1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION MISC.PETITION NO.23 OF 2001 Anthony F. Barretto and Anr. .. Petitioners Versus Shashikant S.Junnerkar & Ors. .. Respondents Mr.Tembe i/b.Ms.M.V.Gaikwad for petitioners Mr.D.D.Madan, Senior Advocate with A.Doijode for respondent Nos. 1, 2, 16 and 18 Mr.S.B.Rajbhar for respondent Nos.7 and 9 Mr.A.Iyangar for respondent No.12 Mr.M.Irani for respondent Nos. 4 to 6, 8, 10, 11, 13, 15 and 17 CORAM : S.C.DHARMADHIKARI, J. DATE : 10th November 2008 P.C. . This petition was heard along with Misc.Petition No.12 of 2007. The petition is under section 263 of Indian Succession Act and seeks revocation of the grant of probate in Petition No.5423 of 1991. The probate was issued on 11th March 1993. Petitioner Nos. 1 and 2 claim to be son and daughter respectively of the pre-deceased sons of the deceased Louisa. They 2 have filed this petition alleging that the first respondent while filing the petition and obtaining probate has deliberately and knowingly suppressed their names and misled this Court in believing that respondent No.2 to 6, 11 to 13 and 18 and 19 alone were the heirs and legal representatives of the deceased. First respondent stated that no other person, including the petitioner are the heirs of the deceased. Thus, probate is obtained by suppressing material facts and by playing fraud on this Court. 2. It is alleged that the deceased Louisa Baretto had two sons and petitioner Nos. 1 and 2 are the son and daughter of predeceased sons of the said Louisa. The facts pertaining to the grant of probate with regard to the will are elaborately set out in the order passed on the Misc.Petition No.12 of 2007. They need not be repeated here. Suffice it to state that petition proceeds to allege that husband of deceased 3 Andrew expired on 21st May 1959. He died intestate leaving behind his widow (deceased Louisa) his six sons and four daughters. The details thereof are set out in para 2 of the petition. One of the sons of the deceased and the said Andrew was Fredrick Andrew Baretto. He died on 14th May 1970 leaving behind respondent No.5 to this petition and petitioner No.1 being his heirs and next of kin under the Indian Succession Act. They became entitled to the estate of the said Fredrick in the manner more particularly set out in para 3. 3. The deceased and the said Andrew had another son Bartholomew. He died on 12th March 1981, leaving behind his widow, respondent No.6 and two sons, the details of whom are mentioned in para 5 of the petition. As far as petitioner No.2 is concerned, it is stated that the deceased and the said Andrew had another son Olan Andrew Baretto. He died intestate on 10th April 1987 4 leaving behind his widow - respondent No.3 to this petition and petitioner No.2, respondent No.15 and 16 being his three daughters, so also son - respondent No.14 as his heirs and next of kin. They are entitled to the shares to the extent indicated in para 6. 4. It is alleged that the petitioners were unaware of the grant of probate or the petition for probate. There was no occasion for them to know about these proceedings as their names were not mentioned in the record. It is only in the month of June 2006, when certain persons came to the suit land and tried to forcibly dispossessed the occupants of the structures that the petitioners, for the first time became aware of the will, filing of the petition by respondent No.1 as an executor and grant of probate therein. It is in these circumstances that they made enquiries and after taking inspection of the records and proceedings in this Court, they 5 became aware of the filing of the petition and grant of probate. This event is stated to have taken place in October/ November 2006. There are several allegations made with regard to the will and ultimately, it is stated that the petition is not barred by limitation or latches in the light of the events set out above and the grant of probate deserves to be revoked as the same is vitiated by suppression of material facts pertaining to the said grant and by fraud being played on this Court. For all these reasons it is stated that the order granting probate to set aside and grand be revoked. 5. Petition is signed by the petitioner Nos. 1 and 2 and it is affirmed by petitioner No.2. 6. Petition is contested by respondent No.2 who is the daughter of the deceased Louiza and the one entitled to the estate of the deceased. 6 7. I have heard Mr.Tembe, appearing for petitioner, Mr.Madon, learned Senior Counsel for respondent Nos. 1, 2, 16 to 18, Mr.Rajbhar for respondent No.12 and Mr.Irani for respondent Nos. 4, 6, 8, 10, 11, 13, 15 to 17. 8. Apart from the fact that the contesting respondents have pleaded that the petition be dismissed on the ground of delay and latches, additionally, on affidavit respondent No.2 has made the following statements:- "5. At the further outset, I say that the above miscellaneous petition is hopelessly barred by the law of limitation and based on utterly false statements to the petitioners’ own knowledge. The facts mentioned below will clearly prove that the petitioners have come before this Hon’ble Court with unclean hands and by suppressing material 7 facts, to mislead this Hon’ble Court. (a) The petitioners are residing at the same place of residence where the Citations were served upon Respondent Nos. 5 (Dolcie F. Baretto) and 13 (Flory Olan Baretto), respectively. Respondent Nos. 5 and 13 are mothers of the petitioner Nos. 1 and 2, respectively. It is, therefore, hard to believe that petitioners had no knowledge of filing of the petition for Probate way back in the year 1991 or the grant of Probate therein in the year 1993. (b) On 13th December 1991, respondent No.5 filed Consent Affidavit in this Court giving her full and free consent to the said probate being granted to the respondent No.1 (Original Petitioner). 