Indian Succession Act | Bombay High Court Larger Bench To Decide Whether Probate Of Will Can Be Revoked In Cases Not Covered In Section 263

The Bombay High Court recently referred to a larger bench the question of whether explanations to Section 263 of the Indian Succession Act, 1925, which deals with the grounds on which probate of a will can be revoked or annulled for “just cause”, are exhaustive or merely illustrative.

Justice Manish Pitale referred the following questions to the larger bench –

“(I) 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 grant of Probate or Letters of Administration?

(II) Whether circumstances not covered under explanations (a) to (e) to Section 263 of the Succession Act, 1925, can become the basis for “just cause” for the Court to revoke or annul grant of Probate or Letters of Administration?

(III) Whether the judgements of learned Single Judges of this Court in the cases of George Anthony Harris vs. Millicent Spencer [AIR 1933 Bom 370] and Sharad Shankarrao Mane and etc vs. Ashabai Shripati Mane [AIR 1997 Bom 275], lay down the correct position of law?”

Facts

Once Sachin Begrajka (respondent) filed a testamentary petition in the court seeking probate of a Will of deceased Rajesh Chowdhary, who died by suicide in Ecuador.

The brother of the deceased (petitioner) filed a caveat against the petition. The petitioner's advocate failed to remove the office objections, resulting in the automatic dismissal of the caveat. Consequently, the probate was issued.

On January 1, 2023, the petitioner filed an interim application for the restoration of his caveat, but by then, the office had already issued the grant. The petitioner then filed the present miscellaneous petition for revocation of the grant.

Arguments

Advocate Yashhvi Panchal for the petitioner sought revocation of the probate under Section 263(a) of the Indian Succession Act, 1925, claiming the proceedings were defective in substance. She contended that the deceased's death under suspicious circumstances and the manner of execution and attestation of the Will rendered the grant defective. The attesting witnesses signed the Will in India after it was sent from Ecuador with only the deceased's signature, violating Section 63 of the Succession Act, which mandates that witnesses sign in the presence of the testator, she said.

Panchal also argued that explanations (a) to (e) to Section 263 were illustrative and not exhaustive, thereby allowing the court to consider grounds not explicitly mentioned in the explanations. Panchal also contended that the advocate's negligence in not removing office objections led to the dismissal of the caveat and the petitioner should not suffer due to the advocate's oversight.

Advocate Sonal for the respondent countered that the grounds raised were not covered by explanations (a) to (e) of Section 263, asserting that these explanations were exhaustive. She argued that negligence or oversight by the advocate did not constitute grounds for revocation under Section 263.

Court's observations

The court observed that the allegations for revocation did not fit within the illustrations provided in Section 263 of the Succession Act. The respondent's contention that the grounds for revocation were not covered under explanations (a) to (e) seemed justified, the court said.

The court noted that if the explanations are exhaustive, its jurisdiction to entertain the revocation petition would be in doubt. To address this, the court reviewed several judgments.

The court noted that the legislative language in Section 263 of the present Succession Act differed from its predecessors. Unlike the Succession Act, 1865, and the Probate and Administration Act, 1881, which explicitly defined "just cause," the current Act used a deeming provision, indicating that explanations (a) to (e) were not exhaustive.

“It is important to note that the explanation to Section 263 of the Succession Act, quoted hereinabove, opens with the words “Just cause shall be deemed to exist where”. This is a significant departure from the words used in the Succession Act, 1865 and the Probate and Administration Act, 1881. While in the aforesaid two legislations “just cause” was specifically defined by the four explanations appended to the relevant provisions, the explanation to Section 263 of the present Succession Act simply states that just cause shall be deemed to exist where explanations (a) to (e) to Section 263 of the Act are found to apply”, the court observed.

The court found that judgments by Single Judges in George Anthony Harris v. Millicent Spencer (1932) and Sharad Shankarrao Mane v. Ashabai Shripati Mane (1997) declared the explanations exhaustive without addressing the distinction in language.

The court cited the Madras High Court's judgment in Gita alias Gita Ravi v. Mary Jenet James (2003), which argued that the explanations in Section 263 are illustrative, not exhaustive. Justice Pitale agreed with Madras HC that the explanations should be treated as illustrative, allowing for other circumstances to justify revocation of probate, and disagreed with the judgments of co-ordinate benches of the Bombay HC.

Given the contrasting views, the court decided to refer the matter to a Larger Bench to definitively determine whether the explanations under Section 263 of the Succession Act are exhaustive or illustrative.

Case no. – Miscellaneous Petition (Lodging) No. 6300 of 2024

Case Title – Sarwan Kumar Jhabarmal Choudhary v. Sachin Shyamsundar Begrajka

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