1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN ITS TESTAMENTARY AND INTESTATE JURISDEICTION MISC. PETITION NO.75 OF 2008 IN TESTAMENTARY PETITION NO.650 OF 2005 WITH NOTICE OF MOTIN NO.156 OF 2008 Praful Khanderao Deshmukh ..Petitioner. Vs. Tukaram Raghunath Kerkar ..Respondent. .... Mr. V.K. Damle with Mr. B.G. Saraf for the Petitioner. Mr. V.S. Kapse with Mr. S.G. Walam for the Respondent. .... CORAM : DR. D.Y. CHANDRACHUD, J. 26th June, 2009. P.C. : 1. The Petition has been filed for the revocation of the grant of probate that was issued on 28th August, 2007 to the Respondents. Probate was granted in respect of the will executed by Chintamani Khanderao Deshmukh allegedly on 9th June, 1999. The Respondent who had instituted Testamentary Petition 650 of 2005 claimed to be a foster son of the deceased. The testator died on 15th September, 2004. His wife had predeceased him on 11th August, 1994. The petition for the grant of probate was filed on 11th July, 2005 and probate was granted on 28th August, 2007. 2 2. The ground on which revocation has been sought is that the Respondent suppressed from this Court the circumstance that the deceased has five Class II heirs comprising of three brothers and two sisters. The three brothers reside in the U.S. while the two sisters reside in Pune. In reply to the submissions it has been urged on behalf of the Respondent that the Respondent was not duty bound to disclose to the Court the circumstance that the deceased had left behind him the aforesaid Class II heirs since it was the case of the Petitioner that being a foster son he was a Class I heir under the Hindu Succession Act, 1956. 3. Now in considering the rival submissions, it will be necessary to note that in the Petition that was filed for the grant of probate there was a specific averment in paragraph 8 to the effect that the testator and his wife have no brothers or sisters. This averment as a matter of fact is untrue because the undisputed position before the Court is that as a matter of fact the deceased had three brothers and two sisters. Neither of them was served before the grant of probate. That apart, the Respondent 3 cannot feign ignorance of the circumstance that the deceased had a Class II heir. In the affidavit in sur-rejoinder that has been filed by the Respondent, he has placed on the record a letter dated 6th December, 2004 addressed by one of the brothers of the deceased addressed to the co-operative society indicating that he had no objection to the transfer of the premises therein to the name of the Respondent. The letter has been addressed as the brother of the deceased. The Respondent filed the probate petition on 11th July, 2005. Therefore, on the date of the institution of the Petition, he was aware of the circumstance that there was at least one Class II heir under the Hindu Succession Act, 1956. Even so a palpably false statement was made before the Court that the deceased had not left behind any brothers or sisters. 3A. The contention before the Court of the Respondent that he claims as a Class I heir under the Hindu Succession Act, 1956 is again without any substance whatsoever. Counsel appearing for the Respondent concedes during the course of the submissions that the Respondent claims only as a foster son and as a matter of fact there was no valid deed of adoption 4 under which the Respondent was adopted by the testator or his wife. Reliance was sought to be placed on the judgment of the Supreme Court in K.P. Muthu Vs. Angamuthu Ammal1. That was however, a case which arose under the Tamil Nadu Rent Act where the definition of the expression “member of his family” was construed with reference to the provisions of Section 2(6-A) of that Act. But significantly in that case the Respondent and her husband had treated a brother’s son as their son. The Supreme Court noted that the brother’s son was in any case a Class II heir under the Hindu Succession Act, 1956. There was evidence to indicate that he had been brought up by the Respondent and her husband and all along lived with them and the Respondent’s husband had also bequeathed his entire business and properties to him. It was in these circumstances that for the purpose of the rent control legislation in question, such a person was held to be a member of the family. This decision would not govern a case such as the present where the question to be considered is as to whether the Respondent is a Class I heir under the Hindu Succession Act, 1956. Plainly, the Respondent is not a Class I heir. He is not the son of the 1 (1997) 2 SCC 53. 5 deceased nor was he adopted by the testator. The Respondent obtained probate by suppression of material facts and by making a statement which he knew to be untrue. The Petition was founded on a palpably false premise. 4. Finally it has been urged on behalf of the Respondent that in the grounds for revocation, the genuineness of the will has not been disputed. The submission again is without any substance. In grounds IV and VII, the genuineness of the will has been expressly set in question. That is of course a matter which would have to be decided after evidence is adduced at the trial of the suit. In the circumstances, the Misc. Petition filed for the revocation of the grant of probate will have to be allowed and is accordingly allowed. The Petition is made absolute in terms of prayer clause (a). In view of the disposal of the Petition, Notice of Motion 156 of 2008 does not survive and is accordingly disposed of. *****