1 MP-50-51-52-53 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Miscellaneous Petition No.50 of 2010 IN Probate Petition No.575 of 1985 Moti Menghaj Gehi .. .. Petitioner v/s. Asha Menghaj Gehi & ors. .. .. Respondents A N D Miscellaneous Petition No.51 of 2010 IN Probate Petition No.575 of 1985 Suresh Menghaj Gehi .. .. Petitioner v/s. Asha Menghaj Gehi & ors. .. .. Respondents A N D Miscellaneous Petition No.52 of 2010 IN Probate Petition No.575 of 1985 2 MP-50-51-52-53 Charanjeet Singh Chanderpal .. .. Petitioners @ Chander Kumar Gehi & ors. v/s. Asha Menghaj Gehi & ors. .. .. Respondents A N D Miscellaneous Petition No.53 of 2010 IN Probate Petition No.575 of 1985 Renu Chandra Mehta .. .. Petitioner v/s. Asha Menghaj Gehi & ors. .. .. Respondents Mr.Charanjeet Singh Chandrapal in person in MP No.52 of 2010 and as an Advocate with Mr.Shiva Patil i/by Mr.M.M. Borkar in MP Nos.50 of 2010, 51 of 2010 & 53 of 2010 for Petitioners. Mr.Vineet Malhotra in MP No.51 of 2010 and MP No.53 of 2010 i/by M/s.S.J. Khera & Sucharita Patra for Respondents. Mr.T.K. Cooper in MP No.52 of 2010 i/by M/s.S.J. Khera & Sucharita Patra for Respondents. Mr.Gaurav Joshi in MP No.50 of 2010 i/by M/s.S.J. Khera & Sucharita Patra for Respondents. ------ 3 MP-50-51-52-53 CORAM : SMT.ROSHAN DALVI, J. DATED : 7th September, 2010 P.C. : 1.The above petitions are filed by the three children and one grandson of the testator, whose Will has been probated, for revocation of the probate. The testator died on 18th February 1985. He had married two wives, Hiribai and Asha. He had four children through his wife Hiribai being Renu, Kishan, Moti and Suresh (the Petitioners herein). He had two children through his wife Asha being Anil and Naresh (the Respondents herein). Kishan s son, Charanjeet, who is the Petitioner in Miscellaneous Petition No.52 of 2010, is the grandson of the testator. Kishan has expired and his estate has been represented by his son Charanjeet, the testator s grandson. 2.Kishan had filed a Civil Suit being Civil Suit No.2865 of 1985 in this Court for administration of the estate of his father on the ground that he had died intestate against his step mother and step brothers. He settled the suit under a detailed Consent Terms executed on 29th June 1993. His sisters and brothers Renu (Sushila), Suresh and Moti were also party Defendants. 3.Kishan, the Plaintiff in the suit, settled his disputes 4 MP-50-51-52-53 with his step mother and step brothers on 23rd June 1993. The parties entered into the Consent Terms under which Kishan accepted the consideration and settled all the disputes. 4.Suresh was Defendant No.5 in the suit who also signed those Consent Terms. Kishan as well as Suresh were present in Court before Justice M.S. Rane (as he then was) on 23rd June 1993 when the Consent Terms were taken on record and order in terms thereof came to be passed. 5.Moti, the brother of Kishan, who was Defendant No.6 in that suit, did not sign the Consent Terms on that day. He signed the Consent Terms on 29th June 1993 under which he also relinquished his rights and surrendered his claim for consideration separately paid to him. 6.Renu, the daughter of the deceased, is stated to have been represented by his Power of Attorney as she was not present in India. She herself has relied upon her passport showing that she was in Dubai and had returned to India only in 1995. 7.It is further contended that another suit being Suit No.1001 of 1987 was filed by the second wife of the testator and her two children against the other family 5 MP-50-51-52-53 members being the younger brother of the testator, the sister of the testator as also the children of his first wife being Kishan, Suresh, Renu and Moti. That suit also came to be settled under the Consent Terms signed by and between the second wife of the testator and her children on the one hand and Moti on the other. Under these Consent Terms, Moti and Charanjeet transferred and conveyed his right, title and interest in the estate of the deceased for consideration. 