Person Seeking Letters Of Administration Must Personally Serve Notice At Last Known Address Of Legal Heir With Unknown Whereabouts: Bombay High Court

The Bombay High Court recently observed that a person seeking Letters of Administration (LoA) with Will Annexed must personally serve the citation (notice of the application) to the last known address of a legal heir whose whereabouts are unknown.

Justice Manish Pitale revoked the LoA granted to a person who had directly published the citation in newspapers without personally serving the citation on the ground that whereabouts of the concerned legal heir were unknown.

“By simply stating that the whereabouts of the person are not known, the petitioner in the said testamentary petition cannot be permitted to bypass the mandatory requirement of Rule 399 of the said Rules [Bombay High Court (Original Side) Rules] to personally serve the citation. The use of the words “when possible” have to be interpreted to mean that citations are mandatorily required to be served on at least the last known address of the person cited as a legal heir of the deceased”, the court observed.

The court allowed a miscellaneous petition filed by one Lata Shetty seeking revocation of the LoA granted to one Satish Poojari.

Satish Poojari originally filed his testamentary petition based on a Will dated December 4, 2018, seeking the grant of Letters of Administration with Will annexed. He claimed to be a beneficiary, asserting a relationship with the deceased woman through the maternal side.

Shetty, the sister-in-law (husband's sister) of the deceased, was also cited as a surviving legal heir of the deceased in Poojari's testamentary petition, with her whereabouts stated as unknown. Poojari served this citation to the surviving heirs, including the petitioner via publication of the citation in local newspapers. The LoA were granted to Poojari. Shetty filed the present petition in the high court invoking Explanations (a) and (b) to Section 263 of the Indian Succession Act (revocation for just cause), 1925.

Shetty contended that Satish Poojari violated mandatory requirements of Rules 398, 399, and 400 of the Bombay High Court (Original Side) Rules, 1980, which govern testamentary matters. She contended that personal service of citation must be attempted before resorting to publication.

Poojari contended that since Shetty's whereabouts were unknown and candidly stated in the testamentary petition, publication of citation was justified under Rule 400 of the said Rules. He argued that there was substantial compliance with the procedural requirements.

The court opined that Poojari's assertion in the testamentary petition that Shetty's whereabouts were unknown lacked foundation, as he gave neither reason for this not any information regarding Shetty's last known address.

Rule 399 mandates personal service of citations whenever possible, requiring a true copy of the citation to be left with the cited party, with acknowledgment on the original. Rule 400 specifies that if citations cannot be personally served, they should be published in local newspapers as directed by the Prothonotary and Senior Master of the High Court.

As Rule 400 allows for publication in local newspapers only when personal service is not possible, the court held that attempting personal service in the first place is mandatory before resorting to publication, which was not done in the present case.

The court further noted that the address of the cited individual serves as the basis for the Prothonotary and Senior Master to determine the appropriate local newspapers for publication. “This Court cannot countenance a situation where the petitioner in the testamentary petition simply states that whereabouts of the person cited are not known and thereupon, jumps to Rule 400 of the said Rules to seek service of citation through publication. If this is permitted, the Prothonotary and Senior Master of this Court will not have any basis or reference to allow publication of such citation in a “local” newspaper”, the court observed.

The court said that Poojari's should have made all attempts to find at least Shetty's last known address. “By feigning ignorance about the whereabouts of the petitioner herein, it can be said that a false suggestion was made before this Court.”

The court concluded that Poojari's failure to provide Shetty's last known address and to attempt personal service constituted a substantial defect in the grant process. Thus, the court allowed Shetty's petition, revoking the LoA granted to the respondent.

Case no. – Miscellaneous Petition (L) No. 34745 of 2023

Case Title – Lata Rajesh Shetty @ Latha Rajesh Shetty v. Satish Surappa Poojari