Bombay High Court
Shakuntala Narayan Jotwani And Anr vs Rani Hashu Vazirani on 21 January, 2026
2026:BHC-OS:1584
MPT-14-2020 (final).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISC. PETITION NO. 14 OF 2020
IN
TESTAMENTARY PETITION NO. 649 OF 2015
1. Shakuntala Narayan Jotwani ]
2. Vidhi Jitesh Hemrajani alias ]
Komal Narayan Jotwani ]
Both adults, Indian Inhabitants of Mumbai ]
residing at Block No. 113/66, CTS No. 359, of ]
village Taluka MSD, situated at Hindustan ]
Chowk, Mulund Colony, Mulund (West), ]
Mumbai ]
being niece of the deceased abovenamed. ] ...Petitioners
Versus
Rani HashuVazirani, Hindu, ]
Age : 79 years Indian Inhabitants of Mumbai, ]
residing at 12/192, Sardar Nagar, No. 4, ]
Sion Koliwada, Mumbai - 400037, ]
being niece of the deceased abovenamed ] ...Respondent
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Mr. Avinash Joshi, Mr. Pradeep for Petitioner.
Mr. Tejas Vora, Mr. Dilip Rai and Mr. D. R. Mishra for the Defendant/Respondent.
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Coram : Sharmila U. Deshmukh, J.
Reserved on : 12th January, 2026.
Pronounced on : 21st January, 2026.
JUDGMENT :
1. The Miscellaneous Petition has been preferred under Section 263 of the Indian Succession Act, 1925 [for short, "Succession Act"] seeking revocation of the grant of probate dated 7 th October, 2015 in respect of the Will dated 29th April, 2011 of the deceased Damayanti Tarachand Jotwani, who expired on 25th June, 2014.
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MPT-14-2020 (final).doc
2. It is pleaded that the Petitioners are the only legal heirs and representatives of the deceased who died issueless on or about 25 th June, 2014. The Petitioner is widow of brother of husband of the deceased i.e. co-sister in law of the deceased and Petitioner No. 2 is the daughter of Petitioner No. 1. The Respondent is sister of the deceased.
3. The Petition seeks revocation on the following broad grounds:
(a) suppression of material facts, (b) non service of citation on Petitioners, (c) existence of alleged Will suppressed by Petitioner, (d) forged and fabricated Will, (e) Testamentary Petition suffers from substantial defect as service of citation on legal heirs of Sheela Verma violated Rules framed by this Court, and (f) non compliance of Section 317 of Succession Act.
4. The Affidavit-in-reply questions the locus of the Petitioners to seek revocation by contending that the Petitioners are not the legal heirs of the deceased. It is stated that the husband of the deceased had four brothers and one sister. The brothers-in-law had pre-deceased the deceased and only their sister Sheela Verma was alive and was the heir and next of kin of the deceased. It is stated that Sheela Verma expired before the Testamentary Petition was filed and in the Testamentary Petition, the legal heirs of Sheela Verma were cited however, their addresses were not known. As per prescribed Rules, citations were published in the newspaper and there was no objection raised, hence, probate was issued in due course.
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MPT-14-2020 (final).doc
5. Learned counsel appearing for Petitioner would submit that the Petitioners were not cited in Testamentary Petition No. 649 of 2015 though the Petitioner No. 1 was heir of the husband of the deceased. He would submit that Rule 399 and Rule 400 of the Bombay High Court (Original Side) Rules, 1980 provides for the manner of personal service and an attempt has to be made to personally serve the citation and only upon failure thereof, recourse can be taken to Rule 400 for publication. He submits that the last known addresses of the persons cited as legal heir is required to be stated as the same becomes the basis for identifying the area for purpose of permitting publication in the local newspaper drawing support from the decision of learned Single Judge in the case of Lata Rajesh Shetty @ Latha Rajesh Shetty vs. Satish Surappa Poojari1. He would submit that in the Testamentary Petition No. 649 of 2015, the address of Sheela Verma is not stated and even in respect of legal heirs of Sheela Verma, the addresses are stated as not known. He submits that it is mandatory to state the last known address and without the same, there was defect in the proceedings and therefore, the Probate is liable to be revoked under Section 263 of the Succession Act.
6. Per contra, learned counsel appearing for the Respondent submits that the Petitioners have neither caveatable interest nor locus to challenge the grant of probate as even on intestacy, the Petitioner is not entitled to succeed. He submits that on the date when the 1 Misc. Petition (L) No. 34745 of 2023, decided on 21st February, 2024.
