Probate on will is binding on the whole world,says HC

REFUSING to revoke the probate granted on a will 38 years ago,Bombay High Court has observed,“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.”

Written by Express News Service | Published:May 14, 2013 3:40 am

REFUSING to revoke the probate granted on a will 38 years ago,Bombay High Court has observed,“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.”

Kolkata-based Nina Agarwalla had moved court urging it to set aside the probate granted on her father’s will on March 12,1973. She filed a separate suit seeking the partition of her father’s property – a plot in Saki Naka and a flat in Malabar Hill.

Agarwalla contended that her father Devraj Gupta,who passed away on October 13,1965,had died intestate. She said at the time of his death,she was unmarried and living with her widowed mother and two brothers who were then minors. The other heirs of Gupta were married daughters.

Agarwalla said in 1969,her mother Usharani sought probate of her father’s will dated March 28,1964.

In her petition filed in 2011,Agarwalla said she was not aware of the probate petition filed in the High Court or about the existence of her father’s will. She said the petition was filed after she learnt that her brother,Napeansea Road resident Ashok Gupta,had decided to sell one of the ancestral properties that she was entitled to. She claimed she was entitled to 1/6th share of her late father’s property.

Agarwalla’s counsel argued that the citations of the probate granted on her father’s will were not served to her client and she was kept in the dark about her father’s will. It is when she filed proceedings in the city civil court seeking an injunction on the sale of their ancestral property,she learnt about her father’s will and she had stated the same under oath in court.

Arguing for Gupta and his family members,senior counsel Venkatesh Dhond told the court that as per the record of the High Court’s testamentary department,the citations of the probate were put up on the notice board on April 28,1971 and served to the next of kin on May 12,1971. Dhond argued that a petition seeking revocation of probate after 38 years evidences the lack of bonafides.

Chief Justice Mohit Shah and Justice M S Sanklecha observed,“The order granting a probate is conclusive evidence as to the execution and validity of till such a grant of probate is revoked.” The court added that a probate granted 38 years ago cannot be revoked unless it is for a “just cause” as mentioned in section 263 of the Indian Succession Act,1925.

The court said the evidence of the testamentary department showed the citations of the probate were served to the next of kin. “We find it difficult to accept on her mere statement that the citations were not served upon her,particularly in view of the record of the testamentary department of the court and the fact that probate was granted more than 38 years ago.”

mumbai.newsline@expressindia.com

The case

Agarwalla filed a separate suit seeking partition of her father’s property — a plot in Saki Naka and a flat in Malabar Hill

SHE contended her father Devraj Gupta,who passed away on October 13,1965,died intestate. She said at the time of his death,she was unmarried and living with her widowed mother and two brothers who were then minors. The other heirs of Gupta were married daughters

Agarwalla said in 1969,her mother Usharani sought probate of her father’s will dated March 28,1964

SHE said she was not aware of the probate petition filed in the High Court or the existence of her father’s will

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