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2019 DIGILAW 224 (BOM)

TEJPAL JUGILAL PODAR v. PRAGNESH PODDAR

2019-01-25

R.D.DHANUKA

body2019
JUDGMENT : R.D. DHANUKA, J. 1. By this petition filed under section 263 of the Indian Succession Act, 1925, the petitioner prayed for revocation and cancellation of the grant of probate of the purported last Will and Testament of the deceased dated 9th January, 2014 in Testamentary Petition No.1800 of 2014 and seeks direction against the respondent to deposit the original probate with the learned Prothonotary and Senior Master, High Court, Bombay. Some of the relevant facts for the purpose of deciding this petition are as under :- 2. It is the case of the petitioner that the petitioner is the real brother of the deceased Mr.Tejpal Jugilal Podar (hereinafter referred to as the said deceased) who died at Mumbai on 26th January, 2014 leaving behind him the last Will and Testament dated 9th January, 2014. It is the case of the petitioner that at the time of the death of the said deceased along with the petitioner, their respective family members were all jointly residing in the suit property i.e. Radha Niwas, 2nd Dadiseth Cross Lane, Near Babulnath Temple, Mumbai 400 007. It is the case of the petitioner that the suit property was purchased by the father of the petitioner i.e. late Mr.Jugilal Hanumanbux Podar in 1944 from his funds of the joint family. 3. According to the petitioner, for the purposes of convenience and as a matter of practice, the suit property was purchased in the name of the elder son i.e. the deceased vide deed of assignment dated 26th July, 1944 by the father of the petitioner from his personal/joint family funds with the intention of putting the property in common hotchpotch of the family for joint use by all members of the family. 4. It is the case of the petitioner that on 24th September, 2005, the petitioner and the said deceased had executed a written memorandum recording the family arrangement which was entered into between them earlier in the year 2004 and though the said family settlement was only signed by the petitioner and the deceased, it was agreed between the petitioner and the deceased that they shall cause their family members who have right, title and interest in the businesses mentioned in the schedule, to release, relinquish, surrender the same in favour of the other party and/or his family members as per the distribution recorded in the family settlement. It is the case of the petitioner that the petitioner and the said deceased along with their family members acted upon the said family settlement in the manner setout in paragraph (11) of the petition. 5. It is the case of the petitioner that the petitioner came to know about the grant of probate in respect of the purported Will of the said deceased only when the respondent filed a suit bearing no. LE & C Suit No. 128 of 2017 against the petitioner and his son before the Small Causes Court, Bombay for seeking eviction. The petitioner accordingly filed a petition on 22nd January, 2019 inter alia praying for revocation of the said grant of probate issued by this court on 12th June, 2015. 6. Mr.Lohia, learned counsel for the petitioner submits that the petitioner did not have knowledge of the grant of probate till the date of service of the papers and proceedings in LE & C Suit No. 128 of 2017. The matter was argued at length by both the parties. 7. Mr.Cyrus Ardeshir, learned counsel appearing for the respondent raised various issues including the issue of limitation, maintainability of this petition by the petitioner and also the issue that since the Testamentary Court has no power to decide the title in respect of the property in question, no relief of any nature whatsoever can be granted by this court in favour of the petitioner. 8. Insofar as the issue of limitation is concerned, it is submitted by the learned counsel that the grant of probate in this court was issued on 12th June, 2015 whereas the petition for revocation of the said grant has been filed on 22nd January,2019 which is admittedly not filed within the period of three years from the date of issuance of the grant of probate and thus in view of Article 137 of the Schedule to the Limitation Act, 1963, the petition is ex-facie barred by law of limitation. In support of this submission, learned counsel placed reliance on the judgment of the Hon'ble Supreme Court in case of Lynette Fernandes vs. Gertie Mathias since deceased by legal representatives, (2018) 1 SCC 271 and in particular paragraph (19), judgment of this court in case of Lydia Agnes Rodriques nee Dcunha and others vs. Joseph Anthony Dcunha and others, (2014) 3 MhLJ 508 and in particular paragraphs 7 to 9, 27 and 29, unreported judgment of this court delivered on 29th April, 2014 in Misc.Petition No.85 of 2012 in case of Ms.Uma Vithal Jhaveri and another vs. Nikhil Vithal Jhaveri and in particular paragraphs 7, 11, 14, 15 and 17. He also placed reliance on the unreported judgment of this court delivered on 24th March,2014 in case of Rahul Krishnamohan Sharma vs. Mrs.Sangita Krishnagopal Sharma in Misc.Petition No.39 of 2014 and in particular paragraphs 5, 8 and 11. 