SAMIR NIDHIR DUTTAversusSUBIR NIDHIR DUTTA

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                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            ORDINARY ORIGINAL CIVIL JURISDICTION
                                                 IN ITS COMMERCIAL DIVISION

                                          MISCELLANEOUS PETITION NO.201 OF 2025
                                                          WITH
                                         INTERIM APPLICATION (L) NO.15329 OF 2024
                                                          WITH
                                         INTERIM APPLICATION (L) NO.27310 OF 2025
VISHAL
                                                          WITH
SUBHASH
PAREKAR                                   INTERIM APPLICATION (L) NO.7260 OF 2024
Digitally signed by
VISHAL SUBHASH
PAREKAR
                                                            IN
Date: 2026.01.13
18:06:19 +0530                            TESTAMENTARY PETITION NO.1963 OF 2016

                      Samir Nidhir Dutta                                  ...Petitioner
                                 Versus
                      Subir Nidhir Dutta and Others                       ...Respondents

                                                      ——————
                      Mr. Veer Kankaria, for the Petitioner.
                      Ms. Priti Shah, for the Respondents.

                                             CORAM :                  SHARMILA U. DESHMUKH
                                             RESERVED ON :            JANUARY 06, 2026
                                             PRONOUNCED ON :          JANUARY 13, 2026
                                                       --------------

                      JUDGMENT:

                      1.        The Miscellaneous Petition has been +led under Section 263 of

                      Indian Succession Act, 1925 ( for short “Succession Act”) seeking

                      revocation for Probate granted on 8th March, 2024 in respect of alleged

                      Will of one Nidhir Kalimohan Dutta, who expired on 26 th December,

                      2002.



                      Vishal Parekar                                                            1/12
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2.         The Petitioner and the Respondent are siblings being sons of the

deceased. Shorn of unnecessary details, the facts of the case are that

the present Petitioner had propounded a Will dated 17 th November,

2001 of the deceased Nidhir for grant of Probate by Testamentary

Petition No. 489 of 2004. The present Respondent +led Caveat, which

was dismissed on 10th March, 2005 and Probate was granted on 21 st July,

2005. The Respondent +led Miscellaneous Petition No 10 of 2006

seeking revocation of the Probate granted in respect of the Will dated

17th November, 2001. The revocation was sought on the ground of non

service of the notice of probate petition personally on the Respondent

herein. The Court noted that the Caveat was dismissed for non +ling of

the AAdavit in support of the Caveat.           The Court held that the

Petitioner had entered appearance and +led Caveat much before being

personally served and there is no reason to revoke the Probate, and,

dismissed the Miscellaneous Petition vide order dated 22 nd September,

2006.



3.         An Appeal came to be +led before the Hon’ble Division Bench of

this Court bearing Appeal No. 59 of 2007 which was dismissed vide

order dated 21st February, 2007. The Respondent approached the

Hon’ble Apex Court by way of Special Leave Petition No. 11728 of 2007

which was dismissed by order dated 19th September, 2008.


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4.        During the pendency of the proceedings, the Petitioner had +led

Special Civil Suit No. 2465 of 2007 before the Civil Court seeking relief

of declaration and injunction which was contested by the Respondent.

During the hearing, the Respondent produced the alleged Will dated

10th January, 2008 and the trial Court came to a +nding that the Will is

incomplete as some paragraphs are missing and no explanation is

provided by the Respondent. The suit was decreed in favour of the

PlaintiD on 21st March, 1996, which is subject matter of pending Appeal

before this Court.



5.        On 10th October, 2016, the     Respondent +led Testamentary

Petition No. 1963 of 2016 propounding Will dated 10 th January, 2002 of

the deceased Nidhir Dutta. The Petitioner herein was served with the

citation and +led Caveat bearing CTSL No. 366 of 2017 which was

delayed by a period of 4 days. The sisters of the Petitioner also +led

their respective Caveats. The caveats +led by the Petitioner and his

sisters were rejected for non-removal of oAce objection. Vide order

dated 22nd January, 2024 the Additional Prothonotary and Senior

Master directed issuance of Probate leading to +ling of the present

Petition.



6.        The Respondent’s response is that the Petitioner had failed to


Vishal Parekar                                                            3/12
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avail the opportunity of contesting the Petition and at a belated stage

has come to challenge the validity of Will dated 10 th January, 2002. The

Petitioner’s Petition was allowed on technical ground as the caveat +led

by the Respondent was not supported by an AAdavit. The grant of

Probate of subsequent Will inherently annuls the +rst Probate.



