Bombay High Court
Joana Rose Philomena Miranda vs Godfrey Dmello on 20 August, 2024
Author: N.J.Jamadar
Bench: N. J. Jamadar
2024:BHC-OS:12764
2-mpl-16780-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
VISHAL
SUBHASH MISCELLANEOUS PETITION (L)NO.16780 OF 2024
PAREKAR
Digitally signed by
IN
VISHAL SUBHASH
PAREKAR TESTAMENTARY PETITION NO.2476 OF 2022
Date: 2024.08.21
21:06:49 +0530
1. Joana Rose Philomena Miranda
2. Lovel Lucas Miranda
3. Lesburn Lucas Miranda
4. Larissa Lucas Miranda
All R/o. Miranda House, 6, Kevani,
S.V. Road, Andheri (w), Mumbai- 58. ... Petitioners
vs.
1. Godfrey D'Mello
2. The Tahasildar,
Oshiwara, Andheri.
3. The Collector and District Magistrate
Office of Collector at Bandra (E), Mumbai. ... Respondents
Mr. A.A. Kumbhakoni, Senior Advocate i/b. Mr. Gaurav Sharma, for the
Petitioners.
Mr. Rohan Cama a/w. Ms. Priyanka Kothari and Mr. Waquar Ahmad, for
Respondent No. 1.
Smt. Pooja Patil, AGP for Respondent Nos. 2 and 3.
CORAM: N. J. JAMADAR, J.
DATE AUGUST 20, 2024
ORDER :
1. This petition under section 263 of the Indian Succession Act, 1925
is for revocation of the grant of Letters of Administration dated 30 th
January, 2023 in Testamentary Petition No. 2476 of 2022.
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2. Before adverting to note the contentions in the instant petition
and the grounds on which revocation is sought, it may be appropriate to
briefly note the substance of the Testamentary Petition No. 2476 of
2022.
2A. The respondent No. 1/original petitioner filed
Testamentary Petition No. 2476 of 2022 for the Letters of
Administration to the properties and credits of Luis Braz S/o
Jacinto Miranda (the deceased) who passed away on or
about 17th March, 1909. The deceased, during his life time
had a fixed place of abode at 6, Quevney, Amboli, Andheri,
Mumbai. The deceased died intestate and despite diligent
search, no testamentary writing or Will has been found. The
deceased left behind the properties within Greater Mumbai
in the State of Maharashtra, more particularly described in
Schedule-1. The approximate value of those properties was
Rs. 87,30,00,000/-.
2B. According to respondent No. 1, the deceased had left
behind the heirs and next-of-kin, the particulars of whom
were furnished in the table at paragraph 4 of the petition.
Late Vatareen, the widow of the deceased passed away on
17th March, 1996. Late Vatareen's daughter Victoria Mary
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th
D'Mello passed away on 16 January, 1998. Godfrey Paul
D'Mello, the respondent No. 1, Coral Farnandes, Maureen
Pires and Winston D'Mello, the particulars of whom were
mentioned at serial Nos. A to D in the said table, are the
children of Victoria Mary D'Mello, the deceased's daughter.
2C. The grandson and granddaughter mentioned at serial
Nos. B to D above, had given consent for the grant of Letters
of Administration. The respondent No. 1 endeavoured to
account for the delay in filing the said petition by asserting
that respondent No. 1 was unaware of necessarily of
obtaining any legal representation. Respondent No. 1 had
then been advised to obtain a legal representation. An earlier
petition, being Testamentary Petition (L) No. 2704 of 2019,
filed by the respondent No. 1, came to be rejected under Rule
986 of the Bombay High Court (Original Side) Rules, 1980.
2D. The said petition was treated as an uncontested petition
and by an order dated 30 th January, 2023 Letters of
Administration were granted to respondent No. 1, being the
grandson of the deceased.
3. The petitioners have preferred this petition seeking revocation of
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Letters of Administration primarily on the ground that, respondent No.
1 had fraudulently obtained the Letters of Administration. The
petitioners contend that only upon the proceedings being initiated by
respondent No. 1 to delete the names of the petitioners from the
property card of the properties bearing Survey No. 18, Hissa No. 1 and
Survey No. 18, Hissa No.3 of Village Oshiwara, Taluka Andheri, the
petitioners became aware of the grant of Letters of Administration.
Thereupon, the petitioners applied for the certified copies of the papers
and proceedings.
4. The petitioners assert the respondent No. 1 fraudulently obtained
the Letters of Administration by concealing the material facts including
the absence of right, title and/or interest of the deceased in the
properties described in the Schedule. According to the petitioners,
Anthony Jacinto Miranda was the holder of the subject properties.
Anthony had executed a registered Gift Deed in favour of Jaona Paulina
Miranda on 11th August, 1924 and thereby gifted all his properties. Vide
a Deed of Trust registered on 23 rd November, 1926 Joseph Miranda and
Rita Miranda (Rita Petronilla Gomes after marriage) were appointed as
trustees along with Jaona. The petitioners assert the petitioners, being
the owners of the properties described in the Schedule to the
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Testamentary Petition, have been dealing with the said properties to the
knowledge of all including respondent No. 1. Thus, respondent No. 1, or
for that matter, the deceased, had no right, title and interest in the
properties enumerated in the list of assets.
