1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION MISC. PETITION NO.67 OF 2008 IN PETITION NO.912 OF 2006 Sudha Tanaji Naikdhure ..Petitioner. Vs. Manisha Murlidhar Bagwe ..Respondent. ..... Mr. Jitendra M. Patil for the Petitioner. Mr. Harish Bhatia for the Respondent. .... CORAM : DR. D.Y. CHANDRACHUD, J. 13th August, 2009. P.C. : 1. The Petition has been filed for the revocation of letters of administration granted on 9th August, 2007 to the Respondent in respect of (i) Gala No.J-501, APMC Fruit Market, Vashi, Navi Mumbai and (ii) Flat No.44/B, Bhimashankar Co-operative Housing Society, 4th floor, Sector 19, CIDCO, Nerul being properties in the estate of the deceased Tanaji Tulaji Naikdhure. 2 2. The facts which have been admitted during the course of the proceedings are that the deceased married Radhabai some time in 1944. Two children were born from the wedlock viz. Meera Dilip Pawar who was born on 1st June, 1945 and the Respondent Manisha Murlidhar Bagve who was born on 6th June, 1958. Again during the course of the submissions it has not been disputed on behalf of the Petitioner that during the subsistence of the first marriage the deceased married the Petitioner some time in 1958. The Respondent who is a daughter of the deceased from the first marriage sought Letters of administration in respect of a gala in the APMC Market and a residential flat, already noted above. Letters of administration were issued to the Respondent on 9th August, 2007. The Petitioner seeks the revocation of the Letters of administration on the ground that she was not impleaded as a party to the petition which came to be instituted by the Respondent; that she had a caveatable interest; and a statement was made in the petition that the wife of the deceased had predeceased him and the deceased had left behind no other heirs save and except those mentioned in the petition. The Petitioner claims that as a widow of the deceased she had a 3 caveatable interest; that she had an interest in the estate and therefore she ought to have been impleaded. Now the Petitioner claims to be married to the deceased but she admits that the marriage was contracted during the subsistence of the first marriage. During the course of the hearing counsel appearing on behalf of the Petitioner has expressly made a statement to that effect. In these circumstances, it is not possible to accept the submission of the Petitioner that the grant of Letters of administration to the Respondent would have to be revoked on the ground that the Petitioner was not named as one of the legal heirs in the petition for the grant of letters of administration. On the basis of the Petitioner’s case itself it is evident that she has contracted a marriage which was null and void at its inception. It must be noted that it is not the case of the Petitioner that the marriage was contracted with her after the death of the first wife. That being the position, the grant of the Letters of administration was in order and cannot be revoked. 4 3. The law undoubtedly raises a presumption of marriage where parties have cohabited for long. However, such a presumption cannot be drawn in a case where a man was already married for, during the validity of the first marriage there can be no valid second marriage in the eyes of law (Koppisetti Subbharao alias Subramaniam v. State of A.P.1). A marriage with a person who has a living spouse is void ipso jure and is no marriage in the eyes of law. (Yamunabai Anantrao Adhav v. Anantrao Shivram Adhav2) 4. Independent of the aforesaid reason, there is an additional reason as to why the petition for revocation cannot be allowed. A petition had been filed in this Court by a person by the name of Shrinivas Sabaji Naikdhure for the revocation of the same letters of administration of which revocation has been sought in these proceedings. In that Petition Shrinivas propounded a will dated 14th August, 1995. Shrinivas has also sought a probate before the Civil Judge, Senior Division at Thane of the alleged will dated 14th August, 1995. Before this Court today it is an admitted fact that the Petitioner to these proceedings filed an affidavit of 1 2009 AIR SCW 4122 2 AIR 1988 SC 644. 5 consent before the Civil Court at Thane agreeing to the grant of probate to Shrinivas. A statement to that effect has been made before this Court by counsel appearing on behalf of the Petitioner. The properties in respect of which Letters of administration have been granted to the Respondent viz. the gala and the residential flat - the Court is informed - are the very same properties which under the alleged will dated 14th August, 1995 would devolve on Shrinivas according to his claim. The Petitioner having consented to the grant of probate to Shrinivas, she has obviously accepted that the two properties of which Letters of administration have been granted to the Respondent would devolve upon Shrinivas and not upon the Petitioner herein. The Petitioner cannot be allowed to approbate and reprobate. Having once taken the position in support of the will dated 14th August, 1995 which Shrinivas purports to propound and under which two properties would devolve upon him, the Petitioner herein cannot be heard to assert that she has been deprived of an interest by the failure of the Respondent to implead her to the Petition for the grant of the Letters of administration. The second ground for not accepting the case of the Petitioner is of course an independent ground. 6 However, it would be necessary to clarify that the first ground is in itself sufficient to warrant the rejection of the Petition. For all these reasons, the Petition shall stand dismissed. *****