Case Note & Summary
The case involves two appeals filed by Arzan Khambatta, who along with Rajendra Kishanrao Shinde, is an executor of the Will of Ursula Dara Mistry dated 7th February 2004 read with Codicil dated 29th November 2004. Ursula died on 30th November 2004. The respondents, Martin Borchert and Bernhard Dara Borchert, are the sons of Ursula and beneficiaries under the Will. They filed Testamentary Petition No. 566 of 2008 seeking probate of the Will. The appellant, Arzan, filed a caveat in the said petition. However, the respondents subsequently filed Misc. Petition No. 63 of 2010 seeking probate, and the court granted probate to the respondents on 21st December 2010, without notice to the appellant. The appellant later filed Misc. Testamentary Application (L) No. 7 of 2018 seeking revocation of the probate, which was dismissed by the learned Single Judge on 20th December 2018. The appellant then filed the present appeals. The key legal issues were whether the grant of probate to one executor without the consent of the other executor is valid, and whether the failure to disclose the existence of a co-executor and the filing of a caveat amounts to suppression of material facts. The appellant argued that the probate was granted without his knowledge and consent, and that the respondents suppressed the fact that he was a co-executor and had filed a caveat. The respondents contended that the appellant had renounced his executorship and that the grant was valid. The court analyzed the provisions of the Indian Succession Act, 1925, particularly Sections 222 and 263, and held that probate must be granted to all executors jointly. The court found that the appellant had not renounced his executorship and that the respondents had suppressed material facts, including the existence of the appellant as a co-executor and the pending caveat. The court also noted that the caveat filed by the appellant was still in force when probate was granted. Consequently, the court allowed the appeals, set aside the order of the learned Single Judge, and revoked the probate granted on 21st December 2010. The court directed that the probate petition be restored and heard afresh after notice to all executors.
Headnote
A) Succession Law - Probate - Joint Executors - Section 222 Indian Succession Act, 1925 - Grant of probate to one executor without consent of co-executor is invalid - The court held that probate must be granted to all executors jointly, and the unilateral application by one executor suppressing the existence of the other executor and a caveat filed by the latter constitutes suppression of material facts, warranting revocation of probate (Paras 1-16). B) Succession Law - Revocation of Probate - Suppression of Material Facts - Section 263 Indian Succession Act, 1925 - Probate obtained by fraud or suppression of facts can be revoked - The court held that the grant of probate to the respondent without disclosing the appellant's status as co-executor and the pending caveat amounts to fraud on the court, and the probate is liable to be revoked (Paras 10-16). C) Civil Procedure - Caveat - Effect of Filing Caveat - Section 284 Indian Succession Act, 1925 - Filing of caveat by one executor prevents grant of probate without notice to the caveator - The court held that the caveat filed by the appellant was still in force when probate was granted, and the grant without notice to the caveator is void (Paras 8-12).
Issue of Consideration
Whether the grant of probate to one executor without the consent and knowledge of the other executor is valid, and whether the failure to disclose the existence of a co-executor and the filing of a caveat amounts to suppression of material facts warranting revocation of probate.
Final Decision
Appeals allowed. Order dated 20th December 2018 dismissing revocation application set aside. Probate granted on 21st December 2010 revoked. Probate petition restored to file and directed to be heard afresh after notice to all executors.
Law Points
- Probate must be granted to all executors jointly
- Non-disclosure of material facts vitiates probate grant
- Executor cannot act unilaterally without consent of co-executor
- Section 222 Indian Succession Act 1925 requires joint grant to all executors
- Court has inherent power to revoke probate obtained by suppression of facts