5. The petitioners seek revocation of the grant, inter alia, on the
grounds that no citation was ever issued to the petitioners who are the
only heirs of the deceased. The Letters of Administration were obtained
by misrepresentation and suppression of facts and by submitting false
information. The application suffers from the vice of Suppressio veri
Suggestio falsi . The respondent No. 1 despite having full knowledge of
the fact that the subject properties have vested in petitioners and have
been dealt with by the petitioners, obtained the Letters of
Administration without serving citation on the petitioners. Thus, the
respondent No. 1 has not only committed fraud qua the petitioners but
also practiced fraud on the Court. In substance none of the assets
belonged to the deceased and the Letters of Administration are vitiated
on account of the proceedings being defective in substance as well.
6. The delay of over 100 years in filing the Testamentary Petition No.
2476 of 2022 has also been pressed into service. The petitioners
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contend on the strength of a registered Deed executed in favour of
predecessor in title of the petitioners, there have been numerous
transactions of sale, alienation and transfer of the subject properties by
the petitioners. There have been subsequent transfers and huge
development on the sites. Therefore, the explanation sought to be
offered for the condonation of delay of over 100 years in seeking the
Letters of Administration constitutes an untrue allegation of facts as
well. Thus, the petitioners prayed for revocation of the grant by
invoking the power under section 263 of the Indian Succession Act,
1925.
7. An affidavit in reply has been filed on behalf of respondent No. 1
opposing the prayer for revocation of the grant.
8. At the outset the respondent No. 1 contends that the petition for
revocation at the instance of the petitioners is not maintainable as the
petitioners are challenging the title to the subject property. At any rate,
the petitioners have no caveatable interest in the estate of the deceased.
The respondent No. 1 contends that the petitioners are the legal heirs of
Jaona Paulina Miranda, who was the fourth wife of Jacinto Miranda.
The estate covered under the subject Letters of Administration did not
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belong to Jacinto Miranda. The estate belonged to Foshan Konmu
Mariyal, grandmother of Luis Braz Miranda, the deceased. Thus,
neither Jacinto nor his other wives or children from his other wives
have any claim in the said estate. The petitioners being the legal heirs of
the fourth wife of Jacinto Miranda cannot claim to have any caveatable
interest. Hence, on this ground alone, the petition for revocation is not
maintainable.
9. The respondent No. 1 further contends that after the demise of
Luis Braz Miranda, in the property card in respect of Survey No. 27,
Hissa No. 11, Survey No. 20, Hissa No. 10, Survey No. 18, Hissa No. 3
and Survey No. 18, Hissa No. 1 along with the names of the deceased
Luis Braz Miranda, the name of Jaona Paulina Miranda, the fourth wife
of Jacinto Miranda was wrongly entered though Jaona Paulina Miranda
had no right, title and interest in the said property. Likewise, the name
of fourth wife of Jacinto Miranda was entered in the property card of
the other properties though the fourth wife of Jacinto Miranda had no
right, title and interest therein. On the strength of said wrongful entries,
the petitioners had repeatedly dealt with the estate of Luis Braz and
benefited therefrom to the exclusion of respondent No. 1.
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10. In the year 2015 while deciding the suit instituted by M/s.
Western Prefab, the respondent No. 1 learnt about the names of the
petitioners having been entered in the record of rights of the subject
properties and thereupon the respondent No. 1 moved for the
correction of the mutation entries and at that stage the respondent No.
1 was called upon to produce the Letters of Administration. Hence, the
petition for grant of Letters of Administration was filed.
11. In substance, the respondent No. 1 contends that the petitioners
and their predecessors in title had no right, title and interest in the
subject properties. As the petitioners claim adversely to the estate of
the deceased, the petitioners cannot have any caveatable interest in the
estate of the deceased. An endeavour has been made to account for the
delay in filing Testamentary Petition for Letters of Administration. The
allegations of fraud and material suppression of facts are denied. Thus,
no case for revocation of the grant, according to respondent No. 1, has
been made out.
12. In the backdrop of the aforesaid facts and pleadings, I have heard
Mr. Kumbhakoni, learned senior Advocate, for the petitioners and Mr.
Cama, learned counsel for respondent No. 1, and Smt. Patil, learned AGP
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for Respondent Nos. 2 and 3. The learned counsel for the parties took
the Court through the pleadings and documents on record.
13. Mr. Kumbhakoni, learned senior Advocate for the petitioners
would submit that the very presentation of the petition for grant of
Letters of Administration to the properties and credits of the deceased,
who passed away in the year 1909, by respondent No. 1, who then
claimed to be 82 years of age, with a bald assertion that there was delay
in filing the petition as the respondent No. 1 was unaware of necessity of
obtaining the legal representation, is tainted with a fraudulent design.
Mr. Kumbhakoni laid emphasis on the fact that there were two
registered instruments in respect of numerous properties which have
been enumerated in the Schedule of Assets, in the year 1924 and 1926.
On the basis of those registered instruments, numerous registered
documents have been executed by the predecessors in title of the
petitioners and mutation entries have been recorded. There has been
huge development over the lands which constitute prime property in
Mumbai. All these facts were suppressed deliberately by the respondent
No. 1 who was fully cognizant of the fact that the title to the properties
vested in the petitioners and other transferees. Yet, without issuing a
citation to the petitioners, the respondent No. 1 surreptitiously obtained
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Letters of Administration by allowing the petition to proceed as an
uncontested petition. A strenuous effort was made by Mr. Kumbhakoni
to urge that the grant suffers from the vice of a substantial defect in
procedure as well as fraudulent misrepresentation by respondent No. 1.
In the circumstances of the case, according to Mr. Kumbhakoni, clauses
(a), (b) and (c) of the Explanation to Section 263 come into play to
make out a 'just cause' for the revocation of the grant.
