Bombay High Court
Downloaded On - 15/04/2014 22:27:28 vs Armstrong Joseph D'Souza on 28 March, 2014
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
sjs MPTG-OJ-69.2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISC. PETITION NO.69 OF 2012
IN
T. PETITION NO.722 OF 2010
1. Peter John D'Souza
2. Agnes John D'Souza
(widow of John D'Souza-
deceased)
3. Nicolas John D'Souza
(deceased) David Hubert
S/o Nicolas John D'Souza
4. Johnson David D'souza
(deceased)
i) Loretta Johnson D'souza
ii) Christina Johnson D'souza
iii) Anthony Johnson D'souza
iv) Saby David D'souza
v) Thomas Xavier D'souza
vi) Rachel Philip D'souza
vii) Audre Agnel Fernandes
viii)Kenney Xavier D'souzas
ix) Oneil Michael Pereira
x) Anthony Michael Pereira
xi) Priscilla Austin Creado
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Through their C.A. Ashok
Anupchand Jeswani
5. Ashok Anupchand Jeswani
of Mumbai, Indian Inhabi-
tant, aged about 59 years,
having his place of
business at A-101 and 102,
Swaroop Nagar, Andheri(E),
Mumbai-400 099. .... Petitioners
- Versus -
Armstrong Joseph D'souza,
406, Jaltarang Co-op. Hsg.
Society, 3rd Floor, C-Wing,
Hall Village Road, Kurla
(West), Mumbai-400 070. .... Respondent
WITH
MISC. PETITION NO.5 OF 2013
IN
T. PETITION NO.722 OF 2010
In the matter of Revocation of
Letter of Administration under
Section 263 of the Indian
Succession Act, 1925.
And
In the matter of Petition
No.722 of 2010 filed by Mr.
Armstrong Joseph D'Souza
And
In the matter of Letter of
Administration issued in
Testamentary Petition No.722
of 2010.
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1. Gibson Manuel D'Souza,
Age 55 years, Indian
Inhabitant , residing at
233, Village Ward - Old
Kurla, Mumbai-400 070.
2. Nancy Austin,
Age 60 years, Indian
Inhabitant, residing at
Buthello House No.97,
Sutarwar, Sahar Gaon,
Near Cargo Complex,
Andheri (East),
Mumbai-400 099.
ig .... Petitioners
Mr. C.M. Korde, Senior Advocate with
Mr. D.H. Mehta, Mr. G.B. Kedia and Mr.
David Nahre i/b Mr. B.A. Rumao for
the Petitioners in MPT-69/2012.
Mr. Atul Damle with Mr. Hemant Ghadigaonkar
i/b Mr. Sanjay Gawde for the Petitioners
in MPT-5/2013.
Mr. A.A. Kumbhakoni, Senior Advocate
with Mr. Ashutosh Gavanekar and Mr.
Shardul Singh i/b Mr. A.S. Rameshan for
the Respondent in both matters.
CORAM: R.D. DHANUKA, J.
DATED: MARCH 28, 2014
ORAL JUDGMENT:
1. Both these petitions were heard together and are being disposed of by this common order.
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2. Both these petitions are filed under Section 263 of the Indian Succession Act, 1925 (for short, "the Act") for setting aside the grant of letters of administration issued by this Court on 31-3-2011 in Petition No.722 of 2010 in favour of the respondent on various grounds.
3. The petitioners in both the petitions claim certain rights in respect of few properties described in the Schedule appended to the petition for letters of administration filed by the respondent in this Court in respect of the estate of deceased Triza Domnic D'souza. The respondent claims to be the grandson of the said deceased.
4. Both the petitioners have urged before this Court that the grant obtained by the respondent is liable to be revoked on the just Page 4 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 cause under Section 263(a), (b) and (c) r/w Illustrations (v) and (vi) to Section 263 of the Act. Mr. Korde, learned senior counsel appearing for the petitioners in Miscellaneous Petition No.69 of 2012 and Mr. Damle, learned counsel appearing on behalf of the petitioners in Miscellaneous Petition No.5 of 2013 submit that to the knowledge of the respondent the said deceased had left a Will dated 23-2-1966.
The learned counsel invited my attention to the averments made in Testamentary Petition No.722 of 2010 filed by the respondent in this Court and in particular paragraph 3 thereof.
