:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY TESTAMENTARY TESTAMENTARY & INTESTATE JURISDICTION & INTESTATE JURISDICTION & INTESTATE JURISDICTION MISC. MISC. MISC. PETITION NO. 67 OF 2007 PETITION NO. 67 OF 2007 PETITION NO. 67 OF 2007 IN IN IN TESTAMENTARY TESTAMENTARY TESTAMENTARY PETITION NO. 84 OF 2001 PETITION NO. 84 OF 2001 PETITION NO. 84 OF 2001 Mrs. Geeta Vishnu Soni @ Geeta Ishwar Melwani. ... Petitioner. V/s. Mr. Ramesh Bansidhar Kabra & Ors. ... Respondents. Mr. Sandip Jinsiwale for the Petitioner. Mr. Vishwajeet Sawant i/b. Vinay Bhate for Respondents 1 and 3. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 17TH 17TH 17TH OCTOBER 2008. OCTOBER 2008. OCTOBER 2008. P.C. P.C. P.C. : : : . This Misc. Petition is filed seeking revocation of grant of Probate dated 12th December 2003. 2. The First Respondent had filed above-mentioned Probate Petition and this Court proceeded to grant the Probate in pursuance of the same. 3. One Vishnu Hundraj Soni had executed a Will on 1st April 1999 and appointed the First Respondent to the present Petition as an Executor. The deceased set out in the Will that he was residing at Mumbai at the address :2: more particularly mentioned in the affidavit-in-reply of Respondent No.1. He had stated that he had a Flat No.A-62 in Navyug Niwas, Navyug Co-operative Housing Society, D.B. Marg, Bombay - 400 007. The deceased was the co-owner of this flat and the flat was given on leave and licence basis to the First Respondent. These facts are not disputed. 4. The deceased expired on 1st October 2000. 5. The Petitioner claims to be the youngest married daughter of the deceased. The Second Respondent is the son of the deceased. The Petitioner has invoked the jurisdiction of this Court under Section 263 of the Succession Act on the ground that the deceased alongwith his brother Purushottam were joint members of the Co-operative Society. After the deceased expired, the brother expired on about 28th October 2002. The Petitioner has alleged that the Will which is produced by the First Respondent is fabricated, fraudulent and bogus and got up document. It is alleged that the deceased never made any such Will. The signature also is not genuine. It is alleged that the First Respondent is in no way connected or concerned with the property of the deceased. He is neither the legal heir nor the legal representative of the deceased. The Probate is obtained by suppressing the fact that the deceased at the time of his death had only Respondent No.2 as his Heir. This is :3: not true as the deceased had married one Shanta Soni, who is the second wife of the deceased. The deceased also had two daughters from the said Shanta. One of which is the Petitioner and the other is Lata. 6. The details of these four heirs have not been disclosed and it is falsely stated in the Petition for probate that the Second Respondent is the only heir and legal representative of the deceased. The Respondent No.2 had studied only upto third standard and stopped education. He is neither able to speak in English nor right in English. Therefore, his consent affidavit is of no legal value. 7. The Petitioner has stated that after the death of her father she visited the Suit Flat some time in December 2000 and discovered that First Respondent by virtue of leave and licence agreement was in occupation of the Flat. The Flat was again visited somewhere on 25th October 2003 and Petitioner asked the First Respondent as to when he is vacating the flat and the First Respondent stated that three years extension has been granted to him by the brother of the deceased viz. Purushottam, when the said brother was alive. The Petitioner states that she resided with her aunt viz. wife of Purushottam and she stated that it is possible that the leave and licence agreement is extended. Thereafter, when the Flat was not vacated that the Petitioner made further enquiry and she was :4: informed about the grant of probate by her aunt and filing of the probate petition. That is how she became aware of the filing of the Petition and the grant of Probate for the first time. It is, in these circumstances, that the probate is sought to be revoked. 8. The above averments in the Petition have been highlighted by Mr. Jinsiwale and he has contended that the Petitioner has produced before this Court proof of the fact of her being the daughter of the deceased. She has also produced the record pertaining to the marriage of her mother Shanta with the deceased. My attention was invited by Mr. Jinsiwale to paragraphs 5 and 6 of the affidavit filed on 17th March 2008 and the annexures thereto. My attention was also invited to section 263 of the Succession Act and it is contended that this is a fit case wherein this Court should revoke the grant of Probate. More so, considering the contents of the affidavit filed on 17th March 2008 and the further affidavit of Mrs. Lata V. Soni and Mrs. Shanta V. Soni. 9. On the other hand, Mr. Sawant appearing for the original Petitioner - First Respondent contended that this Petition is an abuse of the process of law. He submits that the allegations in the revocation petition are false to the knowledge of the Petitioner. The Petitioner has no interest and therefore, no locustandi to file and maintain this petition. The Petition is filed at a belated stage :5: and only with a view to grab the property. It is contended by Mr. Sawant that the Petitioner admittedly is aware of the ownership of the immovable property which is very valuable. He submits that the Petitioner is aware of the fact that the deceased was a co-owner alongwith his brother Purushottam. The deceased and Purushottam held the shares of the Co-operative Housing Society Ltd. in their joint names. The Petitioner does not dispute and deny that during the life time of the deceased, the leave and licence agreement had been executed. Mr. Sawant has invited my attention to para 5 of the affidavit in reply filed to the present Petition and has contended that the Petitioner is not the daughter of the late Vishnu Soni (deceased). He contended that the name of the Petitioner is stated as Geeta Ishwar Melwani. The Petitioner has not approached the Court with clean hands. It is denied by the First Respondent that the Petitioner is the daughter of the deceased Vishnu. All allegations in the Petition are denied and Mr. Sawant contends that the Petitioner was put to the strict proof of the marriage of the deceased with Shanta. That apart, Mr. Sawant submits that if the said Shanta is alive and is claiming to have married the deceased Vishnu, then, nothing prevented her for approaching this Court for Probate and it is eloquent enough that she has not filed any revocation petition despite claiming to be the wife of the deceased. If the deceased had really married Shanta and that way back in the year 1976, then, it is inconceivable that the said :6: Shanta would remain silent with regard to a valuable right in the estate of the deceased, more so, when the deceased had a immovable property in Mumbai. For all these reasons, he submits that the Petition is an abuse of the law and it deserves to be dismissed. 