14. Mr. Kumbhakoni further urged that the testamentary Court is a
Court of conscience. The very fact that the Letters of Administration
were sought in respect of the property and credits of the deceased, who
passed away 110 years ago, coupled with the material suppression of
facts renders it ex facie unconscionable to allow the grant, obtained in
an uncontested petition, to hold the field to the grave prejudice of not
only the petitioners but also a number of transferees who have acted on
the strength of the registered instruments. Therefore, the grant is
required to be revoked and an opportunity must be given to the
petitioners to contest the claim of respondent No. 1. In any event, no
prejudice is likely to be caused to the respondent No. 1 by deciding the
petition on merits, after providing an opportunity of hearing to
respondent No. 1.
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15. Mr. Kumbhakoni placed reliance on a decision of this Court in the
case of Manju Anil Aggarwal vs. Rajeev Lalchand Goyal 1 wherein it was
emphasized that "it has to be kept in mind that this Court as the
testamentary Court is a Court of conscience and that contentions
regarding suppression and falsehood indicating fraud committed on the
Court, have to be considered seriously".
16. Per contra, Mr. Cama, the learned counsel for respondent No. 1/
original petitioner countered the submissions of Mr. Kumbhakoni, with
equal tenacity. Mr. Cama would urge that the very premise of the
petition that the proceedings were defective in substance for not serving
the citation on the petitioners is inherently flawed. The capacity in
which the petitioner profess to challenge the grant, according to Mr.
Cama, assumes significance. By no stretch of imagination, the
petitioners can be said to have slightest interest in the estate of the
deceased. The petitioners claim through Jaona Paulina Miranda, the
fourth wife of Jacinto Miranda. However, the estate in question had not
at all devolved upon Luis Braz Miranda, the deceased, from Jacinto
Miranda. Angelina Jacinto Miranda, the second wife of Jacinto
Miranda, was the mother of Luis Braz Miranda, the deceased. Angelina
1 2024 SCC OnLine Bom 1610.
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was the daughter of Foshan Konmu Mariyal. The subject properties
originally belonged to Foshan. The deceased had inherited the estate in
question being the only legal heir of Foshan. Thus, under no
circumstance, the persons who claimed through Jaona Paulina Miranda
can be said to have any interest in the estate in question.
17. Since the petitioners have no caveatable interest, according to Mr.
Cama, the plea for revocation has to meet two insuperable
impediments. One, in the absence of caveatable interest, the petitioners
cannot claim to be the persons to whom citation was required to be
issued under section 283 of the Indian Succession Act, 1925 to see the
proceedings before the grant of Letters of Administration. Two, the
assertion of title over the estate of the deceased, without claiming
through the deceased, tentamounts to assertion of an adverse interest.
It is well neigh settled that, the person claiming an adverse interest to
the estate of the deceased can not be said to have a caveatable interest.
Therefore, the petitioners can not be said to have any locus to seek
revocation of the grant.
18. As a second limb of the submission, Mr. Cama urged, with a degree
of vehemence that, what the petitioners are agitating is the question of
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title to the estate. Reference to the registered instruments and the
claim of title in the predecessor in title of the petitioners are clearly in
the nature of title dispute. It is equally well settled that the
testamentary Court cannot delve into the question of title. The
petitioners will, therefore, have to work out their remedies before the
competent Civil Court.
19. To bolster up these submissions, Mr. Cama placed reliance on an
order passed by this Court in Interim Application No. 332 of 2023 in
Caveat (L) No. 21133 of 2021 in Testamentary Petition No. 2121 of 2021
(Surya Prakash S. Makharia v . Pramod Kumar Makharia, dated 4 th
July, 2024.
20. Mr. Cama joined the issue on the aspect of delay in filing the
petition for Letters of Administration by canvassing a submission that
the right to apply for Letters of Administration may not necessarily
accrue immediately after the death of the deceased. Nor any period of
limitation has been stipulated for seeking Letters of Administration. In
a case, the necessity of Letters of Administration may arise several
years after the death of the deceased. Therefore, an order of grant of
Letters of Administration cannot be said to be tainted with fraud for the
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only reason that there was a time lag between the death of the deceased
and the application for Probate or Letters of Administration. Reliance
was placed on a judgment of a learned single Judge of this Court in the
case of Suresh Manilal Mehta vs. Varsha Bhadresh Joshi2.
21. It was further submitted that, even otherwise, the respondent No.
1 has offered adequate explanation for the delay, initially, in the petition
itself, and also by way of an affidavit in reply to the instant petition.
22. Mr. Cama lastly urged that the allegations of fraud and
misrepresentation are easy to make than prove. If viewed in the context
of the capacity of the petitioner qua the deceased, the allegation of
suppression of facts and misrepresentation loose significance. It was
further submitted that, in the absence of a caveatable interest, which is
self evident, the revocation would not serve any purpose as the
petitioners will have to first pass the hurdle of being the persons who
have a caveatable interest in the estate of the deceased. Thus, Mr. Cama
prayed for the dismissal of the petition.
CONSIDERATION :-
23. Chapter III of Part- 9 of the Succession Act deals with revocation
2 2017(2) Bom CR 439.
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of grant. Section 263 of the Indian Succession Act, 1925 which
predominantly bears upon the determination of the controversy at
hand, reads as under:-
263. Revocation or annulment for just cause-- The
grant of probate or letters of administration may be
revoked or annulled for just cause.