5. In paragraph 3 of the said petition, the respondent has averred that the said deceased died intestate and due and diligence search had been made for a Will but none had been found. On the premise that the said deceased died intestate and had not executed a Will, the respondent, who is the grandson of Page 5 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 the said deceased, in the said petition prayed for letters of administration in respect of the estate of the said deceased. There was no opposition to the said petition. This Court accordingly issued a grant, i.e. the letters of administration in favour of the respondent in respect of the said deceased on 31-3-2011.
6. My attention is also invited by the learned counsel to the affidavit in rejoinder filed in Miscellaneous Petition No.69 of 2012 and the averments made in Testamentary Petition No.722 of 2010 in support of the submission that the petitioners have annexed a copy of the said Will executed by the said deceased in the year 1966, which was a registered Will and the respondent having suppressed the existence of the said Will of the said deceased and by making a false and incorrect statement before this Court obtained the letters of administration. The learned counsel also Page 6 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 invited my attention to copy of a Power of Attorney annexed to the compilation of documents which refers to the said Will and the said Power of Attorney has been signed by the respondent also. My attention is also invited to the averments made in the sur-rejoinder filed by the respondent on 21-3-2014 and in particular paragraph Nos.7 and 8 thereof in support of the submission that the respondent does not dispute that the said deceased had left a Will dated 23-2-1966.
7. The learned counsel, therefore, submit that since the respondent had made a false suggestion and had concealed from this Court the fact that the said deceased had left a Will and made a false statement that the said deceased died intestate and based on such untrue allegations of fact essential in point of law to justify the grant, such grant is liable to be revoked. Reliance is also placed Page 7 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 on illustrations (v) and (vi) to Section 263 of the Act in support of the submission that since it is not in dispute that the said deceased had left a Will, on that ground alone the grant can be revoked under Section 263 of the Act.
8. Mr. Kumbhakoni, the learned senior counsel appearing on behalf of the respondent, on the other hand, raises issue of maintainability of these petitions on the ground that the petitioners in both the matters were admittedly not the legal heirs of the said deceased and did not have any caveatable interest, the question of effecting any service of citation or citing the petitioners in the petition for letters of administration did not arise. It is submitted that in any event both the petitioners are claiming title adverse to the alleged title of the deceased testator and thus could not have maintained any caveat and thus have no locus to file these petitions for Page 8 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 revocation of the grant of succession certificate under Section 263 of the Act.
9. The learned senior counsel then submits that in any event, even in the said Will executed by the said deceased in the year 1966, the said deceased had not bequeathed the property in which the petitioners claim rights and thus on that ground itself the petitioners cannot be allowed to apply for revocation of the grant issued in favour of the respondent.
The learned senior counsel submits that even if the said property would have been part of the bequest of the deceased testator, the petitioners cannot be allowed to urge the allegations of fraud, fabrication or that the respondent made false statement in the letters of administration since none of the petitioners have caveatable interest and the petitioners having claimed interest adverse to the alleged title of the deceased and in view of the Page 9 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 Testamentary Court not empowered to decide the title dispute.
10. Insofar as the Power of Attorney relied upon by the petitioners which were alleged to have been executed by five persons including the respondent and which is part of the compilation is concerned, Mr. Kumbhakoni, learned senior counsel submits that on the date of execution of the alleged Power of Attorney the respondent had not attained the age of majority.
11. In rejoinder, Mr. Korde, learned senior counsel and Mr. Damle, learned counsel invited my attention to a part of the Will in support of their submission that though some of the properties were specifically bequeathed by the said deceased in favour of her son, in respect of the other properties of the said deceased which were not specifically Page 10 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 bequeathed, the same formed part of the residuary legacy which are also bequeathed. It is submitted that fact remains that in the Schedule to the petition for letters of administration filed by the respondent, some of the properties are included by the respondent in which the petitioners claim interest. It is, therefore, submitted that there is no merit in the submission of the learned senior counsel appearing for the respondent that the petitioners could not even urge before this Court and bring to the notice of the Court that the respondent had committed any fraud, forgery, concealment or suppressed true material facts from this Court.
12. It is also submitted by the learned counsel that since the plots in which the petitioners claim interest were the subject-
matter of the petition for letters of administration filed by the respondent and the Page 11 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 said order would operate in rem, which grant is obtained fraudulently and affects the rights of the petitioners, the petitioners have locus standi to file a petition for revocation of such grant obtained fraudulently and by concealment of material facts.
