Indian Kanoon - Search engine for Indian Law

           |                                                      |
   (Daughter)                                                 (Son)
   DOROTHY                                                   GEORGE
(Died on 29.7.2004)                           (Died on 19.06.2012)
(Will dated 11.12.1998)                       (Will dated 24.03.2010)
          |                                                |
       (Grandson)                             ------------------------
    ADRIAN (JR.)                              |                      |
      (Executor)                       (Friend)          CRYSTAL MAYES
(Probate granted in         ARTHUR R.W.TOWT          (Also GPA Holder of
Australia on 7.10.2014)          (Executor)           George & Dorothy)
                           (Probate granted in                    |
                           Australia on 9.8.2012)        Sale Deed dated
                                                             20.04.2006
                                                                  |
                                                      (Azeez Mohammed
                                                      his wife & children)

12. He would further contend that the petitioners who have acquired valid right and title deserve a fair opportunity to contest the probate proceedings to demonstrate that the probate granted by a Foreign Court is not in accordance with law. Referring to Section 13 of CPC, he would contend that had respondent impleaded petitioners, they could have very well demonstrated that probate granted by the Australian Court does not satisfy the ingredients of Section 13 of CPC.

13. Placing reliance on the judgment rendered by the Maharashtra High Court in the case of Devika Dhamji Shah vs. Rashi Mukesh Shah (supra), he would vehemently argue and contend that that ancillary probate granted in India cannot be sustained if the foreign court failed to consider mandatory provisions of Indian law while granting probate. On these set of grounds, he would contend that ancillary probate granted by this Court needs to be revoked and the civil petitions filed in C.P.Nos.1/2016 and 2/2016 are to be heard afresh by affording opportunity to the petitioners herein.

My findings regarding maintainability of revocation of ancillary probate:

22. The respondent has filed two petitions seeking grant of letters of administration based on probate granted by the Australian Court. The probate granted by the Australian Court is in respect of properties situated at India. Section 14 of CPC provides that when a foreign judgment is relied upon, the production of copy of judgment duly authenticated is presumptive evidence that the Court which pronounced it had jurisdiction unless the contrary appears on the record but that the presumption may be displaced by demonstrating that the probate proceedings are not conducted in the manner known to Indian law. A foreign judgment must in order to operate as res judicata should be on merits and at the same time has to be obtained by complying the requisite Indian laws. It is equally trite law that foreign judgment is not enforceable in India if it has not been passed on merits. The burden of proving that decree is not on merits would be on the party alleging it. Therefore, petitioners have got every right and locus to seek revocation as they were denied a fair opportunity to make out a case under Section 13 of CPC. The petitioners herein have every right to demonstrate that the probate issued by the Australian Court is not in accordance with law.

25. The judgment rendered by a foreign court should also indicate that original Will was submitted and has been retained by the Court or authority in the foreign country and the certified copy thereof is to be issued to the applicant/beneficiary. It is equally trite law that a foreign judgment would not be conclusive if it refuses to recognize the applicable law of India or is under breach of any law enforced in India. Therefore, petitioners who are asserting that the testator through a GPA holder has already meddled with the property and therefore Will, if any, is of no consequence are entitled to be heard before granting ancillary probate. Without expressing any opinion on the right and title of the petitioners which is now seized before the Division Bench, this Court is more than satisfied that petitioners have not only caveatable interest but have substantial interest. Petitioners are entitled to rebut presumption evidence of probate granted by the Australian Court. Therefore, they are entitled for revocation of probate and civil petitions filed in C.P.Nos.1/2016 and 2/2016 are liable to be restored on file and needs a fresh enquiry at the hands of this Court.