8 1983 SCC OnLine Bom 54.
9 (2008) 8 SCC 463.
10 (2020) 12 SCC 480.
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and they had children and the Respondent who is the original
Petitioner in the testamentary petition is the grandson of the deceased
Shankar. Both parties maintain that they are not related to each other
and both claim that the deceased Shankar was their pre-decessor and
they are entitled to inherit as per the law of succession.
15. The rival submissions and record indicate that both parties are
claiming to be legal heirs of one Shankar Ramchandra Jadhav. The
Petitioner has produced death certificate issued by Gram Panchayat
Mahalunge, Dapoli with date of registration being 30 th March, 2012
showing the death of Shankar Ramchandra Jadhav on 17 th July, 1970 at
Mahalunge. At the time of seeking grant, the Respondent has
produced the death certificate issued by Municipal Corporation of
Greater Mumbai on 30th June, 2012 showing that the deceased Shankar
Ramchandra Jadhav expired on 18 th February, 1958 at Mumbai. There
are two death certificates issued, one by the gram panchayat and
police patil of Mahalunge showing that Shankar Ramchandra Jadhav
expired in the year 1970 at Mahalunge, Dapoli and other one showing
that Shankar Ramchandra Jadhav expired in the year 1958 at Mumbai.
16. The Petitioners claim that the Respondents herein are not
related to their deceased Uncle Shankar Ramchandra Jadhav and the
Respondents claim that the Petitioners are not related to their
deceased grand father Shankar Ramchandra Jadhav.
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17. The basis for the revocation is that the Letters of Administration
could not have been granted in respect of Gat No 79, 166, 196 located
at Mahalunge which forms the schedule of assets to Testamentary
Petition No 1651 of 2013 as it is the present Petitioner's pre-decessor
who was the owner of the scheduled assets. The Petitioners have
placed on record the certificate issued by the Consolidation Officer
under Section 24(1) of Prevention of Fragmentation and Consolidation
of Holdings Act, 1947 certifying that the subject lands were
transferred under the consolidation scheme to Shankar Ramchandra
Jadhav. There is mutation entry no 258 on record mutating the name
of Shankar Ramchandra Jadhav as legal heir of deceased Chandrabai
Ramchandra Jadhav who had purchased the properties bearing the
survey numbers mentioned therein on 31st January, 1943.
18. On the other hand, the Respondents have placed on record
compilation of documents. The order of Circle Officer, Taluka Dapoli
dated 21st May, 2013 records about the objection taken by the
Respondent to the mutation of the Petitioner's name in the revenue
records. It records the statement of the Respondent that their
predeceased grandfather Shankar Jadhav's native place was
Mahalunge and they were informed by their acquaintance that their
grandfather possessed property at Mahalunge. It further records that
the Respondent's grandmother Chandrabai had purchased the subject
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property and the name of deceased is mutated in revenue records. The
Circle Officer's order records that the surname of the Petitioner's pre-
decessor was recorded as Gurav in revenue records of the year 1954
and in the year 1980, the surname appears to have been changed to
Jadhav. It opined that the Petitioners are not the legal heirs of Shankar
Chandrakant Jadhav and rejected the mutation entry No 538 in favour
of the Petitioners.
19. The Testamentary Petition was filed on 15 th October, 2013 after
the order of the Circle Officer of 21 st May, 2013. Similarly, it appears
that the Petitioners filed an application in the year 2014 in the
Ratnagiri Civil Court for declaration that Petitioner is legal heir of the
deceased Shankar Ramchandra Jadhav. It is evident that proceedings
came to be filed in view of the rival claims of heirship in respect of the
deceased. The Respondent was aware of the interest of the Petitioners
in the estate of the deceased claiming to be the legal heirs of the
deceased and despite thereof did not cite the Petitioner in the
Testamentary Petition whereas the Petitioner in his application issued
notice to the Respondent and his siblings.
20. The Testamentary Petition was filed by the Respondent in the
year 2013 seeking grant of Letters of Administration in respect of
estate of deceased Shankar, who had expired on 18 th February, 1958.
There was thus a delay of about 55 years in filing of the Petition. The
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only explanation given in paragraph 10 of the Petition for delay of
about 55 years in seeking the grant reads as under:
"10. The Petitioner has no legal knowledge so there is
delay in filing the Petition so the delay may be condone."
21. Rule 382 of The Bombay High Court (Original Side) Rules
provides that where an application for grant is made after lapse of
three years from death of the deceased, the reason for the delay shall
be explained in the Petition and in event the explanation is
unsatisfactory, the Prothonotary and Senior Master may require
further proof of alleged cause of delay as he may deem fit. The reason
is that the longer the delay, greater is the suspicion as regards the
grant even if the provisions of Limitation Act does not prescribe any
period of limitation for seeking grant. The explanation which was
tendered by the Respondent was clearly insufficient and required
calling for further proof of alleged delay. The fact that grant was non-
contentious does not dilute the requirement of seeking proof of the
cause of delay when facts demand such proof.
