Case Note & Summary
The petitioner, Adil Phiroz Makhania, filed a Miscellaneous Petition seeking revocation of probate granted by the Bombay High Court in Testamentary Petition No. 701 of 2003 on 24th May 2004. The probate was granted in favour of the respondents, Dilip Gordhandas Gondalia and Aspi Barjor Deboo, who were named as executors and trustees under the alleged Will of Ms. Roshan Dadi Arsiwalla dated 11th November 2002. The petitioner claimed to be a maternal cousin of the deceased and a legal heir under Schedule II Part 2 of the Indian Succession Act, 1925. The respondents had filed the probate petition stating that the deceased left no sister, only a predeceased brother, and only one first cousin, Fredun Nadir Shaw Arsiwalla, who filed a consent affidavit. The petitioner contended that he was also a cousin and legal heir, but was not served with any citation, while Fredun was served. The court found that the petitioner was a legal heir and ought to have been cited. The failure to serve citation on the petitioner, while serving another cousin, amounted to a fraud on the court. The court allowed the petition, revoked the probate granted on 24th May 2004, and directed the respondents to pay costs of Rs. 25,000 to the petitioner.
Headnote
A) Succession Law - Revocation of Probate - Service of Citation - Indian Succession Act, 1925, Sections 263, 283 - The court considered whether non-service of citation on a legal heir who is a cousin of the deceased amounts to a ground for revocation of probate. The court held that the petitioner, being a maternal cousin, was a legal heir under Schedule II Part 2 of the Indian Succession Act, 1925, and ought to have been cited. Failure to serve citation on the petitioner, while serving another cousin, constituted a fraud on the court, and the probate was revoked. (Paras 1-10) B) Succession Law - Executor - Fiduciary Capacity - Indian Succession Act, 1925, Section 222 - The court noted the argument that respondent no.1, being the chartered accountant of the deceased, could not have been appointed as executor due to fiduciary relationship, but did not decide this issue as the petition was allowed on the ground of non-service of citation. (Para 4)
Issue of Consideration
Whether the probate granted in favour of the respondents is liable to be revoked on the ground that the petitioner, being a legal heir of the deceased, was not served with citation and the probate was obtained fraudulently.
Final Decision
The court allowed the petition, revoked the probate granted on 24th May 2004, and directed the respondents to pay costs of Rs. 25,000 to the petitioner.
Law Points
- Revocation of probate
- Service of citation
- Legal heir
- Fraud on court
- Indian Succession Act
- 1925
- Schedule II Part 2
