Arnold Samson vs Ramesh Baldev Gwalani

2026:BHC-OS:12535
-MPT-86-2010.DOC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISCELLANEOUS PETITION NO. 86 OF 2010
IN
TESTAMENTARY PETITION NO. 917 OF 2008

..Petitioner
Arnold Samson of Sweden, a Jew being
the only son and sole heir of the
deceased abovenamed residing at
Skoldgatan, 4A 21229, Malmo Sweden
Versus
1. Ramesh Baldev Gwalani
of Mumbai, Adult, Hindu, Indian Inhabitant
climaing to be the Sole Executor under the Will
of the Deceased abovenamed residing at 132/A,
Jolly Maker Apartment No.1, Cuffe Parade Road,
Mumbai 400 005.
ARUN
RAMCHANDRA
SANKPAL
2. Vimla Rama Rao
having her address at Flat No. 6
nd
Bueno Vista, 2 Floor, Windy Hall
Lane, Near Colaba Post Office,
Colaba, Mumbai 400 005. (Deleted as per order
th st
dated 5 June 2023 and 31 March 2023.
Digitally signed
by ARUN
RAMCHANDRA
SANKPAL
Date: 2026.06.08
18:26:26 +0530
2A. Rama Rao
2B. Rohini Rama Rao
2C. Uma Rama Rao
2D. Ravi Rama Rao
All of Mumbai Indian Inhabitants legal
representatives of the late Vimla Rama Rao,
Original Respondent No. 2 residing at Flat
nd
No. 6, Bueno Vista, 2 Floor, Windy Hall
Lane, Near Colaba Post Office, Colaba,
Mumbai 400 005.
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3. Rahim Jawat Mohammed,
having his address at Flat No. 6,
nd
Bueno Vista, 2 Floor, Windy Hall
Lane, Near Colaba Post Office,
…Respondents
Colaba, Mumbai 400 005.
Mr. Shailesh Shah, Senior Advocate, with Shanay Shah, Jonathan
Soloman, Soniya Putta, Karan Mehta, Souparnika S and
Priyanka Singh, i/b M/s Solomon And Co, for the Petitioner.
Mr. Tushad Kakaliya, with Kayomars Kerawalla and Kumar Kothari,
i/b Vohuman Legal, for Respondent No. 2A and 2D and 3.
CORAM: N. J. JAMADAR, J.
st
RESERVED ON : 21 JANUARY 2026
th
PRONOUNCED ON : 8 JUNE 2026
JUDGMENT:
1.
This Miscellaneous Petition is for revocation of Probate dated
th
10 July 2009 in respect of the purported last Will and Testament dated
th
6 February 2008 of late Rosalind Samson (“the deceased”) gratned in
favour of Ramesh Baldev Gwalani, Respondent No.1, the Executor, in
Testamentary Petition No. 917 of 2008, under Section 263 of the Indian
Succession Act, 1925 (“the Succession Act”).
2.
Shorn of superfluities, the background facts can be stated as
under:
nd
2.1 Late Rosalind Samson passed away on 22 February 2008.
At the time of her death the deceased had a fixed place of abode at Flat
nd
No. 6, 2 Floor, Bueno Vista, Windy Hall Lane, Near Colaba Post Office,
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Colaba, Mumbai – 400 005 (“the subject flat”). Respondent No.1
claimed that the deceased has left behind her last Will and Testament
th
dated 6 February 2008. Respondent No.1 was named the sole Executor
in the said Will. Under the said Will, the deceased had bequeathed her
immovable and movable properties including the subject flat to Vimla
Rama Rao, the deceased-Respondent No.2, her caretaker, and Rahim
the son of Jawat Mohammed, Respondent No.3, whom the deceased
considered her foster-son.
2.2 Respondent No.1 thus filed Petition No. 917 of 2008 for
grant of probate in respect of the aforesaid last Will and Testament of
the deceased. It was averred, the deceased had left behind no surviving
heir and next of kin.
2.3 As there was no contest, the Petition came to be allowed
and the probate came to be granted in favour of Respondent No.1 on
th
10 July 2009.
3.
The Petitioner claims to be the son and sole heir of the
deceased. The Petitioner has instituted the instant Petition seeking
revocation of the Probate on the ground that the Probate was obtained
by suppressio veri and suggestio falsi. No citation was issued to the
Petitioner though the Respondents were fully cognizant that the
Petitioner was the son of the deceased. A deliberate false statement was
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made that the deceased had not left behind any heir. The prayer for
revocation of the probate is premised on the following facts:
3.1 The deceased, a Jew by religion, was married to Mr Hari M
Kapur. The Petitioner was born out of the said wedlock. However, in the
year 1956, the parents of the Petitioner got divorced. Till the year 1962,
the Petitioner was in the custody of the deceased, his mother. In 1962,
the Petitioner initially went to Israel and, thereafter, travelled to, and
settled in, Sweden since the year 1970.
3.2 The deceased, the Petitioner contends, died intestate
without leaving any testamentary instrument. After the demise of the
deceased, the Petitioner became solely entitled to the estate left behind
th
by the deceased. Hence, on 12 February 2009, the Petitioner called
upon the Secretary of the Buena vista Cooperative Housing Society Ltd,
wherein the subject flat is situated, to transfer the said flat and the
shares in favour of the Petitioner. Thereupon, it transpired that the
deceased had purportedly effected a nomination of 50% undivided
share in the said flat each in favour of Vimla Rama Rao (R2) and Rahim
Jawat Mohammed (R3). Thus, the Petitioner addressed communication
to Respondent Nos. 2 and 3 asserting the sole and exclusive right of the
Petitioner over the property left behind by the deceased. However, there
was no response from Respondent Nos. 2 and 3.
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3.3 The Petitioner was thus constrained to institute Suit No.
1175 of 2010 against Respondent Nos. 2 and 3 and the Secretary of the
Bueno Vista, inter alia, for a declaration that the Petitioner was the sole
heir of the deceased and thus entitled to the subject flat and other
property left behind by the deceased.
3.4 In the Affidavit in Reply filed to the Notice of Motion taken
out by the Petitioner in the said suit, Vimla Rama Rao (R2) contended
that the deceased died as a spinster and the deceased had bequeathed
th
her property including the subject flat under the Will dated 6 February
2008 in favour of Respondent Nos. 2 and 3 in equal share, and the said
th
Will was probated pursuant to the order of this Court dated 10 July
2009, in Testamentary Petition No. 917 of 2008.
3.5 Thus the Petitioner became aware of the purported Will set
up by Respondent Nos. 2 and 3. Thereupon, inspection of the
documents was taken and enquires were made. It transpired that the
probate had been granted without service of citation on the Petitioner.
The fact that the Petitioner was the son of the deceased was deliberately
suppressed and a false statement was made in the Petition that the
deceased died as a spinster. Despite being aware of the fact that the
Petitioner was the son of the deceased, Respondent Nos. 2 and 3, the
beneficiaries under the said Will, feigned ignorance of the said fact.
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3.6 The Petitioner has also contested the due execution and
attestation of the purported Will and the genuineness thereof. It was,
inter alia, asserted that the probate was surreptitiously obtained in
respect of the Will which was purportedly executed while the deceased
was admitted to Saifee Hospital and was not in a fit state of mind to
know the nature and consequences of the purported disposition made
thereunder. The Will was stated to be not validly executed and attested.
3.7 In substance, the Petitioner claimed that the proceedings to
obtain the probate in respect of the purported Will of the deceased were
defective in substance and the grant was obtained fraudulently by
resorting to suppressio veri and suggestio falsi.
4.
Ramesh Baldev Gwalani, the Executor (R1), contested the
Petition for revocation by filing an Affidavit in Reply.
4.1 At the outset, it was contended that the Petition was filed
with an oblique motive to grab the property of the deceased by falsely
claiming that the Petitioner is the son of the deceased. Emphasis was
laid on the fact that the Petitioner had not produced any cogent
evidence to prove that the Petitioner was the son of the deceased. By
making reference to the documents, including the Passports of the
Petitioner and the deceased, an endeavour was made to draw home the
point that there is no clinching material to demonstrate that the
Petitioner is the son of the deceased. Nor did the Petitioner succeed in
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demonstrating that the deceased was married to Mr. Hari Kapur. The
documents, like the photographs and the school leaving certificate,
sought to be pressed into service on behalf of the Petitioner, were stated
to be bereft of any evidentiary value to substantiate the claim of the
Petitioner that he was the son of the deceased.
4.2 On the contrary, the contemporaneous conduct militates
against the claim of the Petitioner as the Petitioner did not attend to the
deceased, while she was admitted to Saifee Hospital, nor participated in
the last rites and obsequies despite claiming that the Petitioner was in
India when the deceased passed away.
