The Bombay High Court has clarified that a grant of probate may be revoked under Section 263 of the Indian Succession Act, 1925, when a known Class II legal heir was not cited during the probate proceedings, even in the absence of fraud. This ruling reinforces the procedural integrity required in testamentary matters and affirms that the failure to identify and notify rightful heirs constitutes just cause for revocation.
Background & Facts
The Dispute
The petitioner, Bhiku Sadashiv Shirodkar, sought revocation of the probate granted to the executor of the Will of Suhasini Harishchandra Shirodkar, who died intestate in terms of legal heirs. The Will, executed on 23rd September 2013, named the deceased’s caretaker as the beneficiary and her brother-in-law as executor. The petitioner, a Class II legal heir through his father - brother-in-law of the deceased - was not cited during probate proceedings.
Procedural History
- 2018: Testamentary Petition No. 3081 filed seeking probate of the Will
- 2019: Probate granted on 22nd December 2019 to the executor
- 2022: Petitioner filed Misc. Petition No. 141 of 2022 under Section 263 seeking revocation, alleging non-citation of Class II heir
- 2026: Hearing concluded before Justice Sharmila U. Deshmukh
Relief Sought
The petitioner sought revocation of the probate on the ground that he, as the sole surviving Class II legal heir, was not cited during the probate process, rendering the grant defective under Section 263.
The Legal Issue
The central question was whether Section 263 of the Indian Succession Act permits revocation of probate solely on the ground that a Class II legal heir was not cited, even in the absence of fraud or collusion, and whether documentary evidence such as revenue records and Gram Panchayat certificates suffice to establish heirship for this purpose.
Arguments Presented
For the Petitioner
Counsel relied on the illustration to the explanation of Section 263, which explicitly contemplates revocation where a person who ought to have been cited was not. He submitted that the petitioner’s status as a Class II heir was established through: (i) a Gram Panchayat certificate listing him as heir of Harishchandra, (ii) a Police Patil certificate corroborating lineage, and (iii) a revenue mutation entry dated 27th February 2019, which recorded him as legal heir of Harishchandra - Suhasini’s husband - prior to the probate grant. He argued that the probate court’s failure to identify him, despite these public records, constituted just cause for revocation.
For the Respondent
Counsel contended that the petitioner had not obtained a formal legal heirship certificate under Bombay Regulation VIII of 1827, which he claimed was the only legally recognized method to establish heirship. He challenged the authenticity of the Gram Panchayat certificate, noting discrepancies between the original petition and the additional affidavit. He further argued that the revenue mutation was in respect of Harishchandra’s estate, not Suhasini’s, and that the Will made no mention of agricultural land, casting doubt on the petitioner’s claim.
The Court's Analysis
The Court examined the scope of Section 263, noting that revocation does not require proof of fraud. The illustration to the explanation to Section 263 explicitly includes cases where a person who ought to have been cited was omitted. The Court held that the petitioner’s status as a Class II heir was sufficiently established through the revenue mutation and Gram Panchayat certificate, both of which are public documents of probative value.
"The mutation entry was effected on 27th February, 2019 and information about the death of the deceased Harishchandra was given on 11th December, 2018 i.e prior to the grant of probate dated 22nd December, 2019 to the present Respondent. The mutation entry assumes significance as change was effected in revenue record as the legal heir of the deceased Harishchandra even prior to the grant of probate and therefore, the mutation entry cannot be doubted."
The Court rejected the respondent’s argument that only a certificate under Bombay Regulation VIII could establish heirship, noting that the proceedings were not for a declaration of heirship but for revocation of probate. The Court emphasized that the burden was not on the petitioner to prove heirship conclusively at this stage, but to show a prima facie claim that he was a person who ought to have been cited. The Court found it implausible that a stranger would have obtained public records and effected revenue mutation without a legitimate claim. The probate grant, therefore, was procedurally defective.
The Verdict
The petitioner succeeded. The Court revoked the probate dated 22nd December 2019, holding that Section 263 permits revocation when a Class II legal heir was not cited, and that public documents such as revenue records and Gram Panchayat certificates suffice to establish a prima facie claim of heirship. The respondent was directed to surrender the original probate to the Prothonotary and Senior Master within three weeks.
What This Means For Similar Cases
Probate Grants Require Diligent Heir Identification
- Practitioners must conduct thorough searches for Class I and Class II heirs before applying for probate
- Failure to cite known heirs - even without fraud - exposes the grant to revocation under Section 263
- Courts will not require formal heirship certificates at the revocation stage if public records establish a credible claim
Revenue Records Carry Weight in Succession Matters
- Mutation entries in revenue records, especially when dated prior to probate, are admissible as evidence of heirship
- These records are presumed reliable unless rebutted by clear evidence of fraud or error
- Lawyers should routinely check revenue records when advising on testamentary disputes
No Fraud Required for Revocation Under Section 263
- The illustration to Section 263 operates independently of fraudulent intent
- Procedural lapses in citation are sufficient grounds for revocation
- This aligns with the principle that testamentary proceedings must be transparent and inclusive of all rightful claimants
