ASHOK KOTHARI Vs. DIPTI BAVISHI

JUDGEMENT

(1.) This appeal is directed against an order dated 20th February, 2006 by which the learned trial Court revoked the grant of Probate Holding "that the citation issued by this Court in terms of the Court's order was not delivered upon the petitioner through the postal communication."

(2.) The learned Court negatived the contention that the letter dated 14th January, 2001 written by the sister of the executor, during the lifetime of the testator, establishes that she had no objection to the grant of Probate. The learned Trial Court has impliedly suggested that a sharp practice was perpetrated upon the Court by the appellant in obtaining the grant which is illustrated by the fact that the appellant himself had lodged a caveat and he thereafter obtained an order discharging the caveat whereby an impression was given that the contention had ceased to exist whereupon the grant was made. Lastly, it was found that there was admittedly in existence a codicil which was not brought to the knowledge of the Court.

(3.) Aggrieved by the order revoking the grant, the executor has come up before this Court in appeal. Mr. Kapoor, learned senior Advocate appearing in support of the appeal drew our attention to the records which would go to suggest that the special citation was tendered by the postal peon at the residence of the respondent in Texas in the USA. But the maidservant of the respondent refused to accept the same and it is in those circumstances that the registered cover containing special citation was received back unserved with the endorsement 'refused'. He, therefore, contended that in the facts of the case proper service of citation has to be presumed.