Fr Myron Pereira vs Carol Rosemary Pereira
2025 Latest Caselaw 6853 Bom

Bombay High Court

Fr Myron Pereira vs Carol Rosemary Pereira on 15 October, 2025

2025:BHC-OS:19287

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                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         TESTAMENTARY AND INTESTATE JURISDICTION
                      THIRD PARTY APPLICATION (LODG.) No. 23487 OF 2025
                                             IN
                           TESTAMENTARY PETITION NO. 1767 OF 2025

          Derek Peter Pereira                                         ...Deceased

          Carol Rosemary Pereira                                      ...Petitioner

          and

          Fr. Myron Pereira                                           ...Third party applicant



                                                           Before : P. P. Bhaidkar,
                                                                    Addl. Registrar (O.S.)/
                                                                    Addl. Prothonotary and
                                                                    Senior Master

                                                           Date : 15th October, 2025.


          Mr. Floyd Francis Mariano Gracias, Advocate for the third party applicant.
          Mr. Ivor Peter D'cruz a/w Pierre Fernandes, Rupali Singh and Elaine
          Fergose, Advocate for Orig. Petitioner.


          P. C. :
          1.

This third party application is filed by the Applicant for issuing certified copy of the Testamentary Petition No. 1767 of 2025.

2. It is stated in the Affidavit in support that the applicant had filed a Caveat in the captioned Testamentary Petition under Section 148-A of

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Civil Procedure Code. It is further stated that despite filing the said Caveat, citation of the Testamentary Petition was not served upon the Applicant and as a result thereof, the Caveators were unable to file a Caveat in the Testamentary Petition as prescribed under Rule 401 of the Bombay High Court (Original Side) Rules, 1980. It is further stated that Probate of the Will of the deceased is granted by order dated 25.07.2025. The Applicant intends to challenge the aforesaid Grant of Probate and therefore, it is expedient in the interest of justice that certified copies of the Testamentary Petition be issued to the applicant.

3. The Original Petitioner has filed Affidavit in reply dated 03.09.2025, inter alia, stating therein that the third party applicant is brother-in-law of the Petitioner. The Petitioner has denied all the allegations, contention and submission made in the said application and Affidavit in support. It is further stated that only with a malafide purpose of causing harm, injury and loss to the Petitioner and to deprive her of her inheritance in her husband's property, the present application is filed. It is further stated that the applicant has failed to show the sufficient cause and therefore the present application be dismissed with costs.

4. It is further stated in Reply that the applicant has filed Suit No. 363 of 2015 for declaration of shares and administration of the estate of Late Mrs. Mildred Pereira, mother of the applicant and mother-in-law of the Petitioner. In the said Suit, the applicant had filed Interim Application No. 3693 of 2024 in which prayer clause (a) was for direction to the Defendant to produce a copy of the purported Will of Defendant No. 1

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prior to the final disposal of the Interim Application. It is stated that the aforesaid Interim Application came to be withdrawn by the applicant on 27.03.2025.

5. It is further stated in the Affidavit in reply that on 19.05.2002, the applicant issued a Certificate of his own volition stating therein that he is professed member of a religious group called "The Society of Jesus" and as such he renounced all his legal and financial claims to the immovable property of his parents in favour of his brothers and sister. In view thereof, the applicant is barred from initiating litigation without the permission of the provincial. The applicant has not produced any permission from the provincial prior to filing the present application and on this ground alone the third party application be dismissed with costs. In support of his submission, the Petitioner had mentioned relevant clauses of the Constitution and Norms. It is further stated that applicant in Interim Application No. 3693 of 2024 had prayed for copy of Will of Defendant No. 1 which was later on withdrawn by the applicant. It is further stated that the applicant in the said Interim Application has reserved his right to challenge/oppose the Will at the time, when the evidence is being produced and especially during the course of arguments in the said Suit. It is further stated that the applicant had not filed any Probate Petition in respect of the Will of Plaintiff No.1 claiming that under Section 213 of the Indian Succession Act, the Christian is exempted from applying for any probate. Applying the same contention of the Applicant to the present case then by virtue of the Will of the deceased, the estate of the deceased shall automatically devolve upon the Petitioner.

