Bombay High Court
Sudhakar Dicholkar vs Shrikrishna Vasudev Kavtgankar (Resp) ... on 17 March, 2026
Digitally signed
2026:BHC-OS:6897
by SHAGUFTA
SHAGUFTA QUTBUDDIN
QUTBUDDIN PATHAN
PATHAN Date: 21-MPT-5-2020.doc
2026.03.23
10:56:37 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISC. PETITION NO. 5 OF 2020
IN
TESTAMENTARY PETITION NO. 1093 OF 2015
WITH
TESTAMENTARY PETITION NO. 1093 OF 2015
Sudhakar Dicholkar ...Petitioner
Versus
Shrikrishna Vasudev Kavtankar ...Respondent
And
Rajaram Pundalik Dicholkar (Deceased)
------------
Mr. Rahul Soman a/w Mr. Suyash More i/b Mr. Ashish Raghuvanshi for the
Petitioner
Mr. Pawan Tiwari i/b Mr. Prakash Tiwari for the Respondent
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CORAM : SHARMILA U. DESHMUKH, J.
DATE : MARCH 17, 2026 P. C. :
1. This is a Miscellaneous Petition seeking revocation of grant of Probate dated 29th September 2017 of the Will dated 20 th January 2012 of the deceased Rajaram Pundalik Dicholkar, who expired on 31 st May 2004.
2. The application has been preferred on the sole ground that the wrong address of the Petitioner was stated in the Testamentary Petition and, hence, there is no proper service of the citation. SQ Pathan 1/6 ::: Uploaded on - 23/03/2026 ::: Downloaded on - 27/03/2026 23:17:52 :::
21-MPT-5-2020.doc
3. Learned counsel appearing for the Petitioner submits that in paragraph 9 of the Testamentary Petition, the Executor/Petitioner has given the address of the present Petitioner as 70/3, Western Railway Colony, Tejpal Road, Vile Parle (East), Mumbai- 400058, whereas, in the citation which has been issued, the address of the Petitioner is given as 7/3, Western Railway Colony, Tejpal Road, Vile Parle (East), Mumbai 400058. He would further point out the bailiff's report which states that on 7th July 2017 at about 4:15 p.m, the bailiff visited the Petitioner's residence at 7/3, Western Railway Colony, Tejpal Road, Vile Parle, (East), Mumbai-400 058, for service of citation upon the Petitioner,who refused to accept the service and that the duplicate citation was affixed on the outer door. He would further point out that the Petitioner was working in the Railways and was allotted railway quarters at 70/E, Railway Quarters Colony, Tejpal Road, Vile Parle, (East). He submits that it is, therefore, clear that there is no service of citation upon the Petitioner, as there are different addresses at different places, and the bailiff appears to have visited the tenement at 7/3, Western Railway Colony, which is not the tenement of the Petitioner.
4. Per contra, learned counsel appearing for the Respondents submits that the bailiff's report shows that the Petitioner herein was SQ Pathan 2/6 ::: Uploaded on - 23/03/2026 ::: Downloaded on - 27/03/2026 23:17:52 ::: 21-MPT-5-2020.doc duly served and had refused to accept citation. He submits that the bailiff is an Officer of the Court and greater reliance ought to be placed on the bailiff's report. He would further submit that the incorrect addresses at various places is a technical issue, and what is required to be seen is the conduct of the Petitioner. He points out to the proceedings which are filed in the City Civil Court and various orders passed therein to contend that the Petitioner did not share a cordial relationship with the deceased, and it is specifically held that he used to harass and assault the deceased. He submits that, in view of such conduct, the Miscellaneous Petition should be dismissed.
5. I have considered the submissions and perused the record. The Testamentary Petition was filed by the Executor, who is the husband of the sister of the present Petitioner, seeking grant of Probate of the Will of their father, i.e., the deceased Rajaram Pundalik Dicholkar. In paragraph 9 of the Testamentary Petition, the address of the present Petitioner is given as 70/3, Western Railway Colony. It is not the case of the Petitioner or the other legal heirs that they were not aware of the correct address of the Petitioner. The Petitioner's address, as demonstrated from the material on record, is 70/E, Railway Quarters Colony, Tejpal Road, Vile Parle (East). The said address is not disputed by the Respondent.
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6. The citation which was issued to the present Petitioner bears the address at 7/3, Western Railway Colony, which is different from the address given in the Testamentary Petition. The bailiff's report is that the citation with the petition copy, was served upon the Petitioner on 7th July 2017 at about 4:15 p.m. at 7/3, Western Railway Colony. Even accepting that the bailiff is an Officer of the Court, upon being shown that the bailiff has visited some other premises, this Court cannot accept the bailiff's report as gospel truth and the fact is that there was service of citation at a place which is not the Petitioner's residence. There is no material on record to demonstrate service of citation except the bailiff's report, which gives report of visit at some other address. In such circumstances, this Court will have to accept the Petitioner's contention about non-service of citation.
7. Upon a query by this Court, there is no explanation tendered to justify the discrepancy in the address of the Petitioner in the Petition, and. the citation and bailiff's report. It is no answer to say that the same is a technical objection, as for the purpose of grant, it is necessary that all legal heirs are duly served. The Respondent, being a relative of the Petitioner, must be aware of the correct address of the SQ Pathan 4/6 ::: Uploaded on - 23/03/2026 ::: Downloaded on - 27/03/2026 23:17:52 ::: 21-MPT-5-2020.doc Petitioner herein, and by stating incorrect addresses in the Testamentary Petition and in the citation, has secured the grant.
8. Section 263 of the Indian Succession Act provides for revocation of the grant on just cause being shown. The citing of an incorrect address in the Testamentary Petition and in the citation constitutes just cause for revocation of the grant, as there is no effective service upon the Petitioner. The findings or the decision of the City Civil Court are immaterial for the purpose of adjudicating an application under Section 263 of the Indian Succession Act. It is necessary that the grant be issued after being satisfied about the authenticity of the Will which is sought to be propounded.
9. In the present case, it is not disputed that the present Petitioner is the son of the deceased and would, therefore, be entitled to oppose the grant of Probate. No reliance can be placed on the bailiff's report which speaks of having visited some other premises, which is not the premises of the Petitioner herein and there is no effective service upon the Petitioner.
10. In light of the above, there is just cause made out for revocation of the Probate. Resultantly, Probate dated 29 th September 2017 issued in favour of the Respondent in Petition No.1093/2015, is revoked. The Respondent is directed to surrender the original grant to the learned SQ Pathan 5/6 ::: Uploaded on - 23/03/2026 ::: Downloaded on - 27/03/2026 23:17:52 ::: 21-MPT-5-2020.doc Prothonotary and Senior Master of this Court within a period of two weeks.
11. Miscellaneous Petition stands disposed of accordingly.
[SHARMILA U. DESHMUKH, J.] SQ Pathan 6/6 ::: Uploaded on - 23/03/2026 ::: Downloaded on - 27/03/2026 23:17:52 :::