Explanation : --Just cause shall be deemed to exist
where--
(a)the proceedings to obtain the grant were defective
in substance; or
(b)the grant was obtained fraudulently by making a
false suggestion, or by concealing from the Court
something material to the case; or
(c)the grant was obtained by means of an untrue
allegation of a fact essential in point of law to justify
the grant, though such allegation was made in
ignorance or inadvertently; or
(d)the grant has become useless and inoperative
through circumstances; or
(e)the person to whom the grant was made has
wilfully and without reasonable cause omitted to
exhibit an inventory or account in accordance with the
provisions of Chapter VII of this Part, or has exhibited
under that Chapter an inventory or account which is
untrue in a material respect.
24. From the phraseology of section 263, it becomes evident that the
grant of probate or Letters of Administration may be revoked if the
proceedings to obtain the grant were defective in substance or the grant
being obtained fraudulently by making a false suggestion or suppressing
from the Court certain material in the case or if the grant is obtained by
untrue allegation or that the person to whom the grant was made has
wilfully and without reasonable cause omitted to exhibit an inventory
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or account in accordance with the provisions of Chapter VII of Part 9.
The main part of section 263 provides that the grant of Probate or
Letters of Administration may be revoked for "just cause". The
Explanation appended to section 263 enumerates the circumstances in
which the 'just cause' shall be deemed to exist. There are eight
illustrations of the grounds on which the grant of Probate may be
revoked.
25. It is plain the Succession Act vests discretion in the Court to
revoke the grant for a just cause. As in the case of exercise of discretion
under any jurisdiction, the testamentary Court is expected to exercise
discretion to revoke the grant, in a judicious manner. A grant lawfully
made cannot be revoked for the reason that apparently the case may
fall within any of the five explanations or the illustrations. At the same
time, the term, "just cause" is elastic enough to cover a situation which
may not be explicitly covered by the explanation or illustration.
26. A profitable reference in this context can be made to a three Judge
Bench decision of the Supreme Court in the case of Anil Behari Ghosh
vs. Latika Bala Dessi and Ors.3 wherein the import of the term
proceeding "defective in substance" covered by explanation (a) to
3 1955 SCC OnLine SC 61.
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section 263 was illuminatingly postulated, inter alia, as under:-
15] It was further argued on behalf of the appellant that
the appeal should be allowed and the grant revoked on
the simple ground, apart from any other considerations,
that there had been no citation issued to Girish. In our
opinion, this proposition also is ,much too widely stated.
Section 263 of the Act vests a judicial discretion in the
court to revoke or annul a grant for just cause. The
explanation has indicated the circumstances in which
the court can come to the conclusion that "just cause" had
been made out. In this connection the appellant relied
upon clause (a) quoted above which requires that the
proceedings resulting in the grant sought to be revoked
should have been "defective in substance". We are not
inclined to hold that they were "defective in substance".
"Defective in substance" must mean that the defect was of
such a character as to substantially affect the regularity
and correctness of the previous proceedings. If there
were any suggestions in the present proceedings or any
circumstances were pointed out to show that if Girish
had been cited he would have been able to enter a caveat,
the absence of citation would have rendered those
proceedings "defective in substance". It may be that
Girish having been found to have been the next
reversioner to the testator's estate in case of intestacy
and on the assumption that Charu had murdered the
testator, Girish might have been entitled to a revocation
of the grant if he had moved shortly after the grant of the
probate on the simple ground that no citation had been
issued to him. The omission to issue citations to persons
who should have been apprised of the probate
proceedings may well be in a normal case a ground by
itself for revocation of the grant. But this is not an
absolute right irrespective of other considerations
arising from the proved facts of a case. The law has
vested a judicial discretion in the Court to revoke a grant
where the court may have prima facie reasons to believe
that it was necessary to have the will proved afresh in
the presence of interested parties. But in the present
case we are not satisfied in all the circumstances of the
case that just cause within the meaning of section 263
had been made out. We cannot ignore the facts that about
27 years had elapsed after the grant of probate in 1921,
that Girish in spite of the knowledge of the grant at the
latest in 1933 did not take any steps in his lifetime to
have the grant revoked, that there was no suggestion
that the will was a forgery or was otherwise invalid and
that the will was a registered one and had been executed
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eight years before the testator's unnatural death. Hence
the omission of citations to Girish which ordinarily may
have been sufficient for a revocation of the grant was not
in the special circumstances of this case sufficient to
justify the court to revoke the grant.
(emphasis supplied)
27. In the case of Manibhai Amaidas Patel and Anr. vs. Dayabhai
Amaidas4 after adverting to the explanation (a), (b) and (c) to Section
263, an illustration (ii) and (iii) thereto, the Supreme Court enunciated
the law as under:-
9] This would clearly show that it is necessary to cite
parties who would otherwise have an interest in the
succession to the estate of the deceased. That would
naturally include all the heirs of the deceased. Besides,
section 283 gives power to the District Judge as regards
the issue of citations calling upon all persons claiming to
have any interest in the estate of the deceased to come
and see the proceedings before the grant of probate.
Necessarily therefore the facts on the basis of which the
District Judge is required to exercise his discretion must
be fairly placed before him. In this case the respondent
had done nothing of the sort as we have already noticed.
10] The Courts below also overlooked the fact that in their
application for revocation the appellants had clearly
stated that in other proceedings between the members of
the family of Amaidas and the respondent the Will had
been successfully disputed. In the circumstances, for the
respondent to say that the grant was being opposed by
"nobody" was misleading. The grant was obtained by
concealing from the Court something which was very
material to the case. The appellants were entitled to be
heard and doubtless the District Judge would have
directed to issue of citations to each of Amaidas's heirs on
intestacy under Section 283(1)(c) of the Act had the true
facts been revealed by the respondent in his application
for grant of probate. The advertisement in this case was
wholly insufficient to patch up the gross lacuna.
