| SooperKanoon Citation | sooperkanoon.com/1144273 |
| Court | Mumbai High Court |
| Decided On | Apr-29-2014 |
| Case Number | Miscellaneous Petition No. 29 of 2014 In Testamentary Petition No. 701 of 2003 With Notice of Motion (L) No. 69 of 2013 |
| Judge | R.D. DHANUKA |
| Appellant | Adil Phiroz Makhania |
| Respondent | Dilip Gordhandas Gondalia and Another |
Oral Judgment:
1. By this petition, the petitioner seeks revocation of the probate granted by this court in testamentary and intestate petition No. 701 of 2003 by its order dated 24th May, 2003. The petitioner claims to be maternal cousin of Ms. Roshan Dadi Arsiwalla. The said Ms. Roshan Arsiwalla died on 25th June, 2003 (hereinafter referred to as the œsaid deceased?).
2. Some of the facts relevant for the purpose of deciding this petition are as under:
(a) The petitioner is son of the deceased' mother's brother. The names of the other legal heirs of the said deceased according to petitioner are described in paragraph 3 of the petition. The said deceased has alleged to have left a Will on 11th November, 2002. Under the said alleged Will, the respondent herein were appointed as executors and trustees.
(b) On 6th May, 2004 the respondent herein filed a petition (701 of 2003) in this court inter alia praying for probate in respect of the said alleged Will of the said deceased in their favour having effect through out the State of Maharashtra. In the said petition, it was alleged that the said deceased left no sister and only brother Nadir Shaw predeceased the deceased and left no daughter and left only first cousin i.e. father's brother's son viz. Mr. Fredun Nadir Shaw Arsiwalla. The deceased died as spinster and except the said Mr. Fredun Nadir Shaw Arsiwalla the said deceased left no other heirs. The said Mr.Fredun Nadir Shaw Arsiwalla filed a consent affidavit in favour of the respondents herein for grant of probate. On 24th May, 2004 this court granted probate of the alleged Will dated 11th November 2002 in favour of the respondents.
3. Mr. Kapadia learned senior counsel appearing for the petitioner submits that petitioner was also one of the legal heir of the said deceased and would fall under schedule II Part 2 of the Indian Succession Act. It is submitted that though Mr.Nadir shah was given a notice by the respondents of filing the petition by way of citation and though petitioner was admittedly a cousin of the said deceased was not served with any citation nor was cited in the said petition filed by the respondents. It is submitted that relation of Mr.Nadir shah and Mr.Pheroze through whom the petitioner is claiming is equal and thus petitioner ought to have been cited in the testamentary petition and ought to have been served with the citation.
4. Mr. Kapadia, learned senior counsel invited my attention to the alleged Will and would submit that the respondent no.1 who was a chartered accountant of the said deceased was alleged to have been appointed as an executor and also given alleged legacies under the said alleged Will. It is submitted that the respondent no.1 could not have been appointed as executor he was acting in fiduciary capacity. It is submitted that though an alleged bequest was made in favour of Mr.Fredun Arsiwala who was also described as cousin and though the petitioner was also cousin of the said deceased and were described as cousin and was given a request of Rs.2,51,000/- and other property in the alleged Will, respondents deliberately did not serve any citation upon the petitioner and obtained probate fraudulently.
5. Learned counsel submits that it is noticed by the petitioner that the said deceased was shareholder in several companies and on making enquiry it was noticed by the petitioner that none of such companies could trace any document containing signature of said deceased. Learned senior counsel submits that in the month of July 2013 i.e. after filing of the petition while petitioner was going through certain personal papers accidentally found the death certificate of one of the aunt of the petitioner Ms.Shirin Jahangirji Choksi was leaving with the said deceased till her death in 2000. The said Ms.Shirin Choksi was admitted in the Parsi General Hospital because of her old age and illness. The petitioner had received a call on 13th June, 2000 from the said deceased informing him about the death of Ms.Shirin Choksi and requested the petitioner to come along with her to collect the dead body. The petitioner immediately rushed to the Parsi General Hospital to take possession of the dead body of Ms.Shirin Choksi. It is submitted that the said deceased testator claimed the body of the said Ms.Shirin Choksi and signed Form 8 I.e. Medical Certificate of cause of death issued by Parsi General Hospital which was to be submitted to the tower of silence. The petitioner compared the signature on the Form 8 along with the signature on the alleged Will of the said deceased and found them to be different.
6. It is submitted by the learned senior counsel that the petitioner thereafter approached his lawyer who directed him to consult a handwriting expert to analyse the signatures in more detail. The petitioner obtained copy of report from handwriting expert Ms.Nisha Menon on 1st August 2013. Learned counsel invited my attention to the said report and the Form 8 which are annexed to the affidavit in rejoinder filed by the petitioner. It is submitted that the petitioner therefore partly discovered the fraud committed by the respondents before filing of the petition and partly after filing of the petition. Learned senior counsel submits that the petition is thus not barred by law of limitation.
7. My attention is invited to Rule 399 of the Bombay High (Original Side) Rules in support of the submission made by the learned senior counsel that the citation shall be served personally when possible on persons who are next of kin of the deceased. It is submitted that one of the respondent who was admittedly related to the said deceased was served with citation. Learned senior counsel submits that most of the benefits under the said alleged Will are from the employees of the respondent no.1. The respondents have not disclosed the alleged source of the Will in the testamentary petition filed by the respondents. It is submitted that when a person takes part in execution of a Will or propounds a Will, burden is stronger that the said Will is surrounded by suspicious circumstances and is fraudulent.
8. Mr. Kapadia learned senior counsel invited my attention to the affidavit in reply filed by the respondents and would submit that the respondents have failed to disclose what enquiries were made about the petitioner being relative of the said deceased and why he was not served with citation. My attention is invited to the schedule to the testamentary petition filed by the respondents in which the respondents have originally claimed that one Mr.U.Kumar who was bequeathed a sum of Rs.1 lacs, the estate was shown as liable to pay Rs.10 lacs to the said Mr. U.Kumar. The said liability of Rs.10 lacs initially claimed was subsequently deleted.