9. It is submitted by the learned counsel for the respondent that in any event, the Testamentary Court has no power to decide any title dispute. He submits that the entire petition filed by the petitioner is based on the title dispute raised by the petitioner in respect of the said property which was bequeathed by the said deceased by the said Will. 10. It is submitted by the learned counsel that the petitioner did not have any caveatable interest and thus on that ground also, the miscellaneous petition for revocation of the grant of probate is not maintainable. He submits that the petitioner is not Class I heir of the said deceased. The said deceased had left behind him a son and a married daughter. The name of the petitioner was thus not cited in the Petition No.1800 of 2014. 11. He submits that the petitioner is not Class I heir of the said deceased. The said deceased had left behind him a son and a married daughter. The name of the petitioner was thus not cited in the Petition No.1800 of 2014. 11. Learned counsel for the respondent tenders a copy of the plaint filed by the respondent in Suit (L) No.869 of 2018 filed before this court against Narayan Tejpal Podar through his legal Guardian Pragnesh Narayan Podar inter alia praying for a declaration that the Memorandum recording family arrangement dated 24th September, 2005 is a valid document and is binding on the defendant therein, for declaration of the half undivided share of the suit property as true and lawful owner in the suit property, for a declaration that the alleged Will and Testament dated 9th January, 2014 is non-est and creates no right, title or interest in the suit property to the extent of one half undivided share and for various other reliefs. He submits that on this ground also this court cannot interfere with the grant of probate issued by this court in favour of the respondent. 12. Mr.Lohia, learned counsel for the petitioner seeks liberty to withdraw this petition and submits that this court may clarify in the order that since this court does not have power to decide the issue of title in respect of the property in question, all contentions in respect of the title in respect of the property may be kept open. 13. When this court proposed to dismiss the petition on the conclusion of the arguments, Mr.Lohia learned cousnel appearing for the petitioner sought time to file an application for seeking condonation of delay in filing miscellaneous petition. This request of the learned counsel for the petitioner was vehemently opposed by the learned counsel for the respondent on the ground that this matter was argued at length even two days back and even today. No adjournment thus would be granted by this court after conclusion of the entire arguments. 14. A perusal of the record indicates that there is no dispute that the grant of probate in respect of the last Will and Testament of the deceased dated 9th January, 2014 was issued by this court on 12th June, 2015. The miscellaneous petition is filed by the petitioner on 22nd January, 2019. 14. A perusal of the record indicates that there is no dispute that the grant of probate in respect of the last Will and Testament of the deceased dated 9th January, 2014 was issued by this court on 12th June, 2015. The miscellaneous petition is filed by the petitioner on 22nd January, 2019. The Hon'ble Supreme Court in case of Lynette Fernandes (supra) has held that Article 137 of the Schedule to the Limitation Act applies to an application filed for revocation of grant of probate. The principles laid down by the Hon'ble Supreme Court in case of Lynette Fernandes (supra) squarely applies to the facts of this case. 15. This court in case of Lydia Agnes Rodriques nee D'cunha and others (supra) has after adverting to the judgment of the Hon'ble Division Bench of this court in case of Nina Agarwalla vs. Ashok Gupta and ors.,2013 4 MhLJ 263 and several other judgments have held that Article 137 would be attracted to the proceedings filed under Article 263 of the Indian Succession Act, 1925. It is held that the said period of limitation would commence from the date of the grant of probate. In the facts of that case, this court also held that the petitioner had not made out any case that the executor, the respondent had committed any fraud or forgery in obtaining grant of probate nor had proved that the petitioner in spite of reasonable and due diligence could not find out the fraud alleged to have been committed by the executor or by any other party. The principles of law laid down by this court in case of Lydia Agnes Rodriques nee D'cunha and others (supra) squarely applies to the facts of this case. 16. This court in case of Ms.Uma Vithal Jhaveri and another (supra) after adverting to the judgment of the Division Bench of this court in case of Nina Agarwalla (supra) has held that Article 137 of the Schedule to the Limitation Act would apply to the petition filed under section 263 of the Indian Succession Act, 1925 inter alia praying for revocation of the grant of probate or letters of administration. This court also held that the testamentary proceedings are the proceedings in rem. The issuance of grant by this court would also be a deemed notice. This court also held that the testamentary proceedings are the proceedings in rem. The issuance of grant by this court would also be a deemed notice. This court adverted to the judgment of the Hon'ble Supreme Court in case of Dilboo (Smt) by Lrs. & Ors. vs. Dhanraji (Smt) & Ors., (2000) 7 SCC 702 in which it was held that where a fact could be discovered by due diligence by the plaintiff, then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. 