1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION MISC PETITION NO. 56 OF 2008 IN TESTAMENTARY PETITION NO. 430 OF 2008 WITH NOTION OF MOTION NO 141 OF 2008 WITH NOTICE NO MOTION NO 155 OF 2008 Deepak P Paralkar .. Petitioner V/s Ulhas Namdeo Paralkar & Anr .. Respondents Mr. V.J. Thorat, Sr. Advocate with Mr. P.J. Thorat i/b Mr. Suneel D. Moghe for the Petitioner Mr. Sameer Tendulkar for the Respondents CORAM : DR. D.Y. CHANDRACHUD, J DATE : 17th APRIL, 2009. P.C.: 1. The Petition before the Court has been instituted for revocation and / or annulment of the Grant of Probate to the Respondent which took place on 20th October 2008 in Testamentary Petition No. 430 of 2008. 2. The Respondent instituted Petition No. 430 of 2008 before Rma MPT115008170409.sxw 2 this Court on 17th April 2008 on the basis of a Will alleged to have been executed by Pandharinath Sadanand Paralkar who is alleged to have died on 01st November, 1985. In Para 3 of the Petition, it has been averred that the deceased had executed a Will dated 21st December, 1983. The Will is alleged to have been executed at Mumbai. In Para 9 of the Petition, it has been averred that the deceased had a wife by the name of Saubai Pandharinath Paralkar whose whereabouts were not known for the last 30 years and a son, Deepak Pandharinath Paralkar, whose whereabouts were not known for the last 27 years. At Exhibit A to the Petition, a death certificate issued by the Municipal Corporation of Nalasopara dated 18th December, 2007 is annexed. 3. Probate was granted on 20th October, 2008. 4. On behalf of the Petitioner, it has been submitted that the Respondent obtained Probate by practicing a fraud on the Court as is apparent on a bare perusal of the Testamentary Petition Rma MPT115008170409.sxw 3 and its annexures. 5. From the record, the following circumstances have emerged : The Probate Petition is full of handwritten erasures and corrections. There are erasures in regard to the full name of the deceased and father's name of the deceased has been interpolated to 'Sadanand' from 'Namdeo'. Similarly, the name of the wife of the deceased has been scored out and written as 'Soubai'. As a matter of fact, the Petitioner who is the son of the deceased has annexed a copy of the death certificate of his mother at Ex B to his rejoinder dated 17th February, 2009 which shows that the name of the wife of deceased was Tarabai Pandharinath Paralkar. In Para 9 of the Probate Petition it has been stated that the whereabouts of the wife of the deceased were not known for 30 years and the whereabouts of the son of the deceased (the Petitioner before the Court in this proceeding) were not known for 27 years. The figures '30' and '27' have been inserted in hand. The alleged will of the deceased dated 21st Rma MPT115008170409.sxw 4 December, 1983 however records that his son Deepak (the Petitioner) was residing separately along with his family. If, as is alleged in the Probate Petition, the whereabouts of the Petitioner were unknown for 27 years, that is a significant fact which would have been present to the mind of the Testator when he executed the Will allegedly in 1983. The said fact does not find any reference in the Will. The Will alleged to have been executed by the deceased bequeathes a one fifth share in the land in Survey No. 24, Hissa No. 7 and CTS NO. 335/1 admeasuring 9696 sq mtrs situatued Borivali. The Petitioner has, however drawn the attention of the Court to the fact that by a registered deed of conveyance, executed on 25th January, 1962, the land in question was conveyed by several co-owners including the deceased to Adarsha Industrial Estate. The deceased has appended his signature thereto. The original of the registered document has been produced for the perusal of the Court. Ex facie, a bare perusal of the signature thereon as compared to the signature on the alleged Will would show that the signature on the Will is not Rma MPT115008170409.sxw 5 that of the deceased. The signature on the Will does not even remotely resemble the signature on the registered document. The Respondent has stated before the Court that he has entered into a Development Agreement on 24th January, 2008 in respect of the land in question prior to the Probate which was obtained on 20th October, 2008. It is stated on instructions that the Development Agreement was since cancelled. For the purpose of this proceeding, it is not necessary for the Court to enter any conclusive finding on the genuineness or authenticity of the alleged Will. The grant of Probate is liable to be revoked on the basis of the admitted position before the Court that the Petitioner who is the son of the deceased was not served with a citation nor was he given any notice of the proceedings before the Court. The contention that the Petitioner was aware of the proceedings for the grant of Probate cannot be accepted in view of what has been stated in Para 3 of the Petition for revocation. In Para 3, it has been stated that on 27th November, 2008, the partner of Adarsh Industrial Estate learnt Rma MPT115008170409.sxw 6 about the Respondent having filed the Petition for the grant of Probate. The detailed inquiries which took place thereafter have been elaborated in sub-paras (i) to (iv) of Para 3. The basis on which the Probate was sought amounts to an abuse of the process of the Court, and a fraud on the Court. The Respondent has attempted to obtain Probate, and succeeding in doing so, by making a palpably false statement fraud with that the whereabouts of the Petitioner were unknown for 27 years. In these circumstances, the Petition would have to be allowed and is accordingly allowed. 6. The Petition is made absolute in terms of Prayer Clause (a) and the Grant dated 20.10.2008 issued in favour of the Respondent in T & I. J. Petition No. 430 of 2008 in respect of the alleged Will and Testament of Pandharinath Sadanand Paralkar shall accordingly stand revoked. Rma MPT115008170409.sxw 7 7. In view of the order that has been passed in the Petition for Revocation, the Notices of Motions do not survive and are accordingly disposed of. (DR. D.Y. CHANDRACHUD, J) Rma MPT115008170409.sxw