8 (c) Respondent No.13 addressed a letter dated 6th August 1992 from Doha Qatar, Arabian Gulf, to the Prothonotary and Senior Master, High Court, Bombay confirming the service of Citation upon her and also stated in the said letter that she was giving her full and free consent to the Probate being granted to respondent No.1 (Original Petitioner). (d) Petitioner No.1 on 10th June 1995 and petitioner No.2 on 4th July, 1995 stated on oath and admitted/confirmed the fact that (i) respondent No.1 had filed a petition for probate in respect of the will of the deceased Late Luiza Marry Barretto (said deceased); (ii) the probate was granted to respondent No.1 by this Court on 11th March, 1993; (iii) confirmed and accepted unconditionally the validity of the will dated 21st April 9 1982 executed by the said deceased; (iv) confirmed that the citation was served and they did not file any Caveat to oppose the grant; (v) that they accept unconditionally the probate granted on 11th March 1993 in Petition No.540 of 1991 in respect of the will of the said deceased; (vi) that in future they will not raise any challenge of whatsoever nature to the said will not raise any challenge of whatsoever nature to the said will of the said deceased and the said probate granted by this Court; (vii) that the petitioners have no right, title or interest of any nature in the property of the deceased nor shall claim any right, title or interest of any nature whatsoever in the property of the deceased; (viii) that they have no right of any nature whatsoever in the estate left behind by the said deceased or her 10 husband nor shall they at any time claim any right, title or interest of any nature whatsoever in the said estate left behind by the said deceased or her husband; (ix) that they do confirm the receipt of the amount received from respondent No.2 which was given by her as a gesture of goodwill and affection. ". The aforesaid facts confirm that the petitioners had not only the knowledge about the last will and testament of late Mrs.Luiza Mary Barretto and of the grant of probate way back in the year 1995 itself and not in the year June/August 2006 as falsely mentioned in the above petition but have also confirmed the correctness thereof under oath." 11 9. It is stated that the petitioners had not only the knowledge about the last will and testament of Louisa but also of the grant of probate way back in 1995 and not in the year June/ August 2006 as falsely alleged. Further, it is stated that the petition itself suppresses material facts and particulars. The affidavits which have been executed by petitioner No.1 on 10th June 1995 and 4th July 1995, belie the statements made on oath in this petition. Thereafter, in the affidavit in reply it is specifically contended that the petitioners claim to be the heirs of the pre deceased sons of the deceased Louiza and Andrew. However, their widows i.e. mothers of the petitioners respectively, specifically executed consent letters and affidavits in favour of respondent No.2 and had stated that they will have no objection in this Court granting probate in respect of the said will. The consent affidavits have been relied upon and they are executed way 12 back in the year 1991-92. The mothers are parties to present revocation petition and they have not disclaimed these affidavits. No statement on oath or affidavit has been made by these respondents. 10. After repeated adjournments and taking time all that the petitioners have done is to file an affidavit in rejoinder of petitioner No.1 Anthony. In para 3 of the affidavit in rejoinder, the said Anthony purports to deal only with para 5(d) of the reply affidavit. For the first time, he purported to deal with the affidavit of 10th June 1995 executed by him. He states that the affidavit of 10th June 1995 bears his signature but he is illiterate and cannot read or write in any language. He has affixed his signatures in Vernacular. He has purported to explain the circumstances in which affidavit has been executed by him. 13 11. From a perusal of this affidavit in rejoinder, it is apparent that none of the statements in the reply have been controverted or refuted. The petitioners have not approached this Court with clean hands. It is also apparent from statements in the petition and specifically those made by petitioner No.1 in the affidavit in rejoinder that they desire to take benefit of filing of Misc.Petition No.12 of 2007.(companion petition). The grant is of 11th March 1993 and is purported to be questioned by the petitioners by filing instant petition some time in May 2007. In the long period of 14 fourteen years, they have themselves executed affidavits as is evident from para 5 of the affidavit in reply. There is complete silence with regard to filing of such affidavit by them. It was expected that if such affidavits were indeed got executed from them, then, they would have set out this fact in the main petition itself. That they have not stated so clearly means that they have approached this 14 Court with unclean hands. This is a chance litigation. Merely because a revocation petition is filed that these petitioners have woken up and have filed thispetition. Their mothers are silent about the grant nor they dispute the contents of their letters of consent. They have never questioned them and on the basis of these documents, this Court proceeded to grant probate. 12. In my view, the jurisdiction under section 263 of the Succession Act cannot be exercised to assist the petitioners. They have suppressed material facts from this Court. At one stage, I had suggested that if the petitioners do not press this petition, they can go ahead and claim rights in the immovable properties/ lands and that all such pleas as would be raised in the instant proceedings are open for being raised by them. In other words, the execution of the affidavits and the circumstances pertaining thereto could have been 15 made subject matter of the substantive proceedings. That opportunity has also not been availed of and they pressed the revocation petition on merits and requested that orders be passed thereon. 13. For the reasons that have been indicated in the affidavit in reply and which are not controverted, this petition must fail. However, in the facts peculiar to this case, there will be no orders as to costs. All pleas on the title of the immovable properties are kept open. (S.C.Dharmadhikari, J)