Whether Explanations (A) To (E) Of Section 263 Indian Succession Act Exhaustive In Context Of “Just Cause” For Revoking Probate? - Bombay HC Refers Question To Larger Bench

The Bombay High Court referred the question of whether explanations (a) to (e) to Section 263 of the Indian Succession Act, 1925 (ISA), are exhaustive or illustrative, in the context of “just cause” for revoking or annulling grant of Probate or Letters of Administration, to a Larger Bench.

The Court was dealing with a miscellaneous petition in which it invoked Rule 28(C) of the Bombay High Court (Original Side), Rules, 1980, to formulate questions for decision by a Larger Bench and in that backdrop placed the papers of the case before the Chief Justice.

A Single Bench of Justice Manish Pitale said, “This Court is of the opinion that the main substantive portion of the above quoted Section 263 of the Succession Act is “the grant of Probate or Letters of Administration may be revoked or annulled for just cause”. The opening words of the explanation i.e. “just cause shall be deemed to exist where” clearly indicate that explanations (a) to (e) are circumstances and illustrations where a deemed fiction about existence of just cause arises, further indicating that it would not be appropriate to treat explanations (a) to (e) as exhaustive, since this would have the effect of whittling down the main substantive provision of Section 263 of the Succession Act.”

Advocate Yashvi Panchal appeared for the petitioner while Advocate Sonal appeared for the respondent.

Brief Facts -

A Testamentary Petition was filed by the respondent for grant of Probate of a Will allegedly executed in March, 2020, by the deceased. The said deceased person died in Ecuador in July, 2020, having committed suicide. The cause of death was recorded as suffocation by means of hanging. In December, 2020, the respondent filed the aforesaid testamentary petition for grant of probate and in May, 2021, the petitioner filed caveat and his affidavit in support of the caveat. The caveat was allotted and by an order, delay in filing the caveat and affidavit in support was condoned. In August, 2023, the Prothonotary and Senior Master of the High Court granted the petitioner/caveator, last chance to remove office objections, within four weeks in respect of the caveat, so that it could be numbered, failing which the caveat was to stand rejected under Rule 986.

The advocate for the petitioner/caveator failed to remove the office objections, as a consequence of which, by operation of the said order, the caveat stood dismissed. In November, 2023, the Additional Prothonotary and Senior Master of the Court noted that caveats of some of the caveators, including that of the petitioner, stood dismissed due to non-removal of office objections and the only remaining caveat was withdrawn. On this basis, the petition was granted and the office was directed to issue probate. In January, 2023, the petitioner had filed Interim Application, for restoration of his caveat, but in the meanwhile the office issued the grant. In this backdrop, the petitioner filed the miscellaneous petition for revocation of the grant and thereupon, in February, 2024, the petitioner withdrew the application for restoration of his caveat.

The High Court in the above regard observed, “With great respect, I am unable to agree with the position of law laid down by the learned Single Judges of this Court in the case of George Anthony Harris vs. Millicent Spencer (supra) and Sharad Shankarrao Mane and etc vs. Ashabai Shripati Mane (supra). In fact, an important question regarding the very jurisdiction of this Court in the context of Section 263 of the Succession Act arises, which needs to be settled authoritatively by a Larger Bench of this Court. In this situation, there is no alternative but to take recourse to Rule 28 (C) of the Bombay High Court (Original Side) Rules, 1980, to refer questions for determination by a Larger Bench of this Court.”

The Court, therefore, formulated and referred the following questions to a Larger Bench –

(I) Whether explanations (a) to (e) to Section 263 of the Indian Succession Act, 1925, are exhaustive or illustrative, in the context of “just cause” for revoking or annulling grant of Probate or Letters of Administration?

(II) Whether circumstances not covered under explanations (a) to (e) to Section 263 of the Succession Act, 1925, can become the basis for “just cause” for the Court to revoke or annul grant of Probate or Letters of Administration?

(III) Whether the judgements of learned Single Judges of this Court in the cases of George Anthony Harris vs. Millicent Spencer [AIR 1933 Bom 370] and Sharad Shankarrao Mane and etc vs. Ashabai Shripati Mane [AIR 1997 Bom 275], lay down the correct position of law?

“The papers be placed before the Hon’ble the Chief Justice for consideration and for placing the above formulated questions for consideration before a Larger Bench”, it ordered.

The Court said that the petitioner has made out a strong prima facie case in his favour for grant of interim relief during the pendency of the petition. It noted that the petitioner is the brother of the deceased and the affidavits of the attesting witnesses placed on record with the testamentary petition show that they did not sign the subject Will in the physical presence of the testator, as they signed on the subject Will in India after it was allegedly signed and executed by the deceased testator in Ecuador and then sent to India.

“But for the negligence, oversight and mistake on the part of the advocate for the petitioner (original caveator), these and other aspects would have been contested in the probate proceedings. The Testamentary Court being a Court of conscience, these aspects assume great significance. Apart from making out a strong prima facie case in his favour, this Court is of the opinion that if interim stay as prayed is not granted, the petitioner is likely to suffer grave and irreparable loss, and that the balance of convenience is also in his favour”, it added.

Accordingly, the High Court referred the questions to a Larger Bench and granted interim stay during the pendency of the petition.

Cause Title- Sarwan Kumar Jhabarmal Choudhary v. Sachin Shyamsundar Begrajka

Appearance:

Petitioner: Advocate Yashvi Panchal

Respondent: Advocates Sonal, Rohit Gupta, Kinnar Shah, and V. Bhatt.

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