1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION MISC.PETITION NO.12 OF 2007 Phillip Andrew Barretto & Anr. .. Petitioners Versus Shashikant Sitaram Junnarkar and Ors. .. Respondents Mr.Thomas Almeida i/b. Mrs.N.V.Sanglikar for petitioners Mr.D.D.Madan, Senior Counsel with Mr.S.N.Doijode and Mr.K.G.Mhatre i/b. Doijode and Associates for respondent Nos. 1, 2 and 14. Ms.M.Gaikwad for respondent Nos. 15 and 19 Mr.A.Iyangar for respondent No.3 Mr.M.Irani for respondent Nos. 4 to 7 and 10 to 13, 18 Mr.S.B.Rajbhar for respondent Nos. 8 and 9. CORAM : S.C.DHARMADHIKARI, J. DATE : 24th October 2008 P.C. . This is a petition for seeking revocation of the probate granted on 11th March 1993 in respect of the last will and testament of late Mrs.Louisa Mary Beretto. The petition is filed 2 invoking powers of this Court under section 263 of the Indian Succession Act, 1925. 2. Petitioners claim to be the son and daughter of the deceased Louisa and her husband Andrew. First respondent is the Executor under the last will and testament of the deceased dated 21st April 1982 and respondent Nos. 2, 3, 4, 13, and 14 are the brothers and sisters of the petitioner. Respondent Nos. 5, 6 and 12 are widows of brothers of petitioner whereas, respondent Nos. 7 to 11 and 15 to 19 are Nephews and Neices of petitioner. Thus, it is stated that they are Grand children of the Deceased. 3. It is alleged that the probate was obtained by first respodnent by adopting fraudulent means at the behest of respondent No.2. 4. It is contended that the deceased Andrew 3 who was husband of Louisa was owner of lands more particularly described in para 2 of the revocation petition. Father of the petitioner Andrew died intestate leaving behind his wife the deceased Louisa and six sons and four daughters. 5. Louisa expired on 3rd September 1990. First respondent filed probate petition No.540 of 1991 for grant of probate in respect of the last will and testament of the deceased. The will is dated 21st April 1982. 6. The relevant averments in the petition are in paras 3, 4 and 5. The same read thus:- "3. The deceased abovenamed died on 3rd September 1990. The respondent No.1 filed Probate Petition bearing No.540 of 1991 for grant of probate in respect of purported last will and testament of the deceased. The petitioners herein were 4 served with citations nd had entrusted the matter to Mr.Clement Lobo for filing a caveat in the said petition. An affidavit was also prepared setting out the objections for grant of probate in the petition wherein it was clearly mentioned that the deceased had 10 children and not 8 as set out in the probate petition and in the will. It was also submitted that the will did not represent the true intention of testator and that she was illiterate and the thumb impression was obtained on the said writing purported to be her will. It was also stated in the affidavit that the deceased was not aware and did not understand the contets of the will and that she was unknowingly acted out of her basic lack of education being coerced into affixing her thumb impression to the documents and thereby bequeathing her 5 estate solely to respondent No.2 where as she actually had no such intention of doing so. It was also stated in the affidavit that the age of the deceased given in the will was incorrect." "4. The petitioners were given to understand that once the caveat and the supporting affidavit is filed by the petitioners, the probate cannot be granted without hearing the petitioners and that the same would be converted into suit. In or about 2005 Salsette Coop.Housing society had filed a suit in the Bombay City Civil Court bearing BCC Suit No.353 of 2005 against the petitioners and the other heirs of the deceased seeking possession of the suit land and for a declaration that the petitioners and the other heirs have no right in the said land. It was only when 6 the suit proceedings camed to be served on the petitioners and when the suit came to be tagged along with the Suit No.3489 of 2004 filed by the 2nd respondent, that the petitioners came to know about the probate having been granted to respondent No.1 in Probate Petition No.540 of 1991. Petitioners state that the respondents No.2 had filed a suit claiming ownership by way of adverse possession and absolute title in respect of the entire property which is jointly in possession of the petitioners and respondents. On making further enquiries, the petitioners were shocked to learn that the suit was filed on the basis of probate granted by this Court on 11th March 1993. The said suit was filed behind the back of the petitioners and without joining them as parties to the suit though they are in joint possession of the property" 7 "5. On learning the abovementioned facts the petitioners addressed a notice dated 18th May 2006 to Mr.Clement Lobo calling upon him to give reasons as to why the caveat and the affidavit was not filed inspite of specifically assuring the petitioners through Mr.Mark Barretto, the son of petitioner No.1 that the caveat and the affidavit was filed." 