9. Learned senior counsel submits that the handwriting expert whose opinion is annexed at Exh.A to the rejoinder clearly discloses and confirms that the signature of the deceased on the alleged will does not tally with the signature of the deceased on form 8. Learned senior counsel submits that the respondents have suppressed the fact from this court that the petitioner was also one of the legal heirs and or next of kin of the said deceased and obtained the Letters of administration fraudulently from this court. It is submitted that in view of such fraud committed by respondents in obtaining letters of administration, cause of action for filing petition for revocation of letters of administration would commence only on the date of knowledge of such fraud derived by the petitioner.
10. Learned senior counsel submits that though the petitioner had addressed a letter on 19th July, 2007 to the respondents stating that the petitioner was the beneficiary under the last will and testament of the said deceased and had recorded that he was told by the respondent that probate would be issued in a short time and the property would be thereafter disbursed as per the said will, the petitioner was not having full knowledge of the fabrication of the alleged will and about the fraud committed by the respondents on this court and the petitioner. It is submitted that the respondents did not give any reply to the said letter dated 19th July, 2007 which was admittedly received by the respondents.
11. Learned senior counsel submits that in so far as letters which are annexed at Exh. 3 and 4 of the affidavit in reply, petitioner has not received any such letters from the respondents or from advocate of the respondents. Learned counsel submits that procedure for personal service of citation under rule 399 of High Court Original Side Rules is not dispensed with. Mr. Kapadia learned senior counsel placed reliance on the judgment of this court in the case of Peter John D'souza and Ors. Versus Armstrong Joseph D'souza delivered on 28th March, 2014 in Misc. Petition No. 69 of 2012 and would submit that if a fraud is committed upon the court, court can even sou motu set aside the probate and or letters of administration. Paragraph 20 and 21 of the said judgment read thus:
œ20. I am not inclined to accept the submission of Mr. Kumbhakoni, learned senior counsel that merely because there was no specific bequest in the Will of the deceased in respect of the plots in which the petitioners claim interest, the petitioners cannot be even allowed to urge and bring to the notice of this Court the fact of fraud, fabrication or concealment. In my view, Court can take cognizance of the allegation of fraud, fabrication or concealment even at the instance of a party who claims even a slightest interest in the property of the deceased. Once the allegation of fraud, fabrication or concealment is brought to the notice of the Court, which is alleged to have been committed by the opposite party for obtaining letters of administration from a Court, it becomes the duty of the Court to look into such allegation whether any grant of letters of administration is obtained by a party from the Court by practicing fraud, fabrication or concealment. The Court can take cognizance of such allegation suo moto and if it comes to the conclusion that the grant is obtained fraudulently or by making false suggestion or by concealment of such fact, it is duty of Court to set aside such grant.
21. In my view, the whole premise of obtaining the letters of administration was that the deceased died intestate and had not left any Will and on that ground the petition for letters of administration came to be filed. If the petitioners would have disclosed the existence of the Will of the said deceased, such petition for letters of administration on the premise that the deceased died intestate would not have been even maintainable. In my view, the respondent has suppressed the existence of the Will of the deceased and has made false statement in the petition. In any event, in view of the discovery of the Will, grant deserves to be revoked on that ground also.?
12. Mr. Kapadia learned senior counsel placed reliance on the judgment of Patna High Court in case of ShridharPrasad Parhi and anr Vs. Haraprasad Parhi and another, AIR (30) 1943 Patna 377 in support of his submission that the respondents will have to show that the petitioners had definite knowledge of fraud and some hint or clue is not enough. Relevant paragraph of the said judgment reads thus:
œNow it has been held that in cases falling under Section 18, Limitation Act, it is for the party who has committed fraud to show that the injured complainant has had clear and definite knowledge of the facts constituting the fraud. Proof of the fact that some hint or clue had reached the aggrieved party, which might have led to such knowledge was not considered enough in Rahimbhoy Habibhoy v. Charles Agnew Turner a decision of the Judicial Committee of the Privy Council. Another case in the Calcutta High Court was decided in Biman Chandra Datta v. Promotha Nath Ghose. Here it was held that once fraud had been established, once it is proved that by means of fraud the person aggrieved has been kept from the knowledge of his right, the burden is then shifted to the other side to show that the plaintiff had knowledge beyond the period of limitation and such knowledge must be clear and definite knowledge of the facts constituting the particular fraud. It is not enough for the defendant to show that the plaintiff had some clues and hints which perhaps, if vigorously and acutely followed up, might have led to a complete knowledge of the fact. Similarly, in Sm. Swarnamoyee Dasi v. ProbodhChandra MANU/WB/0200/1932: AIR1933Cal253 it was held that once the plaintiff had shown himself entitled to invoke Section 18, Limitation Act, time did not begin to run against him until he acquired knowledge of the facts and this means clear and definite knowledge of the facts, that is to say, something more than showing that the plaintiff had means available to him for coming to know of the fraud.
4. In the light of these decisions, I think it ought to be held that the petitioner, if his allegations are true, was entitled to reckon his date of knowledge from 25th October 1941 or at earliest from 9th October 1941 when the information was ready for him. That being so, the decision of the Collector must be set aside and the case must go back to him for consideration on the merits as to whether the allegations made by the plaintiff and held by the Rent Suit Deputy Collector to be true are in fact substantiated. Costs will abide the result.?
13. Mr. Kapadia learned senior counsel relied upon the photocopy of Petition No. 701 of 2003 which was filed by the respondents to show that the respondents had not disclosed and/or cited the petitioner in the said petition intentionally and fraudulently. At the request of the learned counsel appearing for the respondents a photocopy of the petition which is tendered by the learned senior counsel for the petitioner is taken on record.
14. Mr. Nair, learned counsel appearing on behalf of respondents on the other hand raised the plea of limitation in filing Misc. Petition for revocation of the probate granted in favour of the respondents by order dated 24th May, 2003. The petition has been lodged on 12th July, 2013. Learned counsel submits that there is no dispute that the address mentioned in the correspondence exchanged between the parties at the residential address of the petitioner has not changed. It is submitted that the entire petition is based on conjectures and is based on false premise that petitioner was not aware about the alleged will and probate proceedings taken out by the respondents and or was not informed by the respondents about the purported will. The petitioner suppressed the correspondence entered into between the parties which are relied upon by the respondents in the affidavit in reply.
