MISC. Petition No.71 of 1999,Testamentary Petition No.836 of 1997

23rd December, 1999

Petitioner Counsel: Mr. D. D. KELAWALA
Respondent Counsel: Mr. O. J. MENEZES

Cases Cited:
Smt. Annapurna Kumar Vs. Subodh Chandra Kumar, AIR 1970 Cal. 433 [Para 3]
Pirojshah Bhikaji Vs. Pestonji Merwanji B.L.R., (Vol.XII) 366 [Para 4]

JUDGMENT

ORDER:-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 defective, 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/s. Subodh Chandra Kumar reported in AIR 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."

4. On the other hand, the learned counsel for the respondents has relied upon a Division Bench Judgement of this court in the case of Pirojshah Bhikaji v/s. Pestonji Merwanji reported in The B.L.R. (Vol.XII) page 366. In the aforesaid case, it is held as follows :

"CHANDAVARKAR, J. - We think the case falls within the principle of Abhiram Dass v. Gopal Dass (3). The provisions of s. 250 of the Indian Succession Act X of 1865, and s. 81 of the Probate and Administration Act V of 1881, are that the interest which entitles a person to put in a caveat must be an interest in the estate of the deceased person, that is, there should be no dispute whatever as to the title of the deceased to the estate, but that the person who wishes to come in as caveator must show some interest in that estate derived from the deceased by inheritance or otherwise. That is the construction which the Calcutta High Court has put upon the section in the case above referred to, and that seems to be in accordance with the language of the section itself. In the present case caveator No.1 claims adversely to the alleged testator. According to the latter the caveator has no interest whatever in the property. But according to caveator No.1, he and the alleged testator were shares in the properties concerned. Therefore, to the extent of the share which this caveator alleges he has in the properties, he claims adversely to the testator. So also as regards caveators No.2 and 3, the alleged testator claims complete ownership of the property by reason of a sale to him; whereas the caveators in question claim the properties as their own mortgaged to the testator. Therefore, that is an adverse interest claimed by them."

5. I have considered the arguments put forward by the learned counsel anxiously. A perusal of the Genealogy reproduced on page 15 of the Petition shows that the deceased died leaving behind the two children viz. Roshan (daughter) and Dinshah (son). The deceased also had two brothers, Hormusji, who predeceased her, and Muncherji. She had one sister Nargesh. Hormusji has two children viz. Sarosh, who died in 1996 leaving behind wife Parveez, and Yasmin (daughter). This petition has been filed by the sister Nargesh and the daughter-in-law of Hormusji Parveez. From the above, it becomes apparent that the two children of the deceased are Roshan, the daughter and Dinshah, the son, who is stated to be residing in U.S.A. Parsi Intestate Succession is governed by Section 51 of the Indian Succession Act, which may be reproduced as follows :

"[51. Division of intestate's property among widow, widower, children and parents - (1) Subject to the provisions of sub-section (2), the property of which a Parsi dies intestate shall be divided -

(a) where such Parsi dies leaving a widow or widower and children, among the widow or widower, and children so that the widow or widower and each child receive equal shares;

(b) Where such Parsi dies leaving children, but no widow or widower, among the children in equal shares.

(2) Where a Parsi dies leaving one or both parents in addition to children or widow or widower and children, the property of which such Parsi dies intestate shall be so divided that the parent or each of the parents shall receive a share equal to half the share of each child.]"

6. A perusal of the aforesaid section makes it abundantly clear that under clause 1(a) if a Parsi dies leaving behind a widow or widower and children, the property is to be divided equally between the widow/widower and the children. Under sub-sec. 51(1)(b) where a Parsi dies leaving children, but no widow or widower, then the property is to be divided equally among the children. Sub-sec.(2) deals with a situation where a Parsi dies leaving one or both parents in addition to children or widow or widower and children. This section provides that the property of such Parsi shall be so divided that the parents or each of the parents shall receive a share equal to half the share of each child. In the present case, the Petition for revocation is filed by the sister of the deceased and the wife of the nephew of the deceased.

7. In my view, the petitioners do not fall within the purview of Section 51 of the Act to be treated as the heirs of the deceased. That being so, in my view, they would not be entitled to file a Caveat against the Probate of the will. They would also, therefore, not be entitled to maintain the present petition for revocation of the probate. In other words, they have no locus standi for moving this Court in view of Section 51. There is no dispute with the law laid down by the Calcutta High Court in the case of Annapurna (supra). In my view, on facts and in law, the petitioners do not have even remotest interest in the inheritance of the deceased. In order to have locus standi, for challenging the Probate on the grounds set out under Section 263 of the Indian Succession Act, in my view, it would be pre-requisite to first establish some right in the inheritance under section 51 of the Indian Succession Act. I am unable to accept the submission of the learned counsel for the petitioners that the provisions of Section 263 can be invoked even by an individual, who does not have any right in the intestate succession of a Parsi under Section 51 of the Indian Succession Act. The Division Bench of this Court in the case of Pirojshah (supra) has clearly laid down that a caveator must show some interest in the estate of the deceased by inheritance or otherwise. The interest claimed must not be adverse to the title of the deceased. In Paragraph one of the petition, it is claimed that the petitioners are the legal heirs of the deceased. In view of Section 51 of the Indian Succession Act, they are clearly not the legal heirs of the deceased. In paragraph 6 of the petition, it is pleaded that the petitioners have interest in the estate of the deceased. It is bald assertion, no details are given of the interest. Thus, applying the ratio of the Division Bench (supra) it has to be held that the petitioners have no interest in the estate of the deceased. In view of the above, it would not be possible to hold that the petitioners have locus standi to maintain the petition. Mr. Kelawala had, however, submitted that it is not proved on record that citation has been actually served on Dinshah. On the other hand, it is maintained by Mr. Menezes that the citation has been duly served on Dinshah.

8. Even assuming that the citation is not served on Dinshah, this would not give locus standi to the petitioners to challenge the probate granted to the respondents. Challenge to the Probate under Section 263 is not in the nature of a public interest litigation. It can only be at the instance of a person who has a slight interest in the estate for themselves. It is to be noticed that Dinshah himself has not taken out any proceedings for challenging the Probate. Therefore, this proxy Petition cannot be permitted and held to be maintainable on the basis of the ingenious arguments put forward by the learned counsel for the petitioners.

In view of the above, I find no merit in the petition. The same is hereby dismissed with no order as to costs.

Parties to act on the copy of the order duly authenticated by the Associate of this Court.

Petition dismissed.