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6. It is further stated that the Applicant had filed Caveat No. 567 of 2025 under Section 148 (A) of Civil Procedure Code and not as per the provisions of Rule 401 of Bombay High Court (Original Side) Rules 1980 and hence the same was not required to be considered as rightly recorded in Order dated 25.07.2025 passed by the Testamentary Registrar. It is further stated that the deceased expired leaving behind his Will, Petitioner and her daughter who are his legal heirs as per Indian Succession Act, therefore, there was no necessity of serving any citation upon the applicant. In reply, it is further stated that the applicant is not entitled to challenge the aforesaid grant of Probate. For the aforesaid reasons, the Petitioner prayed that the third party applicant may be dismissed with exemplary costs.

7. The third party applicant has filed Rejoinder to the aforesaid reply thereby denying the allegations made by the Petitioner in Affidavit in reply.

8. It is stated in the Rejoinder that the present application filed by the Applicant is maintainable in law and the applicant possess the requisite locus standi. It is further stated that the purported Will made by Late Derek Peter Pereira is bad in law and prima facie appears surreptitious and an afterthought, in as much as the property bequeathed thereunder is not the exclusive property of the testator, but one in which the Applicant, alongwith other siblings, holds an undivided right, title and interest to

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ancestral/inherited property of the parents of the Applicant and the deceased.

9. It is further stated that the Petitioner addressed a letter dated 24.10.2024, through their Advocate, requesting the Original Plaintiff No. 3 i.e. Applicant herein to file the necessary application to bring on record the surviving legal heirs of the deceased Defendant No. 1, specifically identifying the Petitioner and one Desiree Geraldine Marie Pereira Little as the only surviving legal heirs of the deceased. In response, the Applicant's Advocate by letter dated 07.11.2024, noted that the Petitioner's letter made no reference as to whether the deceased, Derek Peter Pereira, had expired intestate or testate. Further, the Applicant's Advocate requested that, in the event a Will, existed, full details of the beneficiaries thereunder ought to be disclosed. The Applicant's Advocate also challenged the purported legal status of Desiree Geraldine Marie Pereira Little that she was not the biological daughter of the deceased and requested the Petitioner's Advocate to substantiate her legal capacity and entitlement.

10. It is further stated that vide letter dated 18.11.2024, the Petitioner's Advocate asserted that the deceased had in fact executed a Will, whereby the Petitioner was the sole beneficiary, and further contended that the legal status and capacity of Desiree Geraldine Marie Pereira Little was therefore rendered irrelevant. It is further stated that the said Desiree Geraldine Marie Pereira Little was merely a ward under the law of Guardianship for the time being in force and is not legally adopted. It is

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stated that having considered this fact alone, the deceased expired leaving behind his widow (the Petitioner in the Testamentary Petition). Since the deceased expired issueless, the legal heirs of the father, being the Applicant herein and Plaintiff No. 2 to the Suit, stand to be legally entitled to 50% of the estate of the deceased, in the ancestral property of the family, alongwith Defendant No. 2. The third party applicant further stated that the Petitioner has withdrawn the Interim Application No. 3693 of 2024 with liberty to file a fresh application. In exercise of such liberty, the applicant duly instituted a fresh Interim Application (L) No. 11891 of 2025 on 09.04.2025 before the Hon'ble Court. By an order passed by His Lordship on 21.04.2025, the Interim Application was allowed by consent and the Plaintiffs were permitted to carry out the amendment for bringing the legal heirs of deceased Defendant No. 1 on record.

11. In Rejoinder, the applicant has admitted to the limited extent that the applicant is a member of the Society of Jesus. However, it is categorically denied and refused that he is not entitled to inherit the estate of his late parents. It is further stated that as regards the Constitution of the Society of Jesus, the same are internal guidelines of the Religious Community and therefore protected under the doctrine on indoor management. It is further stated that once the Petitioner has elected to apply for Probate, the proceedings must necessarily be carried through in accordance with law, and the applicant ought to be provided free and fair opportunity to contest the same, failing which the same would amount to depriving of the applicant of his rights to natural justice. It is further stated that Rule 401 states that a person may file a Caveat within 14 days from the service

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of citation. Since citation was not served upon the Applicant, the same is not applicable. In para - 12, the Advocate has relied on the Judgement of Hon'ble Supreme Court in Basant Devi vs. Raviprakash Ramprasad Jaiswal wherein it is held that :

"22. 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 judgement 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."

