DINSHAH DHUNJISHAH GAGRAT Vs. VILOO BYRAMJI PLUMBER

JUDGEMENT

(1.) The Petition has been instituted in order to seek the revocation or annulment of a grant of probate by this Court on 25th November, 1997.

(2.) Perin Gagrat who died on 31st January, 1987 had two children: the Petitioner who was her son, and Roshan, her daughter. The Second Respondent is Roshan's husband. On 14th January, 1984 a will was admittedly executed by Perin under which a life interest in her estate was created in favour of Roshan upon which the property was to devolve upon the Petitioner. A second will was admittedly executed by the deceased on 19th February, 1986 under which Perin bequeathed her entire estate to Roshan absolutely. This will was registered with the Subregistrar of assurances. The will which forms the subject matter of the dispute is alleged to have been executed by Perin on 21st January, 1987 under which a life interest was created in favour of Roshan after which the property would devolve upon the Second Respondent who was her husband. The First Respondent was purportedly appointed as executor and trustee of this will. According to the Petitioner, the alleged will of 21st January, 1987 was executed purportedly just 10 days before Perin died. Perin was hospitalized on 26th January, 1987 and was alleged to be suffering from a brain tumor. Perin died on 31st January, 1987 leaving behind her, the Petitioner and Roshan as her only heirs. Her estate inter alia comprised of a residential flat - Flat No. 16, Best View Cooperative Housing Society Limited at Cumballa Hill, Mumbai and a share in certain immovable property at Mahabaleshwar. According to the Petitioner, Roshan had executed during her life time a will on 25th September, 1993 bequeathing her entire estate to the son and daughter of the Petitioner. This will was founded on the premise that the Roshan was the absolute owner of the property inherited by her from her mother. Roshan died on 9th January, 1994.

(3.) According to the Petitioner, the Second Respondent, on 9th March, 1994 attempted to transfer the residential flat to his name. Upon the refusal of the cooperative society, a dispute was filed by the Second Respondent in the Cooperative Court on 22nd June, 1994 against the society and the two children of the Petitioner seeking, inter alia, a declaration that the society should not take cognizance of the will executed by Roshan on 25th September, 1993 and a permanent injunction restraining the opponents from displacing the Second Respondent from the flat.