1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION MISC. PETITION NO. 66 OF 2007 IN PETITION NO. 168 OF 1995 Dhanji Sarvan Gala @ Shah. ... Petitioner. V/s. Vasanji Sarvan Gala @ Shah & Ors. ... Respondents. Mr. Vora for the Petitioner Ms. Divya Shah for Respondent No. 1. Mr. D.C. Shah for Respondent Nos. 5 to 8 and 12. ..... CORAM : S.C. DHARMADHIKARI, J. DATE : 20TH NOVEMBER 2008. P.C. :- This Misc. Petition is filed for revocation of the grant of probate, by this Court on 27th September 1995. This grant was made in Petition No. 168 of 1995. 2. The grant was made of the Will dated 10th June 1975. This 2 Will was executed by Servan Vanvir Gala, who expired at Mumbai on 9th September 1976. 3. The grant was made on the above Petition which was filed by Smt. Meghbai Servan Gala who was the widow of he deceased Servan. The said Meghbai has also expired on 17th June 2001. 4. The Petitioner claims to be the son of the deceased Servan and Meghbai. It is his case that during his life time said Servan had executed a Will on or about 11 February 1974. The probate is granted in respect of the Will dated 7th June 1975. However, the Will dated 11th February 1974 was registered with the Sub-Registrar, Assurances. It is his case that the said Will was not traceable after the death of the said Sarvan but it was traced by the Petitioner in 2004. However, late Meghbai, the mother of the Petitioner, filed a Petition for probate after 19 years i.e in 1995 and the probate was granted. The Petitioner has alleged in the Petition that in para 4 of this Petition that while filing the Petition for Probate, the late Meghbai suppressed the fact that the deceased and Meghbai had a son named 3 Dhanji i.e. the Petitioner. It was stated in the Petition that the deceased Servan left behind the widow Meghbai and one son Vasanji Servan Gala (First Respondent to the present Petition). There are no other heirs of the deceased Servan. However, this statement is false according to the Petitioner as the Petitioner was alive and available when the Petition for probate was filed and the grant was obtained. In such circumstances, the grant is vitiated by suppression of a material fact and this Court must, therefore, revoke the same. 5. It is undisputed before me that the late Meghbai purported to act upon the Will and even prior to the grant of probate had executed a conveyance deed dated 14th March 1995 and disposed of the properties more particularly covered thereby. 6. Subsequently, these propeties have been disposed of in favour of one Akash Natural Resources Pvt. Ltd. under a Conveyance Deed dated 25th November 2006. 7. It is also not disputed before me that the Petitioner Dhanji 4 Gala has filed a Probate Petition in this Court in respect of the Will dated 11th February 1974 and that Petition is pending. 8. The Petition is numbered as the Petition(Lodg.) No.938 of 2007. After the affidavits in reply are perused by me, it is apparent that although the grant is of September 1995, the same is sought to be revoked after nearly 12 years. The late Meghbai has also expired and in the meanwhile, there is a Conveyance Deed on which the First Respondent has acted and alienated the properties. Thus, there is a Conveyance Deed of March 1995 and November 2006 under which certain immovable properties have been disposed of. It is in such circumsances that I suggested to both sides that the issue as to whether the properties could have been disposed of under these Conveyance Deeds and whether the Vendors therein had right, title and interest to do so, are matters which must be dealt with in appropriate proceedings. The Probate Court is not empowered to go into issues of title to the property. That must be done by approaching competent Civil Court by seeking appropriate declarations and reliefs. The course suggested by me is acceptable to the Petitioner so also 5 the contesting Respondents. 9. However, Mr. Vora, appearing for the Petitioner contended that this Court must observe that the issue of probate in favour of late Meghbai way back in the year 1995 should not adversely affect the proceedings including the one to be instituted for claiming title to the immovable property. He contended that the grant of probate is a Judgment in Rem and therefore, merely because late Meghbai has expired does not mean that the Court has revoked the grant or that the grant automatically comes to an end in law. That apart, he submits that there are proceedings initiated for issuance of probate of a Will dated 11th February 1974. In the meanwhile, immovable properties are disposed off and therefore, if appropriate clarifications are not given, the grant is likely to prejudice the Petitioner. 10. On the other hand, the Respondent No.12 Devkaranben Nanji Gala, who has filed an affidavit has in para 5 thereof contended that the Petitioner himself has executed a writing dated 20th August 1990 and has given up all right, title and interest in the estate of late Sarvan Gala. In such circumstances, he now cannot seek any relief 6 much less of Title to the immovable property. That apart, 12 years have passed and therefore, the Petition be dismissed on the ground of delay and latches. 11. In my view, it is not necessary to enter into any controversy as the parties essentially are claiming right, title and interest in the immovable property. The father and mother of the Petitioner have already expired. Thereafter, the property has been purportedly disposed of. In such circumsances, whether the writing executed by the Petitioner prohibits him from claiming any right, title and interest in the property are matters which must be decided by a competent Court in the Civil Suit and needless to state that the said Court will go into and adjudicate the question of right, title and interest of parties to this Petition in the immoveable properties. That being issue of title, it is needless to further state that the said Court will decide that issue uninfluenced by the grant of probate in respect of the Will dated 10th June 1975. 12. In such circumstances, these observations fully protect the 7 Petitioner and this Petition, therefore, can be disposed of in the light of the above. No order as to costs. The Petition is disposed off. (S.C. Dharmadhikari,J.)