It is further stated that it is well settled and established principle, reiterated in a plethora of Judgements of the Hon'ble Supreme Court, that procedural lapses or irregularities cannot defeat or override substantive rights in law. In para - 13, the applicant has relied upon the Judgement of the Hon'ble Supreme Court in Krishna Kumar Birla vs. Rajendra Singh Lodha & Ors. wherein it is observed as under:

"95. In the context of the laws governing inheritance and succession, as they then stood, the widest possible meaning to the term "interest" might have been given in a series of decisions to which the leaned counsel for the appellants rely upon ranging from Nobeen Chunder Sil (Supra) to Radharaman Chowdhuri and others vs. Gopal Chandra Chakravarty [AIR 1920 Calcutta 459] so as to hold that a Caveat would be maintainable even at the instance of a

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person who had been able to establish "some sort of relationship"and however distant he may be from the deceased which per se cannot have any application after coming into force of the Hindu Succession Act. Ordinarily, therefore, a caveatable interest would mean an interest in the estate of the deceased to which the caveator would otherwise be entitled to, subject of course, of having a special interest therein."

12. It is, therefore, stated that it is evident that there was a necessity to serve citation upon the applicant and that the applicant is vested with a valid caveatable interest in the estate and has, accordingly, rightfully sought to oppose and challenge the grant of Probate. It is, therefore, stated that it is paramount and expedient in the interest of justice that the said application for certified copies be made absolute and granted.

13. In support of submission, the applicant relied on Section 24 and Section 33 of Indian Succession Act which reads as under:

Section 24 of Indian Succession Act reads as under :-

"24. Kindred or consanguinity - Kindred or consanguinity is the connection or relation of persons descended from the same stock or common ancestor.

Section 33(a) of the Indian Succession Act provides "where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred, only one-third shall belong to his widow and the remaining two third shall go to his lineal descendants, according to the rules hereinafter contained."

Section 33(b) provides that "if he has left no lineal descendant, but has left persons who are kindred to him, one-half of his property shall

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belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained."

14. The third party applicant intends to challenge the Will of the deceased claiming the same to be bad in law and afterthought one. In fact, the third party applicant had filed two Caveats under Section 148A of Civil Procedure Code, 1908. However, the said Caveats were not considered as the same were not filed under Rule 401 of Bombay High Court (Original Side) Rules 1980.

15. The Ld. Advocate for the third party applicant has further relied on the Judgement dated 27.10.1999 passed by the Hon'ble Shri Justice F. I. Rebello wherein it is stated that a guardian/guardians who have been appointed by Courts in the past and whose guardianship continuous, can apply for adoption if the period of two years has elapsed, since the date of order of appointment of Guardianship. In this matter, there is nothing to show that any application was made for adoption of Desiree Geraldine Marie Pereira Little. In view thereof, there is a substance in contention of the applicant with regard to validity of adoption.

16. I have heard both the parties. Perused third party application, reply and rejoinder as also the provisions of Indian Succession Act and Judgments relied on by the Advocate for the third party applicant.

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17. In view of the aforesaid facts and circumstances and by taking into consideration the provisions of Section 33(b) of Indian Succession Act, 1925 and the fact that the third party applicant had filed two Caveats under Section 148-A of Civil Procedure Code, 1908 in Testamentary Petition No. 1767 of 2025 and considering the Judgement of the Hon'ble Supreme Court in case of Krishna Kumar Birla v/s. Rajendra Singh Lodha and Ors., I am of the opinion that the third party applicant has caveatable interest in the matter and hence, entitled for certified copy of record and proceedings of Testamentary Petition No. 1767 of 2025. The third party applicant has shown sufficient cause for issuing certified copy of Petition and Probate. In view thereof, third party application is allowed.

18. Office is, therefore, directed to issue certified copy of entire papers and proceeding of Testamentary Petition No. 1767 of 2025 to the third party applicant on payment of necessary charges.

19. It is made clear that the third party applicant shall use the certified copy only for the purpose mentioned in the third party application and in accordance with Rule 271 of Bombay High Court O.S. Rules, and not to part with the certified copy to any other third party.

20. Third Party Application is disposed of. Order accordingly.

Addl. Registrar (O.S.)/ 15.10.2025 Addl. Prothonotary and Senior Master