Case Note & Summary
The plaintiff, Dr. Devika Damji Shah, mother of the deceased Dr. Mukesh Ramji Shah, filed a suit seeking a declaration that the will of the deceased dated 19th February 2002 and two joint declarations dated 16th August 2001 were illegal and void, and for administration of the estate of the deceased as on intestacy, claiming her 1/3rd share under Section 8 of the Indian Succession Act. The defendant No.1, Rashmi Mukesh Shah, the wife of the deceased, filed a Notice of Motion for dismissal of the suit on the ground that the will had been probated by the Court of Cassation in Dubai, UAE, which is the apex court in that country. The wife had also filed a petition under Section 228 of the Indian Succession Act for an ancillary grant of letters of administration in respect of the estate in India. The court considered whether the foreign probate was conclusive proof of the validity of the will under Section 41 of the Indian Evidence Act, 1872. The court held that the probate granted by the Dubai court was a final judgment of a competent court in probate jurisdiction and was conclusive proof of the validity of the will. Therefore, the suit challenging the will was barred by res judicata and was liable to be dismissed. The court also noted that the son had attained majority and that the wife's petition for ancillary grant was separate and could be challenged separately. The Notice of Motion was allowed, and the suit was dismissed.
Headnote
A) Civil Procedure - Res Judicata - Foreign Judgment - Conclusive Proof - Section 41 Indian Evidence Act, 1872 - A final judgment of a competent foreign court in probate jurisdiction is conclusive proof of the validity of the will and operates as res judicata in Indian courts - Held that the probate granted by the Court of Cassation in Dubai is conclusive and the suit challenging the will is barred (Paras 5-10). B) Succession Law - Ancillary Grant - Section 228 Indian Succession Act, 1925 - Where a will has been proved abroad, an ancillary grant of letters of administration may be obtained in India - Held that the wife's petition for ancillary grant is maintainable and the mother's challenge to the will cannot be entertained (Paras 3-4).
Issue of Consideration
Whether a probate granted by a competent foreign court is conclusive proof of the validity of the will under Section 41 of the Indian Evidence Act, 1872, and whether the suit challenging the will is liable to be dismissed.
Final Decision
The Notice of Motion is allowed. The Suit No. 843 of 2003 is dismissed. The Misc. Petition No. 58 of 2012 for ancillary grant is to proceed separately.
Law Points
- Section 41 of Indian Evidence Act
- 1872 makes foreign probate conclusive proof of validity of will
- Section 228 of Indian Succession Act
- 1925 for ancillary grant
- res judicata
- comity of courts