13. A perusal of Testamentary Petition No.722 of 2010, filed by the respondent in this Court, inter alia praying for letters of administration in respect of the estate of the deceased indicates that the said petition is filed on the premise that the said deceased died intestate and in spite of due and diligent search made by the respondent for a Will, none had been found. Since there was no contest or objection raised by any of the legal heirs of the said deceased, this Court issued a grant in the form of letters of administration in favour of the respondent. Mr. Kumbhakoni, learned senior counsel appearing on behalf of the Page 12 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 respondent, fairly does not dispute that the said deceased had left a Will in the year 1966.
It is, however, submitted that the same was not to the knowledge of the respondent when the said petition was filed.
14. Insofar as the issue of locus standi raised by Mr. Kumbhakoni, learned senior counsel is concerned, Mr. Korde, learned senior counsel does not dispute that the petitioners are not the legal heirs of the said deceased.
It is also not disputed that in the petitions filed by the petitioners, the petitioners have disputed the alleged title in respect of the deceased testator. The learned senior counsel, however, submits that even if this Court comes to the conclusion that the petitioners have no caveatable interest in the estate of the deceased, the petitioners are entitled to urge and bring to the notice of the Court that the letters of administration have been Page 13 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 fraudulently obtained by the respondent by concealment of material facts.
15. In my view, Mr. Kumbhakoni, learned senior counsel is right in his submission that a party who has no caveatable interest and claims interest adverse to the alleged interest of the deceased testator could not have maintained a caveat. The question, however, that arises for consideration of this Court is that in case of a fraud, fabrication or concealment of facts, if brought to the notice of the Court, whether the Court can suo moto revoke the grant, if satisfied that such concealment, fraud or fabrication is made by the party obtaining such grant?
16. In catena of decisions of the Supreme Court and this Court, it is held that a party who has no caveatable interest or even a slightest interest in the property of the Page 14 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 deceased and a party who claims interest adverse to the interest of the deceased testator cannot maintain a caveat. The Testamentary Court does not decide the title in respect of the property of a deceased. But insofar as the claim of the petitioners that they have interest in some of the properties which were the subject-matter of the petition for letters of administration and those letters of administration could not have been granted is concerned, in my view, this Court cannot decide such an issue of title in this petition for revocation nor has decided the issue of title in the petition filed for letters of administration by the respondent. Such issues can be adjudicated by a Civil Court.
17. Be that as it may, in view of the fact that it is not in dispute that the deceased had left a Will in the year 1966, such fact is not having been disputed at least today by the Page 15 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 respondent, whether such grant issued by this Court on the premise that the said deceased died intestate can be revoked suo moto or not?
18. On a conjoint reading of 'just cause' described in Clauses (b) and (c) of Section 263 of the Act, it is clear that if a grant is obtained fraudulently by making a false suggestion or by concealing from this Court something material to the case or the grant is obtained by means of an untrue allegation of fact essential in point of law to justify the grant, though such allegation was made in ignorance or inadvertently, such grant can be revoked on such just cause described in the explanation to Section 263.
19. Even if the argument of Mr. Kumbhakoni, learned senior counsel is considered that on the date of filing of the petition for letters of administration, the Page 16 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 respondent was not aware of any such Will left by the deceased testator and thus such statement came to be made in the petition for letters of administration is accepted, in view of the fact that there is no dispute that the said deceased left a Will and/or the same is discovered subsequently, such grant is liable to be revoked under Section 263(b) and (c) of the Act. A conjoint reading of illustrations
(v) and (vi) to Section 263 of the Act makes it clear that even after the administration of the estate, if the Will is discovered subsequently, such grant is liable to be revoked.
20. 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 Page 17 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 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.
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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.
22. In the result, I pass the following order:
(a) The letters of administration granted Page 19 of 20 ::: Downloaded on - 15/04/2014 22:27:28 ::: sjs MPTG-OJ-69.2012 by this Court in favour of the respondent in Testamentary Petition No.722 of 2010 on 31-3-2011 is revoked.
(b) The respondent is directed to
surrender the original of such letters of
administration in the office of the
Prothonotary &
ig Senior Master of this Court
within two weeks from today.
(c) Both the petitions are disposed of in
the aforesaid terms with costs, quantified at Rs.25,000/-, payable by the respondent in each of the petition within two weeks from today.
Sd/-
(R.D. DHANUKA, J.) S.SURESH Page 20 of 20 ::: Downloaded on - 15/04/2014 22:27:28 :::