S A MODI Vs. T A RANA

JUDGEMENT

(1.) ONE Bomanji Dorabji Kumana is said to have executed his last will and testament on 19th June, 1975. The testator died at bombay on 11th August 1978. Rustom D. Kumana and Gool D. Kumana who were the surviving executor and executrix applied for grant of probate before this Court and the probate was granted on 23rd October, 1981. Beneficiaries under the said Will are the present respondents. The present appellant who claims to be one of the legal heirs of the testator and who was not issued the citation of probate proceedings applied for revocation of probate granted on 23rd October, 1981 by filing petition under section 263 of the Indian Succession Act, 1925 before this Court. Initially, in the petition for revocation of probate, the present appellant only impleaded the first respondent but thereafter under the order of the Court, all the surviving beneficiaries under the will dated 19th June, 1975 were impleaded. The impleaded beneficiaries contested the petition for revocation of probate filed by the present appellant on diverse grounds. The learned Single Judge of this Court after hearing the parties on the basis of the available material rejected the petition for revocation of probate by order dated 9th February, 1996. Aggrieved thereby, the appeal has been preferred by the present appellant.

(2.) IN the petition for revocation of probate granted on 23rd October, 1981 of the said last Will and testament dated 19th June, 1975 of the late Bomanji dorabji Kumana, the case was set up by the appellant (hereinafter to be referred to as the petitioner) that he first became aware of the alleged Will/ probate of Bomanji Dorabji Kumana only on 12th September, 1992 in connection with the proceedings in Suit No. 8 of 1986. The petitioner set up the case that he being one of the legal heirs, it was the bounden duty of the propounder to duly issue citation to each and every legal heir including the petitioner and having not done that which was necessary and required to be done, the probate was liable to be revoked under section 263 of the Act of 1955. The petitioner submitted that since he became aware of the said Will/ probate only on 12-9-92, the question of delay does not arise. The petitioner set up the case that non issuance of citation to all the legal heirs of the deceased testator was a deliberate and fraudulent act on the part of the pro-pounders of the Will and on that ground also grant of probate was also liable to be revoked.

(3.) IN opposition to the petition seeking revocation of grant of probate, the first respondent filed reply affidavit. It was submitted that the petitioner knew the testator's death being his uncle in the year 1978 itself and having not taken any steps for a period of 14 years after the testator's demise in connection with his estate, the petition for revocation of probate suffered from gross delay and laches. The first respondent denied that the petitioner came to know of the grant of probate of the will of the deceased Bomanji Dorabji kumana for the first time on 12th September, 1992. It was submitted by the first respondent that the relations between the testator and the petitioner were extremely bad as the petitioner had assaulted the testator leading to a criminal case and that the testator could never have wanted to die intestate as then a part of his estate would go to the petitioner and therefore, it was inconceivable that the petitioner could not know that the testator had executed the Will. The respondent No. 1 also set up the case that due to lapse of time, the executor as well as executrix have died and so also the witnesses of the said Will; the estate of the deceased executor has also been fully administered and, therefore also it would not be just to revoke the grant of probate. The case was also set up by the first respondent that the petitioner had not challenged the genuineness of the Will. The petitioner is in habit of filing frivolous caveats and proceedings and the present petition for revocation of grant of probate is also intended to harass the respondents.