Chetan Calvin Nazareth vs Lena John D Souza (Deceased)
2021 Latest Caselaw 3025 Bom

                                                                           2-TP-563-2018.DOCX




                   Ashwini




                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         TESTAMENTARY AND INTESTATE JURISDICTION
                               TESTAMENTARY PETITION NO. 563 OF 2018


                        Chetan Calvin Nazareth                                    ...Petitioner
                              And
                        Lena John D Souza                                         ...Deceased


                        Mr Darryl B Pereira, for the Petitioner.
                        Mr Ajay Talreja, with Anil Jakatdar, for the Caveator.


                                              CORAM:          G.S. PATEL, J
                                              DATED:          10th/16th February 2021
                        PC:-


                   1.

This is a probate petition. The probate Petitioner ("Nazareth") is an Australian resident. He was appointed as the sole executor of a Will allegedly dated 23rd December 2013, said to Shephali have been made by one Lena John D'Souza. Nazareth applied for Mormare probate. This was/is opposed by one Maureen Jyothi Furtado, one Digitally signed by Shephali Mormare Date: 2021.02.17 of the two heirs who survived Lena. Apart from Maureen there is 11:08:23 +0530 one other heir, Lolita Kiran Lazrado. Maureen also lives in Australia. Lolita is apparently in Mumbai, though presently with her son, also in Australia.

2. All concerned, including the Testator, Lena, are Christians.

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3. The Advocate for the Petitioner says that the heirs are 'not co-operating'.

4. The Application today is for an 'unconditional withdrawal' of the probate petition. On a correct reading of the Succession Act, 1872, I believe that is impermissible.

5. To appreciate the contours of the controversy, a few sections of the Succession Act need to be considered. These are Sections 57, 213, 222, 227, 229 and 231.

6. Section 57 is in Part VI, which deals with Testamentary Succession. Some portions of Part VI set out in Schedule III (and subject to the restrictions there, with which we are not presently concerned) apply to a defned class of Wills. The Section reads:

57. Application of certain provisions of Part to a class of wills made by Hindus, etc.--The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifcations specifed therein, apply--

(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the frst day of September, 1870, within the territories which at the said date were subject to the Lieutenant- Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and

(b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and

(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the frst day of January, 1927, to

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which those provisions are not applied by clauses (a) and

(b):

Provided that marriage shall not revoke any such will or codicil.

(Emphasis added)

7. Straight away, we notice, first, that Section 57 applies -- and consequently makes applicable some sections of Part VI -- only to Wills and Codicils made by Hindus, Buddhists, Sikhs or Jains. Where a Will is made by a person of any of those denominations, and the Will is made in (for our present purposes), Mumbai, or where it relates to immovable property within the local limits of the ordinary original civil jurisdiction of this Court, some provisions of Part VI apply. One of these, as we shall see, is the need to apply for probate. Sub-clauses (a) and (b) are not a conjoint requirement; i.e., they cannot be read to mean that the provisions of Part VI as specifed in Section 57 apply only to those wills (by Hindus, etc) that are both made in Mumbai and pertain to immovable property in Mumbai. This branch of the law is settled and really admits of no debate. To say otherwise would mean that the applicable provisions of Part VI would be defeated simply by making wills outside Mumbai though relating to immovable property in Mumbai. See: Kanta Yadav v Om Prakash Yadav & Ors.1 The Supreme Court approved a view taken by the learned single Judge of the Delhi High Court in Winifred Nora Theophilus v Lila Deane,2 where the Court said:

2019 SCC Online SC 920.

AIR 2002 Del 6.

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11. On interpretation of Section 213 read with Section 57

(a) and (b), the Courts have opined that where the will is made by Hindu, Buddhist, Sikh and Jaina and were subject to the Lt. Governor of Bengal or within the local limits of ordinary, original civil jurisdiction of High Courts of Judicature at Madras and Bombay or even made outside but relating to immovable property within the aforesaid territories that embargo contained in Section 213 shall apply. From this it stands concluded that if will is made by Hindu, Buddhist, Sikh or Jaina outside Bengal, Madras or Bombay then embargo contained in Section 213 shall not apply. This is what the various judgments cited by the learned counsel for the defendants decide. Therefore, there is no problem in arriving at the conclusion that if the will is made in Delhi relating to immovable property in Delhi by Hindu, Buddhist, Sikh or Jaina, no probate is required."