10. With the assistance of the learned Advocate appearing for both sides, I have perused the Petition and annexures thereto so also the affidavit filed in reply and rejoinder and the further affidavits tendered today. 11. In the affidavit filed in Rejoinder on 17th March 2008, the Petitioner has stated that the deceased got married to Shanta @ Gopi Dwarkadas Bathija on 9th April 1976 at Bhartiya Vidya Bhawan, 16th Chowpaty Road, Bombay. The Annexutre to this Affidavit is a copy of invitation to the reception ceremony. It is annexed as Exh.1 to this Petition. The residence of the said Gopi is shown as that of Shyam Vihar, Garibdas Chawl, Vedner Road, Devlali Camp, Devlali. Thereafter, some photographs are annexed purporting to be the photographs of the marriage ceremony. Subsequently, another Annexure is the photograph allegedly taken after the birth of the brother viz. Respondent No.2. However, there is nothing on record to prove that the deceased had married Shanta and that they resided together as such. On the basis of this material, it is stated that the Petitioner has a right to succeed to the estate of the deceased. It is contended that the :7: Petitioner is the youngest married daughter of the deceased Vishnu H. Soni. 12. As already observed by me above, there is complete denial of the marriage of the deceased with Shanta and that the deceased and Shanta allegedly had daughters. Nothing of the nature which is set out in the affidavit in rejoinder, is alleged in the Petition. When there is an affidavit in reply filed then, in rejoinder for the first time, the above-mentioned statements are made. 13. However, neither original documents evidencing marriage of the said Vishnu with Shanta are produced nor is there any material to show that the Petitioner was born from the said wed lock. The silence on the part of Shanta all through out is eloquent enough and there is substance in the contention of Mr. Sawant to that effect. The annexures to the affidavit in rejoinder is a copy of the Birth Certificate of Petitioner Geeta. However, the birth certificate only says that a female child was born on 23rd November 1977. The name of the father is given as Mr. Vishnu H. Soni and the place of birth is Mumbai. The address of the parents is said to be that of Chowpaty, Mumbai. The birth has been registered on 9th December 1977. There is another copy of birth certificate issued in 1980. However, in the Petition it is not stated by the Petitioner that the deceased or the Petitioner herself and Shanta resided at the address mentioned in the birth :8: certificate. On the other hand, a categorical averments in para 1 of the Petition is that the deceased resided at C-14, 302, Shanti Nagar, Sector 5, Mira Road, District Thane. In the Petition itself while purporting to disclose the details of the other heirs of the deceased, it is stated that Shanta was the second wife of the deceased and he resided at Nasik so also the other Daughter Lata. The address of the Petitioner itself is that of Ulhasnagar. The address of the Second Respondent is that of Shanti Nagar, Mira Road. In such circumstances, without any proof of the marriage forthcoming and the said Shanta despite being aware of all proceedings not coming forward and substantiating the plea of her alleged marriage with the deceased, it is not possible to uphold the arguments of Mr. Jinsiwale that the First Respondent has suppressed material facts pertaining to the deceased or the grant of probate and therefore, the order granting probate is vitiated. If the grant is vitiated by suppression of fact material to the probate, then, ordinarily it was expected that the said Shanta herself would come forward and seek revocation. That the Petitioner comes forward and seeks revocation on the basis of marriage of Shanta with the deceased but the said marriage not having been proved. It is not possible to conclude that a case is made out to exercise jurisdiction under Section 263 of the Succession Act. There is absolutely nothing to indicate as to how and when the marriage was solemnized and where the said deceased :9: and Shanta allegedly resided as husband and wife. In these circumstances, no case is made out for revocation of the grant of probate. The affidavits filed today do not in any manner carry or advance the case of the Petitioner further. The affidavit of Shanta does not indicate anything except supporting the averments and statements in the Petition. The inconsistency and contradiction in the stand of the Petitioner as set out above and in the affidavit in rejoinder is pointed out by me. Once the Petitioner claims to be the Daughter of the Deceased and Shanta but their marriage itself not being proved, then, it is undisputed that the Petitioner cannot seek revocation of the grant of probate. 14. In such circumstances, these affidavits are of no assistance to the Petitioner. For the above reasons, the Petition is dismissed. 15. At this stage, a request is made to continue the ad-interim order dated 29th February 2008 to enable the Petitioner to challenge this order or to adopt appropriate proceedings. Mr. Sawant, appearing for Respondent Nos. 1 and 3 states that the Petitioner is held to be a stranger and therefore, has no right in the property and in such circumstances, at her instance, the ad-interim order should not be continued. :10: 16. In my view, interest of justice would be sub-served if this ad-interim order is continued for a period of four weeks from today to enable the Petitioner to adopt appropriate proceedings. After expiry of this period, the order would automatically stand vacated without any further reference to the Court. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)