15. It is submitted that in paragraph 14 of the petition it is alleged that a flat which was bequeathed to the petitioner was a tenanted property which the petitioner was not able to enjoy. Post the demise of the said deceased, tenancy rights in the said flat were surrendered without even taking the permission of the petitioner by father and aunt. The petitioner could not object to the same since he was not informed that the rights in the flat had been bequeathed to him.
16. Mr. Nair learned counsel invited my attention to letter dated 19th July, 2007 which was addressed by the petitioner to the advocate of the respondents and copy sent to the respondents. It is submitted that in the said letter the petitioner has referred to the testamentary Petition Number which was filed by the respondents for obtaining probate. Name of the new advocate who was engaged by the respondents after grant of probate by this court was also mentioned. The said letter was in fact addressed to the new advocate whose name was to the knowledge of the petitioner. The petitioner has not disputed the said letter addressed by the petitioner himself and which was sent to the advocate of the respondents. Learned counsel submits that the petitioner has got the entire photocopy of the original proceedings in testamentary petition (701 of 2003) which would clearly indicate that the petitioner was fully aware of the said proceedings, the order passed therein, name of the new advocate engaged by the respondents, after grant of probate by this court in favour of the respondents. The petitioner could refer to the testamentary petition number and could address such letter to the new advocate of the respondents only if the petitioner was fully aware of filing of the petition, orders passed therein and the change of advocate by the respondents after grant of probate. Learned counsel submits that similar letter was also addressed by the brother of the petitioner on the same date to the advocate of the respondents.
17. Learned counsel appearing for respondents invited my attention to the letter dated 5th November, 2008 from the then advocate of the respondents addressed to the petitioner calling upon the the petitioner to collect his cheque which was lying with the advocate since long time as the executors were in the process of winding up the estate. Similar letter was also addressed on the same date by the said advocate to the brother of the petitioner Mr. Minoo Makhania at the same address. Learned counsel submits that admittedly the brother of the petitioner has received sum of Rs.1 lac which was bequeathed to him under the said will and who had accepted the said amount in full and final settlement of his dues. The petitioner has not disputed the said receipt issued by his brother acknowledging the receipt of Rs.1 lac on 21st April, 2009. It is submitted that the petitioner has thus made a false statement that he has not received any such letter dated 5th November, 2008 from the advocate of the respondents. Learned counsel invited my attention to paragraphs 3 of the affidavit in rejoinder in which it is admitted by the petitioner that in or around 2010 his brother Minoo Makhania had informed him that he had collected amount of Rs. 1 lac under the alleged will of the said deceased. It is submitted that the statement of the petitioner that he was not at all aware of the will left by the said deceased, petition filed by the respondents and the probate granted by this court is totally false and misleading. It is submitted that in any event the petitioner with due diligence could have found out the status of the testamentary petition filed by the respondents and the orders passed therein as he was fully aware of atleast filing of petition and the existence of will. Petitioner was having photocopy of the entire proceedings in the testamentary petition filed by the respondents which is produced for perusal of this court.
18. Learned counsel submits that from the year 2007 till 2013, the petitioner did not take any steps to verify whether any probate was granted by this court in favour of the respondents. It is submitted that about the alleged Form 8 issued by Parsi General Hospital, it was never alleged in the entire testamentary petition. Only after the matter was substantially argued by the parties including on the issue of limitation, petitioner in the rejoinder for the first time placed reliance on such alleged Form 8 and the alleged expert opinion. Learned counsel submits that in any event the said alleged expert's opinion is based on the photocopy/carbon copy of the alleged Form 8 and cannot be considered as conclusive. Learned counsel invited my attention to Form 8 relied upon by the petitioner and submits that the date of the death of the deceased Ms. Shirin J. Choksy issued by the Parsi General Hospital is dated 13th June, 2006. The date of the said certificate is dated 13th June, 2010. It is submitted that much prior to 13th June, 2006, the deceased testator had already expired and this court had already granted probate in respect of a will in favour of the respondents. It is submitted that the question of the said deceased testator signing the said death certificate acknowledging the collection of the dead body of Ms. Shirin J. Choksy on 13th June, 2006 or on 13th June, 2010 did not arise. It is submitted that the photocopy of the medical certificate alleged to have been issued by Parsi General Hospital itself is fraudulent. The entire opinion of the handwriting expert based on such fraudulent document cannot be thus relied upon. Learned counsel submits that in any event what is alleged for the first time in the rejoinder is by way of afterthought and such allegations are made after conclusion of the substantial arguments of both the parties. It is submitted that admittedly the original will was not inspected by the handwriting expert nor original of such alleged death certificate was perused by the handwriting expert.
19. Learned counsel submits that since the respondents were not aware as to whether petitioner was also a relative of the said deceased, citation was not served upon the petitioner though respondents acted with due diligence. The petitioner in any event had full knowledge of such will, filing of petition and the probate of such will issued in favour of the respondents. It is submitted that in any event the citation was already affixed on the board of this court and also in the office of Collector which amounts to public notice. Learned counsel submits that except addressing a letter on 19th July, 2007, the petitioner has admittedly not addressed any letter to the respondents.