28. The legal position which thus emerges is that the failure to serve
4 2005 (12) Supreme Court Cases 154.
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the citation on the person who is otherwise entitled to be heard under
section 283 of the Succession Act before the grant of Probate or Letters
of Administration may ordinarily render the proceedings defective in
substance. That brings to the fore the question as to who can be said to
be the person claiming to have any interest in the estate of the
deceased, referred in section 283 of the Indian Succession Act, 1925.
29. A profitable reference in this context can be made to a decision of
the Supreme Court in the case of Krishna Kumar Birla vs. Rajendra
Singh Lodha and Others 5 wherein the Supreme Court, after an elaborate
consideration of the provisions and precedents culled out the
proposition as under:-
"57. ....... The jurisdiction of the Probate Court is limited being
confined only to consider the genuineness of the Will. A
question of title arising under the Act cannot be gone into the
proceedings. Construction of a Will relating to the right, title
and interest of any other person is beyond the domain of the
Probate Court.
58. A person to whom a citation is to be issued or a caveator,
must have some interest in the estate of the testator. Any
person claiming any interest adverse to the testator or his
estate cannot maintain any application before the Probate
Court. His remedy would be elsewhere. The question with
regard to the degree of interest or the right which a caveator
must show to establish his or her caveatable interest before the
Probate Court should be considered having regard to the
aforementioned legal propositions.
............
75. A suit which would be maintainable must have something
5 (2008) 4 Supreme Court Cases 300.
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to do with the estate of the testator. Inheritance by Will itself
may be a subject matter of contention. Whether the interest
claimed by the caveator is an established one or a bare claim
must satisfy the test that there exists an interest in the estate
of the testator and the same is not adverse thereto.
.............
84. Section 283 of the 1925 Act confers a discretion upon the
court to invite some persons to watch the proceedings. Who are
they? They must have an interest in the estate of the deceased.
Those who pray for joining the proceeding cannot do so despite
saying that they had no interest in the estate of the deceased.
They must be persons who have an interest in the estate left by
the deceased. An interest may be a wide one but such an
interest must not be one which would not (sic) have the effect
of destroying the estate of the testator itself. Filing of a suit is
contemplated inter alia in a case where a question relating to
the succession of an estate arises.
85. We may, by way of example notice that a testator might
have entered into an agreement of sale entitling the vendee to
file a suit for specific performance of contract. On the basis
thereof, however, a caveatable interest is not created, as such
an agreement would be binding both on the executor, if the
probate is granted, and on the heirs and legal representatives
of the deceased, if the same is refused.
86. The propositions of law which in our considered view may
be applied in a case of this nature are :
(i) To sustain a caveat, a caveatable interest must be shown.
(ii) The test required to be applied is: does the claim of grant of
probate prejudice his right because it defeats some other line of
succession in terms whereof the caveator asserted his right.
(iii) It is a fundamental nature of a probate proceeding that
whatever would be the interest of the testator, the same must
be accepted and the rules laid down therein must be followed.
The logical corollary whereof would be that any person
questioning the existence of title in respect of the estate or
capacity of the testator to dispose of the property by Will on
ground outside the law of succession would be a stranger to the
probate proceeding inasmuch as none of such rights can
effectively be adjudicated therein.
...........
89. While determining the said question, the law governing the
intestate succession must also be kept in mind. The right of the
reversioner or even the doctrine of "spes successionis" will
have no application for determining the issue in a case of this
nature.
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...........
103. What would be caveatable interest would, thus, depend
upon the fact situation obtaining in each case. No hard and fast
rule, as such, can be laid down. We have merely made attempts
to lay down certain broad legal principles.
............
135. It is too far fetched a submission that a person having a
remote family connection or as an agnate is entitled to file a
caveat. A reversioner or an agnate or a family member can
maintain a caveat only when there is a possibility of his
inheritance of the property in the event the probate of the Will
is not granted. If there are heirs of intestate who are alive,
entertaining of a caveat on the part of another family member
or a reversioner or an agnate or cognate would never arise."
(emphasis supplied)
30. A conjoint reading of the propositions culled out in clauses (ii)
and (iii) of paragraph 86 spells out the test which is to be applied to
ascertain the existence of a caveatable interest, namely, "the Caveator
ought to be in a position to show that if the grant of Probate or Letters of
Administration is made it will defeat his claim of succession or
inheritance to the estate of the deceased for the reason that it defeats
some other line of succession. If the Caveator is likely to inherit a very
small part of the estate of the deceased in the event the Probate or
Letters of Administration, as the case may be, is not granted, it can be
said that the Caveator has a caveatable interest. Conversely, if the
Caveator questions the existence of title in respect of the estate or
capacity of the testator to dispose of the property by Will on a ground
outside the law of succession, ordinarily, he can be termed as a stranger
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to the Probate proceeding. If the Caveator opposes the grant of Probate
or Letters of Administration by setting up an adverse title in himself or
by disputing the very existence of the estate, professed to be disposed
by the deceased, the Caveator cannot be said to have a caveatable
interest as that would be a matter of adjudication of title; clearly beyond
the remit of the jurisdiction of the Testamentary Court.
