:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY TESTAMENTARY TESTAMENTARY & INTESTATE JURISDICTION & INTESTATE JURISDICTION & INTESTATE JURISDICTION MISC. MISC. MISC. PETITION NO. 3 OF 2008 PETITION NO. 3 OF 2008 PETITION NO. 3 OF 2008 IN IN IN PETITION PETITION PETITION NO. 425 OF 2007 NO. 425 OF 2007 NO. 425 OF 2007 Suresh Kantilal Joshi & Ors. ... Petitioners. V/s. Tejas Ashok Joshi. ... Respondent. Mr. M.A. Shah i/b. A.G. Shah for the Petitioner. Mr. C. Golwala for the Respondent. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 19TH 19TH 19TH DECEMBER 2008. DECEMBER 2008. DECEMBER 2008. P.C. P.C. P.C. : : : . The Petition is for revocation of a Succession Certificate granted on 24th August 2007 by this Court in Petition No. 425 of 2007. 2. The Revocation Petition is filed by Petitioner Nos. 1 and 2 who are the sons and Petitioner No.3, who is the daughter of Deceased Kantilal Dungarji Joshi. He was residing at Mumbai. He died at Mumbai on 9th June 1997 and it is the case of the Petitioners that he left behind a Will dated 9th January 1997. 3. The Succession Certificate was sought to be obtained by the Respondent and it is alleged in paragraphs :2: 3 and 4 of the present Petition that the deceased admittedly left behind his heirs and Legal Representatives viz. the sons Suresh, Girish and Ashok so also daughter Harsha. Ashok died on 9th February 2004 leaving behind him his wife Sudha and two sons Mr. Rajesh and Mr. Tejas (Respondent in this Petition) and a daughter Alka Anil Bhatt (married). The wife of the deceased Kantilal namely Laxmiben died prior to the death of the deceased. 4. The Respondent, grandson of the deceased filed an Application for issuance of Succession Certificate without disclosing the fact that the deceased had left behind him the above heirs and Legal Representatives. The Petition was filed without setting out any details with regard to the Petitioners, leave alone, obtaining their consent, is the contention and the revocation is sought on this ground. 5. I am not concerned with other allegations made in the Petition for revocation inas much as the averments and statements in paragraphs 4,5 and 9 have not been denied in the reply filed by the Respondent. 6. The Petitioners have contended that they have learnt about the grant after they received some letters in September and October 2007 and that is how the present Petition for revocation has been filed. :3: 7. The Respondent has filed a reply/written statement and in paragraphs 4 and 5 of the said written statement, the Respondent states thus :- "4. Without prejudice to the aforesai contention, with reference to para 1 of the Misc. Petition, the Respondent states that though Petitioner Nos. 1,2 and 3 have claimed to be the sons and daughter of deceased Kantilal Joshi, the said Petitioners had left the deceased Kantilal Joshi during his life time and Petitioner No.1 and 2 went abroad permanently without taking any care of the deceased Kantilal Joshi. It was the father late Shri Ashok Joshi of the Respondent who had been continuously staying with the deceased Kantilal Joshi and taking all his care including giving him best medical treatment and also mental support during his life time. The Respondent also states that even though he was minor, he too has taken proper care of his grandfather deceased Kantilal Joshi during his difficult period of life. It submitted that Petitioner No.3 who is the daughter of deceased Kantilal Joshi has married and took divorce and even after the divorce, deceased Kantilal Joshi has given to her separate residential accommodation at Gamdevi and hence she has no claim of whatsoever nature in the estate of deceased Kantilal Joshi. It is submitted that :4: though Petitioners No.1 and 2 claimed to be the sons of deceased Kantilal Joshi, they had left the home of Kantilal Joshi almost for over 25 years and settled permanently in USA for their own selfish prospects and they have never bothered to come back to India to take care of their father i.e. deceased Kantilal Joshi. It is submitted that by the conduct and behaviour of Petitioner Nos.1 and 2, they have waived and/or relinquished and/or given up all their alleged claims in the estate of deceased Kantilal Joshi. 5. With further reference, it is submitted that even though deceased Kantilal Joshi had several times requested Petitioners No.1 and 2 to come back to India and stay with him to give him mental support during his difficult period of life time but they have deliberately failed and willfully neglected and avoided to come back to India and had never cared to see whether deceased Kantilal Joshi is surviving or not. It may not be out of context to mention here that the Petitioners No.1 and 2 have absolutely no records whatsoever to show that at any point of time they have spent even rupee towards medicals and/or general expenses of the late deceased Kantilal Joshi, on the other hand Respondent has more than sufficient evidence documentary and otherwise to show that time and :5: again for years, the day to day expenses and all other regular and urgent medical expenses made by the Respondent. The Respondent shall crave leave to refer to and rely upon all necessary medical records in this regard as and when produced." 8. With regard to the abovementioned paragraphs also, there are no denials as is evident from reading of paragraphs 8 and 13 of the written statement. 9. It is, in these circumstances, that I enquired from the learned Advocate appearing for the Respondent as to how he justifies the grant of the Succession Certificate and his contention is that the Respondent had given all details to the earlier Advocate Mr. S. Lakdawala but the Advocate has filed a Petition with incorrect facts and the Respondent was not aware of the filing of the Petition. Thus, the Petition for issuance of Succession Certificate was filed as per legal advice and there is no false statement. 10. The Indian Succession Act provides for revocation of probate so also revocation for Succession Certificate and Section 383 therein states that if the proceedings to obtain the certificate were defective in substance or if the certificate was obtained by making false suggestion or by concealment from the Court of something material to the case, then, that would be a cause enough to invoke the :6: discretion of the Court to revoke the certificate. In the present case, a reading of the averments and statements in the Petition which are referred above and in the light of the fact that the same are not denied, it is apparent to me that the Succession Certificate was obtained by making a false suggestion or concealment from this Court of facts material to this case. 11. Revocation Petition sets out specific details of the heirs and legal representatives of the deceased and it is admitted by the Respondent that they are so and that the deceased left behind them. The details of the heirs and legal representatives are not disclosed to this Court by the Respondent while obtaining the certificate. 12. In these circumstances, Misc. Petition No.3 of 2008 is made absolute in terms of prayer clause (a). No costs. 13. Needless to state that after the Succession Certificate is revoked, Testamentary Petition No. 425 of 2007 in which the said certificate has been granted stands restored to file of this Court, but for being proceeded further, in accordance with law and rules. Therefore, it is needless to direct that the original Petitioner who is a Respondent in this Revocation Petition, will have to take all steps including to issue citation or notice to all concerned including the Petitioners in this Petition. :7: Ad interim order granted by this Court to continue for a period of eight weeks to enable the Petitioners to adopt appropriate proceedings. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)