Rohini Damji Sidpra Vs. Freny Damji Sidpra & Anr.
EmailAppeal: Special Leave Petition (Civil) No. 16396 of 2000
Petitioner: Rohini Damji Sidpra
Respondent: Freny Damji Sidpra & Anr.
Apeal: Special Leave Petition (Civil) No. 16396 of 2000
Judges: A.P. MISRA & DORAISWAMY RAJU, JJ.
Date of Judgment: Oct 16, 2000
Head Note:
SUCCESSION
Indian Succession Act, 1925
Section 228 – Probate – Will executed in Uganda on 18.3.58 – Executrix filed probation in Uganda High Court – Same granted on 24.9.58 – One of the daughters, aged 23 years, studying in London – Copy sent to her – Ancillary probate granted by Bombay High Court on 26.5.59 – Daughter challenging grant after 36 years – Said challenge dismissed – Then she filed suit for revocation of ancillary probate – Petition dismissed on grounds of limita-tion and that original probate was “in rem” – Copy of Will found properly authenticated – Till 1960, Bombay High Court having jurisdiction over Saurashtra, where property situated. Held that High Court had rightly dismissed the petition and there is no merit in appeal. (Paras 5 to 8)
Indian Succession Act, 1925
Section 228 – Probate – Will executed in Uganda on 18.3.58 – Executrix filed probation in Uganda High Court – Same granted on 24.9.58 – One of the daughters, aged 23 years, studying in London – Copy sent to her – Ancillary probate granted by Bombay High Court on 26.5.59 – Daughter challenging grant after 36 years – Said challenge dismissed – Then she filed suit for revocation of ancillary probate – Petition dismissed on grounds of limita-tion and that original probate was “in rem” – Copy of Will found properly authenticated – Till 1960, Bombay High Court having jurisdiction over Saurashtra, where property situated. Held that High Court had rightly dismissed the petition and there is no merit in appeal. (Paras 5 to 8)
JUDGEMENT:
ORDER
1. Heard 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. Petitioner’s father Damji migrated to Uganda in 1932 from the then Saurashtra and married second time there, with respondent no. 1 and six daughters and two sons were born from their wedlock. Petitioner is the daughter from this 2nd marriage. Her father Damji executed the Will on 18th March, 1958. Respondent no. 1, the mother of petitioner was the executrix of the Will – filed petition for probate before Uganda High Court being Probate Case No. 33 of 1958. The probate was granted on 24th September, 1958. At the time of death of petitioner’s father on 19.3.1958, the petitioner was about 23 years and studying in London and copy of the Will was sent to her in London. Since some of the properties of late Damji were then within the jurisdiction of Bombay High Court, respondent no. 1 filed Testamentary Petition in that Court for the grant of ancillary probate which was granted on 26th May, 1959.
4. It seems after a long gap, 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 petitioner to deposit a sum of Rs. 3,000,000/- as security of costs. This was challenged by her in review and in the Supreme Court of Uganda which were 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 petitioner did not deposit the said amount, her Suit No. 591 of 1990 before Uganda High Court was also dismissed. It is, thereafter, this Misc. Petition No. 24 of 1997 is filed, seeking revocation of ancillary probate.
5. Learned Single Judge took up issue nos. 1 and 3 as preliminary issues, held this petition to be barred by time and so long original probate granted by 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 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 of 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 High Court nor there is any proper seal-ing on this copy. We find 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 Ugandan High Court, 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 24th September, 1958.”
7. In view of this finding, which is finding of fact, this Court will not reappraise the evidence in the present proceed-ings. Her next submission challenges finding that her application is barred by time. She submits, when any forgery or fraud is practiced, the principle of limitation would not apply. But once High Court has accepted the copy of the Will filed to be 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 re-spondent submits, 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 Bombay High Court but was in Saurashtra which is now in Gujarat. The High Court exam-ined this point and came to the conclusion that by the States Reorganisation Act, 1956, the territory of State of Saurashtra merged in the State of Bombay and this merger took place on November 1, 1956; therefore, from 1st November, 1956, Bombay High Court was exercising jurisdiction of Jetpur and Saurashtra also. Ultimately on 1st May, 1960, State of Bombay was bifurcated into two States known as State of Maharashtra and State of Gujarat, by which, from 1st May, 1960 onwards Saurashtra become part of the State of Gujarat. However, the High Court records:
“In the instant case the Testamentary Petition No. 211 of 1959 was filed in this Court on 2nd February, 1958 and on 26th May, 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 accord-ingly dismissed.
1. Heard 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. Petitioner’s father Damji migrated to Uganda in 1932 from the then Saurashtra and married second time there, with respondent no. 1 and six daughters and two sons were born from their wedlock. Petitioner is the daughter from this 2nd marriage. Her father Damji executed the Will on 18th March, 1958. Respondent no. 1, the mother of petitioner was the executrix of the Will – filed petition for probate before Uganda High Court being Probate Case No. 33 of 1958. The probate was granted on 24th September, 1958. At the time of death of petitioner’s father on 19.3.1958, the petitioner was about 23 years and studying in London and copy of the Will was sent to her in London. Since some of the properties of late Damji were then within the jurisdiction of Bombay High Court, respondent no. 1 filed Testamentary Petition in that Court for the grant of ancillary probate which was granted on 26th May, 1959.
4. It seems after a long gap, 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 petitioner to deposit a sum of Rs. 3,000,000/- as security of costs. This was challenged by her in review and in the Supreme Court of Uganda which were 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 petitioner did not deposit the said amount, her Suit No. 591 of 1990 before Uganda High Court was also dismissed. It is, thereafter, this Misc. Petition No. 24 of 1997 is filed, seeking revocation of ancillary probate.
5. Learned Single Judge took up issue nos. 1 and 3 as preliminary issues, held this petition to be barred by time and so long original probate granted by 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 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 of 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 High Court nor there is any proper seal-ing on this copy. We find 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 Ugandan High Court, 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 24th September, 1958.”
7. In view of this finding, which is finding of fact, this Court will not reappraise the evidence in the present proceed-ings. Her next submission challenges finding that her application is barred by time. She submits, when any forgery or fraud is practiced, the principle of limitation would not apply. But once High Court has accepted the copy of the Will filed to be 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 re-spondent submits, 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 Bombay High Court but was in Saurashtra which is now in Gujarat. The High Court exam-ined this point and came to the conclusion that by the States Reorganisation Act, 1956, the territory of State of Saurashtra merged in the State of Bombay and this merger took place on November 1, 1956; therefore, from 1st November, 1956, Bombay High Court was exercising jurisdiction of Jetpur and Saurashtra also. Ultimately on 1st May, 1960, State of Bombay was bifurcated into two States known as State of Maharashtra and State of Gujarat, by which, from 1st May, 1960 onwards Saurashtra become part of the State of Gujarat. However, the High Court records:
“In the instant case the Testamentary Petition No. 211 of 1959 was filed in this Court on 2nd February, 1958 and on 26th May, 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 accord-ingly dismissed.