4.3 Respondent No.1 asserted that Respondent No.1 had made
diligent enquiries with the beneficiaries under the Will and the friends
of the deceased about the heirs and next of kin of the deceased. But
none of the persons gave the information regarding the heirs and next
of kin of the deceased. Therefore, Respondent No.1 had sworn an
Affidavit that to his knowledge there was no surviving heir of the
deceased.
4.4 Respondent No.1 refuted assertions of the Petitioner that
the said Will was not duly executed and attested. An endeavour was
made to show that the deceased had executed the said Will out of her
own volition and in a sound disposing state of mind in the presence of
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the attesting witnesses, who had also signed the Will in the presence of
the deceased.
5.
Respondent Nos. 2 and 3, the beneficiaries under the Will,
also contested the Petition by filing Affidavit in Reply. It was
categorically denied that the Petitioner was the son of the deceased. It
was contended that the deceased throughout her life had represented
that she was never married. The deceased always described her status
as a spinster. Initially, Rama Rao, Respondent No.2's husband lived with
the deceased as her caretaker since 1950. Since the marriage of
th
Respondent No.2 with Rama Rao on 29 May 1967, Respondent No.2
had been staying in the subject flat with the deceased. Respondent No.
3 was treated as a son by the deceased. The name of the deceased was
shown as the parent/guardian in the school record of Respondent No.3.
5.1 Respondent Nos. 2 and 3 contended, Respondent No.2 looked
after the deceased as her elder sister. Respondent No.2 nursed the
deceased. Respondent No. 2 admitted the deceased in Saifee Hospital
and incurred expenses of her treatment. Even the expenses of the
funeral of the deceased were borne by Respondent No.2. The
Respondents contend that, when the deceased fell sick and was
hospitalized, though the Petitioner happened to be in India, yet, the
Petitioner went to Goa for a Holiday. The Petitioner even did not attend
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the funeral of the deceased though he claimed to be the son of the
deceased.
5.2 Respondent Nos. 2 and 3 have made an effort to
demonstrate that the claim of the Petitioner that he was born to the
th
deceased on 19 February 1947 was improbable as the deceased was
nd
born on 2 February 1934 and it was inconceivable that at the age of
13 years the deceased could give birth to the Petitioner. There was no
material to prove the alleged relationship between the Petitioner and
the deceased. On the basis of the fictitious documents, the Petitioner
made an endeavour to lay claim over the properties left behind by the
deceased by falsely claiming that he is the son of the deceased. The
Respondents denied that the proceedings to obtain probate were
defective in substance and that a case for revocation of the probate was
made out.
6.
In the wake of the aforesaid pleadings, issues were settled.
The issues are reproduced below with my findings thereon for the
reasons to follow:
ISSUES FINDINGS
1 Whether the Petitioner is the
biological son of the deceased
Rosalind Samson?
In the affirmative to the
extent of making out a
prima facie case for
revocation of probate.
2 What relief, if any, the Petitioner is Petition stands allowed.
entitled to?
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REASONS:
7.
In order to substantiate the averments in the Petition, the
Petitioner has examined himself and a witness Aaron Daniel Benjamin
(PW2). Vimla Rama Rao (RW1) adduced evidence in rebuttal. The
parties have tendered in evidence a number of documents in support of
their respective cases.
8.
At the conclusion of trial, I have heard Mr. Shailesh Shah, the
learned Senior Advocate for the Petitioner, and Mr. Tushad Kakalia, the
learned Counsel for Respondent Nos. 2A to 2D and 3, at length. The
contesting parties have also tendered written submissions in elaboration
of the submissions canvassed across the Bar.
9.
At the outset, Mr. Shailesh Shah, the learned Senior Advocate
for the Petitioner, submitted that in a Petition for revocation of the grant
of probate, the standard is that of existence of a prima facie case. If the
Court upon appraisal of the material is satisfied that there are reasons
to believe that it was necessary to have the Will proved afresh in the
presence of the parties who appear to have a caveatable interest, the
grant can be lawfully revoked. To buttress this submission in regard to
the scope of the enquiry under Section 263 of the Succession Act, 1925
(“the Succession Act”), Mr Shah placed a very strong reliance on the
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judgment of the Supreme Court in the case of Anil Behari Ghosh Vs
1
Latika Bala Dassi and Ors.
10.
In the case at hand, Mr. Shah would urge, there is
overwhelming material to indicate that the probate was obtained by the
Respondents by suppressing the fact that the Petitioner is the son of the
deceased, though the Respondents were fully cognizant of the said fact.
A subterfuge was thus adopted by the Respondents by making a
guarded statement in the Affidavit that to the best of the knowledge of
Respondent No.1, the deceased had not left behind any heir in India.
This very statement implies that the Respondents were aware that the
deceased had heirs who were based outside India. Such suppression of
facts and the resultant non service of the citation on the Petitioner, who
is the son and sole heir of the deceased, constitutes a fundamental
defect in procedure and warrants the revocation of the grant.
11.
Amplifying the submission, Mr. Shah urged that the Petitioner
has placed on record material of unimpeachable quality to show that he
is the son of the deceased. Firstly, the birth certificate of the Petitioner
th
issued by the Municipal Corporation of Greater Mumbai on 7 July
2011 (Exhibit “P6”) clearly records that Mrs Rosalind, the deceased,
was the mother and Mr. Hari Madanchand Kapur was the father of the
th
Petitioner, who was born on 20 February 1946. The said birth
certificate (Exhibit “P6”) was admitted in evidence as its existence was
1
AIR 1955 SC 566.
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not disputed. No material has been placed on record, nor have
Respondents have adduced evidence to question the correctness of the
entries in the said birth certificate.
12.
Mr. Shah submitted that the entries in the Register maintained
by the local authority in accordance with the provisions contained in the
Registration of Births and Deaths Act, 1969 (“the Act of 1969”), which
have presumptive value, cannot be lightly brushed aside. The
presumption of the correctness of the entries therein could have been
refuted by seeking the production of the original birth register. Since the
Respondents failed to adduce such evidence, the birth certificate
commands primacy. To this end, Mr. Shah placed reliance on a Division
Bench judgment of this Court in the case of Vasudha Gorakhnath
Mandvilkar Vs City and Industrial Development Corporation of
2
Maharashtra Ltd.
13.
Mr. Shah further submitted that it was not obligatory for the
Petitioner to call for the birth register and examine the concerned
officials. To lend support to this submission, reliance was placed on the
judgment of the Supreme Court in the case of Harpal Singh And Anr Vs
3
State of Himachal Pradesh and the judgments of this Court in the cases
4
of Sameer Shashikant Jadhav Vs State of Maharashtra and Anr,
2 2008 SCC OnLine Bom 400.
3
(1981) 1 SCC 560.
4
2023 SCC OnLine Bom 84.
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Mahiboob Alias Tanya Peerahamad Shabhai Vs The State of
5
Maharashtra & Anr and Sachin Vs State of Maharashtra through Police
6
Station Officer.
14.
Secondly, Mr. Shah would urge, the deceased had addressed
more than 40 letters/aerograms to the Petitioner, repeatedly addressing
and acknowledging the Petitioner as the son of the deceased. In
addition, Mr. Hari Kapur, the Petitioner's father, has also addressed
letters to the Petitioner. These letters cumulatively establish the
relationship between the Petitioner and the deceased. It was submitted
that the Respondents baldly claimed that those letters were false and
forged without making any effort to substantiate the said defence. The
technical defences like, the fact that there was no seal of the postal
authority on few of the letters, do not detract materially from the claim
of the Petitioner, urged Mr. Shah.
th
15.
Thirdly, the communication dated 27 March 2014 from the
United State Office of Personnel Management to the Petitioner thereby
remitting final lump sum death benefit payment of the former
employee, establishes the fact that the Petitioner was nominated by the
deceased as the next of kin to whom the said payment was to be made.
Mr. Shah urged that incontrovertibly the deceased was employed in the
American Consulate and, therefore, the death benefit became
5
2019 (3) ABR (Cri) 890.
6
2025 SCC OnLine Bom 844.
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admissible. The said payment was made to the Petitioner being the son
of the deceased. Mr. Shah also placed reliance on the said document in
support of the submission that the correct date of birth of the deceased
nd
was 2 February 1928. The proof of the fact that the deceased was born
nd
on 2 February 1928 takes the wind out of the sail of the Respondents
regarding the contention that the Petitioner could not have been born to
the deceased, while she was 13 years of age, on the basis of the date of
birth recorded in the Passport.
16.