7. However, it is stated that Louisa Mary the deceased was filing Forms under section 6(1) of Urban Land Ceiling Act and she had mentioned names of the petitioner and respondents as interested parties. It is undisputed that after the demise of Andrew as early as in the year 1959, it is alleged that as per the provisions of Succession Act, his properties, both moveable and immovable should have been divided amongst his next of kin in the proportion of 1/3rd for widow 8 and 2/3rd for children numbering 10. It is alleged that one Salsette Catholic Coop.Housing Society handed over for development the said land in the year 1981 and that is how the construction was made by M/s.Conwood Developer. The deceased executed a power of attorney in favour of respondent No.2 who was youngest of the ten children for looking after the property. It is alleged that after the death of the said deceased the probate petition was filed and on the citation being served the petitioner engaged services of Advocate Clement Lobo for the purpose of filing caveat and supporting affidavit. This affidavit was signed by petitioner and the Advocate had assured petitioner that the same would be filed along with caveat. This is the averment in para 7 of the petition. The petitioner states that later on they discovered that neither the caveat in support was filed nor the affidavit in support. With the result, the probate under reference came to be granted. The 9 petitioner allege that they were never informed by Mr.Lobo that the Caveat and affidavit was not filed but they were all along under an impression that caveat has been filed and proceedings are converted into suit. They alleged that only when the society filed a Suit being Suit No.353 of 2005 to evict the petitioners and the respondents and when the said suit was clubbed along with other suit being Suit No.3849 of 2004 that the petitioners became aware that a probate was granted in favour of Respondent No.1. It is alleged that correspondence was entered into with Mr.Lobo, Advocate but there was no response. Therefore, a complaint was filed against him with the Bar Council of Maharashtra and Goa. A copy of the complaint is annexed as Exh.J. 8. It is in these circumstances and alleging that the will was got executed fraudulently under the guise of handling the case in the Court, that the probate petition was filed. It is alleged 10 that the probate petition was filed and probate obtained by playing fraud upon this Court, by making false suggestions, by concealing from this Court material facts and by means of untrue statement of facts essential in point of law to justify the grant. In these circumstances and when it was suppressed from this Court that the respondent Nos. 7 to 11 and 15 to 19 are children of the predeceased sons of the deceased that the petitioners pray that the order granting probate be revoked and recalled and set aside. 9. An affidavit in reply has been filed by Mrs.L.Rodrigues (respondent No.2). Firstly, it is alleged that the petition is hopelessly time barred. It sho7uld be dismissed for delay and latches. It is also time barred. It is alleged that the petition was filed in the year 1991 for grant of probate. The probate was granted on 11th March 1993 and the revocation petition is filed on 29th March 2007. By no stretch of 11 imagination this petition can be said to be within limitation. Reliance is placed upon an Article 137 of the Limitation Act, 1963 and it is contended that assuming that this is an "Application" to a Court, it must be filed within the period of limitation specified in this article and on the basis of the right to sue created therein. It is contended that on this ground alone, the petition be dismissed. 10. The second respondent accuses the petitioners of suppressing relevant and material facts. It is contended that there is variance between the version of petitioners in this petition and in the complaint made against Mr.Lobo, Advocate before the Bar Council. Secondly, it is contended that the petitioners were aware of the proceedings. Reliance is placed upon the letter dated 11th October 1994 addressed by Mr.Clemant Lobo on behalf of the petitioners to the Municipal Corporation. It is 12 thus contended that in the disciplinary case before the Bar Council, it is mentioned that the petitioners were in regular touch with the Advocate. 11. That apart, the petitioners have suppressed the fact from this Court that after obtaining NOC from Mr.Lobo, they entrusted the matter to another Advocate Mr.D’Mello, some time in April 2000. Thus, the petitioners have knowledge of grant of probate atleast in 2000 and not in December 2005 as alleged. 12. In the reply at para 5(e), it is contended that late Mrs.Louisa left a writing in English. It was her last will and testament dated 21st April 1982 which was duly registered with the office of sub-Registrar of Assurances on 16th October 1982. The will states that the immovable properties mentioned in para 5(c) of the affidavit in reply, moveables more 13 particularly described in para 5(f) and the residue are bequeathed to the second respondent absolutely. The properties are self-acquired properties of the deceased. It is stated that from 1959 till November 2006, no demand was made by the petitioners for a share in the property nor did they filed any proceedings. It is stated that the deceased had two sons, Freddie, Bartholomew and Olan Andrew Barretto, who expired in 1970 and 1981 respectively. Reliance is placed upon the wording of the will and it is contended that the citations were despatched on 5th December 1991, after the probate petition was filed, to the legal heirs of the deceased, Louisa. The acknowledgements were received on 16th December 1991 and, thereafter it is urged that the dispute is not that the citation was not issued or served. On the other hand, it is contended that the petitioners had no complaint with regard to the probate. They were fully aware that the will bequeaths the properties to 14 respondent No.2 inasmuch as respondent No.2 was approached by the petitioners and other brothers and sisters. The respondent No.2 voluntarily made them some payments. It has also been stated in the affidavit in reply that the petitioners have executed an Affidavit confirming that they have no right, title and interest of any nature in the properties. Reliance is placed upon affidavit dated 10th June 1995. In such circumstances, at least in June 1995 the petitioners had knowledge about the grant of probate. Some litigation initiated by the deceased during her lifetime has been referred to. It is then contended that the petitioners have failed to make out any case for revocation of grant of probate. Each of the averments and statements in the petition have been denied by the second respondent. 