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Rohini Damji Sidpra v. Freny Damji Sidpra And Another
Factual and Procedural Background
Damji, originally from the then State of Saurashtra, migrated to Uganda in 1932 where he married the respondent (his second wife) and had six daughters and two sons, including the present petitioner. Damji executed a will on 18-3-1958 and died the next day. Respondent 1, named as executrix, obtained probate of the will from the High Court of Uganda on 24-9-1958 (Probate Case No. 33 of 1958). Because some of Damji’s assets lay within the jurisdiction of the Bombay High Court, she sought and obtained ancillary probate there in Testamentary Petition No. 211 of 1959 on 26-5-1959.
Decades later, the petitioner filed Suit No. 591 of 1990 in the Uganda High Court seeking revocation of the original probate. That court ordered her to deposit security for costs of Rs 30,00,000, and both review and further challenge before the Supreme Court of Uganda failed; the suit was dismissed when she did not make the deposit.
In India, the petitioner instituted Miscellaneous Petition No. 24 of 1997 for revocation of the Bombay ancillary probate. A learned Single Judge treated limitation and the subsistence of the Ugandan probate as preliminary issues and dismissed the petition. The High Court, in the impugned appellate order, affirmed that decision. The present order disposes of the petitioner’s further challenge before this Court.
Legal Issues Presented
- Whether the ancillary probate granted by the Bombay High Court in 1959 could be revoked in 1997 despite the subsisting Ugandan probate operating in rem.
- Whether the authenticated copy of the will filed in Bombay satisfied the requirements of Section 228 of the Indian Succession Act, 1925.
- Whether the petition for revocation was barred by limitation, particularly in view of the petitioner’s allegation of forgery or fraud.
- Whether the Bombay High Court had territorial jurisdiction over the estate property when ancillary probate was granted.
Arguments of the Parties
Petitioner’s Arguments (in-person)
- No original will was produced in Bombay; the copy on record lacked proper authentication—neither the registrar’s name nor an adequate seal of the Ugandan court appeared.
- Alleged forgery or fraud vitiated the proceedings; therefore, the bar of limitation should not apply.
- The relevant property lay in Saurashtra (now part of Gujarat) and was outside the territorial jurisdiction of the Bombay High Court.
Respondent’s Arguments
- The copy of the will on Bombay record was duly authenticated under Section 228; the original remains deposited in the Ugandan High Court.
- The application was hopelessly time-barred; the Ugandan probate still operates in rem.
- At the relevant time (1959) Saurashtra had merged into the State of Bombay; therefore, territorial jurisdiction was proper.
- The petitioner continuously raised new points not previously argued and was abusing process.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court first addressed the challenge to the copy of the will. After examining the document, it accepted the High Court’s factual finding that the copy bore both the seal of the Ugandan High Court and authentication by its Registrar. Given that the original will remained on deposit with a court of competent jurisdiction abroad, the requirements of Section 228 of the Indian Succession Act were fully met. Consequently, the allegation of forgery or lack of authentication failed.
Second, the Court affirmed the dismissal of the petition on limitation. Once the authenticity of the copy was upheld and no fraud was established, ordinary limitation principles applied. The lapse of approximately 38 years between the grant of ancillary probate (1959) and the filing of the revocation petition (1997) rendered the proceeding time-barred.
Third, on territorial jurisdiction, the Court endorsed the High Court’s application of the States Reorganisation Act, 1956. From 1-11-1956 the Bombay High Court exercised jurisdiction over Saurashtra, and the ancillary probate was filed and granted while that jurisdiction existed. Subsequent bifurcation of Bombay into Maharashtra and Gujarat in 1960 did not retrospectively invalidate the 1959 ancillary probate.
Finally, recognising that the Ugandan probate operates in rem, the Court held that so long as that grant stands unrevoked, the ancillary probate in India remains unaffected.
Holding and Implications
Petition Dismissed.
The Court refused to interfere with the High Court’s order; the ancillary probate of 1959 remains intact. The decision affects only the parties by confirming the finality of the probate grants in Uganda and Bombay and sets no new precedent beyond a reiteration of Section 228 requirements and limitation principles.
Order
1. Heard the petitioner-in-person and counsel for the respondent.
2. An ancillary probate was granted in Testamentary Petition No. 211 of 1959 on 26-5-1959 by the Bombay High Court. This has been challenged by the petitioner in the High Court.