Mr. Shah further submitted that the evidence of the Petitioner
in relation to the said financial statement of the lump sum death benefit
payment issued by the US Office of the Personnel Management, has
gone virtually unimpeached.
17.
In addition to the aforesaid documents, taking the Court
through the manner in which the Petitioner, Arnold Samson (PW1) and
Vimla Rama Rao (RW1) stood the test of cross-examination, Mr. Shah
would urge that the fact that the deceased had relatives outside India is
clearly admitted by Vimla Rama Rao(RW1). Moreover, Vimla (RW1) has
conceded in the cross-examination that the Petitioner used to visit the
deceased every year since 1979. These admissions coupled with the
aforesaid documents make out a strong prima facie case warranting an
opportunity for the Petitioner to contest the Petition for the grant of
probate.
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18.
Support was also sought to be drawn by Mr. Shah from the

contemporaneous conduct of the Petitioner. It was urged that the
Petitioner had addressed communication to the society asserting his
claim to the subject flat; the Petitioner addressed communications to the
alleged beneficiaries under the Will and even instituted the suit for
administration of the estate of the deceased, within one year of the
death of the deceased.
19.
The aforesaid contemporaneous and consistent stand of the
Petitioner, if considered in the light of the aforesaid material, makes out
a ‘just cause’ for revocation of the Probate, and grant of an opportunity
to the Petitioner to contest the prayer for grant of Probate on merits. To
lend support to the aforesaid submission, Mr. Shah placed reliance on
the decisions in the cases of Lata Rajesh Shetty Alias Latha Rajesh
7 8
Shetty Vs Satish Surappa Poojari and S.A. Modi Vs T. A. Rana and Ors.
20.
In opposition to this, Mr. Tushad Kakalia, the learned Counsel
for Respondent Nos. 2A to 2D and 3, strenuously urged that the
Petitioner's claim of being a son of the deceased is fraught with
insuperable infirmities. First and foremost, the very fact that the
Petitioner did not attend the funeral and perform the last rites of the
deceased, though the Petitioner claimed to be in India during the
relevant period, bears out the falsity of the claim of the Petitioner. What
st
7
Misc Petition (L) No. 34745 of 2023, dated 21 February 2024.
8
2004(3) MhLJ 821.
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exacerbates the situation, according to Mr. Kakalia, was the fact that
when confronted with the fact that the Petitioner did not attend, and
bear the expenses in connection with the funeral and other rituals, the
Petitioner had the audacity to depose falsely on oath. Such
demonstrably incorrect statements on oath render the Petitioner
completely unworthy of credence.
21.
Mr. Kakalia further submitted that, the material placed on
record by the Petitioner betrays an attempt to progressively bolster up
the Petitioner's case by placing on record documents of doubtful
credibility. An endeavour was made by Mr. Kakalia to demolish each of
the four sets of documents/material sought to be pressed into service on
behalf of the Petitioner.
22.
Assailing the veracity and reliability of the birth certificate
(Exhibit “P6”), Mr Kakalia would urge that the said birth certificate was
not produced along with the Petition. It was procured after one year,
and produced after three years of the institution of the Petition. At any
rate, Mr. Kakalia would urge the birth certificate does not prove that the
deceased was the Petitioner's mother. Taking the Court through the
provisions contained in Sections 12 and 17 of the Act of 1969, Mr.
Kakalia would urge at the highest the birth certificate may establish the
date and time of birth of a person but certainly not his parentage. The
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date and time of the birth is the only “relevant fact” under Section 35
of the Indian Evidence Act, 1872.
23.
Mr. Kakalia advanced a serious criticism on account of the
non-examination of the person who made the entries in the birth
register on the basis of which the birth certificate has been issued. Nor
any effort was made by the Petitioner to have the original Register
produced before the Court. Laying emphasis on the fact that on the own
showing of the Petitioner there was a discrepancy in the date of birth of
the Petitioner, Mr. Kakalia submitted that the Petitioner has singularly
failed to discharge the burden to establish the correctness of the
information in the Birth Register much less the fact that the deceased
was the mother of the Petitioner. For this purpose, Mr. Kakalia placed
reliance on the decision of the Supreme Court in the case of Alamelu
9
and Anr Vs State Represented by Inspector of Police and the judgments
of this Court in the cases of Gulabrao Tuljaram Mandge Vs The
10
Additional Commissioner, Nashik Division, Nashik and Sayyed
11
Zafaroddin S/o Afzalodin Vs The State of Maharashtra & Ors
24.
Mr Kakalia would urge, the School Leaving Certificates
(Exhibit “P7” and “P65”) stand on an even weaker foundation. Both the
documents were obtained after the dispute arose between the parties.
9
(2011) 2 SCC 385.
th
10
Aurangabad Bench Writ Petition No. 14440 of 2017, decided on 6
April 2021.
th
11
Aurangabad Bench Writ Petition No. 4939 of 2020, decided on 7 May
2021.
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No attempt was made to prove the correctness of entries therein by
examining the person who had made those entries. In the absence of
such evidence, the mere production of the school leaving certificates
(Exhibit “P7” and “P65”) is of no avail, submitted Mr. Kakalia. To
buttress this submission, Mr. Kakalia placed reliance on a judgment of
the Madras High Court in the case of K Jayakumar (Died) and Ors Vs
12
Koteeswaran and Anr.
25.
A strenuous effort was made by Mr. Kakalia to drag home the
point that the letters purportedly addressed by the deceased to the
Petitioner did not come from the proper custody. Those letters were
produced by the Petitioner in installments and that too after a long
interval. Even otherwise, Mr. Kakalia would urge, the letters are
extremely suspicious and appear to be fabricated, and brought into the
existence to bolster up of the case of the Petitioner. The absence of the
rubber stamp of the receiving post office on some of the letters, the
absence of an inward stamp on the aerograms in the Sweden and the
failure on the part of the Petitioner to offer plausible explanation of all
the infirmities were pressed into service to demonstrate that the letters
were not genuine and reliable.
26.
Mr. Kakalia further submitted that the contents of the few
letters militate against the relationship between the Petitioner and the
deceased, sought to be propounded by the Petitioner. Taking the Court
12
2008(5) CTC 695.
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through the portions of the letters at Exhibit “P13”, “P37”, “P39” and
“P45”, Mr. Kakalia submitted that the tenor of those letters did not
reflect the typical communication between the mother and son. It was
urged that when the Petitioner was confronted with the apparent
infirmities during his cross-examination, the Petitioner could not offer
any justifiable explanation. Thus, the letters and aerograms do not
advance the case of the Petitioner any further.
27.
As a second limb of the submission, Mr. Kakalia would urge
that, no mileage can be drawn from the fact that in those letters the
Petitioner has been addressed as, “Son”. It was submitted that the word,
“Son” is frequently used as a term of endearment and that cannot, by
itself, establish that the Petitioner was the biological son of the
deceased.
28.
With regard to the communication allegedly received from the
United States Office of Personnel Management (Exhibit “P58”), Mr.
Kakalia submitted that firstly the said document does not indicate that
the payment of the lump sum amount was being made to the Petitioner
for the reason that the Petitioner is the Son of the deceased. Secondly,
the said letter was issued after six years of the death of the deceased
and, thirdly, the Petitioner failed to divulge the information as regards
the circumstances in which the said communication came to be
addressed to the Petitioner, though the Petitioner admitted that he had
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entered into correspondence with the US Office of Personnel
Management. This steadfast refusal warrants the drawing of an adverse
inference against the Petitioner.
29.
Lastly, Mr. Kakalia was very critical of the non-existence of the
photographs of the Petitioner and the deceased, except the three
photographs (Exhibit “P61”). The absence of photographs, according to
Mr. Kakalia, itself demonstrates the falsity of the Petitioner's case as
there ought to have been numerous photographs if the Petitioner was
the son of the deceased. Even those three photographs do not depict the
bond of the mother and son between the deceased and the Petitioner.
Mr. Kakalia, would thus submit that, viewed from any perspective none
of the documents relied upon by the Petitioner substantiates Petitioner's
claim of being the son of the deceased.
30.
Mr. Kakalia would urge that, the case of suppression of
material facts for the grant of probate sought to be attributed to the
Respondents was completely misconceived. There are clear and
st
categorical averments in the Affidavit dated 21 January 2015 affirmed
by Respondent No.2 to the effect that the deceased had all along
represented that she was a spinster and had no relatives or next of kin.
Mr. Kakalia would urge that, the Petitioner had sought to misread the
asseveration in para 3 of the of the Affidavit that the deceased had no
relatives in India. If the assertions in para 3 of the Affidavit are read as a
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whole, it becomes abundantly clear that there was no guarded
statement much less the suppression of facts. No case for revocation of
Probate on the ground of suppression of material facts is thus made out.