13. The petitioners have filed a rejoinder affidavit on 1st October 2008. The petitioners 15 purport to deal with affidavit in reply but it is pertinent to note that insofar as the affidavit of 10th June 1995 referred to in the reply to this petition, the averments read thus:- "26. With reference to para 5(w), we deny that we had knowledge of grant of probate in June 1995 as alleged or otherwise. We are also not aware and do not admit that respondent No.2 as a gesture of goodwill offered to pay some amount to her brothers and sisters. We are not aware and do not admit the rest of the contents in the said para and put the respondent No.2 to the strict proof thereof." Rest of the rejoinder affidavit is not relevant as it deals with the immovable property and rights therein. 16 14. I have heard Mr.Almeida for petitioners and Mr.Madon, learned Senior Counsel for respondent No.2. With their assistance I have perused the petition and the annexures thereto so also affidavits filed in reply and rejoinder. 15. Section 263 of the Succession Act provides for revocation grant of probate or Letters of Administratrion for just cause. The explanation below the same sets out as to what cause would be deemed to be just. The causes are set out in sub-clauses (a) to (e) below the explanation. 16. There are illustrations below the said explanation. If the present petition is perused, it is apparent to me that the probate which has been granted in the year 1993 and to be precise on 11th March 1993 is sought to be revoked by filing instant petition in November 2006. The will is dated 21st April 1982. Thus, more than 17 26 years have lapsed upto the date of filing of revocation petition. Further, the grant is of 11th March 1993 and this petition is filed in the year 2006. 17. There is thus gross delay in filing this petition and the explanation with regard thereto does not inspire any confidence. The petition states that the petitioner became aware of the grant of probate only when the proceedings were filed in the City Civil Court. That is how paras 4 and 5 proceed. However, in para 7 itself, there is a reference to the receipt of caveat. There is a reference to the petitioner approaching an Advocate for filing citation. Yet, in the petition in para 12, a statement is made that it was only in the month of December 2005 when the Coop.Housing Society and Conwood Developers filed a suit against the petitioners and respondent Nos. 2 to 19 that they (petitioners) became aware for the first time of 18 the grant of probate. 18. Respondent No.2 has rightly invited my attention to the statement made by the petitioners in the complaint against the Advocate to the Bar Council and to another document viz., a writing of 10th June 1995, to urge that the versions with regard to the knowledge of grant of probate cannot be said to be such as could be relied upon and believed. In the complaint before the Bar Council it is mentioned that the petitioners became aware of the grant in the year 2000. In the petition itself at one place it is stated that the petitioners handed in citations to the Advocate soas to enable him to file caveat on their behalf. There is a reference to some meetings with the Advocate but the date thereof is mentioned as December 2005. Thus, the statement in the petition and elsewhere in the documents to which the petitioners are party, show that merely vague assertions are made with 19 regard to the date of knowledge. There is no certain and denifite stand taken and the version is conflicting and contradictory to say the least. In such circumstances, it cannot be said that there is any bonafide explanation for the gross delay in approaching the Court. 19. The will has been made 24 years before filing of revocation petition. More than 13 years have lapsed after the grant. Thus are certain events have taken place and parties have arranged their affairs on the basis of the disposition made by the Testator. In such circumstances, it will not be proper now to reopen all that at the instance of petitioners who do not have satisfactory explanation for the gross delay. Petition, therefore, deserves to be dismissed on this ground alone. 20. Assuming that petition could have been entertained by accepting the explanation with 20 regard to the delay, yet, what I find from a perusal of the petition is barring reproduction of the section and explanations to section 263, there are no particulars with regard to fraud. All that is stated in the petition with regard to fraud is that the deceased left behind six sons and four daughters. It is stated that the deceased was their mother. The deceased resided and even parties, after her death, continued to reside at Baretto Compound. It is stated that respondent No.2 with the intention of grabbing property fraudulently got executed the will. The will was fraudulently executed under the guise of handling the case pending in the Court in respect of premises. It is stated that the will was not explained to the deceased as she was an illiterate. These are the allegations in para 9 of the petition. Further is the vague statement that there are some events which cast doubt on the genuineness of the will in para 6 of the petition. In para 11 only the Section together 21 with the explanation is reproduced. There are absolutely no particulars as to how respondent No.2 got the will executed. There are no particulars as to who was responsible for the deceased allegedly putting the thumb impression. All the particulars are conspicuous by their absence as far as petition is concerned. 