8.It is contended by Renu, Moti, Suresh and Charanjeet, the son of the deceased Kishan, who are the four Petitioners in the above four Petitions, that the Will is forged. This contention was taken up by them inter alia in the Affidavit-in-support of the Caveat filed in Probate Petition No.575 of 1985 also. They have contended that the deceased was bedridden and could not have executed the Will sought to be probated, the Will was unnatural, the estate was ancestral, the Will was not genuine, the attesting witnesses were unknown to the deceased, etc. 9.It may be understood that the aforesaid suit was initially filed by Kishan in which his other brothers and sisters were parties, in 1985. The Probate Petition was also filed in 1985. The probate was granted on 17th June 1994 after the parties had settled the 6 MP-50-51-52-53 Administration Suit No.2865 of 1985. Thereafter Moti further settled Suit No.1001 of 1987 on 30th March 2000. 10.Upon the aforesaid settlement in the suit and the consequent grant of probate in the Probate Petition, the Respondents commenced administration of the estate of the deceased. Kishan expired on 23rd November 2008. All the children accepted the settlement during their lifetimes. Charanjeet, son of Kishan, the Petitioner in Miscellaneous Petition No.52 of 2010, who is the main protagonist of the challenge to the grant, filed the above Petition for revocation of the probate only on 7th April 2010. 11.It is rightly contended on behalf of the Respondents by Mr.Cooper that Kishan s son stepped into the shoes of Kishan and would be entitled to challenge the only what Kishan could have challenged. The settlement by Kishan would otherwise enure for the benefit of as well as be binding upon all his heirs, assignees, executors and legal representatives, including his son Charanjeet. 12.Though Kishan never challenged the Consent Terms executed since 1993 and the probate granted in 1994 during his lifetime, his son, Charanjee, has alleged 7 MP-50-51-52-53 that he had signed the Consent Terms under duress exercised upon him by Dawood Ibrahim s gang members and that Kishan had suffered depression and suicidal tendencies and hence did not challenge the grant. No duress practised upon Suresh, Moti or Renu and no depression suffered by them is shown. 13.To challenge the Consent Terms on the ground of duress by avoiding the Consent Terms the suit was required to be filed by Kishan, Moti, Suresh and Renu at least within three years of the Consent Terms having been filed in absence of challenging the Consent Terms under Order XXIII Rule 3A of the Code of Civil Procedure within 30 days of its filing. (See Sardarni Ramindar Sarup Singh vs. Govind Singh, IA 6903/96 in CS (OS) 3403/91 decided on 7.5.2010 Manu/DE/0985/2510.). It may be mentioned that even if Kishan suffered from any mental disorder or depression or suicidal tenancies, which is sought to be shown only by a copy of Doctor s certificate, the others are not shown to have suffered from any such mental disorder and could have sued to set aside the settlement in the aforesaid suits, which they, in fact, did not. 14.For whatever reasons that he did not challenge the grant, he accepted the settlement brought about and hence the contract of settlement, voidable that it was, 8 MP-50-51-52-53 was not avoided and stood confirmed. The contract contained in the Consent Terms could have been avoided only by Kishan and if it is not avoided by Kishan, it would be binding upon his heirs and legal representatives. 15.It is contended on behalf of Renu that she was not served the citation. The Advocate for the Respondents in Petition No.53 of 2010 filed by Renu has shown the citation served upon her Constituted Attorney in India. Renu was admittedly settled in Dubai then as reflected from her own passport. 16.Charanjeet has sought to produce the several documents purportedly to show the signature of his deceased s grandfather to contend that the signature on the Will was a forgery. Those documents containing the signatures are neither proved documents nor admitted documents. The grant cannot be revoked unless those documents stand proved. Further, the grant cannot be revoked unless the Consent Terms, which are voidable at the option of the parties who have signed the Consent Terms, seek to avoid the Consent Terms and obtain an order, upon whatever evidence that they might lead in the Civil Court showing the execution of the Consent Terms under duress or coercion. Until that is done and the Consent Terms are set aside, the probate granted, 9 MP-50-51-52-53 pursuant to the challenge to the Petition being withdrawn by the settlement between the parties, cannot be revoked. 