31.
Before adverting to appreciate the aforesaid submissions in the
light of the evidence adduced by the parties, it may be apposite to note
a few uncontroverted facts.
32.
Firstly, the fact that the deceased was a Jew by religion is not
nd
in dispute. Secondly, the factum of the death of the deceased on 22
February 2008 while she was admitted to Saifee Hospital in Mumbai is
also not in contest. Thirdly, the fact that the deceased was initially the
licence and later on became the owner of the subject flat is not in
dispute. Fourthly, the fact that Respondent No.2 had been residing with
the deceased since 1970 is rather indisputable. Fifthly, the parties are
not at issue over the fact that the deceased was employed with the
American Consulate. Lastly, the grant of probate in an uncontested
proceeding without issuing citation to the Petitioner or any other
relative is the fulcrum of the case for revocation.
33.
The controversy essentially boils down to the question
whether the Petitioner is son of the deceased and, if yes, whether a case
for revocation of the Probate granted without issuing a citation to the
Petitioner, is made out? In effect, whether a case for revocation of the
grant is made out is at the heart of the controversy.
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34.
Chapter III of Part- 9 of the Succession Act deals with the

revocation of a grant. Section 263 of the Indian Succession Act, 1925
which predominantly bears upon the determination of the controversy
at hand, reads as under:-
“263. Revocation or annulment for just cause— The grant of
probate or letters of administration may be revoked or
annulled for just cause.
Explanation : —Just cause shall be deemed to exist where—
(a) the proceedings to obtain the grant were defective in
substance; or
(b) the grant was obtained fraudulently by making a false
suggestion, or by concealing from the Court something
material to the case; or
(c) the grant was obtained by means of an untrue allegation of
a fact essential in point of law to justify the grant, though such
allegation was made in ignorance or inadvertently; or
(d) the grant has become useless and inoperative through
circumstances; or
(e) the person to whom the grant was made has willfully and
without reasonable cause omitted to exhibit an inventory or
account in accordance with the provisions of Chapter VII of
this Part, or has exhibited under that Chapter an inventory or
account which is untrue in a material respect.
35.
From the phraseology of section 263, it becomes evident that
the grant of probate or Letters of Administration may be revoked if the
proceedings to obtain the grant were defective in substance or the grant
being obtained fraudulently by making a false suggestion or suppressing
from the Court certain material in the case or if the grant is obtained by
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untrue allegation or that the person to whom the grant was made has
willfully and without reasonable cause omitted to exhibit an inventory
or account in accordance with the provisions of Chapter VII of Part 9.
The main part of section 263 provides that the grant of Probate or
Letters of Administration may be revoked for “just cause”. The
Explanation appended to section 263 enumerates the circumstances in
which the ‘just cause’ shall be deemed to exist. There are eight
illustrations of the grounds on which the grant of Probate may be
revoked.
36.
It is plain, the Succession Act vests discretion in the Court to
revoke the grant for a just cause. As in the case of exercise of discretion
under any jurisdiction, the testamentary Court is expected to exercise
discretion to revoke the grant, in a judicious manner. A grant lawfully
made cannot be revoked for the reason that apparently the case may fall
within any of the five Explanations or the illustrations. At the same
time, the term, “just cause” is elastic enough to cover a situation which
may not be explicitly covered by the Explanation or illustration.
37.
A profitable reference in this context can be made to a three
Judge Bench decision of the Supreme Court in the case of Anil Behari
Ghosh (Supra), on which reliance was placed by Mr. Shah, and, wherein
the import of the term “proceedings defective in substance” covered by
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Clause (a) of the Explanation to section 263 was illuminatingly
postulated, inter alia, as under:-
“15] It was further argued on behalf of the appellant that the
appeal should be allowed and the grant revoked on the simple
ground, apart from any other considerations, that there had
been no citation issued to Girish. In our opinion, this
proposition also is ,much too widely stated. Section 263 of the
Act vests a judicial discretion in the court to revoke or annul a
grant for just cause. The explanation has indicated the
circumstances in which the court can come to the conclusion
that "just cause" had been made out. In this connection the
appellant relied upon clause (a) quoted above which requires
that the proceedings resulting in the grant sought to be
revoked should have been "defective in substance". We are not
inclined to hold that they were "defective in substance".
"Defective in substance" must mean that the defect was of such
a character as to substantially affect the regularity and
correctness of the previous proceedings. If there were any
suggestions in the present proceedings or any circumstances
were pointed out to show that if Girish had been cited he
would have been able to enter a caveat, the absence of citation
would have rendered those proceedings "defective in
substance". It may be that Girish having been found to have
been the next reversioner to the testator's estate in case of
intestacy and on the assumption that Charu had murdered the
testator, Girish might have been entitled to a revocation of the
grant if he had moved shortly after the grant of the probate on
the simple ground that no citation had been issued to him. The
omission to issue citations to persons who should have been
apprised of the probate proceedings may well be in a normal
case a ground by itself for revocation of the grant. But this is
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not an absolute right irrespective of other considerations
arising from the proved facts of a case. The law has vested a
judicial discretion in the Court to revoke a grant where the
court may have prima facie reasons to believe that it was
necessary to have the will proved afresh in the presence of
interested parties. But in the present case we are not satisfied
in all the circumstances of the case that just cause within the
meaning of section 263 had been made out. We cannot ignore
the facts that about 27 years had elapsed after the grant of
probate in 1921, that Girish in spite of the knowledge of the
grant at the latest in 1933 did not take any steps in his lifetime
to have the grant revoked, that there was no suggestion that
the will was a forgery or was otherwise invalid and that the
will was a registered one and had been executed eight years
before the testator's unnatural death. Hence the omission of
citations to Girish which ordinarily may have been sufficient
for a revocation of the grant was not in the special
circumstances of this case sufficient to justify the court to
revoke the grant.
(emphasis supplied)
38.
In the case of Manibhai Amaidas Patel and Anr. vs. Dayabhai
13
Amaidas, after adverting to the explanation (a), (b) and (c) to Section
263, and illustration (ii) and (iii) thereto, the Supreme Court
enunciated the law as under:-
9] This would clearly show that it is necessary to cite parties
who would otherwise have an interest in the succession to the
estate of the deceased. That would naturally include all the
heirs of the deceased. Besides, section 283 gives power to the
13
( 2005) 12 SCC 154.
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District Judge as regards the issue of citations calling upon all
persons claiming to have any interest in the estate of the
deceased to come and see the proceedings before the grant of
probate. Necessarily therefore the facts on the basis of which
the District Judge is required to exercise his discretion must be
fairly placed before him. In this case the respondent had done
nothing of the sort as we have already noticed.
10] The Courts below also overlooked the fact that in their
application for revocation the appellants had clearly stated that
in other proceedings between the members of the family of
Amaidas and the respondent the Will had been successfully
disputed. In the circumstances, for the respondent to say that
the grant was being opposed by “nobody” was misleading. The
grant was obtained by concealing from the Court something
which was very material to the case. The appellants were
entitled to be heard and doubtless the District Judge would
have directed to issue of citations to each of Amaidas’s heirs on
intestacy under Section 283(1)(c) of the Act had the true facts
been revealed by the respondent in his application for grant of
probate. The advertisement in this case was wholly insufficient
to patch up the gross lacuna.
(emphasis supplied)
39.
The legal position which thus emerges is that, the failure to
serve the citation on the person who is otherwise entitled to be heard
under section 283 of the Succession Act before the grant of Probate or
Letters of Administration may ordinarily render the proceedings
defective in substance. That brings to the fore the question as to who
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can be said to be the person claiming to have any interest in the estate
of the deceased, referred to in section 283 of the Indian Succession Act,
1925.
40.
A profitable reference in this context can be made to a
decision of the Supreme Court in the case of Krishna Kumar Birla vs.
14
Rajendra Singh Lodha and Ors, wherein the Supreme Court, after an
elaborate consideration of the provisions and precedents culled out the
propositions as under:-
“ 58. A person to whom a citation is to be issued or a caveator,
must have some interest in the estate of the testator. Any person
claiming any interest adverse to the testator or his estate cannot
maintain any application before the Probate Court. His remedy
would be elsewhere. The question with regard to the degree of
interest or the right which a caveator must show to establish his
or her caveatable interest before the
Probate Court should be considered having regard to the
aforementioned legal propositions.
… … ...
84. Section 283 of the 1925 Act confers a discretion upon the
court to invite some persons to watch the proceedings. Who are
they? They must have an interest in the estate of the deceased.