20. Mr. Nair learned counsel appearing for the respondents placed reliance on the judgment of the Division Bench of this court in case of Nina Agarwal Versus Ashok Gupta and Ors. 2013 (4) Mh LJ 464 in support of his submission that article 137 is attracted to a petition for revocation of probate and or letters of administration and such petition has to be filed within three years from the date of grant of probate. Paragraph 9, 10 and 12 of the said judgment read thus:
œ9. Ms. Iyer, the learned Senior Counsel appearing for the Appellant submits that the citation in the probate proceedings were not served upon the Appellant and she was kept completely in the dark about the alleged Will dated 28 March, 1964 and the subsequent probate proceedings. According to Ms. Iyer, there was no reason for the learned Single Judge to disbelieve the Appellant particularly when she states on oath that she learnt about the alleged Will dated 28 March, 1964 and grant of the probate on 12 March, 1973 only during the City Civil Court proceeding filed by her for injunction to protect the ancestral property. The Counsel states that immediately on learning in the City Civil Court proceedings of the grant of Probate to the alleged Will dated 28 March, 1964, Appellant applied to this Court for revocation of the probate. The cause of action according to her would accrue only when the Appellant learnt about the alleged Will dated 28 March, 1964 and the grant of the probate when the Written Statement was filed in 2010 by the Respondent No. 1 in the City Civil Court proceedings. She further submits that decision of the Supreme Court in the matter of Krishna Kumar Sharma v/s. Rajesh Kumar Sharma reported in MANU/SC/0475/2009: 2009 AIR 3247 (SC) and in the matter of Kunvarjeet Singh Khandpur v/s. Kirandeep Kaur and Others, reported in MANU/SC/7451/2008: 2008 AIR 2058 (SC) support her contention that Article of the Limitation Act applied to probate proceedings and its revocation. For the purposes of limitation, time will begin to run only from the time the Appellant learnt about the grant of the probate. So far as partition suit is concerned, it is her submission that her claim for partition is not barred by limitation as till she claimed partition of her deceased father's property, the same was being held by her brother as a co-owner and not adverse to her. It is only when the Appellant come across the public notice inviting objections for sale of the suit property that for the first time interest adverse to her was being asserted and she sought partition. In the circumstances, the suit property ought to be protected till her claim for partition of the property devolving upon her on the death of her father on 13 October, 1964 is finally adjudicated at the trial of the suit.
10. As against above, Mr. Dhond, Senior Counsel appearing for the Respondent Nos. 1 to 4 submits that no fault can be found with the order of the learned Single Judge dismissing the Petition for revocation of the probate granted on 12 March, 1973. Mr. Dhond draws attention to the fact that from the records available in the Testamentary Department of the Court, there is evidence to show that the citation was affixed on the notice board on 28 April, 1971 as well as served on the next of kin on 12 May, 1971. This is duly supported by reference to an affidavit filed on 12 May, 1971 in the record found in the testamentary department. The Appellant has in the proceedings for revocation of probate made a bald statement that she was not aware about the alleged Will dated 28 March, 1964 and kept in dark about the probate proceeding. Mr. Dhond invites our attention to the High Court Rules and in particular to Appendix III-Part-I thereof to establish the fact that affidavits of service of citation are required to be preserved by the High Court only for a period of six years. It is these circumstances that Mr. Dhond contends that the application made for the revocation of probate granted on 12 March, 1973 is not a bona fide application as the necessary evidence to prove the service of the citation may not be available now and being aware of the same, the Appellant has filed the present Petition by making false and incorrect averments without any documents in support thereof. The petition for revocation being filed almost 38 years after grant of probate in 1973 itself evidences lack of bonafides. The decisions relied upon by the Appellant of the Supreme Court dealt with the period of limitation to file an application for probate and would have no application either for revocation of probate or for a suit for partition.
12. We have considered the submission. A grant of probate operates in rem and is good against all world. It is well settled that grant of a probate by a Competent Court is a Judgment in Rem which is not only binding upon the parties to the probate proceeding but also binding on the whole world. Therefore, the order granting a probate, is conclusive evidence as to the execution and validity of the Will till such a grant of probate is revoked. Therefore, the probate granted almost 38 years ago cannot be revoked unless the requirement of Section 263 of the Indian Succession Act, 1925 are satisfied/justified. The case of the Appellant is that this Court should in terms of Section 263 of the Indian Succession Act, 1925 revoke the probate as the proceedings leading to the grant of the probate were defective in substance in as much as the citation required to be served were not served upon her in accordance with Rules 399 and 400 of the Bombay High Court (Original Side) Rules before the grant of the Probate. This submission is completely negatived by the finding of fact recorded in the impugned order that in the original record of the probate proceedings in the Testamentary department called for by her, shows the hand written record of service of citation on the next of kin on 12 May, 1971 as well as affixing the citation on the notice board on 20 April, 1971. Reference in a joint affidavit of service filed on 12 May, 1971 is also found in the hand written record in the testamentary department of the Court.?
21. Mr. Nair also placed reliance on the judgment of this court delivered by the learned Single Judge on 14th October, 2013 in case of Lydia Agnes Rodrigues and Ors. Vs. Joseph Anthony D'cunha and Ors., in support of his submission that limitation for filing a petition for probate or letters of administration is three years under article 137 of schedule I of the Limitation Act, 1963. Reliance is placed on the said judgment also on the issue raised by the petitioner about applicability of section 17 of the Limitation Act. It is submitted that since the petitioner with due diligence could have ascertained the fact that the will was executed, petition for probate was filed, probate was obtained as far back as in the year 2004, petitioner cannot avail of the provisions under section 17 of the Limitation Act, 1963. Paragraphs 18 to 21, 24, 25, 27 to 33 of the said judgment read thus:
œ18. It is not in dispute that the deceased had left a Will on 20th February 1971 and the petitioners were aware of such Will. It is the case of the petitioners that since no steps were taken by the executor for obtaining probate of the said Will in last 30 years, petitioners were under impression that the said Will was abandoned and not acted upon. The petitioners, therefore, did not think it necessary to take any steps to file any proceedings for administration of estate of the said deceased and simultaneously there was no occasion to file any objection for want of service of citation upon them by the executor. It is submitted by Mr D'Mello during the course of argument that since the respondents were also family members and there was no development on the suit property and the status quo in respect of the possession of the said property continued for more than three decades as was prevailing on the date of death of the said deceased, petitioners did not think it necessary to make any contribution for payment of taxes and/or maintenance etc. in respect of the property.
19. The questions that arise for consideration of this Court are (i) whether petitioners have made out a case of fraud against the respondents and/or the said executor in obtaining probate of the Will of the said deceased upon the petitioners or their predecessors; (ii) whether inspite of due diligence, petitioners could come to know about such alleged fraud for the first time only in the month of December 2012; (iii) petition for revocation of probate is barred by law of limitation and (iv) whether grant can be revoked on any other ground.
