SECTIONS 263 AND 284 OF THE INDIAN SUCCESSION ACT Vs. PROBATE GRANTED TO ISHRAT RAFIQUE SHARIF IN PETITION NO 105 OF 1993 IN RESPECT OF PROPERTY OF PRATIMA DEVI ALIAS KHAIRUNNISA D O

JUDGEMENT

(1.) THESE 2 separate petitions have been filed on behalf of the petitioners Everest Agencies and Anand Sarup Mehta claiming principally the relief of revocation of Probate granted to the respondent in Petition No. 105/93. However, in Misc. Petition No. 65/2000 an alternative relief is claimed for directing the respondent to remove Items Nos. 4 and 5 of the schedule of estate of deceased to the Probate. Since the petitions are in respect of the same Probate, they are heard together and are being disposed of by this order. In Petition No. 105/93 Probate of the Will of deceased was granted to the respondent. One Sayyed Mohd. Akhtar had filed a caveat. This Court (Coram : I. G. Shah, J.) passed an order. The Court after examining the attesting witness to the Will and after considering his evidence accepted that the thumb impression on the Will was of the deceased and granted Probate and also disposed of the suit. Thereafter in Misc. Petition No. 92/93 the grant of Probate was set aside. Thereafter again the petition was disposed of by consent order dated 29-10-99 and probate was granted to the petitioner in Petition No. 105/93.

(2.) ONE petition is filed by Everest Agency and the other by its partner Anand Swarup Mehta claim to be owners of the office situated at Flat 103-C of 1st floor, Sukh Sagar Co-operative Society Ltd. Mumbai. The deceased died on 20-1-93. Probate was earlier granted on 3-1-93. According to the petitioners the circumstances that the Will was executed about 25 days prior to her death by the deceased is a circumstances which creates suspicion in the genuineness of the Will. The deceased was a Shia Muslim and was not entitled to bequeath more than 1/3rd of her share in the estate. The petitioners have purchased the aforesaid flat which is shown as Items No. 4 and 5 of Schedule 1 annexed to the Probate. These items were added to the schedule by an amendment allowed by this Court on 8-12-99 in the aforesaid petition. According to the petitioners this flat was sold to them by the deceased by an agreement dated 20-4-82. In Petition No. 65/2000 it is specifically contended that the deceased had made an earlier Will on 24-12-83 under which one Chartered Accountant Dhirajlal M. Desai was appointed executor and trustee. At that time deceaseds sister Sheeraz was alive. After the death of Sheeraz, the deceased executed another Will on 28-7-88. Petitioners have come in possession of copy of that Will from Rajesh Dhirajlal Shah.

(3.) ACCORDING to the petitioners the Will which has been probated is suspicious in as much as it bears the thumb impression of the deceased whereas the deceased was person who could read, write and sign. The witness to the Will Advocate Nazim H. Kezi and Dr. M. J. Moledina are residents of Mazgaon and respondent is resident of Mazgaon whereas the deceased was never residing in Mazgaon. There is no specific reference to the two earlier wills made by the deceased which stand revocated by the aforesaid Will. There is no provision made for certain relations of the deceased. The deceased was admitted to Ramkrishna Mission Hospital at Khar in Oct-November 1992 and thereafter a Nurse was employed in January 93 to attend to her at her residence and therefore, when the Will was made the deceased was not in a testamentary disposition of mind. She was never under treatment of Dr. Moledina and was residing at Khar and not at Mazgaon. The deceased used to consult petitioners and her Chartered Accountant for all her financial matters and therefore the Will produced by the respondent is not a genuine document. It appears to be a forged and fabricated document and petitioners have taken thumb impression without making the deceased aware of the contents of the Will. Therefore, the Probate obtained should be revoked.