Those who pray for joining the proceeding cannot do so despite
saying that they had no interest in the estate of the deceased.
They must be persons who have an interest in the estate left by
the deceased. An interest may be a wide one but such an interest
must not be one which would not (sic) have the effect of
destroying the estate of the testator itself. Filing of a suit is
14
(2008) 4 SCC 300.
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contemplated inter alia in a case where a question relating to the
succession of an estate arises.
… … ...

86. The propositions of law which in our considered view may
be applied in a case of this nature are :
(i) To sustain a caveat, a caveatable interest must be shown.
(ii) The test required to be applied is: does the claim of grant of
probate prejudice his right because it defeats some other line of
succession in terms whereof the caveator asserted his right.
(iii) It is a fundamental nature of a probate proceeding that
whatever would be the interest of the testator, the same must be
accepted and the rules laid down therein must be followed.
The logical corollary whereof would be that any person
questioning the existence of title in respect of the estate or
capacity of the testator to dispose of the property by Will on
ground outside the law of succession would be a stranger to the
probate proceeding inasmuch as none of such rights can
effectively be adjudicated therein.
… … …
89. While determining the said question, the law governing the
intestate succession must also be kept in mind. The right of the
reversioner or even the doctrine of “spes successionis” will have
no application for determining the issue in a case of this nature.
… … …
103. What would be caveatable interest would, thus, depend
upon the fact situation obtaining in each case. No hard and fast
rule, as such, can be laid down. We have merely made attempts
to lay down certain broad legal principles.
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… … …
135. It is too far fetched a submission that a person having a
remote family connection or as an agnate is entitled to file a
caveat. A reversioner or an agnate or a family member can
maintain a caveat only when there is a possibility of his
inheritance of the property in the event the probate of the Will is
not granted. If there are heirs of intestate who are alive,
entertaining of a caveat on the part of another family member or
a reversioner or an agnate or cognate would never arise.”
(emphasis supplied)”
41.
A conjoint reading of the propositions culled out in clauses (ii)
and (iii) of paragraph 86, spells out the test which is to be applied to
ascertain the existence of a caveatable interest, namely, “the Caveator
ought to be in a position to show that if the grant of Probate or Letters
of Administration is made it will defeat his claim of succession or
inheritance to the estate of the deceased for the reason that it defeats
some other line of succession”. If the Caveator is likely to inherit a very
small part of the estate of the deceased in the event the Probate or
Letters of Administration, as the case may be, is not granted, it can be
said that the Caveator has a caveatable interest. Conversely, if the
Caveator questions the existence of title in respect of the estate or
capacity of the testator to dispose of the property by Will on a ground
outside the law of succession, ordinarily, he can be termed as a stranger
to the Probate proceeding.
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42.
Following the pronouncement in the case of Anil Behari Ghosh

(Supra) the Division Bench of this Court in the case of S. A. Modi
(Supra) enunciated that, the ordinary rule is that the omission to issue
citation to the person who ought to have been apprised of the probate
proceedings may provide for a ground by itself for revocation of the
grant of probate. The existence of special circumstances, however, may
justify departure from the ordinary rule. As held by the Supreme Court,
revocation of the grant on the ground of the omission to issue citations
to person who should have been apprised of the probate proceedings, is
not the absolute right. The special circumstances obtaining in a given
case may justify refusal to revoke the grant of probate even where there
is omission to issue citation to the necessary party. Whether the special
circumstances justifying the denial of revocation of grant exist or not
would depend on the facts of each case. The refusal to revoke the grant
may be justified in the case where though there is an omission to issue
citation to a necessary party but there is no possibility of proof being
offered due to the death of the witnesses and executors and there is no
challenge to the genuineness of the Will.
43.
In the light of the aforesaid enunciation of law, readverting to
the facts of the case, the thrust of the case of the Petitioner is that the
Respondents resorted to the suppression of facts and made positive false
statements that the deceased had not left behind any heir and next of
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kin, though the the alleged beneficiaries under the Will fully knew that
the Petitioner was the biological son of the deceased. Undoubtedly, the
issue No.1 casts the burden on the Petitioner to establish that he is the
biological son of the deceased. However, the Court cannot loose sight of
the nature of the proceedings. The scope of enquiry in a revocation
petition has been adverted to above. Thus, the Petitioner may not be
required to establish the issue to the hilt that he is the son of the
deceased. A definitive finding in the sense of a declaration in rem that
the Petitioner is the son of the deceased does not seem to be peremptory
for the determination of this Petition. It would suffice, if upon
consideration of the evidence and material, the Court forms an opinion
that there are reasonable grounds to believe that the Petitioner is the
son of the deceased and, thus, a citation ought to have been issued to
the Petitioner before the grant of probate. On this touchstone, this Court
considers it appropriate to evaluate the evidence and material.
44.
In a case of the present nature, where one party asserts a
relationship with the deceased and the other party controverts the same
and the contest takes the shape of an oath against oath, the documents
which bear upon the probabilities of the case assume significance. The
trump card of the Petitioner was the birth certificate issued by the
Municipal Corporation (Exhibit “P6”) certifying that the Petitioner was
th
born on 20 February 1946. It is true the birth certificate came to be
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th
issued on 7 July 2011, after the institution of the Petition, However,
that, by itself, cannot be a ground to jettison away the birth certificate
(Exhibit “P6”).
45.
It would be contextually relevant to note that, during the
course of cross-examination of Arnold Samson (PW1) it was suggested
on behalf of the Respondents that the fact relating to the birth of the
th
Petitioner was reported to the Municipal Corporation on 28 February
1946. The Petitioner also positively asserted in the cross-examination
that his place of birth was Khar, Bombay and he lived in Santacruz. In
the birth certificate, the name of Mrs. Rosalind finds mention as the
mother of child, “Arnold Kapur”, and Mr. Hari Madanchand Kapur is
shown as the father of the said child . The entries in the birth certificate
(Exhibit “P6”) thus seems to lend support to the claim of the Petitioner
that he was born out of the wedlock between the deceased and Mr. Hari
Kapur.
46.
In contrast, the substance of the resistance on behalf of the
Respondents was that the entries in the birth certificate (Exhibit “P6”)
are not correct or at any rate have not been proved to be correct on
account of the non-production of the original Birth Register and
examination of the concerned officials. In any event, the entries, in the
birth certificate cannot prove the parentage of the Petitioner. This brings
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to the fore the question of the evidentiary value of the entries in the
birth certificate.
47.
Section 35 of the Indian Evidence Act provides that an entry in
any public or other official book, register or record, stating a fact in
issue or relevant fact, and made by a public servant in the discharge of
his official duty, or by any other person in performance of a duty
specially enjoined by the law of the country in which such book, register
or record is kept, is itself a relevant fact.
48.
The certificate in question (Exhibit “P6”) seems to have been
issued in accordance with the provisions contained in Sections 12/17 of
the Act of 1969 and Rule 8/13 of the Rules, 2000. It certifies that the
information enumerated therein has been taken from the original
record of birth which is registered for Municipal Corporation of Greater
Mumbai of Ward HW, District Mumbai of Maharashtra State.
49.
Section 7 of the Act of 1969, casts duty on the Registrar to
make entries in the register maintained for the purpose of registration
of births and deaths. Section 8 of the Act of 1969, enlists the persons
who are enjoined to give information of birth and deaths. Under
Section 10 of the Act, 1969 duties are also cast on certain persons to
notify births and deaths and to certify cause of death. Section 11 of the
Act of 1969 makes it obligatory upon a person who has orally given
information to the Registrar to sign the register. Under Section 12 of
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the said Act, the Registrar is required to issue extracts of registration
entries. Section 17(2) of the Act of 1969, inter alia, provides that all
extracts given under Section 17 shall be certified by the Registrar or any
other officer authorised by the State Government to give such extract as
provided in Section 76 of the Indian Evidence Act, and shall be
admissible in evidence for the purpose of proving the birth or death to
which the entry relates. Section 30 of the Act of 1969 empowers the
State Government to make rules to carry out the purposes of the said
Act. In exercise of the said power, the Government of Maharashtra has
framed the rules, the Maharashtra Registration of Birth and Death Rules
2000 (“the Rules, 2000”).
50.
A profitable reference, in this context, can be made to a
judgment of the Supreme Court in the case of Birad Mal Singhvi vs
15
Anand Purohit , wherein the election petition arose on account of
alleged improper rejection of the nomination paper for the election to
the Legislative Assembly as the candidates were held to be below 25
years of age. The entries made in the school register were pressed into
service to demonstrate the improper rejection of the nomination papers.
51.
