Case Note & Summary
The case concerns a revocation petition filed by Angelina Pascoal Mendes and Philomena Pascoal Mendes (petitioners) seeking to revoke the grant of probate of the Will of Joseph John Remedios (Joseph) in favor of Savio D'Souza (respondent). Joseph died on 4th January 2013 leaving a Will dated 1st January 2013, naming Savio as executor and major legatee. Savio filed Testamentary Petition No. 119 of 2014 for probate, without citing the petitioners. The petitioners, who are sisters of Joseph's predeceased wife Maria, claimed they were heirs entitled to citation. The court analyzed the relevant provisions of the Indian Succession Act, 1925, particularly Sections 32 to 35, which define the order of succession for intestates other than Parsis. It held that 'kindred' refers to blood relatives of the deceased, not relatives of the predeceased spouse. Since the petitioners were not blood relatives of Joseph, they were not his heirs and had no right to be cited. The court also noted that Savio, as executor, was duty-bound to apply for probate. The revocation petition was dismissed with no order as to costs.
Headnote
A) Succession Law - Probate - Citation - Heirs of Predeceased Spouse - Sections 32, 33, 33A, 34, 35, Indian Succession Act, 1925 - The court considered whether sisters of the testator's predeceased wife are 'kindred' of the testator and thus entitled to citation in probate proceedings. Held that under the Indian Succession Act, only kindred of the deceased (blood relatives) are heirs; kindred of the predeceased spouse are not heirs of the testator. Therefore, the petitioners were not required to be cited. (Paras 5-7) B) Succession Law - Probate - Revocation of Grant - Section 263, Indian Succession Act, 1925 - The court examined whether the grant of probate should be revoked for non-citation of the petitioners. Held that since the petitioners were not heirs of the testator, there was no duty to cite them, and no ground for revocation was made out. (Paras 8-9)
Issue of Consideration
Whether the petitioners, being sisters of the testator's predeceased wife, are heirs of the testator and thus entitled to be cited in probate proceedings.
Final Decision
The Miscellaneous Petition No. 39 of 2017 is dismissed. No order as to costs.
Law Points
- Probate
- Citation
- Heirs
- Kindred
- Indian Succession Act 1925
- Section 32
- Section 33
- Section 33A
- Section 34
- Section 35
- Section 283
- Testamentary and Intestate Jurisdiction
