rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY & INTESTATE JURISDICTION MISC. PETITION NO. 19 OF 1995. MISC. PETITION NO. 19 OF 1995. MISC. PETITION NO. 19 OF 1995. Raynati Fernandes ..Petitioner V/s. C.C.Fernandes & Ors. ..Defendants Mr.S.F. Rego i/b.Mr.N.J.D’Monte for the Petitioner. Ms.N.Bhatia ib.Mr.Prem Gidwani for Respondent No.1. Mr.Pratik Sakseria i/b.Bachubhai Munim & Co. for Respondent No.3. Mr.S.Shah i/b.Mr.S.U.Jadhav for Respondent No.4. CORAM: S.J. VAZIFDAR J. CORAM: S.J. VAZIFDAR J. CORAM: S.J. VAZIFDAR J. DATE : 22ND FEBRUARY,2008. DATE : 22ND FEBRUARY,2008. DATE : 22ND FEBRUARY,2008. P.C. : P.C. : P.C. : . Mr.Rego, the learned counsel appearing on behalf of the Petitioner seeks leave to delete Respondent Nos. 2,3 and 4. 2. This petition is filed under section 263 of the Indian Succession Act for an order revoking, cancelling and setting aside the probate of the last will and testament of one Gerome Fernandes granted by this Court on 21st September, 1988 T in I.J.Petition No. 454 of 1980 in favour of original Respondent No.1. : 2 : 3. Respondent No. 1(a) and 1(b) are the heirs of original Respondent No.1 4. Petition No. 454 of 1980 was filed by the original Respondent No.1 for the probate of the said Will of the said deceased. Respondent Nos.1 to 6 in Petition No. 454 of 1980 are the Petitioners in the above petition. Respondent Nos. 2,3 and 4 are third parties in whose favour agreements have been entered into and/or rights have been granted by the original Respondent No.1 in exercise of powers under the probate granted by this Court. 5. The learned counsel appearing on behalf of Respondent Nos. 3 and 4 raised preliminary objections. They contended that after the probate was granted by the Court by an order dated 21st September, 1988 the parties to the above petition had in fact entered into a family arrangements dated 8th February, 1999, by which they settled all their disputes including those arising from and after the probate was granted on 21st September, 1988. The rights were created in favour of Respondent No.2, 3 and 4 prior prior prior to the family arrangments. It is only several years thereafter that the above petition was filed for the revokation of the : 3 : grant on 5th July, 1995. The preliminary objection is based on the fact that the family arrangements and all the disputes were settled and the parties had in fact agreed to withdraw the proceeding pending inter-alia in this Court. 6. The parties to the said family arrangement dated 8th February, 1999 are all the Petitioners and the Original Respondent No.1 and Respondent No.1 (a) who is the widow of the Original Respondent No.1. Respondent No.1(b) has executed the family arrangement on behalf of Original Respondent No.1. Respondent No.1(a) executed the family arrangement as a confirming party. 7. It is pertinent to note that the above petition is referred to in the family settlement. It is stated therein that the contentions of Original Respondent No.1 based on the said will have been contested by the Petitioner’s heir and in respect whereof proceedings pending in this Court challenging validity of the will and testament of the deceased Gerome. Recital G states that the parties had referred their dispute to Arbitration and that a consent award had been passed in terms of the said : 4 : family arrangement. Mr.Rego has specifically contended that the documents is valid and binding between the parties thereto. Clauses 2,4,5,10 and 14 read as under :- "2.(a) The settlement recorded hereunder shall be final, irrevocable and binding upon all the parties. (b) The settlement recorded herein as confirmed by all parties. 4. The property comprising land and structure situate at Lonavala bearing Survey Nos. 96/A/1, 96/B and 97/B and House bearing No. 29 B H Ward, C.T.S.No.3 situate at Sakkarpathar road, near Tata Lake, Lonavala Tal.Maval, Dist.Pune, described in the First Schedule hereunder written shall vest exclusively in the party of the First Part to the intent and purpose that it shall be owned, possessed and occupied absolutely by the said Raynah Fernandes and members of her family who shall have absolute rights, title and interest in the same to use, enjoy and deal with the same. : 5 : 5. The properties comprising one building and two chawls situate at Colaba, Bombay 400 005, more particularly described in the Second Schedule hereunder written shall vest exclusively in the party of the Second Part to the intent and purpose that the same shall be owned, possessed and occupied absolutely by Dr.Caesar Manoel Fernandes and members of his family who shall have absolute right, title and interest in the same to use, enjoy and deal with the same. 10. The said Dr.Caesar Manoel Fernandes who has been in carriage of proceedings relating to the estate of the Deceased undertakes and agrees to and shall cause to remove and otherwise meet at his own cost all claims, demands, possession rights, suits and all other encumbrances that may have been created by way of Third Party rights or adverse possession or agreements or suits or notices or otherwise in respect of the entire estate within 30 days of the execution hereof by obtaining discharges, : 6 : disclaimers releases, terms and undertakings from such parties, if any. 14. Both parties agree to withdraw all proceedings in the Hon’ble High Court of Bombay, upon execution of all documents, effectively vesting the title in the properties in the manner herein recorded." 8. As stated above on behalf of the parties to the agreement it was stated before me that the agreement is binding on them. The grant of a probate is an order-in-rem. It is based on the said probate that agreements had been entered into with Respondent Nos. 2,3 and 4. Mr.Rego applied for dropping the Respondent Nos. 2,3 and 4 from the proceedings unconditionally and at the risk of the Petitioners. He however refused to concede that the order passed in these proceedings in the absence of Respondent Nos. 2,3 and 4 would not affect them in any manner adverse to Respondent Nos. 2,3 and 4. No vakalatnama has been filed on behalf of Respondent Nos. 1(a) to 1(d). The learned advocate appearing on behalf of 1(a) to 1(d) undertakes to file the : 7 : vakalatnama within four weeks from today. She is however unable to make any such statement either. In the absence thereof, I am not inclined to delete the names of Respondent Nos. 2,3 and 4 as they may be well to be affected by the outcome of any order. 9. In view of the family settlements which the parties thereto confirm even today and in particular clause 14 thereof the Petition is dismissed. *******