In the backdrop of the aforesaid fact situation, the Supreme
Court enunciated the legal position in the following words :
“15……...Section 35 of the Indian Evidence Act lays down that
entry in any public, official book, register, record stating a fact in
15
AIR 1988 SC 1797.
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issue or relevant fact and made by a public servant in the
discharge of his official duty specially enjoined by the law of the
country is itself the relevant fact. To render a document
admissible under Section 35, three conditions must be satisfied,
firstly, entry that is relied on must be one in a public or other
official book, register or record, secondly, it must be an entry
stating a fact in issue or relevant fact; and thirdly, it must be
made by a public servant in discharge of his official duty, or any
other person in performance of a duty specially enjoined by law.
An entry relating to date of birth made in the school register is
relevant and admissible under Section 35 of the Act but the
entry regarding to the age of a person in a school register is of
not much evidentiary value to prove the age of the person in the
absence of the material on which the age was recorded.
… … …
17. … … … The entries regarding dates of birth contained in
the scholar's register and the secondary school examination have
no probative value, as no person on whose information the
dates of birth of the aforesaid candidates was mentioned in the
school record was examined. In the absence of the connecting
evidence the documents produced by the respondent, to prove
the age of the aforesaid two candidates have no evidentiary
value.
52.
A useful reference can also be made to a judgment of Supreme
16
Court in the case of Madan Mohan Singh vs Rajni Kant, wherein the
Supreme Court underscored the proposition that the authenticity of the
entries would depend upon whose information such entries stood
recorded. The Supreme Court held as under :
16
(2010) 9 SCC 209.
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“20. So far as the entries made in the official record by an
official or person authorised in performance of official duties
are concerned, they may be admissible under Section 35 of
the Evidence Act but the court has a right to examine their
probative value. The authenticity of the entries would depend
on whose information such entries stood recorded and what
was his source of information. The entry in School
Register/School Leaving Certificate require to be proved in
accordance with law and the standard of proof required in
such cases remained the same as in any other civil or criminal
cases.
21. For determining the age of a person, the best evidence
is of his/her parents, if it is supported by un-impeachable
documents. In case the date of birth depicted in the school
register/certificate stands belied by the un-impeachcable
evidence of reliable persons and on temporaneous documents
like the date of birth register of the Municipal Corporation,
Government Hospital/Nursing Home etc, the entry in the
school register is to be discarded. (Vide: Brij Mohan Singh Vs.
Priya Brat Narain Sinha & Ors. AIR 1965 SC 282; Birad Mal
Singhvi Vs. Anand Purohit AIR 1988 SC 1796; Vishnu Vs.
State of Maharashtra (2006) 1 SCC 283; and Satpal Singh Vs.
State of Haryana JT 2010 (7) SC 500).
22. If a person wants to rely on a particular date of birth
and wants to press a document in service, he has to prove its
authenticity in terms of Section 32(5) or Sections 50, 51, 59,
60 & 61 etc. of the Evidence Act by examining the person
having special means of knowledge, authenticity of date, time
etc. mentioned therein”.
(emphasis supplied)
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53.
In the case of Vasudha Gorakhnath Mandlvilkar (Supra)

where the Petitioner's date of birth was an issue in relation to his
employment with the Respondent, it was enunciated that the
presumption of the correctness in the entries in the public record cannot
be rebutted on the basis of mere conjectures. When the matter went in
appeal before the Supreme Court in the case of CIDCO Vs Vasudha
17
Gorakhnath Mandevlekar, the Supreme Court enunciated that deaths
and births register maintained by the statutory authorities raises a
presumption of correctness. Such entries made in the statutory registers
are admissible in evidence in terms of Section 35 of the Evidence Act. It
would prevail over an entry made in the school register, particularly, in
absence of any proof that same was recorded at the instance of the
guardian of the respondent.
54.
The crucial question that comes to the fore is whether the
entries in the birth certificate are of assistance in establishing the
parentage of the child. The thrust of the submission of Mr. Kakalia was
that, the entries in the birth certificate cannot prove the parentage of
the Petitioner. Reliance was placed on the judgment of the Madras High
18
Court in the case of Rajambal & Ors Vs Veeramuthu Udayar & Ors to
show the evidentiary value of the birth extract. Special emphasis was
17
(2009) 7 SCC 283.
th
18
Madras High Court A.S. No. 763 of 1978, decided on 14 December
1984.
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laid on the following observations in paragraph 39 and 40 of the said
judgment.
“39. … … … The evidentiary value of the birth extract
has come to be laid down in Mahadeva Rao Vs Yasoda Bai
(1962 MLJ (Cri) 427:75 LW 17). Ananthanarayanan, J. as he
then was, has held as follows:
“Unless it could be established by evidence that the
father of the child is himself the informant, on the
basis of which information the paternity of the child
is entered in the Birth Register of the Local Body an
extract of such birth register where the name of the
informant is not filled up, cannot give rise to any
presumption as to the paternity of the child in a
proceeding for maintenance under Section 488 of the
Criminal Procedure Code....”
40. Again in Narayanaswami Naidu v. Kochadai Naidu (ILR
1969-1 Madras 459 at 460: 81 LW 436) the head note reads:
“Under Section 35 of the Evidence Act (I of 1872), it
is only the entry made by a public servant in the
discharge of his official duties that is admissible as a
relevant fact. Other particulars not strictly covered by
the entries are not admissible under Section 35 of the
Evidence Act. The name of the child recorded in the
birth registration extract was inadmissible under
Section 35 of the Evidence Act. The entries do not
require the officer to record the name of the child. If
there is other independent evidence connecting the
entries, the entries and the independent evidence may
supplement one another.”
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“If somebody who gave the information had given
evidence about his knowledge of the relationship, the
entry would be corroborative evidence of the evidence
of that witness under Section 157 of the Evidence Act,
but not the entries themselves.”
Therefore, these by themselves do not prove the paternity. That
apart, there is no birth extract either for the 4th plaintiff or the
7th plaintiff. Why they have not been filed is not explained.”
55.
The aforesaid decision, on its correct reading, seems to
proceed on the premise that the particulars not strictly covered by the
entries in the Birth Register are not admissible under Section 35 of the
Evidence Act. The entries in the register, the Madras High Court found,
did not require the registering officer to record the name of the child.
Thus, the name of the child recorded in the Birth Register extract,
where the name of the informant was not filled up, cannot give rise to
presumption as to the paternity of the child, held the Madras High
Court.
56.
The evidentiary value of the entries in the Register maintained
under the Registration of Births and Deaths Act, 1969, is required to be
determined in the light of the provisions contained in the Act of 1969,
the rules framed by the respective State Governments and in particular
the form in which the information is required to be furnished and also
maintained in such registers.
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57.
Chapter IV of the Act of 1969, contains provisions under the

heading Maintenance of Records and Statistics. Section 16(1),
subsumed thereunder, enjoins every Registrar to keep in the prescribed
form a register of birth and deaths for the registration area or any part
thereof in relation to which he exercises jurisdiction. As noted above,
under Section 30 the State Government is empowered to make rules to
carry out the purposes of the said Act, 1969. Under Section 30(2), in
particular, such rules may provide for (a) the forms of register of birth
and death required to be kept under that Act.
58.
It would be contextually relevant to note that Section 8 of the
Act, 1969, cast duty on the specified persons to give information to the
Registrar of the several particulars required to be entered in the forms
prescribed by the State Government under sub-Section (1) of Section
16. Thus, the forms of registers are to be prescribed by the State
Government concerned by rules.
59.
Rule 5 of the Rules, 2000, inter alia, provides that the
information required to be given to the Registrar under Section 8 or
Section 9, as the case may be, shall be in Form Nos. 1, 2 and 3 for the
registration of a live birth, death and still birth respectively. Form No.1,
inter alia, containts the entries regarding the name of the child, if any;
name of the father; and name of the mother (entry 3, 4 and 5).
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60.
Since the birth certificate is in relation to the birth dated 20

th
February 1946 and date of registration is of 28 February 1946, the
provisions contained in Sections 29 and 31 of the Act of 1969, deserve
to be noted.
61.
Section 29 declares that nothing in the Act of 1969, shall be
construed to be in derogation of the provisions of the Births, Deaths and
Marriages Registration Act, 1886.
62.
Section 31 of the Act of 1969, incorporates repeal and saving
clauses. Sub-Section (1) of Section 31, provides that subject to the
provisions of Section 29, as from the coming into force of this Act in any
State or part thereof, so much of any law in force therein as relates to
the matters covered by the Act of 1969, shall stand repealed in such
State or part, as the case may be. Sub-Section (2) of Section 31 provides
that, notwithstanding such repeal, anything done or any action taken
(including any instruction or direction issued, any regulation or rule or
order made) under any such law shall, insofar as such thing or action is
not inconsistent with the provisions of the Act of 1969, be deemed to
have been done or taken under the provisions of the Act of 1969, as if
they were in force when such thing was done or such action was taken,
and shall continue in force accordingly until superseded by anything
done or any action taken under that the Act of 1969.