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succession opened, the sister in law of the deceased, who was the legal heir was surviving, however, at the time of filing of Probate Petition, Sheela Verma had expired and hence, her children were cited as legal heirs. He submits that the Respondent has complied with due procedure before obtaining the grant. He submits that as the Respondent was not aware of the addresses of the legal heirs, there was no question of service of citation by personal service and publication was ordered. He submits that the present Petition which questions the grant of probate on the ground of non compliance with the Rules as regards service upon Sheela Verma and/or the heirs cannot be at the instance of the present Petitioners as they do not have locus and proxy Petition cannot be permitted. In support, he relies upon the following decisions :
Dular Kurer v. Kesar Kuer2 Kamal Prasad v. Kumud Vaidya3 Perviz Sarosh Batliwalla vs. Viloo Plumber4 Ramani U. Krishnan vs. Dr. Ammini Praveen Joshua @ Veena5 REASONS AND CONCLUSION:
7. For purpose of clarity in relationship, the family tree of the deceased Damyanti, which was tendered across the bar is re-produced.
2 AIR 1964 Patna 518 (V 51 C 153) 3 2019(4) Bom.C.R. 713.
4 AIR 2000 Bombay 189.
5 2005 (2) CTC 262.
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Family Tree
Damayanti Tarachand Jotwani Rani Hasu Vazirani,
(died on 25/06/2014) sister of Damyanti
Tarachand (Husband of Damayanti Tarachand Jotwani) [Died : 25.07.2001] Brothers (4) Sister (1) (1) (2) (3) (4) (5) Jetha Atmaram Mohan Narain Sheela Verma (DOD : (DOD: (DOD : (DOD : (DOD :
11.8.86) 31.8.2024) 22.7.94) 16.6.99) 21.7.2014) Shakuntala (Widow) (Petitioner) Vidhi (Daughter) [Heirs of Sheela Verma (5)] Versha Sherpa Gauri Sharma Dimple Deepak Chandani Banwani Poptani Verma (1) (2) (3) (4) (5)
8. The Respondent is the original Petitioner who had applied for grant of probate of the Will of deceased Damyanti. The Petitioner No 1 is the widow of Narian and Petitioner No 2 is the daughter of Narian.
Damyanti's husband and brothers of her husband pre-deceased Damyanti. At the time of death of Damyanti, Sheela Verma who was Sairaj 5 of 11 MPT-14-2020 (final).doc the sister of husband of Damyanti was surviving. Sheela Verma expired on 21st July, 2014 and the Testamentary Petition was filed subsequent to the death of Sheela Verma and her legal heirs were cited in the Petition.
9. Dealing first with the issue as to whether the Petitioners were entitled to be cited in the Testamentary Petition, Section 15 and 16 of the Hindu Succession Act, 1956 provides for general rules of succession in the case of female Hindus and states the order of succession and manner of distribution amongst heirs in the case of female Hindus. Section 15 provides that the property of the female Hindu dying intestate shall devolve according to the rules set out in Section 16, relevant for our purpose, firstly, (a) upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband and secondly, (b) upon the heirs of the husband. The order of succession as set out in Section 16 provides that among the heirs specified in sub-section (1) of Section 15, those in one entry shall be preferred to those in any succeeding entry, and those included in the same entry shall take simultaneously.
10. Damyanti did not have any heirs in class (a) as stated above. It will therefore have to be examined as to who are the legal heirs of the husband. The heirs of a male Hindu are set out in the Schedule to Hindu Succession Act, 1956. It needs to be borne in mind that the next of kin will be determined as on the date of death of Damyanti and not on the date of death of the husband of Damyanti. There was no heirs of Sairaj 6 of 11 MPT-14-2020 (final).doc husband of Damyanti in Class I. Sheela Verma being the sister in law of Damyanti would be the heir in Entry II of Class II. The Petitioner No 1 would fall in Entry VII of Class II and Petitioner No 2 would fall in Entry IV of Class II. As Sheela Verma was surviving when the succession opened, she would exclude the other classes and would be entitled to succeed to estate of Damyanti. As Sheela Verma expired before filing of testamentary petition, her legal heirs were required to be cited.
11. The Petitioners were not entitled to be cited and could not seek revocation on the ground of absence of citation. The Petitioners do not rest their case only on their entitlement to be cited but has raised various other grounds for revocation as regards defect in the proceedings, forged and fabricated Will etc. The obstacle that the Petitioners will have to overcome is their locus to question the grant of probate. As already discussed, the Petitioners were not the legal heirs of Damyanti, when the succession opened. The submissions canvassed were substantially on the defect of proceedings by reason of non compliance of Rules 399 and 400 of Bombay High Court (Original Side) Rules, 1980 governing the Testamentary and Intestate jurisdiction.
12. The Testamentary Petition states that the Petitioner therein who is the sister of the deceased is not aware of the addresses of the legal heirs of the sister-in-law of the deceased. The Petitioner caused the service of citation on legal heirs of Sheela Verma by publication in the "Free Press Journal" and in "Hindu" which is the Sindhi daily newspaper. Rule 399 of the Bombay High Court (Original side) Rules, Sairaj 7 of 11 MPT-14-2020 (final).doc 1980 provides that the citation shall be served personally when possible by leaving a true copy of the citation with the party cited and taking acknowledgement from the legal heirs. Rule 400 provides that the citation which cannot be personally cited as required by Rule 399 shall be served by publishing the same in the local newspaper.