20. It is not in dispute that petitioners as well as the said deceased were residing at Bandra. It is not in dispute that there was not a single letter addressed by the petitioners to the executor or any of the respondents after the demise of the said deceased pertaining to the administration of estate of the said deceased in last more than thirty three years. Petitioners have not contributed any amount towards maintenance and/or taxes in respect of the said immovable property which has been bequeathed in favour of the said executor by the said deceased and the said property was exclusively maintained by the said executor during his life time and thereafter by the respondents. I am not inclined to accept the submission of Mr D'Mello learned counsel appearing for the petitioners that it was not necessary to contribute any amount towards taxes or maintenance or to address any letter in last thirty three years to assert the rights by the petitioners in the estate of the said deceased, since there was no development on the suit property or otherwise. Since the petitioners were fully aware of the said Will, even if according to the petitioners, the same was surrounded by suspicious circumstances, petitioners could have filed a separate proceedings for administration of estate of the said deceased or would have called upon the executor to take appropriate steps for administration of estate of the said deceased. Admittedly no such proceedings have been filed by the petitioners. In my view, no legal heir who would claim share in the property of the deceased testator on intestacy, would be a mute spectator for thirty three years and would take no steps to seek redressal of his claims before any court of law.
21. On perusal of the annexures to affidavit in reply filed by the respondents, it is clear that the consent affidavits of the legal heirs were filed along with petition and signatures of such legal heirs were identified by Mr Karande, retired superintendent of this Court. Signatures on the said affidavit were attested by the Associate of this Court. In view of such consent affidavits, service of citation was not required. Only after compliance of such procedure by the executor and duly verified by the office of this Court, grant was issued in favour of the executor. I am not inclined to accept submission of Mr D'Mello that since signature of the executor who filed petition in person or parties on the consent affidavit was not identified by an advocate it would amount to forgery. It is not mandatory that any proceeding has to be filed only through an advocate. Parties are allowed to file proceedings in person and services/assistance of any person who is familiar with the procedure can be taken by such party appearing in person for filing any proceedings in the Court. It is not in dispute that out of signatures of four parties on consent affidavits, petitioners are not disputing the signature of the son of the deceased which was on the same affidavit and whose signature was also identified by Mr Karande, retired superintendent of this Court.
24. Supreme Court in case of PallavSheth (supra) in paragraph 47 of has held thus:
47. Section 17 of the Limitation Act, inter alia, provides that where, in the case of any suit or application for which a period of limitation is prescribed by the Act, the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of the defendant or his agent (Section 17(1)(b)) or where any document necessary to establish the right of the Plaintiff or Applicant has been fraudulently concealed from him (Section 17(1)(d)), the period of limitation shall not begin to run until the Plaintiff or Applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the Plaintiff or the Applicant first had the means of producing the concealed document or compelling its production. These provisions embody fundamental principles of justice and equity, viz, that a party should not be penalised for failing to adopt legal proceedings when the facts or material necessary for him to do so have been wilfully concealed from him and also that a party who has acted fraudulently should not gain the benefit of limitation running in his favour by virtue of such fraud. In paragraph 41 of the said Judgment, it is held by the Supreme Court that one of the principles underlying the law of limitation is that a litigant must act diligently and not sleep over its rights.
25. In case of BhauraoDagdu Paralkar (supra), Supreme Court has held that 'Fraud' and collusion vitiate even most solemn proceedings in any civilized system of jurisprudence. Similar view has been taken by the Supreme Court in case of S.P. Chengalvaraya Naidu (supra). Paragraph 7 and 8 of said Judgment in case of S.P.Chengalvarayaread thus:
œ7. The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax- evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.
8. The facts of the present case leave no manner of doubt that Jagannath obtained the preliminary decree by playing fraud on the court. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. Jagannath was working as a clerk with Chunilal Sowcar. He purchased the property in the court auction on behalf of Chunilal Sowcar. He had, on his own volition, executed the registered release deed (Exhibit B-1S) in favour of Chunilal Sowcar regarding the property in dispute. He knew that the appellants had paid the total decretal amount to his master Chunilal Sowcar. Without disclosing all these facts, he filed the suit for the partition of the property on the ground that he had purchased the property on his own behalf and not on behalf of Chunilal Sowcar. Non-production and even non-mentioning of the release deed at the trial tantamounts to playing fraud on the court. We do not agree with the observations of the High Court that the appellants-defendants could have easily produced the certified registered copy of Exhibit B-15 and non-suited the plaintiff. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party.?
27. Madras High Court in case of The Ramanathapuram Market Committee (supra) and in particular paragraph 14 has held that in a case where the defendant challenges the allegation of the plaintiff as to the date of knowledge, it is for the plaintiff to establish that he could not have discovered the mistake with reasonable diligence on a date earlier than that on which the plaintiff bases his cause of action. Paragraph 14 of the said Judgment reads thus:
œ14. The difference in the context and the language adopted by the old and the new Acts is rather significant. In the old Act, stress is laid on the knowledge of the per SOD, who wants to take advantage of the enlarged period of limitation. In the new Act, emphasis is on the date when the plaintiff has discovered the fraud or mistake or could, with reasonable diligence, have discovered it. By the "use of the phrase "with reasonable diligence" in Section 17ofthe Act, the Legislature has given scope to the defendant to contend that the date of knowledge or discovery pleaded is not the sure date of such discovery of mistake or fraud. It is open to the defendant to establish that "with reasonable diligence" the plaintiff could have discovered the fraud or the mistake earlier. The plaintiff, therefore, is not mechanically permitted to adduce a plea over the matter in issue as a step in aid to maintain the action. Where the legality of some proceeding is the matter in dispute between the two parties, he, who maintains its legality and seeks to take advantage of it, cannot rely upon the proceeding itself as a bar to the adverse party. To do so, would involve the logical fallacy of' petitio principi and would in many cases preclude redress to the aggrieved party. If the plaintiff's allegation as to the date of the knowledge of mistake is adapted and accepted as a matter of course, then he would automatically' be licensed to prejudice his adversary.' A fortiori in a case where the defendant challenges the allegation, it is for the plaintiff to establish that he could not have discovered the mistake, "with reasonable diligence" on a date earlier than that on which the plaintiff bases his cause of action. As is said, it would be unreasonable to expect an exact definition of the word ''reasonable". Reason varies according to times and circumstances in which the individual thinks. Thus, the word "reasonable" has always been understood in law as prim a facie mean in g, reasonably in regard to those circumstances of which the actor called on to act reasonably, knows or ought to know. It is also a fundamental maxim, of things relating to each other, one being known, the other is also known". In the instant case, when the plaintiff knew about the cancellation of the earlier notification by a later notification then it is normally and reasonably expected that it knew or with reasonable diligence ought to have discovered that the payments made by it under the earlier cancelled notification were irregular and improper and the payments were made under a mistake of law or of fact. The cancellation of the earlier order is intimately connected with the mistake in the payments made by the plaintiff pursuant to the first withdrawn order. As' it knew or ought to have known and with reasonable diligence should have discovered that the earlier notification has become inoperative by its cancellation under the second notification, then that being known, then the other,' namely, that it should seek for the refund of the said amounts on such discovery within the prescribed period of limitation, could have been known also. Such, a discovery is possible because of the impact of one event as against the other.
