Bombay High Court
Kanchan Kriplani Through C.A. Of Jyoti ... vs Ramchand Bheroomal ... on 28 August, 2018
Author: G.S. Patel
Bench: G.S. Patel
30-TP749-17.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY PETITION NO. 749 OF 2017
Kanchan Kriplani Through CA of Jyoti Ram
Hemrajani & Sapna Hemrajani ...Petitioners
And
Ramchand Bheroomal Hemrajani Deceased
Mr Shanay Shah, with Namrata Shah Saurastri & Chhaya Asher, I/b
K Asher & Co, for the Petitioners.
Mr AS Daver, with Mr Bhavin Bhatia, Abhishek Mishra, for the
Caveatrix
CORAM: G.S. PATEL, J
DATED: 28th August 2018
PC:-
1. The Petition is brought by the constituted attorney of the
widow, Jyoti, and daughter, Sapna, of the deceased Ramchand
Bheroomal Hemrajani, who died in Hong Kong on 16th December
2015, leaving a Will executed in Hong Kong on 17th June 2010. The
High Court of the Hong Kong Special Administrative Region, Court
of First Instance granted Probate of this Will to the Petitioner on
16th November 2016. The Petition is under Section 228 of the
Succession Act, 1925 for Letters of Administration with an
authenticated copy of the Will annexed, i.e., for re-sealing of the
Will.
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28th August 2018
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30-TP749-17.DOC
2. On 21st March 2018, I made an order dismissing
Testamentary Petition No. 785 of 2016 brought by the Respondent,
Ramchand, represented by Mr Daver, and which sought probate to an earlier Will. I held that on grant of probate to the later Will, one which, by its very nature, operated to revoke all previous Wills and Codicils, a petition for probate to an earlier Will would not lie. Ramchand is in appeal against that order. He has also now filed a Caveat (L) No. 110 of 2018 to oppose the re-sealing application under Section 228, brought as a Petition for Letters of Administration with an authenticated copy of the Will annexed. I do not see how this is maintainable. Ramchand is admittedly not an heir of the deceased on intestacy; and, on intestacy, would not succeed to any part of his estate. His only claim to a 'caveatable interest' arises from being named as a legatee under the earlier Will. But with the grant of probate in Hong Kong, which is proof of the Will in its solemn (not common) form, no petition lies to prove the earlier Will; there cannot be two probates, both operating in rem, both in respect of the same deceased and the same estate, and of different dates and containing different dispositions. Since Ramchand's probate Petition is dismissed, and since he is not an heir of the deceased on intestacy, he has no caveatable interest any longer. He cannot constantly invoke the earlier Will, under which he was a legatee. That Will is displaced by the later Will and the grant of probate to the later Will shuts out the earlier Will entirely. So long as the Hong Kong probate stands, Ramchand can receive no legacy under the earlier Will he propounds. The fact that, in Hong Kong, Ramchand's lawyers have raised certain requisitions is immaterial, and creates no rights in his favour.
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3. Mr Daver submits that he is entitled to maintain the caveat since in this Petition for Letters of Administration with an authenticated copy of the Will annexed under Section 230 of the Succession Act, i.e., the re-sealing application, the Petitioners have introduced new properties. I have already said on 21st March 2018 that any civil disputes regarding title must be independently decided. But Mr Daver's client only claims these properties as a legatee under the earlier Will. His case seems to be that no new properties could be introduced in the present application under Section 228. The submission overlooks the jurisdictional provisions of Sections 270 and 271 of the Succession Act:
"270. When probate or administration may be granted by District Judge.-- Probate of the Will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his deceased had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge.
271. Disposal of application made to Judge of District in which deceased had no fixed abode.--When the application is made to the Judge of a district in which the deceased had no fixed abode at the time of his death, it shall be in the discretion of the Judge to refuse the application, if in his judgment it could be disposed of more justly or conveniently in another district, or, where the application is for letters of administration, to grant them absolutely or limited to the property within his own jurisdiction."Page 3 of 5
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4. The emphasised portion of Section 270 makes it clear that the court before which the probate petition can be brought1 is the one with jurisdiction over the place where the deceased lived; or, if the deceased had 'no fixed place of abode' -- clearly meant to embrace propertied itinerants, a familiar class in this country -- where the deceased held any property, either movable or immovable. Section 271 then confers a discretion: where the estate is spread over more than one jurisdiction, one court may refuse the petition and direct it to be made in another court within whose jurisdiction some other property is situated. The Hong Kong court's probate could not possibly have operated outside its jurisdiction; and, in any case, there is a distinction (as Sections 270 and 271 show) between jurisdiction, which is related to situs of person and property, and proof of the Will in its solemn form, which addresses only the due execution and attestation of the Will. What is to be proved is not to be confused with where it is to be proved. Proof of the Will for probate is one thing; what that probate covers is another; and this is precisely the rationale behind Section 228, which allows for 're- sealing' of a probate granted by a foreign court. The Will has been proved; probate has been granted; and the estate administration permitted by that probate is now sought to be extended to properties within local limits. Otherwise, the submission by Mr Daver would amount to saying that any court anywhere, when granting probate according to its own law, assumes jurisdiction over all property 1 Not must be brought; that is covered by Section 57, which only sets out the limited class of cases where probate is mandatory, and has nothing at all to do with where or in which court that probate petition is to be filed.
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5. At this stage, Mr Daver has instructions to withdraw Caveat (L) No. 110 of 2018 but seeks only that his client's contentions in his Appeal (L) No. 211 of 2018 against my order of 21st March 2018 be kept open. That is entirely reasonable. The Caveat is dismissed as withdrawn. All contentions of the Caveator and being canvassed in his Appeal (L) No. 211 of 2018 are expressly left open.
6. The Registry will proceed accordingly with the present Testamentary Petition.
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