Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 1910 (BOM)

G. Subbaraju v. Archana Rajesh Shivhare

2014-09-01

ROSHAN DALVI

body2014
Judgment 1. This petition has been filed for revocation of the probate of the will of the deceased testatrix one Sheelabai Maneklal Shivhare @ Venkata Ramanamma. The deceased had one daughter who was adopted by her. Her biological mother is stated to be the sister of the deceased. Her daughter is the sole legatee. The will shows that she was married to one Maneklal Shivhare. Two persons shown as Rajesh Shivhare and Mukesh Shivhare who are stated to be the sons of Maneklal Shivhare are the attesting witnesses. There are two executors in the will. One executrix is the wife of Rajesh Shivhare who has filed the petition. The other executor has reserved his right to administer the estate and has not been as the petitioner. The deceased is shown to have left behind as her only heir and legal representative her married daughter and her husband under Section 15 of the Hindu Succession Act. These relatives would be her only heirs. Her husband has consented to the grant of probate to the adopted daughter of the deceased. Consequently the petition has not been served upon any other heirs. 2. The petitioner herein is her brother. He claims to be the only heir of the deceased. The will itself shows that she has brother and sister. Counsel on behalf of the petitioner stated to Court orally that there was one other sister of the deceased also who has not been joined in the petition. 3. The essential case of the petitioner herein is that the deceased was not married to Maneklal. The respondents herein who are the executors under the will of the deceased and the husband of the deceased have sought to show the documents to prove the marital relationship over a period of years. The documents showing Maneklal as her husband are thus: (i) Passport dated 18th March, 1982, (ii) Passport dated 14th may, 1982, (iii) Ration card dated 24th October, 1986, (iv) Ration card dated 8th August, 2000, (v) Election Card dated 2nd January, 1995, (vi) Death certificate dated 29th January, 2008. The other documents are of her daughter which show the name of Maneklal as her father. These are her passport dated 27th April, 1982 and her PAN card. (She has been issued further passport upon her marriage where his name has not been shown as her father.) 4. The other documents are of her daughter which show the name of Maneklal as her father. These are her passport dated 27th April, 1982 and her PAN card. (She has been issued further passport upon her marriage where his name has not been shown as her father.) 4. The address of the deceased as also her daughter are shown differently in the above documents. However the addresses do not directly disprove the documents. The address of any party may change from time to time. 5. The respondent has placed reliance essentially only upon public documents to show the relationship between the deceased and Maneklal. The public documents would require the presumption of the relationship to be drawn which would required to be rebutted by the petitioner. 6. Mr. Thorat also challenged the adoption of the beneficiary. That is immaterial. The deceased can bequeath her property even to a stranger. In any event the bequest is to her own niece. 7. Mr. Thorat on behalf of the petitioner critiqued the will as having been attested by two sons of Maneklal. It is of importance to note that whatever be the relationship of the deceased with Maneklal, and even if it was not as her husband, she lived with Maneklal but had reared her sister's daughter as her own. She has not bequeathed any property to Maneklal or to his children. Maneklal has supported her throughout including after her death. Her will is attested by none other than the two sons of Maneklal who are not beneficiaries. The executrix of her will is the wife of one of the sons. That shows no falsity in the due execution of the will but in fact reflects the nobility of the family. In fact it is seen that that itself lends credence to the will. It may be mentioned that this observation has been made specially upon the argument of Mr. Thorat. 8. It is contended that the marriage of the deceased with Maneklal has not been shown. The aforesaid documents would prima facie show presumption of the marriage of the deceased with Maneklal in view of the long and continued relationship reflected in the documents. 9. It is settled law that there is strong legal presumption of marriage out of long cohabitation. (See. Gokal Chand Vs. Pravin Kumari AIR 1952 SC 231 and Smt. Parameshwari Bai Vs. The aforesaid documents would prima facie show presumption of the marriage of the deceased with Maneklal in view of the long and continued relationship reflected in the documents. 9. It is settled law that there is strong legal presumption of marriage out of long cohabitation. (See. Gokal Chand Vs. Pravin Kumari AIR 1952 SC 231 and Smt. Parameshwari Bai Vs. Muthojirao Scindia AIR 1981 Kar 40 ). This presumption is rebuttable (See. Gokal Chand Vs. Pravin Kumari AIR 1952 SC 231 , S.P.S. Balasubramanyam Vs. Suruttayan @ Andalipadayachi (1994) 1 SCC 460 and Ranganath Parmeshwar Panditrao Mali Vs. Eknath Gajanan Kulkarni AIR 1996 SC 1290 ). In fact it has been held that long cohabitation would also entitle the woman to be paid maintenance under Section 125 of the Cr.P.C. based upon such presumption under the Hindu Marriage Act upon considering English as well as American Law (of Palimony) (See. Chanmuniya Vs. Virendra Kumar Singh Kushwaha (2011) 1 SCC 141 ). The parameters of the legal relationship for such presumption are laid down in the case of D. Velusamy Vs. D. Patchaimmal. 10. The petitioner is the brother of the deceased. If the marriage is not proved or accepted to be presumed, the petitioner would be one of the heirs of the deceased and entitled to be served the citation and consequently file his caveat. 11. In the case of Parimal Kr. Das Vs. Prasun Kr. Das the High Court of Calcutta considered the interest of persons who were legatees under an earlier will of the deceased though they were not heirs of the deceased. The Court considered the expression claiming to have any interest in the estate of the deceased in Section 283(1)(c) of the Indian Succession Act, 1925. The Court held even an interest dependent upon remote contingencies is sufficient to entitle a person to oppose a petition and intervene in the matter of the application for Probate or Letters of Administration and call upon the propounder of the will to prove its solemn affirmation in his presence. Such a person was held to have appropriate locus standi to come to Court and ask that the probate or grant of Letters of Administration be revoked. Such a person was held to have appropriate locus standi to come to Court and ask that the probate or grant of Letters of Administration be revoked. In that case it was observed that the grant would be revoked for just cause depending upon the facts and circumstances of each case or upon the fact that it was defective in substance. Consequently it was held that Section 283(1)(c) was wide enough to include persons having any interest, however slight, and even the bare possibility of an interest which is likely to be prejudicial or adversely affect them by the grant. The analogy of this judgment is followed in the case of Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors. (2008) 4 SCC 300 . Hence the petitioner must be accepted to have shown an interest in the estate of the deceased. 12. It would be for the petitioner to rebut the presumption by specific evidence. Despite the case of the petitioner, no such record has been yet produced. It would be for the petitioner to produce such evidence to rebut the presumption. The petitioner must be given an opportunity in that behalf. If the presumption is rebutted, the case of the petitioner of the marriage of the deceased would stand disproved. In that case the petitioner would have caveatable interest. 13. Hence the petition is admitted. The affidavit-in-reply of the respondent is taken on record. The affidavit-in-rejoinder of the petitioner is also taken on record. The only material issues are framed as follows: ISSUES (i) Whether the marriage between the deceased and Maneklal Shivhare is proved or can be presumed. (ii) Whether the petitioner has caveatable interest. (iii) What relief, if any, is the petitioner entitled to? 14. The petitioner shall file his affidavit of evidence as also affidavit of documents, if any, within 4 weeks. 15. The petition is adjourned to 24th September, 2014 for considering the admissibility of the documents, if any, of the petitioner. Further case management directions shall be passed upon the affidavit of evidence and the affidavit of documents if filed. 16. The interim reliefs already granted shall continue pending the petition.