28. On perusal of paragraph 47 of the Judgment of Supreme Court in case of PallavSheth v. Custodian and Ors. (supra), it is clear that under Section 7(1)(d) of the Limitation Act, the period of limitation shall not begin to run until the plaintiff or applicant had discovered the fraud or the mistake or due diligence had discovered it. Question that arises for consideration is whether petitioner in this case could have without reasonable diligence discovered alleged fraud played by the executor in respect of the Will of the said deceased in last thirty three years. It is not in dispute that petitioners were fully aware of the Will of the said deceased. All parties to this proceedings including the executor and the said deceased were residing at Bandra at the relevant time. It is not the case of the petitioners that in spite of reasonable/due diligence, petitioners could not ascertain about the proceedings if any filed by the executor for obtaining probate or for administration of the estate of the said deceased. Petitioners never bothered to make any inquiry by addressing any single letter to the executor to ascertain about the proceedings if any filed by him in respect of the said Will. It is not the case of the petitioners that any inquiry was made by the petitioners in this Court to ascertain the status of any proceedings till recently. In my view, if the petitioners would have taken reasonable steps and would have acted with reasonable and due diligence in last thirty three years, petitioners could have come to know about filing of the probate petition by the executor and issuance of grant in his favour by this Court as far back as in the year 1980.
29. Testamentary proceedings are proceedings in rem. Issuance of grant by this Court would also be a deemed notice. Supreme Court in case of Dilboo(supra) has held that where a fact could be discovered by due diligence by the plaintiff, then deemed knowledge would be attributed to the plaintiff because a party cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge. In my view, the petitioners cannot just simply take an excuse of lack of knowledge of the alleged fraud without taking any reasonable steps or acting with reasonable diligence to ascertain such facts. In my view, the petitioners would have deemed knowledge of filing of such petition by the executor and issuance of grant by this Court. Limitation in this case thus would commence on the date of issuant of grant by this Court which was in the year 1980 and would not commence in the year 2012 when public notice was issued by the respondents in the newspaper.
30. Next submission of Mr Owen Menezes, learned counsel for the respondents is that Article 137 of Schedule-I to the Limitation Act would be attracted for filing petition for revocation of probate. Reference to Article 137 and some of the Judgments relied upon by Mr Menezes would be relevant. Article 137 of schedule-I of Limitation Act reads thus:
| Description of application | Period of limitation | Time from whichperiod begins torun | |
| Art. 137 | Any other application for which no period oflimitation is provided elsewhere in this division. | Three years | When the right toapply accrues |
9. The Letters of Administration were granted in ancillary proceedings by this Court on 25.11.1994. The present petition for revocation of the said grant has been filed on 21.7.1999. In the above referred judgment of the Division Bench of this Court, it is also held that the application for revocation of grant is covered by Article of the Limitation Act, 1963, which requires the application to be filed within 3 years from the date when right to apply accrues. The period spent the notice of motion from 29.3.1997 to 1.4.1998 even if excluded from consideration, the present petition is filed beyond the period of three years from 25.11.1994 as three years period expired on 24.11.1997 and the present petition is filed on 21.7.1999. The period of seven months and two days spent in pursuing the remedy of notice of motion even if excluded, the petition is hopelessly barred by time. 32. The division bench of this Court in case of Nina Agarwalla (supra) and in particular paragraph 13 has held that Article 137 of the Limitation Act would apply to the proceedings for revocation of probate filed under Section 263 of Indian Succession Act 1925. Paragraph 13 of the said Judgment reads thus:
œ13. The Appellant has not been able to show any evidence to establish that the citation was not served upon her. We find it difficult to accept on her mere statement that the citation was not served upon her, particularly in view of the records of the testamentary department of the Court and the fact that probate was granted more than 38 years ago. So far as the decisions of the Supreme Court in the matter of Kunvarjeet Singh (supra) is concerned, the same dealt with the issue of grant of probate and not with revocation of probate. In any case, in the facts of the present case in the absence of the Appellant being able to show that citations were not served upon her and she was kept in dark about the Will dated 28 March, 1964, the provision of Section 263 of Indian Succession Act, 1925 is not satisfied. Moreover, one must keep in mind that a grant of probate by a Competent Court operates as a judgment in Rem and once the probate to the Will is granted, then the said probated Will is good not only in respect of the parties to the proceedings, but against the whole world. Therefore, if the probate is granted, the same operates in Rem and time runs from the date of the grant of the probate for purposes of limitation under Article of the Limitation Act in proceedings for revocation of probate.?
