Bombay High Court: Explanation Clause To Section 263 Of Indian Succession Act Regarding Annulment Of Probate Is Illustrative & Not Exhaustive

The Bombay High Court held that the Explanation Clause to Section 263 of the Indian Succession Act, 1925 (ISA) is illustrative and not exhaustive in the context of “just cause” for revoking or annulling grant of Probate or Letters of Administration.

The Court held thus in a Miscellaneous Petition in which the Chief Justice had referred the questions formulated by the Single Judge for consideration before the Division Bench.

A Division Bench of Justice M.S. Karnik and Justice N.R. Borkar observed, “The statutory provision is the source of power, while the explanations merely indicate situations where that power may be exercised. Therefore, in case of any conflict, the main provision must prevail over its explanations/illustrations. The term “just cause” must receive a liberal interpretation so that the court may revoke a grant of probate whenever fairness, equity, and justice so require. The Explanation clause to Section 263 is thus held to be illustrative and not exhaustive.”

The Bench said that comparing the wordings of the earlier provisions that provided for revocation of probate, is an indication that ‘just cause’ in the Explanation to Section 263 would be deemed to exist in cases covered by (a) to (e) of the said Explanation clause, leaving it open for the Courts to determine the existence of ‘just cause’ in other cases after appreciating the facts of each case.

Advocate Yashvi Panchal appeared for the Petitioner, while Advocate Sonal appeared for the Respondent.

Questions for Consideration

The Single Judge of the High Court, Justice Manish Pitale invoked Rule 28(C) of the Bombay High Court (Original Side) Rules, 1980, to formulate following questions for decision by a larger bench –

(I)Whether explanation (a) to (e) to Section 263 of the Indian Succession Act, 1925, are exhaustive or illustrative, in the context of “just cause” for revoking or annulling grant of Probate or Letters of Administration?

(II) Whether circumstances not covered under explanations (a) to (e) to Section 263 of the Succession Act, 1925, can become the basis for “just cause” for the Court to revoke or annul grant of Probate or Letters of Administration?

(III) Whether the Judgments of Single Judges of the High Court in the cases of George Anthony Harris v. Millicent Spencer [AIR 1933 Bom. 370] and Sharad Shankarrao Mane and etc. v. Ashabai Shripati Mane [AIR 1997 Bom 275], lay down the correct position of law?

The papers were accordingly placed before the Chief Justice for consideration, who referred the questions formulated by the Single Judge for consideration before the Division Bench. The Single Judge was unable to agree with the position of law laid down in George Anthony Harris v. Millicent Spencer and Sharad Shankarrao Mane and etc. v. Ashabai Shripati Mane. It was observed that an important question regarding the very jurisdiction of the Court in the context of Section 263 of the ISA arises, which needs to be settled authoritatively by a larger bench of the Court.

Court’s Observations

The High Court in view of the above questions, noted, “Considering the legislative history of Section 263 of the Succession Act, according to us, comparing the wordings of the earlier provisions that provided for revocation of probate, is an indication that ‘just cause’ in the Explanation to Section 263 would be deemed to exist in cases covered by (a) to (e) of the said Explanation clause, leaving it open for the Courts to determine the existence of ‘just cause’ in other cases after appreciating the facts of each case.”

The Court added that the words “deemed to be just cause” in the Explanation clause has carved out cases where ‘just cause’ has to be assumed to exist and thus, in all other cases which do not fall within (a) to (e) of the Explanation, the Courts would have to, depending on the facts and circumstances of each case, determine whether ‘just cause’ is made out.

“The Explanation clause providing a deeming fiction applies to the circumstances where a case is made out in clauses (a) to (e). There may be myraid situations where a ‘just cause’ exists. The jurisdiction of the Court to determine whether a ‘just cause’ exists in a given fact situation cannot be stifled by giving a restrictive meaning to ‘just cause’ in Section 263. This interpretation, in our opinion, upholds the legislative intent behind the use of words “deemed to be just cause” thereby harmonising the Explanation clause with the main Section”, it enunciated.

The Court remarked that the Explanation clause merely clarifies the meaning of the main Section and it can neither be interpreted to widen nor narrow down the scope of the main provision.

“The expression ‘just cause’ cannot be construed in a manner that would restrict the scope of Section 263 to only those specific cases provided by the Explanation clause. … The purpose of Section 263 is to preserve the integrity of probate proceedings and to ensure that grants are not obtained by fraud, concealment, or procedural unfairness. If the interpretation were to be restrictive, it would result in injustice”, it observed.

Conclusion

The Court, therefore, answered the reference in the following manner –

(A) The Explanations (a) to (e) to Section 263 of the Indian Succession Act, 1925 are illustrative, in the context of ‘just cause’ for revoking or annulling grant of Probate or Letters of Administration.

(B) The circumstances not covered under explanations (a) to (e) to Section 263 of the Indian Succession Act, 1925, can become the basis for “just cause” for the Court to revoke or annul grant of Probate or Letters of Administration.

(C) The judgments of learned Single Judges of this Court in George Anthony Harris v. Millicent Spencer, AIR (1933) Bom. 370 and Sharad Shankarrao Mane and etc. v. Ashabai Shripati Mane, AIR (1997) Bom. 275 do not lay down the correct position of law in the context of Section 263 of the Succession Act.

Accordingly, the High Court upheld the view of the Single Judge from which Order the reference arose.

Cause Title- Sarwan Kumar Jhabarmal Choudhary v. Sachin Shyamsundar Begrajka (Neutral Citation: 2025:BHC-OS:19505)

Appearance:

Petitioner: Advocate Yashvi Panchal

Respondent: Advocates Sonal, Rohit Gupta, Kinnar Shah, Aditi Bhargava, Vaibhav Singh, Shikha Jain, Saurabh Jain, and Divya Shah.

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