1 NM-27 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.27 of 2009 IN Misc. Petition No.60 of 2007 IN Probate Petition No.836 of 2004 Shri Kamlakar S. Gawande .. .. Petitioner v/s. Shri Shekharchandra Sahu & anr. .. Respondents Mr.Girish Desai i/by Ms.Swati S. Magi for Petitioner. Mr.Shailesh Shah i/by Mr.Himanshu V. Kode for Res.No.2. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 2nd September, 2010 P.C. : 1.Respondent No.2 is one of the executors of the Will of the deceased one Manohar Gavande dated 20 th February 2000. She filed a Probate Petition and obtained the Probate on 6 th July 2005. The Petitioner in Miscellaneous Petition No.60 of 2007 filed a Petition for revocation of that probate. That Petition has been granted after considering the facts of both the parties on merits but in the absence of Respondent No.2 and her Advocate. The order of revocation of the grant of Probate has been passed on 21 st November 2008 by 2 NM-27 Justice Dharmadhikari. The revocation Petition was accepted on 3 rd August 2007. The service was effected in or about August 2007. An Affidavit-in-reply was filed on 20 th September 2007. An Affidavit-in- rejoinder has also been filed thereafter. The Petition came up for hearing on 22 nd February 2008 and was thereafter adjourned to 10 th October 2008, 17 th August 2008, 14 th August 2008 and 21 st November 2008 when it came to be disposed of. On each of these dates of hearing Respondent No.2 never appeared in Court, though having filed her Affidavit-in-reply. The Court, therefore, correctly considered the facts placed on record and argued by the Advocate of the Petitioner seeking revocation of the probate obtained by Respondent No.2 and passed its order of revocation of the grant of such probate. Respondent No.2 has filed this Notice of Motion for recalling the order dated 21 st November 2008 and staying the implementation of that order. 2.Mr.Desai on behalf of the Petitioner contended that the Notice of Motion recalling an order of revocation of grant is not maintainable. He has not shown any provisions of law in that behalf. He drew my attention to Section 263 in Chapter III of the Indian Succession Act, 1925 (the Act) which deals with revocation of the probate granted and not with an application taken out 3 NM-27 for recalling the order of revocation. 3.Mr.Shah on behalf of Respondent No.2 drew my attention to Section 268 of the Indian Succession Act, which deals with the practice in granting and revoking the Probates and the Letters of Administration. Under Section 268 of the Act, the procedure is regulated by the Civil Procedure Code (CPC). Mr.Shah, therefore, contends that Order IX of the CPC would be applicable in such a case. 4.He has relied upon a judgment of the Patna High Court in the case of Mst. Tribeni Kuer & anr. vs. Shankar Tiwari & ors., AIR 1971 Patna 391 in which an application for recalling an order for grant of probate has been allowed under Order IX Rule 13 of the CPC as being applicable to probate proceedings. 5.Mr.Desai on behalf of the Petitioner drew my attention to an order passed by a Division Bench of this Court dated 22 nd June 2010 in the case of Madhu Fantasy Land Pvt. Ltd. & ors. vs. Mrs.Maki Homi Chibber & ors. in Notice of Motion No.1099 of 2010 in Appeal (Lg.) No.608 of 2007 in S.C. Suit No.435 of 1980. In that case a similar application was made for making out the case on merits and certain facts were suppressed. The Division Bench relied upon two decisions of the Supreme Court 4 NM-27 and the application was not entertained. That order does not hold that such application is per se not maintainable. 6.The application being maintainable, it will have to be seen whether sufficient cause is shown for the absence of Respondent No.2 on 29 th November 2008 when the order of revocation of the probate came to be granted. 7.As aforesaid, Respondent No.2 was absent not only on the date of the order but also on four earlier dates of hearing. 8.The Petition is shown to have reached hearing initially in February 2008 after which it did not appear on Board. The Affidavit-in-support of Respondent No.2 shows that she kept on inquiring with her Advocate about the Petition and was informed that it did not reach hearing. The Affidavit further shows that the Petition reached hearing essentially on and after 10 th October 2008. Respondent No.2 has explained how she did not remain present on those dates under four separate reasons. She has stated that her daughter, who was pursuing her medical examination and specialisation in Anesthesiatic had to be enrolled in a specialised course. She was busy being attached to the hospital. Respondent No.2 had to pay fees for her 5 NM-27 course on 28 th July 2008. Her daughter also met with an accident on 10 th August 2008. Further Respondent No.2 as mentioned about her pre-occupation with certain colleagues at work. She is the Director of one Adarsh Classes. Two of the professors in the Adarsh Classes had taken ill and later expired. She claims that she had cared for those two persons, one of whom was in advanced years and alone. She has produced certain hospitalisation papers of that person. She has relied upon the death certificates of both the persons. The fact remains that both of them expired soon after the order was passed being on 4 th December 2008 and 13 th January 2009. 