33. I am bound by the Judgment of division bench of this Court in case of Nina Agarwalla (supra) in which it has been held that Article 137 would be attracted to the proceedings filed under Section 263 of the Indian Succession Act. In my view, Article 137 would be applicable to this proceedings which provides for three years limitation and time commences when the right to sue accrues. In this case petitioners were granted probate in the year 1980. Time to file petition for revocation under Section 263 thus would commence in the year 1980 i. e. the date on which probate was granted by this Court. Petition for revocation of probate has been filed by the petitioners on 22nd July 2013. The petition is thus, on the face of it barred by limitation.?
22. Mr. Nair learned counsel distinguished the judgment of Patna High Court relied upon by the learned senior counsel appearing for the petitioner and the judgment of this court delivered on 28th March, 2014 in case of Peter John D'souza and Ors (supra).
23. Mr. Kapdaia learned senior counsel appearing for the petitioner in rejoinder made an attempt to distinguish the judgment of this court in case of Lydia Agnes Rodrigues (supra) on the ground that citation was already served in that matter upon the petitioner and he did not take any steps.
24. Learned senior counsel submits that though the petitioner in the rejoinder has alleged that the will was forged and the respondents have obtained the probate fraudulently and has proved that the signature of the deceased on the alleged will was fraudulent and forged, respondents have neither controverted such facts by filing any sur-rejoinder nor has chosen to lead any oral evidence to prove such allegations and thus what is stated in the affidavit in rejoinder shall be deemed to have been proved. Mr. Kapadia learned senior counsel placed reliance on the judgment of Supreme court in the case of Needle Industries (India) Ltd. And Ors. Vs. Needle Industries Newey (India) Holdings Limited and Ors. AIR 1981 SC 1298 and in particular paragraph 61 and 63 and would submit that without leading oral evidence, respondents could not prove that the allegations of forgery and fabrication made by the petitioner were false and that the deceased had executed the will. Paragraph 61 and 63 of the said judgment read thus:
œ61. Shri Nariman raised at the outset an objection to a finding of mala fides or abuse of the fiduciary position of Directors being recorded on the basis merely of affidavits and the correspondence, against the NIIL'S Board of Directors or against Devagnanam and his group. He contends: Under the Company Court Rules framed by this Court, petitions, including petitions under Section 397, are to be heard in the open court (Rules 11(12) and Rule 12(1), and the practice and procedure of the Court and of the Civil Procedure Code are applicable to such petitions (Rule 6). Under Order XIX Rule 2 of the Code, it is open to a party to request the Court that the deponent of an affidavit should be asked to submit to cross-examination. No such request was made in the Trial Court for the cross-examination of Devagnanam who, amongst all those who filed their affidavits, was the only person having personal knowledge of everything that happened at every stage. Why he did or did not do certain things and what was his attitude of mind on crucial issues ought to have been elicited in cross-examination. It is not permissible to rely argumentively on inferences said to arise from statements made in the correspondence, unless such inferences arise irresistibly from admitted or virtually admitted facts. The verification clause of Mackrael's affidavit shows that he had no personal knowledge on most of the material points. Raeburn who, according to Mackrael, was the Chief negotiator on behalf of the Holding Company in the Birmingham meeting did not file any affidavit at all. Whitehouse, the Secretary of the Holding Company and N.T. Sanders who was the sole representative of the Holding Company on NIIL's Board of Directors, did file affidavits but they are restricted to the question of the late receipt of the letter of offer of shares and the notice for the Board meeting of May 2, 1977. Their affidavits being studiously silent on all other important points and the affidavit filed on behalf of the Holding Company being utterly inadequate to support the charge of mala fides or abuse of the Directors' fiduciary powers, it was absolutely essential for the Holding Company to adduce oral evidence in support of its case or at least to ask that Devagnanam should submit himself for cross-examination. This, according to Shri Nariman, is a fundamental infirmity from which the case of the Holding Company suffers and therefore, this Court ought not to record a finding of mala fides or of abuse of powers, especially when such findings are likely to involve grave consequences, moral and material, to Devagnanam and jeopardise the very functioning of NIIL itself.
63. We appreciate that it is generally unsatisfactory to record a finding involving grave consequences to a person on the basis of affidavits and documents without asking that person to submit to cross-examination. It is true that men may lie but documents will not and often, documents speak louder than words. But a total reliance on the written word, when probity and fairness of conduct are in issue, involves the risk that the person accused of wrongful conduct is denied an opportunity to controvert the inferences said to arise from the documents. But then, Shri Nariman's objection seems to us a belated attempt to avoid an inquiry into the conduct and motives of Devagnanam. The Company Petition was argued both in the Trial Court and in the Appellate Court on the basis of affidavits filed by the parties, the correspondence and the documents. The learned Appellate Judges of the High Court have observed in their judgment that it was admitted, that before the learned trial Judge, both sides had agreed to proceed with the matter on the basis of affidavits and correspondence only and neither party asked for a trial in the sense of examination of witnesses. In these circumstances, the High Court was right in holding that, having taken up the particular attitude, it was not open to Devagnanam and his group to contend that the allegation of mala fides could not be examined, on the basis of affidavits and the correspondence only. There is ample material on the record of this case in the form of affidavits, correspondence and other documents, on the basis of which proper and necessary inferences can safely and legitimately be drawn.?
25. Mr. Nair leaned counsel for respondents submitted that since the petitioner has not disputed the existence of the will and was fully aware of the execution of such will, filing of petition by the respondents and the probate granted by this court in favour of the respondents, there was no question of leading any oral evidence. The petitioner has not led any oral evidence to prove the allegations of forgery and fabrication. It is submitted that since the rejoinder is filed after substantial arguments were advanced by both the parties, respondents have proceeded with the matter on the basis of denials of such allegations. The learned counsel distinguished the judgment of Supreme Court in the case of Needle Industries (supra).
26. A perusal of the petition No.701 of 2003 filed by the respondent indicates that the respondents had alleged in the petition that the said deceased had left only Mr. Fredun Arsiwalla who was the first cousin (father's brother's son). A perusal of the letter dated 19th July, 2007 however, indicates that the petitioner was fully aware of not only the filing of testamentary petition by the respondents but also about the name of the new advocate who was engaged by the respondents after grant of probate. It is not in dispute that the petitioner has addressed such letter to the advocate for the respondents who was appointed after grant of probate by this court in favour of the respondents. Similar letter was also addressed by the brother of the petitioner on the same day.
