1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.104 OF 2008 IN MISC. PETITION NO.46 OF 2008 IN TESTAMENTARY PETITION NO.676 OF 1987 Glenver Percy Patton ...Petitioner Vs. Merlyn Loretta Patton ...Respondent Mr.Dipin Merchant, Sr. Counsel a/w. Deepa Nani and Tasneem A. S. i/b. S.K.Srivastav & Co., for Petitioner Mr.U.J. Makhija with D.D.Mani for Respondent CORAM: SMT.ROSHAN DALVI, J. DATED: 24TH SEPTEMBER, 2008 P.C. 1. The Petitioner is the nephew of the Respondent. Respondent is the original Petitioner, who applied for probate of the Will of her deceased sister. The deceased left behind 2 daughters and the son of the predeceased son (who is the Petitioner herein). 2. The deceased expired on 16th July, 1987 leaving behind a Will executed in 1978. The Petition came to be filed in 2 1988. 3. The sister of the Petitioner filed the Caveat in the Petition even before citation was issued. Consequently, the Petition was converted into the Testamentary Suit. Thereafter she did not prosecute the Testamentary Suit and hence, an order granting probate came to be passed on 3rd September, 1997. The order shows that initially when the Petition was filed the Caveat was filed, but the Defendant did not remain present at the time of the hearing. The affidavit in support of the Caveat was considered. The examination- in-chief of the witness of the Plaintiff/original Petitioner was taken. The execution of the Will was seen to have been correctly made. Hence, the order for grant of the probate was passed subject to the Petitioner/Plaintiff complying with all the legal formalities and procedure as required. 4. Since the Petition was filed in 1987, it required certain amendments in 1988, which were carried out. The consent letter of the Petitioner herein dated 13th November, 1997 came to be filed as Exhibit-D to the Petition. It is that consent letter which is challenged in this Misc. Petition taken out in 2008. 3 5. Thereafter the other formalities for the grant of probate came to be complied and probate was ultimately issued in 1998. 6. The Respondent has acted upon the said probate. Her Counsel states that there are several tenants in the property which has been bequeathed under the said Will. The Respondent obtained decrees against several tenants. The Respondent defended appeals therefrom. 7. It is the case of the Petitioner herein that he came to know about the probate being granted only from a newspaper advertisement on 29th December, 2007. The said advertisement is in fact annexed to the affidavit in reply filed by the Respondent herein. The public notice which is stated to be the source of knowledge of the Petition being filed and probate being obtained is not given by the Respondent. Strangely it is the public notice published by the Caveator in the original Petition, who is the sister of the Respondent and aunt of the Petitioner. 8. Counsel on behalf of the Respondent states that the Caveator has all along lived in Germany. 10 years after the grant of probate and after much water was flown she 4 returned to India. She has given public notice herself claiming her 1/3rd right, title and interest in the bequeathed property. It may at once be mentioned that she has no such right, title and interest as the deceased has left a Will and her interest, if any, is governed as per the bequests made in the Will. The Probate having been granted, the estate of the deceased cannot devolve upon intestacy, so as to give her 1/3rd right, title and interest. It may also be mentioned that the Caveator cannot herself collaterally show a 1/3 share in her father' s property. It has to be granted by Court. It has not been granted. 9. It is based on such a notice that the Petitioner who is the nephew of the Respondent herein as well as her sister, the Caveator claims knowledge to set the legal process in motion. 10. Counsel on behalf of the Respondent has drawn my attention to the fact that the same firm of Solicitors who has given the public notice is representing the Respondent. Hence, the contention on behalf of the Respondent that the Caveator and the Petitioner are in collusion as not ill founded. In fact it is seen that together they have sought to give a public advertisement and rely upon the same 5 advertisement to claim knowledge of a fact which has transpired about a decade before the date of notice. 11. Mr. Makhija has also drawn my attention to the fact that a fresh suit has been filed by the Caveator as well as the Petitioner herein on 2nd September, 2008 in this Court for reliefs in respect of the bequeathed property. Hence, it is seen that the Caveator who failed to defend the Petition for probate and allowed the grant to be passed against her has, without herself applying for setting aside the order on the ground of her absence sought to put up the Petitioner to have the grant revoked. 12. The case of the Petitioner is that his signature on his Affidavit of Consent/Letter of Consent dated 13th November, 1997 is not his signature and it is forged. Interestingly the signature of the Petitioner on this Petition itself as well as on Vakalatnama are seen, on comparison, to be identical to the signature on the letter of consent. The very slant of the signature as well as the two dots and a diagonal line below the signature are similarly placed. 13. Primafacie the Petitioner's case is seen to be completely lacking in bonafides. Hence, no relief of injunction as prayed 6 for in the Notice of Motion can be granted. 14. Affidavits in reply as well as rejoinder are filed. 15. Notice of Motion is dismissed. 16. Mr. Makhija states that he shall file his written statement/reply to the Petition within one week. 17. The Petition is adjourned to 7th October, 2008. (SMT. ROSHAN DALVI, J.)