31. The decision of the Supreme Court in the case of Basanti Devi vs.
Ravi Prakash Ram Prasad Jaiswal6 also delineates the approach of the
Court in a petition for revocation of the grant. The observations in
paragraph 24 reads as under:-
24] It is now well settled that an application for grant of
probate is a proceeding in rem. A probate when granted
not only binds all the parties before the Court but also
binds all other persons in all proceedings arising out of
the Will or claims under or connected therewith. Being a
judgment in rem, a person, who is aggrieved thereby and
having had no knowledge about the proceedings and
proper citations having not been made, is entitled to file
an application for revocation of probate on such grounds
as may be available to him. We are, therefore, of the
opinion that the application for revocation of the grant of
probate should have been entertained.
32. In view of the aforesaid exposition of law, reverting to the facts of
the case at hand, an aspect which stares in the face is that of delay in
seeking the Letters of Administration. As noted above, Luis Braz
6 (2008) 1 SCC 267.
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Miranda son of Jacinto Miranda, the deceased, passed away on or about
17th March, 1909. The first petition for grant of Letters of
Administration i.e. Testamentary Petition (L) No. 2704 of 2019 was
filed in the year 2019 i.e. after about 110 years. The said petition was
dismissed for non-removal of office objections pursuant to an order
dated 3rd May, 2021. Testamentary Petition No. 2476 of 2022 was filed
in the month of December, 2021 albeit with a disclosure that the first
Testamentary Petition (L) No. 2704 of 2019 came to be rejected under
Rule 986 of the Bombay High Court (Original Side) Rules, 1980.
33. Incontrovertibly, the time lag between the death of the deceased
and the filing of the petition for Letters of Administration is huge and
inordinate, by any standard. Is there a period of limitation for filing an
application for Letters of Administration? Is there a requirement to
explain the delay ? If so, has the delay been explained?
34. Mr. Cama, the learned counsel for respondent No. 1 would urge
that having urged to the nature of the proceedings for grant of Probate
or Letters of Administration, no period of limitation has been advisedly
prescribed. Therefore, the aspect of delay cannot be urged as a ground
to seek revocation of the grant lawfully made. It could be urged that, the
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petitioners may be justified in seeking the grant when the necessity of
Probate or Letters of Administration arises and not before. Yet, I find it
rather difficult to accede to the broad submission that aspect of delay is
wholly inconsequential, even if the delay be of more than a century.
35. In the strict sense, the submission that there is no provision
under the Limitation Act, 1963 which governs an application for grant
of Letters of Administration, is not acceptable as an absolute
proposition in law. It is one thing to say that the right to apply for grant
of Letters of Administration is a continuing right. However, it is a
completely different thing to take a position that the Limitation Act,
1963 does not govern an application for grant of Probate or Letters of
Administration at all. In the case of Kunvarjeet Singh Khandpur vs.
Kirandeep Kaur & Ors.7 the question as to whether the provisions
contained in Article 137 of the Limitation Act govern an application for
grant of Probate/ Letters of Administration arose for consideration
before the Supreme Court. The Supreme Court, in terms, enunciated
that the view that the application for grant of Probate or Letters of
Administration is not covered by Article 137 of the Limitation Act is not
correct.
7 2008 (8) SCC 463.
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36. It would be contextually relevant to note that in the aforesaid
decision the Supreme Court referred to the judgment of this Court in the
case of Vasudev Daulatram Sadarangani vs Sajni Prem Lalwani 8 which
was extensively referred to by the learned single Judge in the case of
Suresh Mehta (supra), on which reliance was placed by Mr. Cama. The
Supreme Court enunciated the law as under.
13] Article 137 of the Limitation Act reads as follows:
_______________________________________________________
Description of suit Period of limitation Time from
which period
begins to run
_______________________________________________________
137. Any other application Three Years When the right
for which no period of to apply accrues
limitation is provided
elsewhere in the Division.
The crucial expression in the petition (sic Article) is "right to
apply". In view of what has been stated by this Court, Article 137
is clearly applicable to the petition for grant of Letters of
Administration. As rightly observed by the High Court in such
proceedings the application merely seeks recognition from the
Court to perform a duty because of the nature of the proceedings
it is a continuing right. The Division Bench of the Delhi High
Court referred to several decisions. One of them was S.
Krishnaswami v. E. Ramiah. In para 17 of the said judgment it
was noted as follows : (AIR p. 222).
"17. In a proceeding, or in other words, in an application filed
for grant of probate or letters of administration, no right is
asserted or claimed by the applicant. The applicant only seeks
recognition of the Court to perform a duty. Probate or letter of
Administration issued by a competent Court is conclusive proof
of the legal character throughout the world. An assessment of
the relevant provisions of the Indian Succession Act, 1925 does
not convey a meaning that by the Proceedings filed for grant of
probate or letters of administration, no rights of the applicant
are settled or secured in the legal sense. The author of the
testament has cast the duty with regard to the administration of
his estate, and the applicant for probate or letters of
8 AIR 1983 Bom 268.
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administration only seeks the permission of the Court to
perform that duty. There is only a seeking of recognition from
the Court to perform the duty. That duty is only moral and it is
not legal. There is no law which compels the applicant to file the
proceedings for probate or letters of administration. With a view
to discharge the moral duty, the applicant seeks recognition
from the Court to perform the duty. It will be legitimate to
conclude that the proceedings filed for grant of probate or letters
of administration is not an action in law. Hence, it is very
difficult to and it will not be in order to construe the proceedings
for grant of probate or letters of administration as applications
coming within the meaning of an 'application' under Art. 137 of
the Limitation Act, 1963.
