Case Note & Summary
The appeal arose from an order of a learned Single Judge of the Bombay High Court dismissing a Miscellaneous Petition for revocation of probate granted in favour of the First Respondent, Jyotsanaben Doshi, as executor of the last will and testament of Pranlal Sunderji Doshi. Pranlal died on 30 March 1991, leaving behind his widow (Respondent No.1), two sons (the Appellant and Respondent No.2), and two daughters. The will appointed the Appellant and Respondent Nos.1 and 2 as trustees and executors. Respondent No.1 applied for probate, and the Appellant filed an affidavit dated 12 September 2003 consenting to her applying alone. Probate was granted on 24 November 2003. On 6 April 2008, the Appellant filed a petition for revocation of probate, alleging mismanagement of properties, failure to give effect to the will's directions, and non-filing of inventory and accounts. On 9 December 2010, the Appellant amended the petition to challenge the genuineness of the will, claiming the deceased's signature differed from specimens. The learned Single Judge dismissed the petition, holding that revocation was not the proper remedy for mismanagement, and that the Appellant's consent estopped him from challenging the will. The Judge also compared signatures under Section 73 of the Evidence Act and found the will genuine. The Division Bench upheld the order, agreeing that revocation was not warranted and that the proper remedy was removal of the executor. The appeal was dismissed.
Headnote
A) Succession Law - Revocation of Probate - Grounds for Revocation - Section 263 of Indian Succession Act, 1925 - Revocation of probate is not permissible merely on grounds of mismanagement or failure to administer estate; the proper remedy is removal of executor and appointment of another. Held that the petition for revocation was misconceived (Paras 5-6). B) Evidence Law - Comparison of Signatures - Section 73 of Indian Evidence Act, 1872 - Court may compare signature on original will with admitted signatures on certified copies of court proceedings. Held that the learned Single Judge correctly compared signatures and found the will genuine (Para 5). C) Succession Law - Consent to Probate - Estoppel - Once a beneficiary consents to grant of probate, he cannot later challenge the genuineness of the will. Held that the appellant's amended case challenging the will was inconsistent with his earlier consent (Para 5).
Issue of Consideration
Whether a probate granted with consent can be revoked on grounds of mismanagement or subsequent challenge to the will's genuineness
Final Decision
Appeal dismissed; order of learned Single Judge dated 28 January 2011 dismissing Miscellaneous Petition for revocation of probate upheld.
Law Points
- Probate once granted cannot be revoked on grounds of mismanagement or failure to administer estate
- consent to probate estops later challenge to will's genuineness
- Section 73 of Evidence Act allows court to compare signatures
- revocation of probate requires fraud or lack of jurisdiction