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63.
It would be contextually relevant to note that under the Births,

Deaths and Marriages Registration Act, 1886 (“the Act of 1886”), the
Registrar of births and deaths was enjoined to make an entry of birth or
death in the proper register, if the notice was given within the
prescribed time and in the prescribed mode by the authorised person.
64.
Section 22(1) of the Act of 1886, made it obligatory on the
person giving notice of birth or death to sign the entry in the register in
the presence of the Registrar. Section 25(2) provided for issuance of
certified copy of an entry in the register and made such copy of entry
admissible in evidence for the purposes of proving of birth and death to
which the entry relates. Section 36 of the Act of 1886, also empowered
the State Government to make rules including to prescribe the forms
required for the purposes of the Act of 1886.
65.
In the light of the aforesaid regime which prevailed before the
enactment of the Act of 1969 and post the enactment thereof, I find it
rather difficult to accede to the submission on behalf of the Respondents
that the entries of the name of the mother and father of the child were
not required to be made and, even if such entries were made, those are
wholly immaterial and inconsequential.
66.
In view of the provisions contained in Section 31 of the Act of
1969, the issue of a birth certificate even in respect of the birth, which
has taken place prior to 1969, where the entries in respect of such birth
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are made in the register maintained by the Registrar under Act of 1886
and the rules framed thereunder, cannot be said to be without a legal
mandate if the forms prescribed by the State Government contain the
particulars of the mother and father of the child and such entries were
made in the register maintained by the Registrar, then it cannot be laid
down as an immutable rule of law that the evidentiary value of a birth
certificate is restricted to the factum of birth only and the names of the
parents of the child mentioned therein are of no consequence.
67.
It is true, in the case at hand, the Petitioner did not examine
the concerned official in proof of the correctness of the entries in the
birth certificate. At this juncture the nature of the objection raised on
behalf of the Respondents to the marking of the birth certificate in
th
evidence assumes importance. In the order dated 4 April 2004 this
Court recorded that the Counsel for Respondent No.2 did not dispute
the existence of the birth certificate but disputed the contents thereof.
Thus, the birth certificate being a public document was admitted in
evidence and marked Exhibit “P6”.
68.
Having disputed the contents of the birth certificate and the
correctness thereof, in the face of the presumptive value attached to the
entries in the birth certificate, it was for the Respondents to seek the
production of the original register and examine the concerned official if
they intended to establish that the contents of the birth certificate were
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not correct or for that matter the entries were not made on the basis of
the information furnished by a person who could vouch for the
correctness of those entries.
69.
Reliance placed by Mr. Shah on the judgments of the Harpal
Singh And Anr (Supra) appears to be well founded. In the said case
also, the correctness of the entries in the birth certificate was sought to
be contested on the ground that in the absence of the examination of
the officer who made the entry, it was inadmissible in evidence. The
Supreme Court did not accede to the submission observing that, the
entry was made by the concerned official in the discharge of his official
duties, and, therefore, it was clearly admissible in view of Section 35 of
the Evidence Act and it was not necessary for the prosecution to
examine its author.
70.
The reliance on the decision of the Supreme Court in the case
of Alamelu and Anr (Supra), and of this Court in the cases of Gulabrao
Tuljaram Mandge (Supra) and Sayyed Zafaroddin S/o Afzalodin
(Supra) does not appear to advance the cause of Respondent Nos. 2 and
3.
71.
In the case of Alamelu and Anr (Supra) the age of the victim
was sought to be established on the basis of the entry in the transfer
certificate. In that context, the Supreme held that there was no reliable
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evidence to vouchsafe the correctness of the date of birth as recorded in
the transfer certificate.
72.
In the case of Gulabrao Tuljaram Mandge (Supra), this Court
in terms observed that once it was found that the admissibility and
reliability of the birth certificate issued by the Competent Authority, on
the basis of the entries made in the births and deaths register in
conformity with the provisions of the Act and the Rules, was not in
doubt, then the authorities could not have lightly brushed aside the said
birth certificate.
73.
The decision in Sayyed Zafaroddin S/o Afzalodin (Supra)
turned on the peculiar facts of the said case that necessitated the
remand of the matter to the Collector for afresh decision on the
question as to whether a third child was born to the Petitioner therein.
74.
In the light of the aforesaid position in law, I am impelled to
hold that the entries in the birth certificate which record the first name
of the Petitioner as the child born to Ms. Rosalind, the deceased, and Mr
Hari Kapur, lend credence to the claim of the Petitioner and those
entries in the birth certificate cannot be lightly brushed aside.
75.
Mr. Kakalia was, however, justified in canvassing the
submission that the mere production of the School Leaving Certificate
(Exhibit “P7” and “P65”) is of no avail to the Petitioner to establish
either the date of birth or the relationship with the deceased.
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76.
The upshot of the aforesaid consideration is that the entries in

the birth certificate (Exhibit “P6”) prima facie, substantiate the claim of
the Petitioner that the deceased was his mother and he was born out of
the wedlock of the deceased with Mr. Hari Kapur.
77.
The letters/aerograms addressed by the deceased to the
Petitioner addressing the Petitioner as her son were heavily banked
upon by the Petitioner to establish the relationship between the parties.
As many as 41 letters/aerograms were pressed into service and proved
in evidence. Five of those letters are not accompanied by the envelopes.
Ten letters are with envelopes. Around 30 aerograms were purportedly
received by the Petitioner at Sweden from the deceased. Broadly, the
tenor of the letters and aerograms gives an impression that the
deceased consistently addressed the Petitioner as her son.
78.
Mr. Shah placed reliance on the particular portions of those
letters/aerograms, especially those at Exhibits “P48”, “P49”, “P50”,
“P13”, “P26”, “P32”, “P28”, “P39”, “P42”, “P55” and “P56”, to show that
the deceased not only referred to the Petitioner as her son but also
reflected upon her status as the mother of the Petitioner. Indeed such
portions are indicative of the purported mother/son relationship
between the parties, interspersed with myriad topics to which the
deceased purportedly adverted to in those letters and aerograms.
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Nonetheless, the broad feature of those communications indicates that
they were addressed to the Petitioner as the son of the deceased.
79.
Mr. Kakalia would urge that, on the one hand, the piecemeal
manner in which those letters were produced and the intrinsic evidence
thereof, especially the absence of the stamp of the receiving postal
authority, in the majority of aerograms; the absence of stamp of both
the dispatching and receiving postal authorities in respect of few letters
and the absence of the envelope in a few other cases indicates that the
letters are forged and fabricated. On the other hand, the correctness of
the contents of the letters cannot be said to have been proved even if it
is assumed that those letters were indeed addressed by the deceased to
the Petitioner.
80.
On the first count, Mr Kakalia would urge, the explanation
sought to be offered by the Petitioner in regard to the absence of the
stamp and envelope were rather flimsy. Thus, it would be hazardous to
place reliance on the testimony of the Petitioner (PW1). It is true the
Petitioner feigned ignorance about the absence of the stamp on few of
the letters/aerograms and casually stated that it was for the postal
authority to explain. However, in this proceeding, a broad view of the
matter is required to be taken. This Court finds that a majority of
communications were by way of aerograms. Aerogram is a mode of
communication which acts both as the letter and the envelope. A
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substantial number of those aerograms do bear the outward stamp of
India. The absence of inward stamp of Sweden on few of the aerograms
by itself, in the considered view of this Court cannot be a ground to
discard those aerograms from consideration altogether. The Court
cannot loose sight of the fact that those letters and aerograms were
addressed since the late 1970s. It would be taking a very rigid view of
the matter to insist that the Petitioner must produce envelopes, or for
that matter, offer an explanation as to the absence of the inward stamps
and envelopes.
81.
The second objection as to the absence of proof of correctness
of the contents was sought to be urged on the ground that, only the
author of those letters could vouch for the correctness of their contents.
Thus, the evidence of the Petitioner (PW1) is of no avail to prove the
contents of those letters/aerograms.
82.
To this end, Mr. Kakalia placed reliance on the judgment of the
19
Supreme Court in the case of Bishwanath Rai Vs Sachhidanand Singh,
wherein it was enunciated that in the absence of the examination of the
author of the letter, the correctness of the statements contained therein
cannot be said to have been proved. The evidence of the person who
claimed that the contents of the letters were in the handwriting of the
author can at best prove the contents of the letters, but not the
correctness of those contents.