21. On the other hand, in the affidavit in reply the respondent No.2 has set out all the events right up to the death of the deceased. It is pointed out as to how the deceased executed the power of attorney in favour of respondent No.2 while not disputing that the deceased was owner of several immovable properties consisting of lands and structures, it is stated that due to early death of her husband, way back in 1959, it is only respondent No.2 who has been assisting and helping the deceased and that is how the power of attorney came to be executed. The details of the will and in whose custody the same 22 was placed is explained on affidavit by respondent No.2. It is also very categorically stated that in the will, the deceased had mentioned the name of her four sons and four married daughters. Petitioner No.1’s name also appears in the same. 22. The two sons of the deceased had expired in the year 1970 and 1981 i.e. prior to the death of deceased. The will states that all the sons and daughters are happily married and this fact is also relied upon by respondent No.2. 23. Further, it is pointed out by respondent No.2 that respondent No.2 as a gesture of goodwill voluntarily offered to pay some amount to the brothers and sisters out of the estate as and when realised. They have also executed affidavits stating clearly that they have no right, title and interest of any nature in the property nor have they any made claim therein. 23 Exh.E is a copy of one of the affidavits which have been executed by respondent No.14 to this petition. She has categorically stated in her affidavit that she is aware of the will and she accepts the validity thereof. She has accepted the sum specified in the said affidavit. There is no affidavit filed by or on behalf of respondent No.14 in this petition to show that the writing dated 10th June 1995 was either not signed by her or that some force or pressure was exerted on her when the same was executed. That affidavit is also more than 13 years old. None has come forward to dispute the writing. On the other hand, the petitioners have not pointed out to this Court the existence of any such affidavit. All that they would say in their affidavit in rejoinder is that they have no knowledge of grant of probate. They do not state in the affidavit that there is no such writing executed by the said Wilfred. Thus, this is a case where on account of ongoing litigation by 24 the society and pendency of the suits with regard to the property that petitioners have filed the instant petition. They seem to be claiming some interest in the property which has come to the share of respondent No.2. Despite there being some offer made by her to them, there appear to be ongoing disputes. Further there are disputes with the society which are pending. All these are matters which must be gone into independent of the issue raised in this petition. If respondent No.2 has not kept any promise or that there are several allegations with regard to right in the property against respondent No.2 then, the forum of petitioners is elsewhere. It is not possible for this Court to resolve the issues of title in these proceedings. The jurisdiction of a probate court being limited, these matters cannot be agitated before this Court. 24. Once I come to a conclusion that the 25 petition is based on vague and ambiguous pleas so also lack material particulars, then, I am of the view that petition does not deserve to succeed. 25. In the result, petition fails and is dismissed. 26. In the passing, I must make a reference to the affidavit filed by respondent No.4 in this petition. This affidavit is filed by respondent No.4 and it purports to support the plea of the petitioners. Respondent No.4 does not file any petition for revocation. From the pleas that are raised by respondent No.2 in the affidavit, it appears that the respondent No.4 has raised a dispute of title to the immovable property. That is apparent from a reading of paras 8 to 10 of the petition. Further, it is stated in para 11(c) of this affidavit that the probate was obtained fraudulently by concealing from the Court that Anthony son of late Fredrick Barretto 26 and also the five children of late Bartolomew Barretto and four children of late Olan Baretto, are heirs of the deceased Louisa. However, in the absence of a petition for revocation by respondent No.4 and the present petition not mentioning any of these aspects, it will not be permissible for me to enter into this controversy. That apart, with regard to the version in para 11 also, the second respondent does not admit the same. She states that the petition was filed for probate on the basis of the position in 1991 and it is not as if the persons mentioned in the said para had any interest in the estate of the deceased at the relevant time. In the absence of any particulars as to how these persons were interested in the estate of deceased or whether they have any subsisting interest or otherwise, it will not be possible to entertain this controversy. In such circumstances, this petition is dismissed. No costs. 27 27. Needless to state that the observations made in this judgement should be read as restricted to the issue of revocation of grant of probate and they shall not affect any proceedings including suits which are pending in the civil courts. All issues raised therein should be gone into and decided on their own merits and in accordance with