- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION CHAMBER SUMMONS NO.68 OF 2008 IN PETITION NO.832 OF 2007 Krurshed Shavaksha Chinimini. ...Deceased Shri.Kishore K.Valia ...Petitioner and Mrs.Sairin M.Homavazir. ...Applicant. --- Mr.Sachin V.Masurkar, for Respondent in support of chamber summons. Mr.Harsh Pandya @ Ms.Pranita Mhatre and Mr.Tejas Joshi, for M/s.Shaunak Satpute & Co., for Petitioner. CORAM: S.C.DHARMADHIKARI, J. CORAM: S.C.DHARMADHIKARI, J. CORAM: S.C.DHARMADHIKARI, J. DATED: 15th December,2008 DATED: 15th December,2008 DATED: 15th December,2008 P.C.:- 1. This is a chamber summons to revoke a consent affidavit filed by the applicant on 21.8.2007 under which the applicant consented to grant of probate on the above probate petition. 2. While it is not disputed by the applicant that such a consent affidavit was filed by her, she is desirous to revoke the same on the ground that the - 2 - applicant is beneficiary and the petitioner is aware of the same. However, the petitioner has not placed before the Court the entire facts pertaining to the estate of the deceased. 3. Although, it is urged by Mr.Pandya Advocate appearing for petitioner that the applicant seeks to revoke her consent affidavit on the ground that the property under the Will could not have been disposed of by the testator, it is clear that in law such a contention may be raised but cannot be decided by the testamentary Court. The Court cannot decide issue of title and therefore, the consent affidavit cannot be revoked by her now on the ground that the testator had no title to the property bequeathed under the Will of which the probate is sought for by the petitioner. 4. Having perused the affidavit filed in support of the chamber summons and affidavit in reply so also the rejoinder and the annextures thereto, it is apparent to me that the applicant has approached this Court for revocation of her consent affidavit on the basis of the facts narrated by her in paragraph (2) of her affidavit in support of the chamber summons. She states that writing dated 18.11.2002 was executed by - 3 - her under fraud and misrepresentation. She has stated that apart from the contents of the Will she is also asserting that she is a beneficiary inasmuch as, according to her, the flat originally belongs to her late maternal grandmother and her maternal uncle jointly. It is stated by her that the maternal grandmother died intestate in the year 1972 leaving behind her son and the applicant’s mother Mrs.Perin Dadiba Patel. It is stated that uncle Khurshed transferred the portion of his share of the property to one Mr.Minoo K.Deputy and the name of Mr.Minoo K.Deputy was entered into the record as joint member. Mrs.Perin D. Patel who is the mother of the applicant became the joint owner of the said property and that is how, she states that, alongwith her uncle, Mr.Minoo Deputy and her mother are also joined as the owners of the property. She has relied upon the fact that she has two sisters. One sister is Mrs.Zinobia Kaushik Shah and another is Mrs.Jasmine Barabshah Patel and third is the applicant. Therefore, her case is that she is also the beneficiary under the Will. She is also beneficiary of the estate of the deceased and is entitled to the share in the property. This is how the consent affidavit was given by her. - 4 - 5. On the other hand, in reply to the chamber summons which has been filed by Mrs.Jasmine D. Patel she has stated that the allegations in the chamber summons and the affidavit in support are false. She has stated that the Will stands confirmed. This statement is made in her affidavit filed on 24.6.2008. The said Jasmine Patel has also filed further affidavit on 11.8.2008. 6. The petitioner has filed the Reply affidavit and he stated that he is one of the executors named in the Will dated 16.11.2002, in paragraphs 7, 25, 26 of the affidavit in reply this is what is stated:- "7. I say and submit that both the Applicant herein as well as Jasmine D. Patel, being sisters of Mrs.Zinobia, willingly and with full and free consent filed two separate affidavits, both dated 21st August 2007. By the said affidavits, the Applicant and the said Jasmine D.Patel swore on oath that both the Applicant and the said Jasmine D.Patel had no objection whatsoever for grant of Probate of the said Will without service of citation in the present proceedings. I say and submit - 5 - that the said affidavits were made voluntarily by the Applicant as well as the said Jasmine D. Patel. I say and submit that there was absolutely no misrepresentation and/or fraud either by me or by Mrs.Zinobia alias Mrs.Jinu K. Shah and that the Applicant as well as the said Jasmine D. Patel filed the said affidavits out of their own volition, after understanding the contents thereof and with full and free consent. I say that in fact, the said Jasmine D.Patel has filed a further affidavit dated 24th June 2008 by which she has confirmed (i) that she as well as the Applicant understood the contents of the affidavits dated 21st August 2007, (ii) that the same were declared by them together in the High Court of Judicature at Bombay, (iii) that the same were prepared and executed out of their own free will and (iv) that there was no question of the Petitioner playing any fraud either upon the Applicant and/or upon Jasmine D. Patel. 