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.