PERVIZ SAROSH BATLIWALLA Vs. VILOO PLUMBER

JUDGEMENT

(1.) THIS petition has been filed for revocation of the probate granted in favour of Mrs. Viloo B. Plumber on 21st November, 1997.

(2.) IT is the submission of the learned Counsel for the petitioners that the Will is forged and fabricated. It is further submitted that the material facts have been concealed from this Court. It is further submitted that the grant of probate suffers from infirmities as set out in section 263 of the Indian Succession Act. The proceedings are said to be defected, in that no citation has been issued to any person. The grant is said to have been obtained fraudulently by making false statement and by concealing from the Court material facts. The grant has been obtained by means of untrue allegations with regard to facts as well as law. It is further submitted that the person to whom the grant has been made has willfully and without reasonable cause omitted to give an inventory for account in accordance with the provisions of Chapter 7 of the Act.

(3.) THE learned Counsel for the respondents has submitted that this petition is not maintainable at the instance of the petitioners. They have no locus standi whatsoever to maintain this petition, as they are not the legal heirs of the deceased. The learned Counsel has pointed out to the Genealogy on page 15 of the petition. The correctness of this Genealogy is not disputed by the learned Counsel for the petitioners also. The learned Counsel for the respondents has submitted that before a petition for revocation can be filed, the petitioners would have to establish that they are the legal heirs of the deceased as enumerated under section 51 of the Indian Succession Act. He has further submitted that the person who can legally file a Caveat against the probate can only maintain a petition for revocation of the probate. In reply, the learned Counsel for the petitioners has submitted that the respondents are wrongly contending that the citation has been served on the only other legal heir viz. Dinshah who is residing in U. S. A. This in itself is sufficient to maintain the petition for revocation of the probate. This will clearly establish that the grant of probate is defective as the citation has not been served on the person on whom it ought to have been served. The learned Counsel has further submitted that the provisions of section 51 are subject to the provisions of section 263 of the Indian Succession Act. Under this section, any person who may have even the slightest interest may approach this Court for revocation of the probate on the grounds mentioned in section 263. Therefore, the petitioner who is the sister of the deceased is entitled to maintain this petition. In support of the case put forward by the petitioners, the learned Counsel has relied upon a Division Bench judgment of the Calcutta High Court in the case of (Smt. Annapurna Kumar v. Subodh Chandra Kumar), reported in A. I. R. 1970 Calcutta page 433. In the aforesaid case it is held as follows: any interest, however slight, and even the bare possibility of an interest, is sufficient to entitle a party to oppose a testamentary paper. Even in a case where the person is not entitled to get a compulsory citation, but the citation is discretionary the absence of citation to such a person, also would invalidate the grant in certain circumstances. "