7.        Learned counsel for the Petitioner would submit that the

Petitioner had propounded the Will of the deceased dated 17 th

November, 2001, which was probated by this Court and the revocation

proceedings were dismissed right up to the Hon’ble Apex Court. He

submits that as probate was already granted, the Respondent could not

have propounded the Will of 10 th January, 2002 during the subsistence

of the Probate in favour of the Petitioner. He would submit that the City

Civil Court has make speci+c observation that the Will produced by the

Respondent is suspicious. He submits that in the Testamentary Petition

No. 1963 of 2016 +led by the Respondent, which was opposed by the

Petitioner and the sisters by +ling caveats came to be dismissed for non

prosecution. He submits the Respondent has suppressed the fact of

dismissal of the revocation application in the testamentary petition. He

would further point out that the Will propounded by the Respondent is

suspicious as there are discrepancy in the paragraph numbering as page

No. 3 of the Will starts with the paragraph No. 6 without


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earlier paragraphs being numbered. In support, he relies upon the

following decisions :-

                 (1) Smt. Rukmani Devi and Ors. vs. Narendra Lal Gupta1

                 (2) H. Venkatachala Iyengar vs. B.N.Thimmajamma & Ors.2



8.        Per contra, learned counsel for the Respondent submits that there

is no suppression of facts as paragraph No. 11 of the Testamentary

Petition No. 1963 of 2016 clearly mentions about the earlier

Testamentary Petition being +led by the Petitioner and the grant of

Probate which came to be allowed on technical ground as the Caveat

+led by the Respondent is not supported by the aAdavit. She would

submit that there is no suppression of dismissal of the revocation

application as this Court had directed the Registry to issue citation vide

order dated 22nd September, 2017 after considering the submissions

canvassed as regards the earlier revocation application being dismissed.

She would further submit that though an opportunity was given to the

Petitioner to oppose the Petition by service of citation, the Petitioner

did not take timely steps for removal of oAce objection failing which

the Caveat came to be dismissed and the Probate was granted to the

Respondent in accordance with the procedure of law. She would submit

that in event this Court holds in favour of the Petitioner, liberty may be


1    (1985) 1 SCC 144.
2    1958 SCC OnLine SC 31.

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granted to the Respondent to take out appropriate proceeding for

revocation of the Petitioner’s Probate.



9.        In rejoinder, learned counsel for the Petitioner opposes the prayer

seeking liberty and submits that the Will itself is surrounded by

suspicious circumstances and has been propounded after a period of

almost 14 years from the execution.



10.       I have considered the submissions and perused the record.



11.       The facts are mostly undisputed and the issue which begs

determination is whether there exists a just cause for revocation of the

Probate granted in respect of the Will dated 10 th January, 2002 to the

Respondent.



12.       The Will dated 17th November, 2001 of deceased Nidhir Dutta was

probated on 21st July, 2005. The application +led by the Respondent

seeking revocation of the probate granted on 21 st July, 2005 was

rejected right up to the Hon’ble Apex Court. It is well settled that grant

of probate is judgment in rem and is conclusive of validity of the Will till

it is revoked. Section 273 of Succession Act provides that the grant shall

eDect over all the property and estate, movable or immovable of the


Vishal Parekar                                                               6/12
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deceased. The grant of Probate in favour of the Respondent has led to a

position that the estate of the deceased is governed by two sets of

testamentary dispositions. The grant of probate of subsequent Will in

respect of the same properties of the deceased without the earlier

grant being revoked would run contrary to the statutory scheme of the

Succession Act.



13.       Chapter 26 of the Bombay High Court (Original Side) Rules (in

short “the Rules”) governs the testamentary and Intestate jurisdiction.

The rules set out the procedure to be followed for grant of Probate of

Letters of Administration. Rule 382 provides that the application for

Probate / Letters of Administration/ Succession certi+cate made for the

+rst time after lapse of three years from the death of the deceased, the

reasons for the delay shall be explained in the Petition and upon the

explanation being unsatisfactory, the Prothonotary and Senior Master

may require such further proof of alleged cause of delay as he may

deem +t.



14.       In the present case, the Respondent has propounded a Will of the

year 2002 by +ling a Petition after a lapse of 14 years, in the year 2016.

The explanation for the delay as set out in paragraph 11 states that the

Petitioner was not aware of the Will dated 10 th January, 2002 executed


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by the deceased and that somewhere in the month of May and June,

2013, the mother of the Petitioner gave the original Will dated 10 th

January, 2002 to the Petitioner and the Petitioner was unaware of the

requirement of the obtaining Probate of the Will.