14] Though the nature of the petition has been rightly described
by the High Court, it was not correct in observing that the
application for grant of probate or letters of Administration is
not covered by Article 137 of the Limitation Act. Same is not
correct in view of what has been stated in Kerala SEB case.
15] Similarly reference was made to a decision of the Bombay
High Court's case in Vasudev Daulatram Sadarangani v Sajni
Prem Lalwani, AIR 1983 Bom.268. Para 16 reads as follows :
(AIR p. 270).
"16. Rejecting Mr. Dalapatrai's contention, I summarise my
conclusions thus:-
(a) under the Limitation Act no period is advisedly prescribed
within which an application for probate, letters of
administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply
necessarily accrues on the date of the death of the deceased, is
unwarranted;
(c) such an application is for the Court's permission to perform a
legal duty created by a Will or for recognition as a testamentary
trustee and is a continuous right which can be exercised any
time after the death of the deceased, as long as the right to do so
survives and the object of the trust exists or any part of the
trust, if created, remains to be executed;
(d) the right to apply would accrue when it becomes necessary
to apply which may not necessarily be within 3 years form the
date of he deceased's death.
(e) delay beyond 3 years after the deceased's death would
arouse suspicion and greater the delay, greater would be the
suspicion;
(f) such delay must be explained, but cannot be equated with the
absolute bar of limitation; and
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(g) once execution and attestation are proved, suspicion of delay
no longer operates".
Conclusion (b) is not correct while the Conclusion (c) is the
correct position of law.
(emphasis supplied)
37. A three Judge Bench of the Supreme Court in the case of Ramesh
Nivrutti Bhagat vs. Dr. Surendra Manohar Parakhe 9 after following the
aforesaid pronouncement in the case of Kunvarjeet Singh (supra),
exposited that the residuary entry Article 137 of the Limitation Act,
which covers proceedings for which no period of limitation is stipulated,
applies to an application for revocation of the Letters of Administration.
38. Rule 382 of the Bombay High Court (Original Side) Rules, 1980,
provides as under:-
Delay in application - In any case where an application for
probate or letters of administration or succession
certificate is made for the first time after the lapse of three
years from the death of the deceased, the reason for the
delay shall be explained in the petition. Should the
explanation be unsatisfactory, the Prothonotary and Senior
Master may require such further proof of the alleged cause
of delay as he may deem fit.
39. The decision of this Court, in the case of Suresh Mehta (supra), on
which reliance was placed by Mr. Cama especially the observations in
paragraphs 30 to 32, indicates that there is a requirement to offer an
explanation for the delay. If the Court is otherwise satisfied that the
9 (2020) 17 SCC 284.
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grant of Probate or Letters of Administration is required to be made, the
aspect of delay pales in significance. However, it can not be urged that
whatever be the length of delay, it is wholly inconsequential.
40. In the context of the aforesaid requirement of Rule 382, it has to
be seen whether any explanation for delay of over a century was offered
in Testamentary Petition No. 2476 of 2022. Paragraph 9 of the
Testamentary Petition No. 2476 of 2022 reads as under:-
9] That the delay in making present petition is on
account of the fact that petitioner was ignorant and
unaware of obtaining any legal representation. Now
petitioner has been advice to obtain a legal
representation. Hence, this Court in the interest of
justice may condone the delay.
41. The afore-extracted assertion in the petition, does not constitute
an explanation, much less a satisfactory one. As it emerges from the
contentions in the affidavit in reply, the respondent No. 1 made an
endeavour to contend that the necessity of Letters of Administration
arose when the respondent No. 1 moved the authorities for mutating
the names of respondent No. 1 and other heirs claiming through
Victoria Mary D'Mello, the daughter of Luis Braz Jacinto Miranda, the
deceased. In the petition, even that explanation was not furnished by
respondent No. 1. On the contrary, the respondent No. 1 feigned
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ignorance of the necessity of any legal representation.
42. At this stage, the nature and character of the properties in respect
of which the Letters of Administration were sought assumes critical
salience. The Letters of Administration were sought in respect of as
many as 67 Survey Numbers situated within Andheri suburban District
of Mumbai. The fact that the lands command huge premium in a
Metropolis like Mumbai cannot be lost sight of. It does not appeal to
human credulity for over a century, after the demise of the deceased,
the heirs of the deceased would not have been required to lay their
claims over as many as 67 properties situated in an area like Andheri.
These concomitant circumstances, where many a number of properties
must have been occupied, dealt with, rights asserted and denied, for
several years, also deserve to be taken into account. The necessity of
offering the explanation for not seeking the Letters of Administration in
respect of these valuable properties, thus, assumes importance.
43. The explanation sought to be offered in the affidavit in reply to the
instant petition is also far from satisfactory. Respondent No. 1 asserts
that he and his mother were always under bonafide belief that the
estate of Luis Braz Jacinto Miranda has been leased out to various
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parties. During the life time of Luis Braz Jacinto Miranda, no third
party rights were created over his estate. It defies comprehension that
respondent No. 1 and the other heirs who claimed through Victoria
Mary D'Mello have had no occasion to assert their rights even in respect
of the estate which had allegedly been leased to various parties.
44. I am, therefore, inclined to hold that, in the peculiar facts of the
case, the respondent No. 1 owed an explanation to the Court for not
applying for the Letters of Administration for over a centaury after the
demise of the deceased. No satisfactory explanation was offered in the
petition. At best, a bald and general assertion was made that respondent
No. 1 was unaware of the necessity of obtaining Letters of
Administration. At any rate, in the backdrop of the vast number of
properties in respect of which the Letters of Administration were
eventually claimed and the nature and character thereof, the
explanation is unworthy of credence.
