The Bombay High Court recently revoked and recalled an ex-parte order of the high court granting probate to one Savita Patil, sister of Deepak Patil who passed away on May 26, 2011. According to Savita, she was the executor of the will wherein Pooja, the deceased’s daughter, was the sole heir.
Justice RD Dhanuka was hearing a miscellaneous petition filed by Pooja Patil seeking recall of the order granting probate to her aunt, Savita.
On January 25, 2012, Savita filed a Testamentary Petition praying for Letters of Administration with Will annexed dated August 8, 2009. In the said petition, Savita alleged that she was appointed as executrix according to the tenor of the alleged Will. It was alleged that the petitioner was the only heir and legal representative of the said deceased but she was mentally retarded and unfit to apply for Letters of Administration of the property of the deceased.
Savita managed to get probate on March 14, 2014 from the high court as her petition was uncontested. Thereafter, she constituted a trust on May 22, 2014 in respect of the properties and estate of the said deceased. Under the said trust deed, Savita had reserved with herself very wide and sweeping powers to deal with assets, movable and immovable properties of the deceased to the exclusion of the petitioner. Savita also sought to forward a cheque of a miniscule amount of Rs.20,000/month to the petitioner in purported compliance of her obligations under the said trust deed.
Pooja, who is currently working with Indira National School run by Shri Chanakya Education Society and is in full time employment of Rizvi College of Management at Bandra, admitted in her petition that in her growing years, she was affected by her parent’s divorce.
She stated that she got emotionally effected by her parent’s divorce and it took a toll on her studies. She was a slow learner and was advised to attend a special school. The petitioner was thus enrolled in a special school of slow learners. It is the case of the petitioner that after dissolution of the marriage of the said deceased and her mother, Jyoti relinquished all her rights in the estate of the deceased and did not make any claim and/or for alimony and/or maintenance.
Jyoti Patil, the mother of the petitioner thereafter filed a Mental Health Petition in the City Civil Court at Bombay seeking custody of the petitioner. During the proceedings before the City Civil Court, the petitioner expressed her desire to live with her mother in Pune. The petitioner thereafter shifted her residence to the house of her mother in Pune and continues to live there till today.
In the said proceedings filed by Jyoti, the City Civil Court directed that an IQ test be conducted on the petitioner by the JJ Hospital. A certificate was issued after conducting the test, it was stated that during the mental status examination, the petitioner was found to be conscious, cooperative, communicative, coherent, relevant, intelligence subnormal, judgment intact as well as insight present.
The said certificate did not mention or state that the petitioner was in any manner incapacitated to look after her personal affairs as well as that of the estate of the deceased father.
Petitioner’s counsel Dr. Birendra Saraf submitted that Savita did not have the locus to file a testamentary petition, his client, the sole heir did. He also informed the court that even if Savita’s argument that Pooja was mentally retarded and not in a position to govern the affairs of her father’s state, she was mandatorily required to follow procedure under Order XXXII Rules 1 to 14 of the Code of Civil Procedure, 1908.
Saraf submitted that without following the said procedure Savita could not have proceeded with the testamentary petition and could not have obtained probate in the testamentary petition. Savita ought to have applied for the appointment of a guardian of the petitioner, he said. He submitted that the order of granting probate is thus void in view of non-compliance of the provisions of Order XXXII Rules 1 to 14 of the Code of Civil Procedure, 1908.
The court noted –
“In view of the petitioner being the only legal heir and representative of the deceased Mr.Deepak Vasantrao Patil was thus entitled to be served with citation of the application filed by the respondent no.1 for Letters of Administration or for probate under Rule 397 read with Rule 399 personally. Neither the petitioner had given any consent for waiver of such citation nor consent for grant of Letters of Administration or probate in favour of the respondent no.1. Since the respondent no.1 did not serve the citation upon the petitioner in the said testamentary petition in the mode and the manner prescribed under Rules 397 to 399 of the Bombay High Court (Original Side) Rules, 1980 or otherwise, the grant of probate issued in favour of the respondent no.1 deserves to be set aside on this ground alone.”
As regards to the mental capacity of the petitioner, Pooja Patil, the court had interviewed her and found her to be of sound mind. The court said-
“In my view, there is thus no necessity to refer the case of the petitioner again to any medical authority and to submit any report regarding her present status of her state of mind or to verify whether the petitioner is suffering from any mental retardation today. Various authorities including the Civil Court has already rendered several findings in favour of the petitioner certifying that the petitioner being a normal person and is capable of handling her affairs and can control and manage the properties. It is not in dispute that the petitioner has been operating her bank account.”
Noting that Savita Patil had acted fraudulently, the court allowed the petition seeking recall of order granting probate and imposed a cost of Rs.1 lakh on Savita payable to the petitioner.
“In this case, in my view, the respondent no.1 had acted fraudulently by making a false suggestion that the petitioner was mentally retarded and was not in a position to give her consent. The respondent no.1 also suppressed various true and correct facts even at the stage of obtaining such grant of probate ex parte.”