13. Rule 399 and 400 were considered by Co-ordinate Bench of this Court in Lata Rajesh Shetty @ Latha Rajesh Shetty vs. Satish Surappa Poojari (supra). In the facts of that case, the Petitioner therein, who was the sister in law of deceased was shown as one of the surviving heirs of the deceased in the Testamentary Petition filed by the Respondent therein.It was stated that her whereabouts were not known and she was served through paper publication. The learned Single Judge held that the Petitioner therein was legal heir of the deceased and entitled to be served with the citation. It noted that the last known address of the Petitioner therein was not stated by the Respondent and no foundation was led to claim why the whereabouts of the Petitioner was not known. The Court held that the words used in Rule 400 are crucial because the description of the address of the person cited becomes the basis for identifying the local newspaper in which the publication of the citation can be directed by the Prothonotary and Senior Master and it is necessary for the Petitioners in Testamentary Petition to state at least the last known addresses of the person cited as the legal heir. It held that all attempts ought to have been made to find at least the last known address of the Sairaj 8 of 11 MPT-14-2020 (final).doc Petitioner and feigning ignorance of the whereabouts of the Petitioner, it can be said that the false suggestion was made before this Court.
14. There is no quarrel with the decision of the co-ordinate Bench in the case of Lata Rajesh Shetty @ Latha Rajesh Shetty vs. Satish Surappa Poojari (supra), however, it applicability to the present case is doubtful. The distinguishing factor in that case is that the Petitioner therein was admittedly legal heir of the deceased and entitled to be cited. It is at the instance of the Petitioner therein who had locus to question the proceedings that the application for revocation came to be allowed by the learned Single Judge by considering Rules 399 and 400 of Bombay High Court (Original Side) Rules.
15. The present application for revocation has been filed by persons who are not the legal heirs and next of kin of the deceased Damayanti as per Section 15 and Section 16 of the Hindu Succession Act, 1956. There is no submission canvassed in the backdrop of the statutory provisions to show the entitlement of Petitioners to issuance of citation. The substantial submissions are canvassed on the proceedings of testamentary petition being defective for the reason that the addresses and whereabouts of Sheela Verma and her legal heirs were not stated in the Petition. The ground of suppression of material facts as a ground for revocation is by reason of not stating the last known addresses of the legal heirs of Sheela Verma and non-compliance of the procedure prescribed under Rule 399 and Rule 400 in respect of Sairaj 9 of 11 MPT-14-2020 (final).doc service upon the personal citation on Sheela Verma or her heirs.
16. The issue is whether the Petitioners who have no caveatable interest be permitted to question the grant on the specious plea of defect in citation upon legal heirs of Sheela Verma, who have not contested the grant of probate. In the case of Perviz Sarosh Batliwalla vs. Viloo Plumber (supra), learned Single Judge in the context of considering the locus to maintain an action for revocation by the Petitioner therein not being the legal heirs of the deceased held that the Petitioners would not be able to maintain the Petition for revocation of probate.The Court held that having no interest in the estate of the deceased, the challenge to the probate under Section 263 of the Act cannot be in the nature of public interest litigation and can be only at the instance of the person who has a slight interest in the estate of the person for himself. It termed the Petition filed to challenge the probate on ground of citation not served upon the other legal heirs as proxy petition and held that revocation can be only at instance of person having interest themselves.
17. A similar position exists in the present case as the Petitioners themselves do not have a claim to citation. In the Will of the deceased propounded by the Respondent, the deceased had bequeathed a portion of her property to the Petitioners. The Petitioners do not have any caveatable interest but for the Will and does not have any chance of succeeding to the estate of the deceased upon intestacy. In such eventuality, the Petitioner would not have the locus to challenge the Sairaj 10 of 11 MPT-14-2020 (final).doc grant of probate and the present Petition would be what is called as proxy petition.
18. Though it is sought to be contended that the Respondent has failed to administer the estate as per the Will firstly, the same constitutes acceptance of the Will in which case, it is open for the Petitioners to take out an appropriate application seeking directions for administering the estate as per the Will of the deceased. The non- compliance of Section 317 of Succession Act, which imposes a duty on the Executor to exhibit in Court an inventory and account of the estate showing the manner in which they have applied or disposed of, if not done so, is deemed to be an offence under Indian Penal Code. The statutory provisions do not indicate that for non-compliance of Section 317, the grant itself is liable to be revoked.
19. In light of the above, there is no just case made out for revocation of the grant of probate dated 7th October, 2015 under the provisions of Section 263 of the Indian Succession Act, 1925. Resultantly, Miscellaneous Petition stands dismissed. Nothing survives for consideration in pending applications, if any, and the same stands disposed of.
[Sharmila U. Deshmukh, J.]
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