9.She further claims that she was not informed by her Advocate about the matter. It is her case that her Advocate failed in his duty. In this application, she only claims to be heard on merits. 10.On merits it is her case that the Will left by the deceased was executed on the same date as the Will left by his wife. Both the Wills were registered. Under the Will of the husband, part of the estate has been bequeathed to the wife and part of the estate has been bequeathed to the staff of Adarsh Classes which her husband had founded. The wife has challenged the Will. The wife has written a letter dated 21 st May 2004, 6 NM-27 making allegations about the execution of her husband s Will. She has thereafter filed an Affidavit in the Petition for probate taken out by Respondent No.2 stating that she had not intermeddled with the property of the deceased and had renounced her right, title and interest and would not hereafter intermeddle also. She is thereafter shown to have filed a consent Affidavit consenting to the grant of probate. Mr.Shah on behalf of Respondent No.2 had laid much stress upon the fact that that was affirmed at her residence and was explained to her in Marathi. 11.The order dated 21 st November 2008 legitimately takes exception to the fact that a letter of the widow of the deceased dated 21 st May 2004 was suppressed by Respondent No.2 whilst obtaining probate. Mr.Shah on her behalf argued that that letter lost significance in view of the later Affidavits filed by her in March and April 2005. Mr.Desai took exception to the Affidavit filed in March 2005 and questioned how and why the widow of the deceased who sought to challenge the Will of the deceased which did not give her the entire property could show that she had not intermeddled in the estate and would not intermeddle in future or renounce her rights. 12.After drawing my attention to the facts which are 7 NM-27 considered by the Petitioner to be so gross as to have rightly touched the conscience of the Court in passing the order dated 21 st November 2008, Mr.Desai preferred not to have the Petition heard on merits right now. Mr.Shah, however, states that he is prepared to be heard on merits at this juncture itself. 13.Part merits of the case are referred by Mr.Desai himself. Indeed it is seen that the widow of the deceased who was the only heir of the deceased has not been the sole legatee in his Will. Part estate is stated to have been bequeathed to outsiders who were his business acquaintances and colleagues in the class that he had founded. She has challenged such a Will. Hence, the probate granted to Respondent No.2 cannot be allowed to prevail unquestioned. 14.The case of Respondent no.2 that both the husband and wife had executed two Wills on the same day and got them registered is also worthy of note and cannot be simply bypassed. Similarly the fact that after writing the letter dated 21 st May 2004 alleging fraud the widow has, in fact, given the consent Affidavit in the Petition, which was the most essential requirement for the grant of probate would also have to be considered if the case of the widow of forgery and fabrication of the Will and other documents would have to be 8 NM-27 considered. That case has naturally not been considered in the order dated 21 st November 2008. Just as it is the case of the widow that her earlier letter dated 21 st May 2004 was not brought to the notice of the Testamentary Court at the time of obtaining the probate, it is seen that her consent Affidavit which was interpreted and explained to her in Marathi language was not brought to the notice of the Court by the Advocate of the widow herself when the order dated 21 st November 2008 was passed. 15.Interest of justice demands that full and entire facts be brought to the notice of the Court after which a final order is required to be made between such contesting parties. Full facts were not brought to the Court and for which only the representation made by the widow before the Court could be questioned. 16.Under these circumstances, it is seen that indeed the entire merits of the case are required to be seen and this is not a fit case in which Respondent No.2 must be left unheard. 17.I asked Mr.Desai as well as Mr.Shah as to whether they would be prepared to have the Petition for revocation of the grant of probate itself heard on merits since part merits have been referred to by both the parties. 9 NM-27 Mr.Shah agreed to the proposition. Mr.Desai chose to consider this aspect. Consequently, the merits of the Petition cannot be heard at present. 18.The Notice of Motion is, therefore, made absolute in terms of prayers (a) and (b). Both the parties shall not act upon the grant of the probate or upon the order of revocation until Miscellaneous Petition No.60 of 2007 is heard on merits. Miscellaneous Petition No.60 of 2007, which is restored to file, is adjourned to 4 th October 2010. 19.In view of the order passed in this Motion, Chamber Summons No.56 of 2010 does not survive and it is disposed of accordingly. 20.Notice of Motion No.60 of 2010 is made absolute in terms of prayer (a) in terms of the order passed in Notice of Motion No.27 of 2009. (SMT.ROSHAN DALVI, J.)