Rajiv Ramprasad Gupta v. Rustom Sam Boyce .

1. This is a petition under section 263 of the Indian Succession Act, 1925 for revocation of the grant of probate made in favour of the respondent in petition No. 987/2002. The relevant facts necessary for deciding this petition may be briefly stated as under:—

2. One Dr. Mrs. Roshan Sam Boyce died intestate at Mumbai on 19th Day of November 2001, leaving behind her a sister and two brothers as her only legal heirs. The deceased had made a Will dated 21st June, 1989 under which she had appointed the respondent as sole executor. The respondent is the natural son of the sister of the deceased and according to him, he was adopted by the deceased. The deceased left behind her certain properties including a house called “Villa Hormuzd” situate at 8-A, Carmichal Road, Mumbai - 400 026. It appears that the said house was in occupation of one Ramprasad Gupta, who claimed to be the tenant in the said property. The respondent being the sole executor, filed petition No. 987/2001 for grant of probate. The said petition was opposed by the said Ramprasad Gupta who filed a caveat. The petitioner then took out chamber summons No. 431/2002, praying for discharging the caveat filed by the said Ramprasad. This Court by its order dated 13th June, 2002 made the said chamber summons absolute and discharged the caveat filed by the said Ramprasad, holding that he did not have any caveatable interest in any of the properties of the deceased. No appeal was preferred against the dismissal of the said caveat. Consequently, probate was granted in favour of the present respondent as prayed for.

3. The petitioner is the son of the said Ramprasad Gupta and he has filed the present petition for revocation of the said grant on the ground that the purported Will dated 21st June, 1989 set up by the respondent is a forged and fabricated document and that respondent is not entitled to grant of probate upon it. The petitioner has pointed out that his father Ramprasad Gupta was the tenant of the above mentioned house and that he had filed during his life time R.A.D Suit No. 913/1987 in the Small Causes Court at Mumbai for a declaration of his right as tenant. It appeal's that the said Ramprasad Gupta died on 27th August, 2002, leaving behind him the petitioner as his sole heir.

4. On behalf of the respondent his constituted attorney has filed his affidavit in reply, wherein it is contended that even assuming for the sake of argument that the Will is fabricated, in that event also as per the law of intestacy and succession, the petitioner will have no interest in the property of the deceased.

5. I have heard Mr. Merchant, learned counsel for the petitioner and Mr. Madon, learned counsel for the respondent.

6. Mr. Merchant submitted before me that dismissal of the caveat does not debar the petitioner from filing a petition for revocation of grant of probate. Mr. Merchant drew my attention to the provisions of section 263 of the Indian Succession Act and submitted that grant of probate or letters of administration may be revoked or annulled by the court for any just cause edumberated in clauses (a) to (e) of the Explanation to that section. According to him, the present petition falls under clause (b) of the explanation which in substance states that just cause shall be deemed to exist where the grant was obtained fraudulently by making a false suggestion or by concealing from the court something material to it. In support of his submission Mr. Merchant relied upon the decision in Elizabeth Antony v. Michel Charles John Chown Lengera, (1990) 3 SCC 333 : AIR 1990 SC 1576, in which it was held that party against whom finding has been given that he has no caveatable interest can also invoke section 263. It was observed by the Supreme Court “We must point out that by granting a probate, the Court is not deciding the disputes to the title. Even with regard to a probate granted, it cannot be revoked as provided under section 263 of the Act in any one of the cases mentioned therein. But the learned Counsel for the petitioner submits that the findings of the Sub Court and the High Court regarding the caveatable interest will come in the petitioners way in seeking revocation of the grant of probate. It is needless to say that the findings regarding the caveatable interest of the petitioner have a limited effect and are relevant only to the extent of granting of probate. But they cannot deprive his right, if he has any, to invoke section 263 of the Act it is upto the petitioner to satisfy the Court”.

7. There is no dispute about the proposition laid down by this decision but it cannot be ignored that the person applying for revocation must have some right or locus-standi to do so. It may be pointed out that the deceased as well as the respondent are Parsis. Mr. Madon drew my attention to the decision in Perviz Sarosh v. Mrs. Viloo Plumber, 2000 (3) Mh.L.J 39, wherein a learned single Judge of this Court (Nijjar, J.) held that in order to have locus-standi for challenging the Probate in respect of the Will of a Parsi on the ground sets out in section 263 of the Indian Succession Act, right in the inheritance under section 51 of the Indian Succession Act has to be made out and the same is prerequisite for raising challenge under section 263. The learned Judge observed that challenge to the probate under section 263 is not in the nature of a public interest litigation and it can only be at the instance of a person who has a slight interest in the estate for themselves. Admittedly, the petitioner is a non-Parsi and he is not a legal heir of the deceased. Therefore, he has no locus standi or interest to challenge the probate under section 263 granted in favour of the respondent. All that the petitioner claims is a right of sub-tenancy in respect of the above mentioned house flat which belonged to the deceased. The question whether the petitioner is or is not a tenant or sub-tenant of the said suit house is pending before the Small Causes Court. Even assuming for the sake of argument that the petitioner is a tenant in the said house, still he cannot be said to have a right to apply under section 263 of the Indian Succession Act. In this respect, I am supported by a decision of a learned single Judge of the Delhi High Court in Dr. Jagdish Chandra v. State, 36 (1988) Delhi Law Times 272, wherein it was held that a tenant has no right to apply under section 263 of the Indian Succession Act for cancellation or revocation of the probate granted for the Will executed by the landlord/owner to his adopted son. The ratio of this decision appears to be that a tenant does not have any interest in the estate of the deceased landlord. Even if the landlord dies intestate, the tenant is not likely to get anything unless he is one of the legal heirs of the deceased landlords. In the instant case, the petitioner is admittedly not related to the deceased nor he is her legal heir. He does not have interest in the estate of the deceased in the sense that testacy or intestacy of the deceased landlord does not affect his right as the tenant, if at all he is so. His interest is not such as would be affected by the grant of probate or letters of administration. He continues to be the tenant, if at all he is, irrespective of the fact whether the Will set up by the respondent is true or false and will get protection of the Bombay Rent Act. But he does not have any right or locus standi to challenge the Will of the deceased.

8. For the aforesaid reasons, I find that there is no merit in this petition and the same is, therefore, dismissed with no order as to costs.

Petition dismissed.