3. The petitioner's father Damji migrated to Uganda in 1932 from the then Saurashtra and married a second time, Respondent 1, and six daughters and two sons were born from their wedlock. The petitioner is the daughter from this second marriage. Her father Damji executed a will on 18-3-1958. Respondent 1, the mother of the petitioner who was the executrix of the will filed petition for probate before the Uganda High Court being Probate Case No. 33 of 1958. The probate was granted on 24-9-1958. At the time of death of the petitioner's father on 19-3-1958, the petitioner was about 23 years studying in London and a copy of the will was sent to her in London. Since some of the properties of late Damji were then within the jurisdiction of the Bombay High Court, Respondent 1 filed testamentary petition in that Court for the grant of ancillary probate which was granted on 26-5-1959.
4. It seems after a long gap, the petitioner filed an application in the Uganda High Court for the revocation of the earlier grant of probate and letter of administration. The Court there directed the petitioner to deposit a sum of Rs 30,00,000 as security of costs. This was challenged by her in review and in the Supreme Court of Uganda it was rejected. The relevant portion of the order of the Supreme Court of Uganda is recorded hereunder:
“… the learned Judge considered the point, and came to the conclusion that the appellant's case did not have a reasonable chance of success. In my judgment she rightly did so because the suit challenging the validity of the will was instituted 36 years after the grant of probate….”
Since the petitioner did not deposit the said amount, her Suit No. 591 of 1990 before the Uganda High Court was also dismissed. It is, thereafter, this Miscellaneous Petition No. 24 of 1997 was filed, seeking revocation of ancillary probate.
5. Learned Single Judge took up Issues 1 and 3 as preliminary issues, held this petition to be barred by time and so long original probate granted by the Uganda High Court is subsisting, it operates in rem against the world, hence dismissed the petition.
6. In appeal, the High Court (impugned order) while rejecting the petitioner's contention that no original will was filed in the grant of ancillary probate, referred rightly to Section 228 of the Indian Succession Act that when a will has been proved and deposited in a court of competent jurisdiction, situated beyond the limits of the State or India, if properly authenticated copy of the will is produced, letter of administration can be granted with such copy filed. Faced with this situation, she challenges the authenticated copy of such will filed, as not to be truly authenticated. She submits, it neither bears the name of the Registrar of the Uganda Court nor is there any proper seal on this copy. We find that the High Court clearly recorded the finding:
“In the instant case, we had examined the authenticated copy of the will. The same bears the seal of the Ugandan High Court and is authenticated as a true copy of the will by the Registrar of that Court. The original will is deposited with the Ugandan High Court, court of competent jurisdiction which granted the probate on 24-9-1958.”
7. In view of this finding, which is a finding of fact, this Court will not reappraise the evidence in the present proceedings. Her next submission challenges the finding that her application is barred by time. She submits, when any forgery or fraud is practised the principle of limitation would not apply. But once the High Court has accepted the copy of the will filed to be a truly and properly authenticated copy then there is no question of any forgery or fraud. Hence question of limitation has been rightly decided against the petitioner. Learned counsel for the respondent submits, the petitioner has been submitting even before the appellate court many points not raised earlier and even in this Court. However, since she is appearing in person we have granted some indulgence in this regard.
8. The next submission is with reference to the jurisdiction of the Bombay High Court. Submission is that the property in question is not within the jurisdiction of the Bombay High Court but was in Saurashtra which is now in Gujarat. The High Court examined this point and came to the conclusion that by the State Reorganisation Act, 1956 the territory of the State of Saurashtra merged in the State of Bombay and this merger took place on 1-11-1956, therefore from 1-11-1956 the Bombay High Court was exercising jurisdiction of Jetpur and Saurashtra also. Ultimately on 1-5-1960 the State of Bombay was bifurcated into two States known as the State of Maharashtra and the State of Gujarat, by which, from 1-5-1960 onwards Saurashtra became part of the State of Gujarat. However, the High Court records:
“In the instant case Testamentary Petition No. 211 of 1959 was filed in this Court on 2-2-1958 and on 26-5-1959 this Court granted the aforesaid ancillary probate. This filing was at the relevant time within the State of Bombay.”
9. In view of the finding, we do not find any merit even on this last question of jurisdiction.
10. For all the aforesaid reasons we do not find any sustainable ground which calls for our interference. This petition is accordingly dismissed.
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