22. The effect of grant of letters of administration to estate of
deceased needs to be understood. Part VIII deals with the
representative title to property of deceased on succession. Section 211
provides that the executor or the administrator, as the case may be, of
a deceased person is his legal representative for all purposes and that
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all the property of the deceased vests in him, as such. Section 212
provides that no right to any property of a person who has died
intestate can be established in any Court, unless letters of
administration are granted by a probate Court. Section 216 provides
that after the grant of letters of administration, no other person than
the person to whom letters of administration has been granted shall
act as representative of the deceased unless such letters of
administration has been revoked. Section 220 refers to effect of letters
of administration and provides that the letters of administration
entitles the administrator to all rights belonging to the intestate as
effectually as if the administration had been granted at the moment
after his death. Section 273 inter alia states that a probate or letters of
administration shall have effect over all the properties and estate of
the deceased and shall be conclusive as to the representative title
against all debtors of the deceased and against all persons holding the
property of the deceased and shall afford full indemnity to all debtors
discharging their debts and to persons delivering up such property to
the grantee.
23. The statutory provisions would indicate flow of right in the
estate of deceased by virtue of grant of letters of administration. The
property vests in the executor by virtue of Will whereas the property
vests in the administrator by virtue of grant of letters of
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administration by the Court. The administrator thus derives all rights in
the estate of the deceased from the grant of letters of administration
by the Court. As the grant in effect entitles the administrator to all
rights belonging to the intestate, even in non contentious matters,
there is need for greater scrutiny in order to ensure that the grant is
issued to the legatee. Though it is settled that the testamentary Court
does not go into question of title, in present case, the facts are such
that despite rival claims of succession, by virtue of grant, the
Respondent was granted all rights belonging to the intestate.
24. Rule 376 of The Bombay High Court Rules provide that the
application for grant of Letters of Administration without Will shall be
made as per Form 103 with such variation as the circumstances of the
case may require and the schedule to the petition shall be in Form Nos
98, 99 and 100 respectively with such variations as the circumstances
of each case may require. The Rules provide for the petition to truly set
forth in Schedule I all the property and credits which the deceased died
possessed of or entitled to at the time of his death which have or are
likely to come to the petitioner's hands. Even if the Rules prescribe for
a format, it permits such additional pleadings as the circumstances of
the case may require. In present case, there are two death certificates
of Shankar Ramchandra Jadhav produced, one by the Petitioners which
shows date of death of Shankar in the year 1970 and other by the
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Respondent which shows date of death of Shankar in the year 1958.
The Respondent ought to have placed material facts as regards the
claim of the Petitioners being the legal heir of deceased Shankar
Ramchandra Jadhav, who was the owner of the schedule assets. In
event the said fact would have been disclosed, the Petitioners would
have been required to be cited and there would have been an
examination of the right of the Respondent to the letters of
administration.
25. In Krishna Kumar Birla vs Rajendra Singh Lodha11, the Hon'ble
Apex Court discussed as to what constitutes caveatable interest. It held
in paragraph No. 84 as under:
"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 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;
11 (2008) 4 SCC 300.
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(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."
26. The Hon'ble Apex Court in the above decision has distinguished
between real interest versus bare interest and that the interest may
be a wide one. In the present case, the interest of Petitioner cannot be
said to be bare interest and there were questions of seminal
importance raised as regards the rightful heirs of the deceased
Shankar. Even if it is accepted that Petitioner had no caveatable
interest, the Court can suo motu take cognizance of concealment of
fact even at the instance of party who claims even a slightest interest
in the property (See Peter John D'souza and Others vs. Armstrong
Joseph D'souza, MPT No. 69 of 2012 dated 28.3.2014).
27. Section 283 of the Succession Act provides for issuance of
citation upon all persons claiming to have any interest in the estate of
the deceased. Rule 379 provides for notice to next of kin and affixing
the citation on some conspicuous part of the Court house and also in
the office of the Collector of Bombay. In G. Gopal vs C.Baskar and
Others (supra), the Hon'ble Apex Court has held that a person who has
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even a slight interest in the estate of the testator is entitled to file
caveat. The Respondent was having knowledge about the claim of the
Petitioners in the estate of the deceased as legal heir of Shankar
Jadhav. It was the duty of the Respondent to cite the Petitioners in the
Testamentary Petition so that the right of the party to the grant could
be effectively adjudicated.
28. Under Section 263 of Succession Act, the grant can be revoked
for just cause and the explanation sets out the eventualities when just
cause is deemed to exist. The Hon'ble Division Bench of this Court in
Sarwan Kumar Jhabarmal Choudhary vs. Sachin Shyamsundar
Begrajkar (supra) has held that the explanation (a) to (e) to Section 263
of Succession Act are illustrative and circumstances not covered under
the explanations can become the basis for just cause to revoke the
gran of letters of administration.
29. As there are two death certificates of the deceased Shankar
Ramchandra Jadhav and rival claims of legal heirship to the estate of
the deceased to the knowledge of Respondent, there is concealment
of material facts while obtaining grant of Letters of Administration and
the Petitioners, who were entitled to be cited, were not cited. Further
there is no satisfactory explanation for the delay of about 55 years in
obtaining the grant. This is a fit case requiring further investigation
into the right of the Respondent to the letters of administration
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particularly considering the effect of grant of letters of administration.
30. There is therefore just cause for revocation of letters of
administration granted on 24th September, 2014 to the Respondent in
Testamentary Petition No. 1651 of 2013 in respect of the estate of the
deceased Shankar Ramchandra Jadhav. Resultantly, the Petition is
allowed. The grant of Letters of Administration to the Respondent
stands revoked. The Respondent is directed to surrender the original
Letters of Administration to the Learned Prothonotary & Senior Master
within period of two weeks from today.
31. In view of above, nothing survives for consideration in pending
notice of motion/applications, if any, and the same stand disposed of.
[SHARMILA U. DESHMUKH, J.]
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