15.       The delay is in inordinate delay of about 14 years. The Petitioner

had +led Petition seeking Probate of Will dated 17 th November, 2001 in

the year 2004 and the litigation as regards the revocation of probate

reached right upto the Hon’ble Apex Court. The Petitioner and the

Respondent’s mother expired on 22 nd July, 2013 and was alive at the

time of probate of the earlier Will and during the subsistence of the

revocation proceedings, and, it de+es reason that the Will of the year

2002 would not have been handed by the mother to the Respondent at

that point of time. Though it is sought to be contended that the

Respondent was layman and not aware of requirement of obtaining

probate, the said explanation was unacceptable considering that the

grant of Probate of the Will of the year 2001 was contested by the

Respondent right up to the Hon’ble Apex Court. Pertinently, the

handing over of the Will of the year 2002 is strategically timed to one

month before the death of mother of the parties in July, 2013.



16.        Rule 382 of the Rules speci+cally enjoins the Prothonotary and



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Senior Master to require such further proof of the cause of delay as he

may deem +t. This was a perfect case where the Prothonotary and

Senior Master ought to have required some further proof of alleged

cause of delay.



17.       There is another reason why the present Petition deserves to be

allowed. In paragraph 11 of the Testamentary Petition No 1963 of 2016,

the Respondent has pleaded about the earlier Testamentary Petition

+led by the Petitioner in which the Probate was granted of the Will

dated 17th November, 2001. The Respondent has suppressed the fact

that the Respondent had sought revocation of Probate granted to the

Petitioner which challenge has failed right up to Hon’ble Supreme Court.

Rule 374 of the Rules governs the application for Probate and provides

that the Petition shall       be in Form 97 with such variations as

circumstances of each case may require. The prescribing of particular

format for +ling of application for grant of Probate does not preclude

the parties from setting out the facts which are material for the purpose

of deciding the issue of grant of Probate. Though reliance has been

placed on the order of 22nd September, 2017 passed by the learned

single Judge of this Court in Testamentary Petition No. 1963 of 2016,

the order merely directs the Registry to issue citation and nothing

further. From the perusal of the said order, it appears that the


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submissions were canvassed for the purpose of issuance of citation. At

that point of time, there was no issue before the Court as regards the

maintainability of the Testamentary Petition itself and the issue was

only as regards the issuance of citation. No assistance can be drawn by

the Respondent from the order dated 22nd September, 2017. The

submissions canvassed before the Court for issuance of citation cannot

replace the requirement of speci+c pleadings of material facts in the

Petition.



18.       In event there was discovery of subsequent Will, the proper

course would be institution of proceedings for revocation of the earlier

grant in view of discovery of later Will. The illustration to Section 263

gives an example of just cause where after the Probate is granted, later

Will has been discovered. The remedy of the Respondent was thus to

+le for revocation of the Probate and not for probate of the later Will

during the subsistence of the earlier grant. It is not necessary for this

Court in these proceedings to go into the issue of validity of the Will

dated 10th January, 2002 propounded by the Respondent and its

genuineness will have to be tested in appropriate proceedings.



19.       In light of the above discussion, there exists just cause for

revocation of the Probate dated 8 th March, 2024 granted to the


Vishal Parekar                                                           10/12
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Respondent in respect of alleged Will dated 10th January, 2002.

Miscellaneous Petition is allowed. The Probate granted by this Court on

8th March, 2024 in respect of the Will of the deceased Nidhir Kalimohan

Dutta dated 10th January, 2002 is hereby revoked. The Respondent is

directed to surrender the original Probate to the Prothonotary and

Senior Master within a period of two weeks from today.



20.       Though an objection has been raised to any liberty being granted

to the Respondent, in view of the subsequent Will being discovered,

the remedy is available as per law to the Respondent. It is open for the

Respondent to take out an appropriate application, which will be dealt

with on its own merits and in accordance with law. All right and

contentions of both the parties in that respect are expressly kept open.



21.       The Miscellaneous Petition is allowed. In view thereof, Interim

Application (L) Nos. 15329 of 2024, 27310 of 2025 and 7260 of 2024 do

not survive for consideration and stands disposed of.




                                           (SHARMILA U. DESHMUKH, J.)




Vishal Parekar                                                           11/12
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22.       At this stage, request is made by the learned counsel appearing

for the Respondents for extension of order of status quo which was

passed on 8th May, 2024 in Interim Application (L) No. 15329 of 2024.



23.       The order of status quo is extended for a period of four weeks

from today.



                                           (SHARMILA U. DESHMUKH, J.)




Vishal Parekar                                                          12/12