Rajesh Gajahar Shroff v. Rajshree W/O Godfrey D Mello

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION MISCELLANEOUS PETITION NO. 180 OF 2023 IN TESTAMENTARY PETITION NO. 805 OF 2010 Gajahar Ganpatrao Shroff ...Deceased Rajesh Gajahar Shroff

...Petitioner

Versus

Rajshree w/o Godfrey D'Mello

...Respondent

***  Adv. B.K. Barve, Adv. Sandeep Barve, Adv. Sonali Patil and Adv. Dushyant Digamber i/b B.K. Barve & Co., for the Petitioner.  Adv. Kamles Vakharia, Adv. Kokila Venkatalhalam and Adv. Indrayani Koparkar, for Respondent.

SHRIKANT SHRINIVAS MALANI *** CORAM : MANISH PITALE, J SHRIKANT SHRINIVAS MALANI Date: 2024.01.12 16:14:04 +0530 DATE : 11th JANUARY, 2024.

P. C. :

1.

Heard learned counsel for the parties.

2.

By this petition, the petitioner is seeking revocation of grant of probate issued on 31st August, 2017, by this Court. The petitioner is the son of the deceased and according to him, the respondent i.e. the original petitioner in the probate petition has relied upon a Will of the deceased father, which can be demonstrated to be shrouded with suspicious circumstances. It is the case of the petitioner that the existence of the will, purported to have been executed on 16th July, 2007, was never divulged to the petitioner, although, according to the petitioner, the respondent has been a resident of Canada for a number of years and she has occasionally

comes to India.

3.

It is further submitted that in the present case, the citation was not properly served upon the petitioner and that the material placed on record with the present petition, particularly the documents indicating the health condition of the deceased, would show that the Will appears to be a suspicious document. 4.

In support of the said contention, the learned counsel for the petitioner invited attention of this Court to the documents placed on record, particularly a medical certificate at Exhibit "G" read with document at Exhibit "H", indicating the medical treatment that was administered to the deceased in June/July, 2007. He then invited attention of this Court to a certificate dated 15th July, 2007, issued by one of the treating doctors, who certified that the deceased was fit to sign on the papers concerning the Will. The learned counsel for the petitioner further referred to the documents filed alongwith the rejoinder affidavit, including a forensic opinion report and also a report of a handwriting expert to buttress his submissions that in the present case, there is enough material to indicate that the Will is shrouded with suspicious circumstances.

5.

He further submits that the petitioner, right from his birth, has been residing in the flat where the respondent claims to have made attempts to serve the citation. It is submitted that there

was no reason why the petitioner would not have come forward and contested the matter, had proper service been affected on the petitioner in accordance with law. He submits that the Will is a fraudulent document and that this Court may consider allowing the present petition, so that an opportunity is afforded to the petitioner to contest the matter on merits against the respondent. 6.

On the other hand, the learned counsel appearing for the respondent invited attention of this Court to documents filed alongwith an additional affidavit, to demonstrate that all possible steps were taken to serve the respondent and that the affidavits of service placed on record indicated that when the bailiff visited the address of the petitioner, the door was closed, with the result that the citation had to be pasted. Despite the aforesaid circumstances, the respondent i.e. the original petitioner in the probate petition, carried out substituted service by way of publication and attention of this Court is invited to the affidavit of service and the proofs of publication placed on record before this Court. On the basis of the aforesaid documents, it was submitted that the petitioner was duly served and he chose not to appear before this Court and that therefore, he cannot be permitted to turn around and challenge the grant, which has been already issued in favour of the respondent (original petitioner in the probate petition).

7.

As regards allegations about fraudulent nature of the Will, it was emphasized that the will was a registered document and that the testator had himself gone to the office of the registrar for registration of the Will, indicating that he was mentally and physically fit to have validly executed the Will. It was submitted that therefore, at this stage, the petitioner cannot be permitted to rely on material regarding alleged ill-health of the testator. On this basis, it was submitted that the present petition deserves to be dismissed. 8.

On the aspect of service of citation, this Court agrees with the submissions made on behalf of the respondent that sufficient attempts were made to serve the citation upon the petitioner. To that extent, it cannot be said that the respondent i.e. the original petitioner in the probate petition was deficient in the efforts to serve the petitioner herein. Nonetheless, the Testamentary Court is a Court of conscience and the conscience of the Court must be satisfied with regard to the documents on record. It is emphasized on behalf of the respondent that the Will is a registered document and that therefore, this Court may not consider the allegations leveled by the petitioner. 9.

But, a perusal of the material on record shows that there are contemporaneous documents indicating the status of physical and mental health of the deceased testator. At Exhibit "F" is an E.E.G. report obtained on the basis of the deceased being referred by Dr.

Deepak Namjoshi to the concerned neurologist. At Exhibit "G" is a certificate issued by a doctor certifying that the testator was suffering from loss of vision and some mental deficiency, which appeared to incapacitate him from moving around and that the testator did not understand about bowel and urine. At Exhibit "H" is a bill pertaining to a hospital where the testator is said to have undergone treatment. It is dated 01st July, 2007, wherein the consultancy charges of Dr. Deepak Namjoshi are also specifically mentioned. 10.

On 15th July, 2007, i.e. the 15 days thereafter, the same Dr. Deepak Namjoshi issued a certificate stating that the testator was found to be physically and mentally fit to sign the will papers. The Will was executed on 16th July, 2007.

11.

Alongwith the rejoinder affidavit, the petitioner has also placed on record a forensic opinion report and a report of a handwriting expert, in order to buttress submissions made in respect of the mental and physical health condition of the testator in June/July, 2007, when the Will was executed and registered. 12.

A perusal of the aforesaid documents, at least prima facie shows that the petitioner is entitled to oppose and contest the claim of the respondent herein with regard to the subject Will. At this stage, this Court is not expressing any final opinion in the matter. Nonetheless, sufficient material is brought on record to indicate that

at least a contest between the parties with regard to the subject Will is warranted, in the interest of justice. Although, this Court cannot be a Court of suspicion, as noted hereinabove, as a Court of conscience, it would be appropriate for this Court to afford an opportunity to the petitioner to contest to claims made by the respondent herein with regard to the subject will. It would be in the interest of justice that the probate granted as an uncontested proceeding is revoked and the probate petition is restored for the petitioner in this proceeding to take appropriate steps in the matter.

13.

In view of the above, the present petition is allowed. The probate issued by this Court in respect of the aforesaid Will dated 16th July, 2007, is revoked. The respondent shall deposit the original grant with this Court, at the earliest and in any case within one week from today.

14.

As a consequence, Testamentary Petition No. 805 of 2010, filed by the respondent herein stands restored. The petitioner may take further appropriate steps in the matter. (MANISH PITALE, J.)