1 MISC. PTN. 89/2007 mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION MISC. PETITION NO. 89 OF 2007 Alexandra Pereira ...Petitioner Vs. Mr. Diago Moniz ...Respondent Mr. D.G. Aras i/b. Aras & Co., for Petitioner Mr. Dharam Sharma i/b. Dharam & Co., for Respondent CORAM : SMT. ROSHAN DALVI, J. DATED : 19TH NOVEMBER, 2010 P.C. : 1. This Petition is filed for revocation of the grant of probate issued in respect of the Will of the deceased Henry Nazareth Pereira who is the brother of the Petitioner. Henry was the bachelor. He is stated to have executed a Will on 15th October 1993. The Respondent herein was the executor appointed under the Will. He is an outsider. Henry has bequeathed his entire estate to his brother Miguel Vincent Pereira. Miguel Pereira was also a bachelor. 2. The Will of Henry shows that he was residing in Muckba Building at Room No.9 on S.K. Bole Road, Dadar, Mumbai. The deceased Henry has not claimed any ownership rights on that building. He has not disposed off any part of that property 2 MISC. PTN. 89/2007 under the Will. However Miguel Pereira is also the residuary legatee. 3. In the Petition for grant of probate of Will of Henry which is now challenged, it is alleged that the deceased had no brother or sister except Miguel. 4. The death certificate of the deceased which is annexed to the Petition shows that he expired on 22nd October 1993, one week after the execution of the Will. The place of his death is shown to be Shanti Avedana Aashram at Bandra though his permanent address is shown to be Muckba Building in Room No.9. It is common knowledge and of which judicial notice would be required to be taken that Shanti Avedana Aashram is a shelter for housing terminal by ill cancer patients. 5. The execution of the Will a week prior to the death of Henry bequeathing all the properties to his brother Miguel is challenged by another brother Alexander who is the Petitioner herein. The Will is stated to be executed in the house of Henry. It is contended on behalf of the Petitioner that that statement is seen to be incorrect since the Petitioner died at Shanti Avedana Aashram. 6. Henry’s brother Miguel also executed a Will on 3rd February 1998. In that Will he has bequeathed inter alia the flat on the 3 MISC. PTN. 89/2007 ground floor of Muckba Building to his brother Anthony. Anthony is shown to be residing in another room of Muckba Building. Miguel has further bequeathed the property bequeathed by Henry under his Will to Miguel which Miguel acquired through inheritance. Miguel has bequathed both these properties to his brothers as well as his nephews. The Will of Miguel shows that there were other brothers and sisters of the deceased Henry. These are not being shown in the probate petition filed for obtaining property of Henry’s Will. No citation has been served upon those brothers and sisters. Hence all the heirs and legal representatives of Henry were not disclosed in the Petition for probate of Henry’s Will. The Petitioner is one such heir being the brother of Henry as well as Miguel. 7. Under these circumstances the probate of the Will of Henry Pereira dated 15th October 1994 cannot be sustained. 8. It is argued on behalf of the Respondent that the Respondent has created 3rd party rights and hence 3rd parties will be prejudiced after the probate is revoked. What 3rd party rights are previously created is not shown. Even if the executor has acted upon probate wrongly obtained (by not stating the names of all the heirs and legal representatives of the deceased) the Probate obtained without serving citation upon the heirs of the deceased, however innocently, cannot remain. 4 MISC. PTN. 89/2007 The heirs of the deceased are entitled to challenge the Will. 9. In the probate petition filed for the estate of Miguel, upon investigating the title of Miguel in the inherited property, the Will of Henry came to light. It is only when it comes to the knowledge of the heirs and legal representatives that the Will is executed that they can challenge it. That challenge must be within 3 years of obtaining that knowledge. It is not contended that this Petition is filed later than 3 years from obtaining the knowledge. 10.I am shown the Will of Miguel. It mentions about the sister of Miguel, who is also the sister of Henry, who is appointed executrix of the Will of Miguel. The Will also mentions the Petitioner herein as his brother. Hence the Petitioner is also the brother of Henry. It further shows that the Petitioner and Miguel residing together. It is in the same building that Henry lived. The Will further shows another part of the same property being bequeathed to another brother of Miguel, Anthony Pereira. That brother is also, therefore, the brother of Henry. The nephews who are also the legatees under the Will show that there may be other brothers and sisters of Miguel and consequently of Henry. The probate petition of Miguel shows these various heirs and legal representatives of Miguel. These are also the heirs and representatives of Henry. They are required to be served citation, if Henry’s Will is to be 5 MISC. PTN. 89/2007 probated. They would be entitled to challenge the Will, if they desire. It may, however, be mentioned that since Miguel has sought to dispose of all his properties, including Henry’s properties stated to be inherited by him by Testamentary succession, and all his heirs are served citation in the Petition for administration of his estate, it may be to the advantage of all the heirs to work out options for settlement of their dispute through Mediation. 11.However, under the aforesaid circumstances the probate issued by this Court of the Will of deceased Henry Pereira is required to be and is revoked. 12.The Respondent as the executor of Will of Henry Nazareth Pereira shall bring on record all the heirs and legal representatives of the deceased Henry Nazareth Pereira who are shown as the heirs and legal representatives of Miguel Vincent Pereira in Testamentary Petition No.841 of 1999. All these heirs shall be brought on record of the Petition No.520 of 1995 within 4 weeks from today, failing which TP No.520 of 1995 shall stand dismissed. (SMT. ROSHAN DALVI, J.)