1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1940 OF 2008 IN APPEAL (LODG) NO.233 OF 2008 IN MISCELLANEOUS PETITION NO.52 OF 2001 IN TESTAMENTARY AND INTESTATE PETITION NO.1364 OF 1999 AND NOTICE OF MOTION NO.1943 OF 2008 IN APPEAL (LODG) NO.234 OF 2008 IN REVIEW PETITION NO.16 OF 2002 IN MISCELLANEOUS PETITION NO.52 OF 2001 1.Hasmukh Lakhamshi Shah & others. ...Appellants vs. 1.Mahesh Mohanlal Dedhia & Anr. ...Respondents --- Mr.E.P.Bharucha, Sr.Advocate with Kevic Setalwad & Ms.Vimla Shah i/b. Vimla & Co., for Appellants. None for Respondents. --- CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 4TH April,2009. 2 P.C.:- 1. Both these notices of motion are taken out by the same parties for the same reliefs viz. condonation of delay in filing the appeals. The facts that are relevant are that one Mahesh Dedhia filed Testamentary Petition no.1364 of 1999 for letters of administration with the Will attached. The name of the testator is Madan Dedhia. He died in the year 1984. That letters of administration was granted in favour of Mahesh Dedia by order dated 19.6.2001. The Testator, as observed above, had died on 18.10.1984. He had, it appears, left behind his Widow who expired on 17.7.1991. Petition for grant of letters of administration was filed in the year 1999. The letters of administration was granted in the year 2001. Miscellaneous Petition no.52 of 2001 was filed by the present applicant Mr.Hasmukh Shah for revocation of letters of administration granted in favour of Mahesh Dedhia. The basis of the application for revocation was that the letters of 3 administration was obtained by fraud because a false statement was made in the petition for letters of administration that wife of Madan Dedia had pre- deceased him, whereas she died in the year 1991, seven years after Madan Dedhia died. It was also claimed that Madan Dedhia executed a Will in favour of his wife earlier and his widow after his death on the basis of that Will conveyed the property to Hasmukh Shah. This fact was known to Mahesh Dedia and still he did not mention this fact in his petition for letters of administration and did not cite him. Miscellaneous Petition was dismissed by the learned Single Judge of this Court on 24.1.2002. Against that order, Review Petition no.16 of 2002 was filed, that review petition has been dismissed by order dated 29.2.2008. The learned Single Judge who decided the review petition held that the review petition is not maintainable. Appeal (lodg) No.234 of 2008 has been filed challenging the order passed by the learned Single Judge rejecting the review petition, and a notice of motion is taken out for condonation of delay in filing that appeal. The delay is of 25 days. Appeal (Lodg) no.233 of 2008 has been 4 filed challenging the original order passed in Miscellaneous Petition no.52 of 2001 dated 24th January,2002. In that appeal, notice of motion no.1940 of 2008 has been filed for condonation of delay. It is claimed that the period spent for prosecuting the review petition is liable to be excluded under Section 14 of the Limitation Act and if that is so done, here also delay is hardly of 25 days. 2. We have heard the learned Counsel appearing for appellants in both the appeals. None appears for respondents. In our opinion, though the delay in filing both these appeals is not significant, it would not be in the interest of justice to condone the delay because, in our opinion, the order passed by the learned Single Judge dated 24.1.2002 dismissing Miscellaneous Petition no.52 of 2001 is perfectly legal. The appellants can successfully apply for revocation of letters of administration granted, only on their showing that they have caveatable interest, and that they are transferees from the executrix of earlier Will which admittedly 5 is not probated, will not give them caveatable interest. To claim that the appellants have caveatable interest, reliance is placed on the judgment of the Calcutta High Court in the case “Draupadi Dasya Vs. Rajkumari Dasya and others, Vol.XXII The Calcutta Weekly Notes page 564, decided on 3.12.1917”. Perusal of that judgment, however, shows that a person who has been held to have caveatable interest in that case was next-to-kin of the testator. We have not been pointed out any authority that a transferee claiming through the executrix of the earlier unprobated Will will have a caveatable interest. The learned Single Judge, in our opinion, has rightly held that the appellants do not have any caveatable interest. The learned Counsel appearing for appellants also relied on two judgments of the Supreme Court viz. (i) Hamza Haji Vs. State of Kerala and another, (2206)7 Supreme Court Cases 416” and (ii) United India Insurance Co.Ltd. Vs. Rajendra Singh and other, (2000)3 Supreme Court Cases 581”, on the aspect of fraud. In our opinion, the learned Single Judge has rightly held that the original petitioner who had applied for 6 letters of administration did not commit any fraud. He was under no duty to disclose that the Widow of testator, in her capacity as executrix of earlier executed unprobated Will, had transferred the property, in the petition that he had filed seeking letters of administration, because the property is not the subject matter of the petition for letters of administration, even assuming that he was fully aware of the transfer. So far as the mis-statement made in the petition that wife of the testator had predeceased him is concerned, the learned Single Judge has rightly dealt with that aspect of the matter also. She has observed that the petition for letters of administration was filed in the year 1999 whereas admittedly the widow had expired in the year 1991, and therefore, the statement that the Widow had predeceased the testator is not of much significance. What is pertinent to be noted is that though the letters of administration has been granted in the year 2001 and the petition for revocation of that letters of administration was filed in the year 2001, even till today the petitioners have neither taken up any proceedings either seeking probate of the alleged 7 Will by which the property is conveyed in favour of the widow or seeking probate of the Will by which the Widow was entitled to transfer the property in their favour. The learned Single Judge has also dealt with the evidence led to prove that the Will in relation to which letters of administration is granted is genuine and this aspect is not in dispute. 3. Taking overall view of the matter, therefore, in our opinion, as the orders which are impugned in both the appeals are perfectly legal order, no useful purpose will be served by condoning delay. Notices of motion, therefore, are dismissed. (D.K.DESHMUKH, J.) (A.A.SAYED,J.) ---