45. The matter can be looked at from a slightly different perspective.
In the affidavit in reply it is contended that in the year 2015, the
respondent No. 1 for the first time realized that an adverse interest to
the estate of the deceased was claimed. It could thus be urged that the
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right to sue accrued to respondent No. 1 in the year 2015. As noted
above, the first Testamentary Petition for Letters of Administration was
filed in the year 2019. It is a different matter that, in the instant
Testamentary Petition, respondent No. 1 chose not to divulge the
circumstances which necessitated the filing of the petition for Letters of
Administration after about a century and a decade of the death of the
deceased.
46. The thrust of the submission of Mr. Cama, was that the deceased
had inherited the estate through his mother Angelina Jacinto Miranda,
who was the daughter of Foshan Konmu Mariyal, the original holder of
the subject properties. Therefore, by no stretch of imagination, the
petitioners who claim through Jaona Paulina Miranda, the fourth wife
of Jacinto Miranda, can have a caveatable interest in the estate. In fact,
the petitioners are claiming an adverse interest and not through the
estate of the deceased.
47. There can be no duality of opinion on the point that the Court
dealing with a petition for Probate or Letters of Administration has no
jurisdiction to delve into the aspect of title. If a person opposes the grant
of Probate or Letters of Administration by setting up an adverse title in
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himself or disputes the very existence of the estate professed to be
disposed by the deceased or succeed to in the case of intestacy, such
person cannot be said to have a caveatable interest as that would be a
matter of adjudication of title; clearly beyond the remit of the
jurisdiction of the Testamentary Court.
48. Whether the petitioners, in the instant petition, have a caveatable
interest, need not be conclusively determined in the instant petition. It
is required to be seen whether such circumstances are brought on
record by the petitioners as would warrant the adjudication of the claim
for grant of Letters of Administration on merit in contradistinction to
the grant, as made in the instant petition, as an uncontested matter. As
noted above, the petitioners claim rests on the Gift Deed executed by
Anthony Jacinto Miranda, the father of Luis Braz Jacinto Miranda, on
11th August, 2024, in favour of Joana Miranda, the fourth wife of
Jacinto Miranda. In the affidavit in reply, a stand was taken that the
respondent No. 1 and other heirs of Luis Braz Jacinto Miranda had no
occasion to challenge the Gift Deed as the same is not registered. Prima
facie, the said contention appears to be factually incorrect. By Deed of
Trust registered on 23rd November, 1926, the Donee made her son
Joseph Miranda and Rita Miranda, trustees along with herself. It
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appears that mutation entries were effected on the strength of these
registered instruments. It further appears that on the strength of the
said Gift Deed, the legal representatives of the Donee have executed
multiple transactions. In paragraphs 36 to 42 of the petition, the
petitioners have referred to the various transfers effected by
predecessors in title of the petitioners and the petitioners. Reference is
made in paragraphs 43 to 49 to the acquisition of the parcels of lands by
the instrumentalities of the State.
49. I must hasten to add that the aforesaid transactions are not
referred to in negation of the claim of the respondent No. 1or as a
circumstance which buttresses the cause of the petitioners. The
aforesaid developments for over a century, are referred to for the
purpose of testing the claim of respondent No. 1 and other heirs of the
deceased, that they were unaware of the Gift Deed and the dealings with
the property in respect of which Letters of Administration were sought.
The situation which thus obtains is that a registered Gift Deed in
respect of the properties mentioned in the Schedule of Assets was left
outstanding for almost a century. There is material to indicate that on
the strength of the aforesaid registered instruments, parties have acted
upon, properties changed hands and even third parties have altered
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their position.
50. It is in this context, the existence of a "just cause" is required to be
appreciated. In the peculiar facts of the case, in my considered view, the
petition for revocation of the grant cannot be adjudicated on the sole
barometer of existence of a caveatable interest. That question can be
legitimately delved into, if the petition for Letters of Administration, is
adjudicated afresh on merits. The entitlement of the respondent No. 1
for grant of Letters of Administration qua the subject properties in
respect of which the registered instruments were left outstanding for
over a centaury and there were numerous transactions on the strength
of the said registered instruments, is required to be determined on
merits.
51. For the foregoing reasons, in my considered view, the petition
deserves to be allowed and the grant of Letters of Administration dated
30th January, 2023, as an uncontested matter, deserves to be revoked.
Hence, the following order :
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ORDER
(i) The Petition stands allowed.
(ii) The Letters of Administration dated 30 th January, 2023 in
Testamentary Petition No. 2476 of 2022 stand revoked.
(iii) Testamentary Petition No. 2476 of 2022 stands restored to file for
afresh determination in accordance with law.
( N.J.JAMADAR, J. )
1. At this stage, learned Counsel for Respondent No.1 seeks stay
to the execution and operation of this order. Learned Counsel submits
that in the meanwhile, the respondent No. 1 would abide by the
statement made on behalf of Respondent No.1 on 24th June 2024.
2. In view of the aforesaid submissions on behalf of Respondent
No.1, the execution and operation of this order is stayed for a period of
four weeks.
3. The statement made on behalf of Respondent No.1, not to
proceed with the application to mutate the names to the record of rights
of the subject property on the basis of the Letters of Administration,
shall continue to operate for the said period of four weeks.
( N.J.JAMADAR, J. )
