Case Note & Summary
The petitioner, Raana Haripada Roy, son of the deceased Haripada Roy, filed a Miscellaneous Revocation Petition under the Testamentary and Intestate Jurisdiction of the Bombay High Court seeking revocation of the grant of probate dated 10 May 2006 in respect of the Will dated 8 November 2002 of his father. The probate had been granted to the respondent, Subhash Chander Rewari, one of the executors named in the Will. The petitioner had previously filed a consent affidavit in the probate petition, giving his no objection to the grant of probate without service of citation. The revocation petition was filed on 27 June 2013, more than seven years after the grant. The petitioner raised several grounds: (i) gross delay in filing the probate petition (filed in April 2005, though the deceased died on 25 November 2002); (ii) only one of three executors applied for probate; (iii) the attesting witness affidavit stated that witnesses signed at the foot of the Will and that there were initials on each page, but the Will produced did not contain such initials; and (iv) the signature of witnesses was on a separate page, not below the testator's signature. The respondent opposed the petition, arguing that the petitioner had given his consent and that the petition was barred by delay and laches. The court held that the petitioner had not explained the delay of seven years in filing the revocation petition. The court noted that the petitioner had filed a consent affidavit at the time of the probate grant, and that the grounds raised, even if true, did not justify revocation in view of the consent. The court dismissed the petition with costs, finding no merit in the grounds raised.
Headnote
A) Succession Law - Revocation of Probate - Section 263, Indian Succession Act, 1925 - Delay and Laches - Petition for revocation of probate filed after seven years from grant - Petitioner had filed consent affidavit at the time of grant - Held that unexplained delay and consent given by petitioner disentitles him to revocation (Paras 4-6).
B) Succession Law - Attestation of Will - Section 63, Indian Succession Act, 1925 - Signature of witnesses on separate page - Alleged absence of initials on each page - Held that such irregularities, even if true, do not constitute grounds for revocation under Section 263 in view of the consent given by the petitioner (Para 3).
Issue of Consideration
Whether the grant of probate should be revoked on grounds of delay in filing probate petition, non-joinder of all executors, and alleged irregularities in attestation of the Will, and whether the petition is barred by delay and laches.
Final Decision
The petition is dismissed with costs. The court found no merit in the grounds raised and held that the petitioner's consent and unexplained delay disentitled him to revocation.
Law Points
- Revocation of probate
- delay and laches
- consent affidavit
- Indian Succession Act
- 1925
- Section 263
- Order IX Rule 13 CPC analogy
Case Details
2013 LawText (BOM) (09) 128
MISC. REVOCATION PETITION NO. 79 OF 2013 IN PETITION NO. 436 OF 2005
Mr. Vivek Kantawala for the Petitioner; Mr. Aditya Khandeparkar for the Respondent
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Nature of Litigation
Petition for revocation of grant of probate under testamentary and intestate jurisdiction.
Remedy Sought
Revocation of probate granted on 10 May 2006 in respect of the Will dated 8 November 2002 of Haripada Roy.
Filing Reason
Alleged irregularities in the probate proceedings including delay in filing probate petition, non-joinder of all executors, and defective attestation of the Will.
Previous Decisions
Probate was granted on 10 May 2006 by this Court in Petition No. 436 of 2005 in favour of the respondent executor, based on consent affidavits filed by all legal heirs including the petitioner.
Issues
Whether the petition for revocation of probate is maintainable in view of the consent affidavit filed by the petitioner at the time of grant?
Whether the grounds raised (delay in filing probate petition, non-joinder of executors, and attestation irregularities) constitute sufficient grounds for revocation under Section 263 of the Indian Succession Act, 1925?
Whether the petition is barred by delay and laches?
Submissions/Arguments
Petitioner argued that there was gross delay in filing the probate petition (filed in April 2005, death in November 2002), only one executor applied, and the Will had defective attestation (witnesses signed on separate page, no initials on each page).
Respondent argued that the petitioner had given his consent by filing an affidavit, and the petition was filed after seven years without explanation, thus barred by delay and laches.
Ratio Decidendi
A petition for revocation of probate under Section 263 of the Indian Succession Act, 1925, cannot be entertained when the petitioner has given his consent to the grant and has not explained the inordinate delay in filing the revocation petition. The grounds raised, even if true, do not warrant revocation in such circumstances.
Judgment Excerpts
By this petition, petitioner seeks revocation of grant of probate dated 10th May, 2006 issued by this Court in respect of the Will dated 8th November, 2002 of the deceased Mr.Haripada Roy who died on 25th November, 2002.
In paragraph (4) of the said affidavit, deponents including the petitioner gave their no objection and gave their full and free consent that the probate be granted in favour of Mr.Subhash Chander Rewari without service of any citation/notice upon them and without justifying any surety in respect of their share in the estate of the deceased.
The petitioner has not explained the delay of seven years in filing this petition. In my view, the petitioner having given his consent at the time of grant of probate, cannot now be allowed to challenge the same after a period of seven years.
Procedural History
The deceased Haripada Roy died on 25 November 2002. On 8 November 2002, he executed a Will appointing three executors. On an unspecified date in April 2005, one executor, Subhash Chander Rewari, filed Petition No. 436 of 2005 for probate. Consent affidavits were filed by the legal heirs including the petitioner on an unspecified date. On 10 May 2006, the court granted probate. On 27 June 2013, the petitioner filed the present Misc. Revocation Petition No. 79 of 2013 seeking revocation of the probate. The petition was heard and dismissed on 17 September 2013.
Acts & Sections
- Indian Succession Act, 1925: 263
