition is for revocation of the probate granted in Testamentary Petition No.31/1997 essentially on two grounds: 1. Want of service of the citation upon the Petitioner herein and 2. The case of the Petitioner that the Will has not been executed by the Testator in view of the affidavits of the attesting witnesses stating that they had signed upon misrepresentation 2 MISC. PTN.83/09-TP.31/97 practiced by the Respondent No.1 herein. 2. The deceased Mahadev Indulkar expired on 24th July 1986 and he is stated to have left behind Will dated 20th April 1986. In the Testamentary Petition a copy of the Will has been annexed. Paragraph 11 of the Petition shows certain deletions with regard to the original Will and its copy. 3. Both the attesting witnesses to the Will being Tatoji Krishnaji Khanvilkar and Bhagoji Raghoji Jadhav have filed affidavits in respect of the attestation of the Will. 4. Upon the grant of probate and the consequent development of the property of the Testator the Petitioner herein inquired of them as to how the attestation was made. They claim that they had not attested any document claimed to be the Will of the Testator. They both have filed their affidavits stating the circumstances under which they had signed on two documents at the instance of the Petitioner in the Probate Petition. Their affidavits show that the Petitioner took their signatures upon the representation that it was a Deed of Partition in which all the heirs are getting equal share. Their second signature was taken in the Court upon similar representation and upon they being told to say “yes” to the Interpreter before whom they had to affirm their affidavits. These witnesses would have to be cross examined with regard to this fact since their entire case is upon their oral evidence. However prima facie upon their affidavits the probate of the Will once granted cannot be allowed to remain and would have to be tested. 3 MISC. PTN.83/09-TP.31/97 5. The Petitioner also claims that he was not served the citation. The service of the citation is shown to be at the address F 1/1, Sector 6, CBD, New Bombay 400 614. The Petitioner has shown that he earlier resided at that address. That may have been the last known address known to the Petitioner in the probate petition and hence the probate petition may be taken to be correctly sought to be served. However when the Petitioner has shown that he has sold that property it cannot be taken to be his correct address as on the date of service. The Petitioner has produced a copy of the Lease Deed dated 24th July 1994 showing the aforesaid address of the Petitioner at that time and which property was sought to be sold. Upon the sale, therefore, that address was no longer the address of the Petitioner herein. The Petitioner is, therefore, not served at the address where he resided. 6. The acknowledgment of registered post which is shown to be initialled is not of the Petitioner. The Petitioner has shown his signature in the Lease Deed executed by the Petitioner as far back as on 27th June 1998 for the land of CIDCO taken on lease by the Petitioner. The signature is completely different. 7. Simplicitor on the ground that the Petitioner has inadvertently also not being served, the Petitioner would have to be heard before the probate which has been granted is ultimately effectuated. 4 MISC. PTN.83/09-TP.31/97 8. Hence on both these counts the probate granted in Testamentary Petition No.31/1997 is required to be set aside. 9. Hence following order: 1. Probate granted in Testamentary Petition No.37/1997 is set aside. 2. The Testamentary Petition is restored to file. 3. The Petitioner shall be taken to have been served now. 4. The Petitioner shall file his caveat within 8 days and his affidavit in support of the Caveat within 8 days thereafter. Thereupon the Petition No.31/1997 shall be converted into the Testamentary Suit to be decided on merits. 5. Misc. Petition No.83 of 2009 is disposed off accordingly. 6. Notice of Motion No.182/2009 taken out by the Respondent is not pressed and is allowed to be withdrawn. (SMT. ROSHAN DALVI, J.)