M.S. Sanklecha, J.@mdashThese two Appeals arise from a common order dated 13 March, 2013 passed by the learned Single Judge dismissing:-
(a) a Miscellaneous Petition seeking to recall/cancel/set aside the probate granted on 12 March, 1973 in respect of the Will dated 28 March, 1964 of one Devraj Gupta; and.
(b) a Notice of Motion taken out in a suit for partition bearing no. 3069 of 2011 seeking appointment of Receiver in respect of the suit property described in Ex. "B" to the plaint and an injunction restraining the Defendants/Respondents in the suit from in any way dealing with the suit properties mentioned in Ex. "B" to the plaint.
The Appellant and the Respondents in both the Appeals are essentially heirs of one Devraj Gupta who expired on 13 October, 1965 save and except Defendant No. 8 in suit No. 3069 of 2011 who is a transferee of the suit properties.
2. On 13 October, 1965 the said Devraj Gupta expired, having executed the Will dated 28th March, 1964. In terms of the Will dated 28 March, 1964 Devraj Gupta bequeathed all his properties to his wife and two sons absolutely in equal shares. The widow of the deceased Devraj Gupta was one Mrs. Usharani Gupta who applied for probate in 1969 by filing the above Probate Petition. At the time when an application for probate was made, the Appellant was as unmarried adult daughter staying with her mother who was the widow of the deceased Devraj Gupta and her two brothers who were sons of the deceased Devraj Gupta, who were minors at that point of time. The other heirs of the deceased Devraj Gupta were married daughters. This Court on 12 March, 1973 granted the probate to the Will dated 28 March, 1964 of the deceased Devraj Gupta.
3. The present Miscellaneous Petition was filed in 2011 seeking revocation of the probate granted almost 38 years ago on 12 March, 1973. It is the case of the Appellant that she was not aware about the filing of the probate petition before this Court nor she had any idea about the existence of the alleged Will of her late father. It was only in February, 2010, that she learnt that one of the ancestral properties to which she was entitled was being put up for sale by her brother-Respondent No. 1 herein that she filed a suit in the City Civil Court at Mumbai seeking permanent injunction restraining the sale, alienation and/or creation of any third party rights in respect of the ancestral property as described in Ex. "D" to the plaint in the City Civil Court without the written permission of the Appellant. It is in the City Civil Court proceedings that she learnt about the alleged Will of her late father Devraj Gupta and grant of probate to the Will on 12 March, 1963. Therefore, in 18 April, 2011, she filed the present Petition for revocation of the probate granted on 12 March, 1973.
4. Besides the filing of the present Miscellaneous Petition in this Court, seeking revocation of the Will, the Appellant has also filed suit for the partition of the property of deceased Devraj Gupta. This suit for partition is filed by the Appellant on the basis that her father one Devraj Gupta had died intestate on 13 October, 1965 entitling her to 1/6th share in the property of her father, the late Devraj Gupta. In the above partition suit, Appellant also took out the present Notice of Motion, seeking an injunction to restrain the Defendants/Respondents i.e. the other heirs of the deceased Devraj Gupta and Defendant No. 8 who is alleged to be a transferee of the suit property from dealing with the suit property.
5. The learned Single Judge disposed of both-the Miscellaneous Petition filed in the Testamentary Petition as well as the Notice of Motion filed in the suit by a common order dated 13 March, 2013.
6. So far as the Miscellaneous Petition is concerned, the impugned order records a finding of fact that from the record available in the testamentary department of the Court, there is a noting to the effect that citation with regard to the probate proceedings had been served upon the next of kin as well as put up in the notice board on 12 May, 1971 and 28 April, 1971 respectively. In that view of the matter, in the absence of the Appellant being able to show any evidence of the citation not being served upon her, there was no reason to disbelieve the record as maintained by the Court. In that view of the matter, the learned Single Judge concluded that no fault can be found with the grant of probate on 12 March, 1973 with regard to the Will dated 28 March, 1964. Therefore, the application for revocation of probate granted on 12 March 1973 of the Will dated 28 March, 1964 was rejected.
7. So far as the claim in the suit for partition is concerned, she held that the suit appeared to be, prima facie, barred by law of limitation. This was so as according to the learned Single Judge, the time for claiming partition of the property of the deceased begun to run from the date of the death of the deceased and, therefore, has to be filed within three years from the date of the death of Devraj Gupta. The learned Single Judge further held that the absence of a period of limitation to apply for a probate or Letters of Administration would not apply in respect of the Civil suit or an application for revocation of probate. In the above circumstances, she dismissed the Notice of Motion holding that no case was made out for grant of injunction and/or appointment of receiver with regard to the suit properties.
8. 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
9. 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.
10. So far as appointment of Receiver and grant of injunction is concerned, in the Notice of Motion taken out in the partition suit, it is the submission of Mr. Dhond, the learned Senior Counsel that once the probate has been granted and its application for revocation has been rejected, the Notice of Motion in the partition suit cannot survive. This is for the reasons that the basis of the partition suit is that father of the Appellant one Devraj Gupta who expired on 13 October, 1965 died intestate. However, the grant of a probate in respect of the Will dated 20 March, 1964 made by one Devraj Gupta would establish that Devraj Gupta had made a testamentary disposition of his property by a Will dated 28 March, 1964 and did not die intestate.
11. 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.
12. 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 137 of the Limitation Act in proceedings for revocation of probate.
13. So far as the Notice of Motion in the partition suit is concerned, we do not prima facie agree with the observations of the learned Single Judge that the period of limitation for the purposes of filing partition suit accrues from the date of the death of father of the Appellant. However, we are not examining the above issue in detail as the above finding will not in the present facts materially alter the result in the Notice of Motion. This is for the reason that once the application for revocation of probate is dismissed, then, the entire basis of the Appellant''s case in the suit for partition that her father-Devraj Gupta died intestate on 13 October, 1965 comes to an end. The grant of probate of the Will dated 28 March, 1964 by this Court negatives the basic premise of the Appellant''s case that her father-Devraj Gupta died on 13 October, 1965 intestate, entitling her to 1/6th share in his property. Therefore, the dismissal of the Notice of Motion is consequent to the dismissal of the application for revocation of the probate. In the above view of the matter, we see no reason to entertain both the Appeals filed by the Appellant. Accordingly, both the Appeals are dismissed with no order as to costs.