17. This court held that the petitioners cannot just simply take an excuse of lack of knowledge of the alleged fraud without taking any reasonable steps or acting with reasonable diligence to ascertain such facts. This court accordingly held that the petitioners would have deemed knowledge of filing of such petition by the executor and issuance of grant by this court. This court held that the limitation for filing petition under section 263 of the Indian Succession Act, 1925 would commence on the date of issuance of grant of probate by this court. 18. This court in case of Rahul Krishnamohan Sharma (supra) has held that since the petition did not fall in Class I insofar as the said deceased testator was concerned, the petitioner was not rightly cited by the original petitioner in the testamentary petition and that the petitioner was not entitled to be served with any citation. This court also held that since the Testamentary Court cannot decide a title dispute, Testamentary Court had neither decided title dispute in the testamentary petition nor could decide such title dispute in the petition filed under section 263 of the Indian Succession Act, 1925. In my view, this judgment of this court in case of Rahul Krishnamohan Sharma (supra) squarely applies to the facts of this case. 19. A perusal of the averments made in the miscellaneous petition filed by the petitioner indicates that though the petitioner has alleged fabrication and forgery in the petition and fraud, none of these allegations are substantiated in the petition. 19. A perusal of the averments made in the miscellaneous petition filed by the petitioner indicates that though the petitioner has alleged fabrication and forgery in the petition and fraud, none of these allegations are substantiated in the petition. I am thus not inclined to accept the submission of Mr.Lohia, learned counsel for the petitioner that his client came to know about the grant of probate only when the respondent filed an eviction suit against the petitioner and his son before the Small Causes Court. After conclusion of the arguments, this court thus refused to grant any adjournment to the petitioner. This court had already granted one adjournment at the request of the learned counsel for the petitioner two days back when this court had indicated that the testamentary petition would be dismissed. In my view, since Article 137 of the Schedule to the Limitation Act, 1963 applies to the petition under section 263 of the Indian Succession Act, 1925 and since the said petition has not been filed within three years from the date of the grant of probate admittedly, miscellaneous petition is liable to be dismissed on the ground of limitation itself. 20. In my view, even if this court would have granted any adjournment in favour of the petitioner even after conclusion of the arguments, even on merits, the petitioner has not made out any case. 21. It is not the case of the petitioner that the petitioner is Class I legal heir of the said deceased. He also does not dispute that the Class I legal heirs and next of kin of the said deceased are available. In my view, the petitioner thus even otherwise did not have any caveatable interest and thus could not have been cited by the original petitioner in the testamentary petition. The petitioner thus having not caveatable interest, could not have even otherwise filed the miscellaneous petition for revocation of grant of probate. 22. In my view, the petitioner thus even otherwise did not have any caveatable interest and thus could not have been cited by the original petitioner in the testamentary petition. The petitioner thus having not caveatable interest, could not have even otherwise filed the miscellaneous petition for revocation of grant of probate. 22. A perusal of the plaint filed by the respondent before this court Suit (L) No.869 of 2018 against the respondent herein clearly indicates that the petitioner has already prayed for a declaration that the memorandum recording family arrangement dated 24th September, 2005 is a valid document and binding on the defendant, for a declaration that the plaintiff is a true and lawful owner of the one half of the suit property and is entitled to one half suit property, for a declaration that the alleged Will and Testament dated 9th January,2014 is non-est and creates no right, title or interest in the suit property to the extent of one half undivided share, for partition of the suit property by metes and bound and for possession of the one half share in the suit property and for various other reliefs. The averments made in the plaint in the said suit indicates that the petitioner has disputed the title of the said deceased. The grounds raised in this miscellaneous petition raising the title of the said deceased and in the suit property are identical. Admittedly, the said suit filed by the petitioner is still pending. In my view, Testamentary Court cannot decide the title in respect of the property of the testator. Even if the parties having caveatable interest, cannot maintain his caveat if such caveator claims interest adverse to title of the deceased testator in the property. In my view, even if the petitioner herein would have any caveatable interest, in view of the petitioner having claimed interest adverse to the title of the said deceased in the property, the petitioner could neither file any caveat nor can maintain a caveat nor can file the petition for revocation of grant of probate. On this ground also, the miscellaneous petition filed by the petitioner is not maintainable. I, therefore, pass the following order :- (a) Miscellaneous Petition No.16 of 2019 is dismissed. (b) There shall be no order as to costs.