19
(1972) 4 SCC 707.
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83.
The question of admissibility of the said evidence is required

to be determined keeping in view the fact that the author of the said
letters/aerograms is dead.
84.
The provisions contained in Section 32(5) of the Evidence Act
governs the situation of the present nature. Statements written or
verbal, of relevant facts made by a person who is dead, are themselves
relevant facts when the statement relates to the existence of any
relationship by blood, marriage or adoption between persons as to
whose relationship by blood, marriage or adoption, the person making
the statement had special means of knowledge, and when the statement
was made before the question in dispute was raised.
85.
In the case of Dolgobinda Paricha Vs Nimai Charan Misra and
20
Ors, the Supreme Court enunciated that the four conditions must be
fulfilled for the application of sub-Section (5) of Section 35; firstly, the
statements, written or verbal, of relevant facts must have been made by
a person who is dead; secondly, the statements must relate to the
existence of any relationship by blood, marriage or adoption; thirdly,
the person making the statement must have special means of knowledge
as to the relationship in question; and lastly, the statements must have
been made before the question in dispute was raised.
86.
Appraising the aforesaid evidence in the case at hand, on the
touchstone of the aforesaid conditions, the first condition of the
20
AIR 1959 SC 914.
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statement having been made by a person who is dead; the second
condition of such statement throwing light on the relationship between
the deceased and the Petitioner; the third condition of the deceased
having the special knowledge as to the relationship in question and the
last condition of the statement having been made before the
controversy arose, all stand fulfilled. Thus, the statement contained in
the aforesaid letters/aerograms indicating the relationship between the
deceased and the Petitioner cannot be eschewed from consideration on
the premise that the correctness of the contents has not been proved by
examining the author thereof.
87.
It is true that the language of few of the letters (Exhibit “P30”,
“P37” and “P39”), to which reference was made by Mr. Kakalia, may not
have the trappings of the typical communication between a mother and
son. However, human emotions, personalities and relationships cannot
be confined to a straightjacket. A variety of factors influence the nature,
intensity and candour of discourse between the parents and children. A
fact which is taboo in one society/situation may be openly discussed
between the parent and the children in another society/situation. Thus,
I am afraid to accede to the submission of Mr. Kakalia that a slightly
unusual and awkward discourse in the letters (Exhibit “P30”, “P37” and
“P39”), erodes the nature of the relationship propounded by the
Petitioner.
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88.
The aerograms (Exhibit “P56” and “P57”), purportedly

addressed by late Hari Kapur to the Petitioner, are of immense
significance in rendering the case of the Petitioner preponderately
probable. The aerograms (Exhibit “P56” and “P57”) were addressed on
th th
26 November 1976 and 11 February 1977. Those aerograms bear the
seal of the postal authority in India. In the said aerograms, the late Hari
Kapur not only refers to the Petitioner as his son but conveys his love
and affection to the wife and son of the Petitioner, by addressing them
as daughter-in-law and grandson. The other children of late Mr. Hari
Kapur are referred to as the siblings of the Petitioner.
89.
If the aforesaid communications are considered in
juxtaposition with the birth certificate in which late Hari Kapur is
shown as the father of the Petitioner, then an inference becomes
legitimate that the Petitioner has brought adequate material on record
to substantiate the claim that he was born out of the relationship
between the deceased and the late Hari Kapur.
90.
The third document which was pressed into service on behalf
th
of the Petitioner was the communication dated 27 March 2014 from
theUS Office of Personnel Management (Exhibit “P58”). Alongwith the
said document a cheque drawn for 117.26 $ was sent to the Petitioner
towards lump sum payment because of the death of Samson Rosalin,
the former employee. In the said communication, the date of birth of
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nd
the employee was shown as 2 February 1928. The said document, Mr.
Kakalia was right in contending that, does not in the strict sense throw
light on the relationship between the Petitioner and the deceased. At
best, it establishes that the Petitioner was nominated to receive the
lump sum payment because of the death of the deceased. The evidence
on record does not indicate the circumstance in which the said
communication came to be addressed by the US Office of Personnel
Management. The Petitioner also failed to make a clean breast of the
circumstances in which the said letter came to be addressed.
91.
At this stage, the documents relied upon by the Respondents
nd
to show that the Petitioner was a spinster and her date of birth was 2
February 1934 deserve consideration. Incontrovertibly, the Passports of
nd
the deceased reveal her date of birth as 2 February 1934, and also
bear an endorsement that she had no children, consistently. The other
personal identification documents, like the PAN card, also depicted the
same position.
92.
At this juncture, the nature of the proceedings for revocation
of the grant of Probate, the standard of proof required to sustain a claim
for revocation and the element of preponderance of probabilities
assume significance. The manner in which the deceased-Respondent
No.2 fared in the cross-examine also becomes critical. Respondent No.2-
Vimla Rama Rao (RW1), conceded in the cross-examination that the
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Petitioner used to visit India and stayed in the subject flat with the
deceased very year, since 1979. While denying the suggestion that the
Petitioner used to stay with the deceased for a month every year, Vimla
Rama Rao (RW1) asserted that the Petitioner used to stay for 5 to 10
days on an average, with the deceased every year. These admissions
imply that the visit of the Petitioner to the deceased every year was an
annual feature. There was an element of regularity, system and
repetition. Duration apart, the Petitioner did stay with the deceased,
during those visits.
93.
Vimla Rao (RW1) conceded that she has visited Israel
alongwith the deceased to attend the marriage ceremony of one of the
relatives of the deceased. To a pointed question (Q.179), that she had
known the relatives of the deceased, whom she has already met at
Mumbai, but she did not know the identity of those relatives, Vimla Rao
(RW1) gave an affirmative answer.
94.
To a further question, that the deceased has purportedly
informed her that she has no relatives in India, “because she had
relatives outside India” (Q.204), Vimla Rao (RW1) replied that, it was
possible but she did not know for sure. Later on, Vimla Rao (RW1) tried
to wriggle out of the situation by asserting that she had not properly
understood the questions.
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95.
It would be contextually relevant to note that Vimla Rao

(RW1) also conceded in the cross-examination that she had not made
enquires after the demise of the deceased whether the deceased had
any relatives and/or heirs. She further stated that she never asked the
deceased about the relationship between the deceased and the
Petitioner, though the deceased and the Petitioner shared the same
surname.
96.
The situation which thus obtains is that, Respondent No.2 had
visited Israel along with the deceased-testatrix to attend the marriage
ceremony of a son of one of the relative of the deceased. The testimony
of Aaron Daniel Benjamin (PW2) demonstrates that the deceased had a
sister. In the Petition as well, as in response to the query by the
Testamentary Department, a statement was made by the Executor that
the deceased has orally informed the beneficiaries and friends that she
was alone and had no relatives in India.
97.
Since the Petitioner has succeeded in bringing on record
adequate material to make out a strong prima facie case of the existence
of relationship between the Petitioner and the deceased as a son and
mother, the failure to issue a citation to the Petitioner on the basis of a
statement that the Petitioner had no heirs and relatives in India, in the
circumstances of the case, constitutes a substantial defect in the
proceedings. It appears, the Petitioner was deprived of an opportunity
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to appear and contest the proceeding for the grant of Probate in respect
of the Will in question on account of the statement made on behalf of
the Respondents that the testatrix has no relatives in India.
98.
The concomitant circumstances namely the Petitioner asserted
his right as the sole heir of the deceased the Petitioner instituted a suit
against the Society in which the subject flat is situated and Respondent
Nos. 2 and 3, before the grant of probate, and the purported Will was
executed while the deceased was admitted in Saifee Hospital and
passed away under a fortnight of the execution of the Will, cumulatively
indicate that there are no special circumstances which would dissuade
the Court from revoking the probate, despite the failure to issue citation
to the heirs of the deceased.
99.
For the foregoing reasons Issue No.1 is required to be
answered in the affirmative to the extent of conferring a right to
participate in the proceedings for the grant of probate in respect of the
Will of the testatrix.
100.
Resultantly, the Petition deserves to be allowed.
101.
Hence, the following order:
: O R D E R :
(i) The Petition stands allowed.
th
(ii) The Probate dated 10 July 2009 in Testamentary Petition No.
917 of 2008 stands revoked.
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(iii) Testamentary Petition No. 917 of 2008 stands restored to file for
afresh determination in accordance with law.
(iv) The interim injunction granted by the Appellate Court in Appeal
No. 990 of 2010 shall continue to operate till the disposal of
Testamentary Petition No. 917 of 2008.
(v) In the circumstances, there shall be no order as to costs.
[N. J. JAMADAR, J.]
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