(Emphasis added)

8. In Kanta Yadav, the Supreme Court went on to say in paragraph 12:

12. The statutory provisions are clear that the Act is applicable to Wills and codicils made by any Hindu, Buddhist, Sikh or Jain, who were subject to the jurisdiction of the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Madras or Bombay - (clause (a) of Section 57 of the Act). Secondly, it is applicable to all Wills and codicils made outside those territories and limits so far as relates to immoveable property within the territories aforementioned

- Clause (b) of Section 57. The clause (c) of Section 57 of the Act relates to the Wills and codicils made by any Hindu, Buddhist, Sikh or Jain on or after the frst day of January, 1927, to which provisions are not applied by clauses (a) and

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(b). However, sub-section (2) of Section 213 of the Act applies only to Wills made by Hindu, Buddhist, Sikh or Jain where such Wills are of the classes specifed in clauses (a) or

(b) of Section 57. Thus, clause (c) is not applicable in view of Section 213(2) of the Act.

(Emphasis added)

9. This makes it amply clear that clauses (a) and (b) refer to two distinct classes, and are not a conjoint requirement. In Kanta Yadav, the Supreme Court clearly spoke of two distinct classes.

10. This was also the view of a learned single Judge of this Court (AM Khanwilkar J, as he then was) in Bhagwanji Karsanbhai Rathod v Surajmal Anandraj Mehta.3 That matter came up as an appellate side writ petition against a judgment and order of the Additional District Judge Pune. There, the immovable property was in Pune. The Will in question was also made in Pune. The District Judge held that probate was compulsory ("imperative'). The High Court reversed. In paragraph 8, this Court held that only Wills covered by clauses (a) and (b) of section 57 make Probate or Letters of Administration (with Will Annexed) mandatory or compulsory. The telling fnding is that it was undisputed that the suit property was situated in Pune and the Will was also executed in Pune. Therefore, probate was not compulsory. Had either of those conditions not been met -- that is to say, had the suit property been in Mumbai or had the Will been made in Mumbai -- probate would undoubtedly have been necessary. That is plainly the meaning of this fnding. 4

2003 SCC Online Bom 628 : 2004 (1) Mah LJ 62 : (2003) 5 Bom CR

387.

See also: Mahesh N Bhat v Mark Uppaluri, 2018 SCC OnLine Bom 9891.

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11. This takes us immediately to Section 213.

213. Right as executor or legatee when established-- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed.

(2) This section shall not apply in the case of wills made by Muhammadans or Indian Christians, and shall only apply--

(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specifed in clauses (a) and (b) of section 57; and

(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such wills are made within the local limits of the ordinary- original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.

(Emphasis added)

12. The requirement of probate itself is to be found in Section 213(1). That requirement is only demanded of Hindus, Buddhists, Sikhs and Jainas.5 In view of Section 213(2), there is no such requirement of mandatory or compulsory probate of Wills by Indian Christians. A Will by an Indian Christian is thus not required to be

The provision regarding Wills by Parsis was introduced much later and brings those Wills in line with the requirements of Section 57(a) and (b).

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compulsorily probated even if it is made in Mumbai or relates to immovable property in Mumbai. This was precisely the view I took in Sidney Francis Gomes v Maureen Therese Gonzales.6

13. It is also clear that probate can only be granted to an executor appointed under a Will.7 The efect of probate is that it establishes the will from the date of the testator's death, and validates all intermediate acts taken by the executor in that capacity. 8

14. The complication in this case lies precisely here. The Petitioner, the appointed executor, did not need compulsorily to obtain probate. The will was by an Indian Christian. Probate was optional. But having opted to apply for probate, can any Probate Petitioner, whatever the religion of the testator, be permitted to withdraw it? I do not believe so. The executor is the deceased testator's legal representative for all purposes.9 Probate validates all acts of the executor done in that capacity. Probate is 'proof of the Will in its solemn form' -- that it was duly and validly executed and attested in accordance with law, and not invalidated for any of the reasons set out in law (lack of testamentary capacity, undue infuence, as being unnatural, etc). Thus, when any executor applies for probate -- and there is a class of executors who, as we have seen, must compulsorily apply for probate -- the executor takes on the burden of 'proving' the will, i.e. establishing it in its solemn form, as the genuine last wishes of the deceased, made without impediment or interference. Seeking probate is not, therefore, something that

2018 SCC OnLine Bom 3424.

Section 222.

Section 227.

Section 211.

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any probate can simply give up on or withdraw; and, having once fled for probate, it no longer makes any diference to what religion the testator belonged once the probate process is initiated. The exemption in Section 213(2) to Indian Christians is only from having to compulsorily apply for probate at all. The exemption cannot extend to a general liberty to withdraw the probate petition whenever the probate petitioner desires.

15. What an executor -- and this applies to all executors, irrespective of anybody's religion, theirs or the testator's -- may do is to renounce executorship under Section 229 and Section 230 (which should be read with Section 231).

229. Grant of administration where executor has not renounced.--When a person appointed an executor has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued, calling upon the executor to accept or renounce his executorship:

Provided that, when one or more of several executors have proved a will, the Court may, on the death of the survivor of those who have proved, grant letters of administration without citing those who have not proved.