25. With reference to paragraph 2(g) of the said affidavit under reply, I am unaware - 6 - and do not admit that the deceased never had any intention to bequeath the said flat exclusively to Mrs.Zinobia alias Mrs.Jinu K. Shah and put the Applicant to strict proof thereof. I am unaware and do not admit that the deceased had previously made a Will dated 10th October 2001 and put the Applicant to the strict proof thereof. 26. In any event, I say that even if such a Will was prepared, the same stands revoked automatically by the subsequent and last Will dated 16th November 2002. In any event, and without prejudice, I say and submit that a perusal of the alleged will dated 10th October 2001 reveals certain important and relevant facts:- a. that the said flat was purchased by the deceased out of his own self acquired funds; b. that the deceased was in use and occupation of the said flat; and - 7 - c. that the all properties of the deceased were his absolute properties and that nobody else had any share, right, interest, claim or demand whatsoever therein. I say and submit that therefore, it is clear that the deceased was the sole and absolute owner of the said flat and that he had purchased the same from his own self acquired funds." 7. In my view, this is not case where at this stage the right, title and interest of parties to the proceedings as far as the suit property is being decided. An additional affidavit has been filed by the applicant in which she has stated that she is relying upon the Will dated 10.10.2001. It is in these peculiar circumstances it becomes necessary to grant the relief prayed in the chamber summons and to permit the applicant to contest this proceedings. On the base of the averments made by her in the affidavit in support which are denied, it is apparent to me that she cannot be prevented from withdrawing her consent affidavit only because the applicant has failed to - 8 - demonstrate as to how fraud has been perpetrated upon her and the Court. On the other hand, this appears to be a case where certain attempts were made to amicably settle the matter but that having failed, the applicant desires to contest the proceedings. This not a case where the Court is being called upon, in these very proceedings, to decide the issue of title. If the applicant’s affidavit in support and the affidavit in reply so also the rejoinder are read as a whole, it is apparent to me that the law laid down by this Court in the decision reported in "2006(6) Bombay Cases Reporter page 778, Rupali Mehta Vs. Tina Narinder Sain Mehta" cannot have any application at this stage. I am not deciding the controversy finally. All that I am presently concerned is ’whether the consent affidavit given earlier should be allowed to be withdrawn by the applicant’. Since, she had given her consent affidavit earlier but now she is desirous of withdrawing it by placing reliance upon the statements made in affidavit in support and also another Will dated 10.10.2001, it is a fit case to make this chamber summons absolute. However, it is clarified that I have not in any manner held that this Court has decided the issue of right, title and interest in the property. That is an aspect which - 9 - must be decided independently and even the applicant has reserved her liberty to do so. She has only been given an opportunity to contest grant of probate on the basis of the Will that has been annexed to the probate petition. It is for the applicant to show and prove that the deceased had left another Will. Even that aspect has not been concluded by this order and appropriate issue will be framed on the basis of the pleading casting burden upon the parties to prove their rival cases. At this stage, all that is being granted is to permit the applicant to withdraw her consent affidavit. Chamber summons is made absolute in terms of prayer clause (a). 8. The petition will now proceed in accordance with law and Rules. The Petitioner shall serve upon the applicant a citation after which the applicant will be at liberty to file a caveat and affidavit in support of the same. It will be open for the parties either to adopt the affidavits filed in these proceedings or to file substantive affidavits in support of their respective case. . Chamber summons is disposed of. No costs. - 10 - (S.C.Dharmadhikari, J.)