[Cites 1, Cited by 0]
Bombay High Court
Bhiku Sadashiv Shirodkar vs Manoj Mahipat Surve on 4 February, 2026
2026:BHC-OS:3334
901 MPT-141-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISC. PETITION NO. 141 OF 2022
IN
TESTAMENTARY PETITION NO. 3081 OF 2018
Bhiku Sadashiv Shirodkar ...Petitioner
Versus
Manoj Mahipat Surve ...Respondent
------------
Mr. Khushnood Akhtar, Mr. Hamza Shaikh, Ms. Shifa Farooqui i/b Mr.
Shivaji Nirmale for Petitioner.
Mr. Tanvir Shaikh for Respondent.
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CORAM : SHARMILA U. DESHMUKH, J.
DATE : FEBRUARY 4, 2026
P. C. :
1. The Miscellaneous Petition has been filed under Section 263 of
Indian Succession Act, 1925 seeking revocation of grant of probate of
the Will dated 23rd September, 2013 of the deceased Suhasini
Harishchandra Shriodkar. The probate was granted on 22nd December,
2019 to the executor of the Will who is brother of the caretaker of the
deceased. The caretaker is the beneficiary under the Will.
2. The Testamentary Petition pleads that deceased died as widow
and had left no surviving next-of-kin or other legal heirs and that her
husband had pre-deceased the deceased. The present Petition pleads
that the deceased Suhasini was the grandmother of the Petitioner and
the Petitioner is Class II legal heir and ought to have been cited. It is
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stated that the Petitioner is the son of brother-in-law of the deceased-
Suhasini and is only surviving class-II legal heir.
3. Learned counsel appearing for Petitioner would point out to the
additional Affidavit to which is annexed the certificate issued by Gram
Panchayat office, Ai, Taluka - Dodamarg, District - Sindhudurg stating
the names of legal heirs of the deceased Harishchandra i.e. husband of
the deceased-Suhasini and includes the name of the Petitioner. He
would further point out to similar certificate issued by Police Patil. He
submits that all the legal heirs have expired except the present
Petitioner. He would further point out that in respect of agricultural
land of the deceased- Harishchandra, the name of the Petitioner has
been mutated in the revenue records on 27th February, 2019. Based on
the material which is placed on record, the Petitioner asserts that he is
class-II legal heirs of the deceased and not having been cited, the grant
is liable to be revoked.
4. Per contra, learned counsel appearing for Respondent would
question the authenticity of the documents based on which the
Petitioner claims to be class-II legal heir of the deceased. He submits
that to support the case of being class-II heir, the Petitioner has
produced the legal heirship certificate of Gram Panchayat Office, Ai,
Taluka - Dodamarg, District - Sindhudurg and certificate by Police Patil
whereas the provisions of Bombay Regulation VIII of 1827 is the law for
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obtaining the legal heirship certificate. He would submit that for
claiming any relationship as the next-of-kin and legal heir of the
deceased-Suhasini, it was necessary for the Petitioner to approach the
District Court and seek legal heirship certificate before staking any
claim by way of present Petition. He would further submit that the
documents itself are doubtful as the Gram Panchayat certificate which
was initially annexed to the Testamentary Petition did not include the
name of granddaughter in law of the deceased which now finds place
in the additional affidavit filed by the Petitioner. He would further
submit that even the mutation entry mutates the name of the
Petitioner in place of the deceased Suhasini in 2019 whereas the
mutation entry does not show that the name of Suhasini was mutated
after the death of Harishchandra. He would further submit that the
Will executed by the deceased does not mention the agricultural
property and there is doubt about the genuineness of the mutation
entry.
5. I have considered the submissions and perused the record.
6. Section 263 of the Indian Succession Act, 1925 confers
discretionary power on the Court to revoke grant of probate upon just
cause being shown. The illustration to the explanation to Section 263
sets out the eventuality where the grant was made without citing the
party who ought to have been cited. It is not the case of the Petitioner
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that there has been fraud practiced in obtaining grant of probate.
Considering that the beneficiary of the Will was the caretaker/tenant
of the deceased-Suhasini and the executor is brother-in-law of the
deceased, it can be accepted that the original Petitioner was unaware
of the legal heirs of the deceased and therefore, could not have cited
the present Petitioner. However, the position changes when the class-II
legal heir comes into the picture in which case, the revocation would
follow. The Respondent would question the genuineness of the
documents produced on record to prove relationship with deceased
contending that the application for legal heirship certificate is required
to be obtained under the provisions of Bombay Regulation Act. The
Petitioner, in order to establish the relationship between the deceased
and himself, which was called upon by this Court during the hearing,
has produced the Gram Panchayat certificate and the revenue record.
The present proceedings are not for the purpose of declaring the
Petitioner as the legal heir of the deceased as the relationship can be
questioned during evidence. The mutation entry placed on record is in
respect of the estate of the deceased Harishchandra-husband of
Suhasini and the name of the present Petitioner has been mutated in
the revenue record as the legal heir of the Harishchandra. It is only
after the death of Suhasini that the Petitioner would be the legal heir
of the deceased-Harishchandra and would be entitled to get his name
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mutated in the revenue records, which has been done. The mutation
entry was effected on 27th February, 2019 and information about the
death of the deceased Harishchandra was given on 11th December,
2018 i.e prior to the grant of probate dated 22 nd December, 2019 to the
present Respondent. The mutation entry assumes significance as
change was effected in revenue record as the legal heir of the
deceased Harishchandra even prior to the grant of probate and
therefore, the mutation entry cannot be doubted. By the present
Petition, the revocation is sought only on the ground that the present
Petitioner who was the legal heir ought to have been cited and the
relationship with the deceased has been established on the basis of
material on record. It is difficult to fathom as to how a stranger to the
deceased would get information about property of deceased-Suhasini,
obtain certificate from gram panchayat and mutate his name in
revenue records in respect of estate of deceased. Hence, in my view,
there is just cause for revocation of probate. It is open for the original
Petitioner to prove the authenticity of the Will by standing the test of
evidence.
7. In light of above, Probate dated 22nd December, 2019 is hereby
revoked.
8. The Respondent is directed to handover the original Probate to
the office of Prothonotary and Senior Master within period of three
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weeks from today.
9. In view of above, nothing survives for consideration in pending
Applications, if any, and the same stand disposed of.
[SHARMILA U. DESHMUKH, J.]
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