1 MP-84 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Misc. Petition No.84 of 2010 IN Probate Petition No.921 of 2009 Yogesh alias Yogi Nanik Motwane .. .. Petitioner v/s. Sudha Girdhar Motwane & anr. .. .. Respondents Mr.Laxman Venkatesan for Petitioner. Ms.Pooja Patil i/by M/s.Malvi Ranchoddas & Co. for Respondents. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 7th September, 2010 P.C. : 1.Testamentary Petition No.921 of 2009 came to be filed by Respondent No.1-wife herein and her son Respondent No.2 herein for obtaining probate of the last Will and Testament of her deceased husband. The husband left behind the said Respondents as the only heirs in Class- I of Section 8 of the Hindu Succession Act. The son had filed the Affidavit consenting to the grant of probate. There were no other heirs of the deceased as Class-I heirs entitled to succeed in his estate; the mother of the deceased had expired before the death of the deceased. Probate would, therefore, be granted of 2 MP-84 the last Will and Testament of the deceased husband of Respondent No.1 herein upon complying the formalities required in the Probate Petition. 2.The Petitioner herein is the brother of the deceased. He is not a Class-I heir. He is not entitled to succeed to the estate of the deceased when the wife and the son of the deceased, who are Class-I heirs, are alive. He, therefore, had not to be served any citation. He claims that he filed a Caveat, though citation was not served upon him. He claims that that Caveat has not been considered. Given his relationship, his Caveat did not have to be considered by the Testamentary Court to grant probate in the Probate Petition. 3.This Petition is filed by him showing that he happened to be the younger brother and creditor of the deceased . He claims that the deceased had to discharge a liability of Rs.7.34 Lakhs to him. He claims that that amount was given as a loan. A separate Civil Suit in that behalf is filed and would be contested. He further claims that the deceased held certain properties jointly with him and tax liability to the extent of Rs.2.21 Crores has to be discharged. He also claims that HDFC Limited has taken certain property of the deceased as well as himself and two other brothers for which a security deposit is given by 3 MP-84 HDFC Limited. That deposit has to be returned by the brothers to whom the deposit is given for whom they are jointly and severally liable. He claims that that liability has not been shown in the Petition and hence the probate should not be granted. 4.He has applied for revocation of the probate not in his capacity as heir who is entitled to a part of the estate of the deceased and who had not been served the citation, but to oversee the administration of the estate with regard to the liability claimed by him, the tax liability and the joint and several liability to be discharged. These aspects would be considered in administration of the deceased which can be considered upon the power to be given by the Court to administer such estate. That precisely is the power given under the probate granted by the Court. 5.The Testamentary Court would not be concerned with the discharge of liability of the creditors of the deceased. The creditors would be entitled to claim from the beneficiaries who obtain the estate of the deceased to the extent of the estate coming to their hands. That would be claimed by the Petitioner herein in the Civil Suit which is filed which shall be considered by the competent Court in accordance with law. 4 MP-84 6.Similarly the question of discharge of the joint liability with regard to tax or otherwise would be a part of the administration of the estate of the deceased which the Petitioner can claim legally under process established by law. Revocation of the grant is not the answer to the Petitioner s rights. 7.The Advocate for the Petitioner contended that the Petition has not been proved and hence the probate must be revoked. He argued that the Affidavit of one of the two attesting witnesses was not filed to the Petition. One attesting witness had expired. His Death Certificate was filed. The whereabouts of the other attesting witness were not shown. A witness has filed an Affidavit identifying the signatures of the deceased which has been accepted by the Court granting probate. In the Petition filed by the Petitioner, who has claimed, as aforesaid, in his capacity as a creditor or for discharge of contingent and joint liability, that aspect cannot be reopened. 8.The Advocate for the Petitioner has relied upon two judgments of the Supreme Court (i) in the case of Girja Datt Singh vs. Gangotri Datt Singh, AIR 1955 SC 346 and (ii)in the case of Kannian & anr. vs. Sethurama, AIR 2000 SC 3522. In those cases the Will was required to 5 MP-84 be proved and the evidence led was challenged by the heir who was entitled to be served the citation. The Petitioner is not one such heir. Hence those judgments are not applicable to the facts of this case. 9.Consequently, the Miscellaneous Petition is dismissed. (SMT.ROSHAN DALVI, J.)