27. The petitioner has admittedly not written any other letter after 19th July, 2007 though there appears to be no response by the respondents to the said letter. The brother of the petitioner has received copy of letter dated 5th November, 2008 from the then advocate of the respondents requesting him to collect his cheque lying with him, as the executors were in the process of winding up the estate. The brother of the petitioner has admittedly received sum of Rs.1 lac from the respondents by way of legacy under the will of the said deceased. The petitioner does not dispute the receipt signed by the brother of the petitioner. I am not inclined to accept the submission of the learned senior counsel appearing for the petitioner that though the brother of the petitioner had accepted a letter dated 5th November, 2008 at the same address as that of the petitioner and who had received the payment under the legacy of Rs. 1 lac, petitioner did not receive said letter dated 5th November, 2008 from the respondents at the same address. Be that as it may, in the rejoinder the petitioner himself had admitted that in or around 2010, his brother had collected the amount of Rs.1 lac under the alleged will of the said deceased on 27th April, 2009.
28. A perusal of the photocopy of the entire proceedings in Testamentary Petition No. 701 of 2003 by the petitioner himself which petition was filed by the respondents, which is produced on record by the learned senior counsel appearing for the petitioner, it clearly indicates that the petitioner cannot dispute that the petitioner had knowledge of the will left by the deceased, filing of the probate petition by the respondents, probate granted by this court as far back as on 24th May, 2003 and various steps subsequently taken by the respondents in the probate petition by engaging a new advocate. The entire proceedings including various endorsements made therein and the annexures and the orders passed by the court were available with the petitioner.
29. In my view the order passed in probate petition granting probate is order in rem. Petitioner was fully aware of the will, filing of petition and the probate granted by this court much prior to three years of filing of this petition for revocation of probate. Division Bench of this court in the case of Nina Agarwal (supra) and learned Single Judge of this court in the case of Lydia Agnes Rodrigues (supra) have held that article 137 of the Limitation Act applies to the proceedings for revocation of probate filed under section 263 of Indian Succession Act, 1925. The learned Single Judge has also held that time to file such petition would commence from the date on which the probate was granted by this court. It is held that the issuance of grant by this court would be a deemed notice. In my view a party who could have discovered by due diligence about the fraud alleged to have been committed by the respondents, then deemed knowledge would be attributed to such party and he cannot be allowed to extend the period of limitation by merely claiming that he had no knowledge.
30. A perusal of the record clearly indicates that the petitioner had knowledge of the will and the probate granted by this court much prior to three years of filing this petition. The petitioner filed affidavit in rejoinder after this court had heard the parties substantially. In view of ad interim order passed by this court on 29th July, 2013, respondents proceeded with the arguments without seeking any leave to file sur-rejoinder and proceeded on the basis of denials. In any event, a perusal of the rejoinder in which the petitioner has placed reliance on the alleged Form 8, indicates that the petitioner has annexed a photocopy of alleged Form 8 alleged to have been issued by Parsi General Hospital. A perusal of the photocopy of the said Form 8 indicates that the date of death of Ms. Shirin J. Choksy mentioned is 13th June, 2006. the date of the report mentioned therein is 13th June, 2010. The case of the petitioner is that the said medical certificate was counter signed by the said deceased testator in the year 2000 acknowledging the receipt of the dead body of Ms. Shirin J. Choksy.
31. It is not in dispute that the said deceased testator died on 25th June, 2003. In my view the said deceased thus could not have remained present for collecting the dead body of Ms. Shirin J. Choksy either on 13th June, 2006 or on 13th June, 2010. The petitioner did not disclose any such alleged document in Misc. petition. A perusal of the report dated 1st August, 2013 from the handwriting expert also indicates that she has alleged to have considered the said certificate dated 13th June, 2010. The entire report is based on the said alleged medical certificate dated 13th June showing the death of the said Shirin J. Choksy as 13th June, 2006. The said report is also based on the alleged carbon and/or photocopy. The petitioner has not taken any steps to get the original of such death certificate for perusal of this court. On the basis of the photocopy in the rejoinder which discloses the date of death of said Ms. Shirin J. Choksy as 13th June, 2006, this court cannot accept the submissions of the petitioner that the deceased testator was present in the hospital for collecting dead body of the deceased Ms. Shirin J. Choksy. I am thus not inclined to accept the submission of learned senior counsel for the petitioner that signature of the deceased testator on the will is forged and or fabricated.
32. In the facts of this case the judgment relied upon by the learned senior counsel in case of Shridhar Parhi (supra) is clearly distinguishable. The petitioner in this case had full knowledge of the will, filing of petition and about the probate. No steps are however taken by the petitioner for revocation of probate within three years from the date of grant of probate or in any event even from the date of alleged knowledge in 2007. In my view, the petition is thus barred by law of limitation not having been filed within three years from the date of grant of probate by this court. In any event the petition is not filed even within the three years even if letter dated 19th July, 2007 is considered as the date of knowledge about the probate petition. I am respectfully bound by the judgment of this court in the case of Nina Agarwala (supra). I do not propose to take any other view than the view taken by the learned Single Judge in case of Lydia Agnes Rodrigues (supra).
33. In my view, the judgment of this court in case of Peter D'souza and Ors. (supra) in Misc. Petition No. 69 of 2012 is clearly distinguishable in the facts of this case. In that matter the court had rendered a finding that the petitioner had obtained the letter of administration fraudulently suppressing the existence of the will which was subsequently discovered and not disputed by the party who had obtained letter of administration. Facts of this case are however totally different. The said judgment is distinguishable with the facts of this case.
34. No case is thus made out by the petitioner for revocation of probate granted by this court. The petition is devoid of merits. I accordingly pass the following order:
(a) Misc. Petition No.29 of 2014 is dismissed.
(b) In view of the dismissal of Misc. Petition, Notice of Motion (L) No. 69 of 2013 does not survive and is accordingly disposed of. There shall be no order as to costs.