1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION MISC.PETITION NO.34 OF 2007 Marks Philip Baretto & Ors. .. Petitioners Versus Shashikant Junnerkar & Ors. .. Respondents Mr.S.B.Rajbhar for petitioners Mr.D.D.Madon, Senior Advocate i/b. A.Doijode for respondent Nos. 1, 2, 9, 19 Mr.M.Irani for respondent Nos.4, 6 to 8, 10, 12, 15 and 16 Mrs.A.N.Sanglikar for respondent No.3 Mr.A.Iyangar for respondent No.5. CORAM : S.C.DHARMADHIKARI, J. DATE : 10th November 2008 P.C. . Heard Mr.Rajbhar for petitioners, Mr.Madon, learned Senior Counsel for contesting respondents. Other respondents are also served and they are heard. 2. Perused the petition and the affidavit in reply and rejoinder thereto. The request is to 2 revoke the grant of probate as is the subject matter of other two connected petitions. This petition is also heard along with the said two petitions and, therefore, it is not necessary to repeat the facts pertaining to grant of probate. The petitioners claim to be grand children of the deceased Andrew and Louisa. It is stated in the present petition that the first respondent while obtaining grant has suppressed the fact that the present petitioners, though being major, are still not entitled to any benefits of the estate or share therein. Thus, there is a fraud played and it is only when the second respondent along with her husband filed a suit in the City Civil Court against Salsette Catholic Coop. Housing society and M/s.Conwood Developers so also the said society and developer filing Suit No.353 of 2005 that the petitioners became aware of the grant and that is how they took search of the record and filed instant petition. 3 3. In the affidavit in reply, it has been pointed out that the petitioner No.1 in the present petition is the son of the petitioner in Misc.Petition No.12 of 2007. Mr.Phillip Andrew had filed Misc.Petition No.12 of 2007 which has also been disposed of by me. Mr.Phillip i.e. father of petitioner No.1 and the petitioner reside together in the same house. Petitioner’s father was alive and both were aware of the proceedings. Proceedings were served on Philip and had knowledge of the same as is indicated by the respondent No.2 in the affidavit in reply filed in Misc.Petition No.12 of 2007. 4. As far as petitioner Nos. 2 and 3 are concerned, they are the children of Bartholomew. He is pre-deceased the son of the deceased Louisa and her husband Andrew. The widow of Bartholomew is respondent No.7. She was served with the Citation. She signed an affidavit on 13th December 1991 consenting to the grant of probate 4 in favour of petitioner in Petition No.540 of 1991. Thus, she fully supported the case and stated that the will be probated. Petitioner Nos. 2 and 3 and respondent No.7 are all residing in the same premises. Therefore, it is difficult to believe that they were unaware of the proceedings. These facts are specifically set out in para 6 of the affidavit in reply and, therefore, it is contended that petition is without any substance and merit. 5. Rejoinder affidavit has been filed and as far as para 6 is concerned, there is no denial of the fact that mother of petitioner Nos. 2 and 3 was aware of the proceedings. There is no denial of the execution of any letter of consent nor is there any affidavit filed by the mother to support the case of petitioner Nos. 2 and 3. 6. As far as petitioner No.1 is concerned, he is not disputing the fact that the petitioner 5 Phillip in Misc.Petition No.12 of 2007 is his father. In para 6 of the affidavit in rejoinder all that is stated is that the petitions filed by Phillip and present petitioner No.1 are not similar. 7. In my view, these are not matters which the petitioners could have been unaware of. They are fully aware of the proceedings as is clear from the statement made on affidavit by respondent No.2 with regard to service of citation. Further, they were aware of the fact that some of the respondents to this petition (respondent No.7) have executed a consent affidavit. That apart, they are aware of the filing of Petition NO.12 of 2007 for revocation by Phillip, containing self-same allegations. For the reasons that I have assigned while dismissing other two petitions, even this petition must fail. I see no reason to disbelieve respondent No.2’s version on 6 affidavit. The same is supported by documents and grant in question is sought to be revoked after nearly fourteen years, that too by persons who suppress material facts pertaining to their rights in the estate. 8. In the result, this petition is also devoid of any merit and accordingly the same is dismissed but subject to the charification that is issued in para 27 of the order dated 24th October 2008 in Misc.Petition No.12 of 2007. No costs. (S.C.Dharmadhikari, J)