230. Form and efect of renunciation of executorship.

--The renunciation may be made orally in the presence of the Judge, or by a writing signed by the person renouncing, and when made shall preclude him from ever thereafter applying for probate of the will appointing him executor.

231. Procedure where executor renounces or fails to accept within time limited.--If an executor renounces or fails to accept an executorship within the time limited for the acceptance or refusal thereof, the will may be proved

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and letters of administration, with a copy of the will annexed, may be granted to the person who would be entitled to administration in case of intestacy.

(Emphasis added)

16. Indeed, no probate petitioner can ever withdraw a probate petitioner. He may renounce executorship at any time, or the petition may simply be dismissed. But it cannot be simpliciter withdrawn. That would, as it were, leave the will hanging in the air. A renunciation would divest the appointed executorship of his authority and duties as an executor. A dismissal is a fnding that the will in question was not proved, i.e. that the will was not validly made in accordance with law; and with that dismissal goes the appointment of the executor.

17. A withdrawal by an executor is simply unthinkable, for it means that the executor has given up the task of proving the will, and yet continues as an executor with an unproved will. This might have all manner of unforeseen consequences. A probate petitioner encountering difculty in proving the Will may simply withdraw the petition and yet seek to implement it and administer the estate according to the Will. That would be impermissible. A legatee seeking Letters of Administration with Will Annexed stands on a diferent footing. There is no obligation on any particular legatee to obtain such a grant. Title does not pass through any legatee. It does pass through an executor. This makes all the diference.

18. Therefore, once the process of proving a Will begins, there is no going back on it. The only option is an exit, either voluntarily by renunciation, or forced, by dismissal.

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19. The position therefore is this: Nazareth did not need to apply for probate of Lena's Will. He chose to do so. Having made that choice, he cannot withdraw the Petition and yet seek to implement the Will. He cannot now maintain that probate is not required. It was never required, but his action in seeking probate changed matter irrevocably. He may of course renounce; and, should he do so, the provisions of Section 231 will apply. But Nazareth does not seek to renounce executorship at all.

20. I am, therefore, not permitting the withdrawal, therefore, on the basis that Nazareth does not wish to press for it or has any other reservations. The Petition must proceed, and its fnal fate will be determined by what the Nazareth chooses to do next.

21. Evidently, now that there is a Caveat, it will have to be renumbered as a Suit. That renumbering is to be efected by the Registry for statistical and record purposes.

22. At this stage, Mr Pereira, learned Advocate for the Petitioner, states that he also has no instructions to prosecute the Petition. Indeed, his instructions are two-fold: first, to withdraw the Petition, which I have not permitted; and, second, not to prosecute the Petition (or, inevitably, the renumbered suit), about which I have nothing to say.

On 16th February 2021:

23. At this stage, I pointed out to Mr Periera that an order of immediate disposal would conceivably be unfair to the other heir cited and served, Mrs Lolita Kiran Lazrado. She is the daughter of the deceased. I am told that she is currently living with her son in

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Australia although her permanent address is in Mumbai. Even if Nazareth has given no instructions to prosecute the probate petition, it may well be that Lolita intends to prove the Will in her capacity as a legatee and a benefciary under the Will. For this purpose, she would be entitled to apply to convert the probate petition into one for Letters of Administration with Will Annexed and prosecute it as such. She would then have to proceed with the contest against her sister Maureen, who has fled a Caveat. At the very least, Lolita must be given the opportunity to take an informed decision whether she intends to prove the Will.

24. Given that she is in Australia, at this stage, I will only direct Mr Periera to give her notice by email and courier accompanied by a copy of this order. I will list the matter on 23rd March 2021. Mrs Lolita Kiran Lazrado has the option to engage a local Advocate to appear or she may attend the hearing herself online via the Video Conferencing link and meeting ID (on the CISCO WebEx app).

Link: https://bombayhighcourt.webex.com/meet/rg-bhc Meeting ID: 170 478 6692

25. Allowing for the time diference between India and Australia, I will schedule the matter frst on board at 11.00 am India time on 23rd March 2021.

26. If Ms Nazareth does not wish to continue with the proceeding (for Letters of Administration with Will annexed), then the Petition will have to be dismissed. Despite this notice, if she does not appear either herself or through her Advocate, the same result will follow. Should she, on the other hand, indicate a willingness and preparedness to prosecute the Petition and to prove the Will, I will

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immediately grant leave to amend and substitute her as the Petitioner/ Plaintif in the proceeding, and direct the conversion of the petition from one for Probate into one for Letters of Administration with Will Annexed. I will then take up the matter for necessary directions.

27. Stand over to 23rd March 2021, at 11:00 am. To be listed frst on board.

28. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.

(G. S. PATEL, J)

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