Can probate of will be revoked in scenarios not covered by Section 263, Succession Act? Bombay High Court to examine

A single judge of the Bombay High Court recently referred to a larger Bench the question of whether Section 263 of the Indian Succession Act and its illustrations, which deal with the grounds on which probate of a will can be revoked or annulled for a 'just cause', are exhaustive [Sarwan Kumar Jhabarmal Choudhary v. Sachin Shyamsundar Begrajka]..In a June 10 order, Justice Manish Pitale referred the following questions to the larger Bench of the High Court:1. Whether explanations (a) to (e) to Section 263 of the Indian Succession Act, 1925, are exhaustive or illustrative, in the context of “just cause” for revoking or annulling a grant of Probate or Letters of Administration?2. Whether circumstances not covered under explanations to Section 263 can become the basis for "just cause" for the Court to revoke or annul the grant of Probate or Letters of Administration?3. Whether the judgments of single judges of the High Court in the cases of George Anthony Harris vs. Millicent Spencer (1933) and Sharad Shankarrao Mane and etc vs. Ashabai Shripati Mane (1997) lay down the correct position of law?.The judge was dealing with a case where a man (respondent) was granted the probate (copy of a will certified as genuine under the seal of a court) concerning assets belonging to one Rajesh Chowdhary, who died in July 2020.The probate was granted pursuant to a petition filed by the respondent on December 9, 2020.However, Chowdhary’s brother (petitioner) contested this move. The petitioner claimed that he had filed a caveat before the Bombay High Court on May 20, 2021. However, since this caveat expired for non-removal of registry objections, and there were no other pending caveats, the respondent was granted the probate on November 10, 2023..This grant of probate was challenged by the petitioner (the deceased man's brother) before the High Court through a miscellaneous petition seeking the revocation of the grant.He argued that the deceased man had died under suspicious circumstances in Ecuador after having signed and executed the will in question. However, the witnesses signed the will only after it was brought to India. Hence, the grant could be said to be defective in substance, the petitioner said. He added that his caveat plea was only dismissed for the non-removal of office objections and that he ought not to suffer due to the negligence, oversight and mistake of the advocate concerned..The petition was opposed by the respondent (who had secured the probate for the will allegedly executed by the deceased man). The respondent argued that the grounds raised by the petitioner to seek the revocation of probate were not mentioned under Section 263 of the Succession Act (revocation or annulment for just cause).He asserted that the illustrations under this provision on what constitutes "just cause" to revoke probate were exhaustive. Therefore, the respondent contended that the High Court cannot revoke the grant already issued since none of the illustrations under Section 263 were applicable in this case.To support this stance, the respondent cited the judgment of the Bombay High Court's Division Bench in Bal Gangadhar Tilak vs. Sakwarbai & Ors. and the judgments of single judges in the cases of George Anthony Harris vs. Millicent Spencer, and Sharad Shankarrao Mane and etc vs. Ashabai Shripati Mane..However, the petitioner pointed out that a contrary position was adopted in certain other cases, such as in the Madras High Court judgment in Gita alias Gita Ravi vs. Mary Jenet James alias MJ James and others and the Supreme Court judgement in S Sundaram Pillai and others vs. VR Pattabiraman and others. These judgments stated that the explanations to Section 263 of the Succession Act were only illustrative and meant to explain the meaning of the provision..Justice Pitale noted that the explanation to Section 263 of the Succession Act, 1925 opened with the phrase, "just cause shall be deemed to exist where...", which was a departure from the words used in the corresponding provision of the earlier Indian Succession Act of 1865. The earlier law used the phrase "just cause is..." to specifically define the phrase through four explanations, the judge observed. On the other hand, the new Succession Act failed to discuss it in such specific terms and instead used a "deeming fiction" to indicate circumstances in which a just cause may arise, the Court found. In light of this distinction and after perusing the judgments referred to by the parties, Justice Pitale agreed with the position of law laid down by the Madras High Court and Supreme Court (that the explanations under Section 263 of the Succession Act are only illustrative and not exhaustive).He disagreed with the conflicting judgments of the High Court's co-ordinate Benches. Since he expressed such a disagreement with Benches of equal strength (coordinate/ other single-judge Benches), Justice Mitale concluded that the question now had to be settled authoritatively by a larger Bench of the High Court. Accordingly, he requested the registry to place the matter before the Chief Justice, who would assign a larger Bench to decide the question of law.Justice Pitale also stayed the effect of the probate of the will granted to the respondent till the petition is finally heard and decided. .Advocate Yashvi Panchal appeared for the petitionerAdvocates Sonal, Rohit Gupta, Kinnar Shah and V Bhatt briefed by Divya Shah Associates appeared for the respondent..[Read order]