17.It may be mentioned that despite strenuous arguments about duress practised upon Kishan, the father of Charanjeet, no prima facie material also in that regard is produced. It is argued that a criminal complaint has been filed. The charge-sheet therein has been filed on 21st August 2010, the copy of which is not produced. The other Petitioners have not filed any such criminal complaint also. It is stated that they are witnesses in that complaint. 18.It is contended by Charanjeet that the Advocate R.K. Medha, in whose office the Will was executed, has given the statement to the Police that he does not know anything of the Will. The Advocate has not signed below the Will and is not an attesting witness. He, therefore, may legitimately not know what may have transpired in his office. 19.Charanjeet has sought to create certain evidence of the whereabouts of the attesting witness as well as the Advocate in the office of Mr.R.K. Medha, who had signed the Will of the deceased as Advocate. He has relied upon certain courier slips stapled to certain letters 10 MP-50-51-52-53 addressed to the parties which are all returned by the Postal Authorities. He claims that address of the Advocate is shown to be fictitious, one attesting witness is not shown to be residing in the chawl which was shown as his address and the other attesting witness has expired and hence all the packets have been returned by the courier. This would be natural and expected in case of parties whose addresses were mentioned in the Will executed on 14th November 1984. The attesting witnesses as well as the Advocate, who may be witnesses in case of grant of probate, would also not be available as such length of time. It is precisely to meet those contingencies that the Law of Limitation requires parties to sue or challenge within the period of limitation. 20.It is seen that Charanjeet, who is the main contesting Petitioner and who has argued on his own behalf as well as on behalf of other Petitioners, has sought to challenge the probate despite the settlement made by his father 16 years after the settlement and 15 years after the grant of the probate in the Will executed 26 years before. 21.Absolutely none of the tall claims is at all substantiated. The seminal aspect is the settlement has remained unchallenged and consequently, binding upon 11 MP-50-51-52-53 the parties and their heirs. 22.In the case of Shravan Goba Mahajan vs. Kashiram Deveji, AIR 1927 Bombay 384, the question of setting aside an agreement on the ground that fraud, undue influence and misrepresentation by the heirs of the deceased came to be considered. After relying on a number of judgments cited by both the parties, it was held thus:- But we think it clear that, as regards modern English law, an action for damages for fraud or a suit in equity to set aside documents on the ground of undue influence and so on can undoubtedly be brought by the representatives of the party injured, where you find that there is a direct injury to the estate of the deceased. The suit to set aside an agreement by legal representative of the deceased, who was stated to have been defrauded, was held maintainable upon a rider placed by Patkar, J. by distinguishing the case of Mahmad Allibhai vs. Udesingi, (1917)First Appeal No.254 of 1915 (D.B.) and the case Govind Ramaj vs. Savitri, I.L.R. (1918) 43 Bombay 173 which were held not maintainable on account of laches and acquiescence from disputing the transaction because the persons who were parties to the document had acted upon it for a long time. 12 MP-50-51-52-53 23.Following these judgments, in the case of Mt. Manbhari vs. Pt. Sri Ram, AIR 1936 Allahabad 672 also it was held that contracts entered into on the deathbeds of the person under undue influence could be avoided under Sections 19 and 19-A of the Indian Contract Act unless at the date of his death he has lost such rights by acquiescence or otherwise. 24.It would be an abuse of the process if at such distance of time settlements entered into by the parties are allowed to be challenged upon a mere say that the settlement was under duress or the parties suffered from mental depression or disorder at the time the settlement was entered into. 25.Hence all the Petitions for revocation are not accepted. 26.In view of the non-acceptance of the Petitions, all the Chamber Summonses taken out therein are disposed of accordingly. (SMT.ROSHAN DALVI, J.)