Once You Withdraw Your Caveat and Consent to Probate, You Can't Demand Fresh Citation Decades Later: Bombay High Court

"All Objections From Next Of Kin Would Have Been Considered Whilst Granting The Original Probate" — In a significant ruling on succession law, the Bombay High Court has held that when a petition is filed under Sections 258 and 259 of the Indian Succession Act, 1925, seeking Letters of Administration De-Bonis-Non for an unadministered estate, service of fresh citation upon next of kin can validly be dispensed with — particularly where those next of kin had already consented to or withdrawn their caveats at the stage of the original Probate grant.

A Division Bench of Justice B.P. Colabawalla and Justice Firdosh P. Pooniwalla, deciding the appeal on March 6, 2026, dismissed the challenge brought by the legal heirs of Nandkumar Pupala (Nandu) against a Letters of Administration De-Bonis-Non granted to Dr. Pratapsingrao Pupala (Pratap) in respect of the unadministered estate of their late father Narsingrao Pupala. The Court also dismissed the attempt to revoke the underlying Probate, holding the Miscellaneous Petition to be barred by gross delay and devoid of merit.

On Whether Citation Is Mandatory Under Sections 258-259

The Court undertook a careful analysis of the nature and object of a Section 258-259 petition, distinguishing it fundamentally from an original Probate application. The Court explained the underlying logic thus: "When an application is made under Sections 258 and 259 of the Succession Act, there already exists a Probate which has been granted in respect of the Will. Whilst granting the said Probate, citations are served on the next of kin whose consent is not filed in the proceedings. Further, if some next of kin oppose the granting of Probate by filing a Caveat and an Affidavit in support of the Caveat, the Court would have considered the same, and despite the objections raised in the Caveat, would have granted the Probate."

The Court accordingly held: "In our view, in light of the same, and since all objections from the next of kin, if any, would have been considered whilst granting the original Probate, the serving of a citation to the next of kin can be dispensed with in a Petition filed under Sections 258 and 259."

This reasoning is of considerable doctrinal significance. A Section 258-259 petition is not an occasion to reopen the validity of the Will or the original Probate. Its sole purpose is to appoint a fresh administrator for the remaining unadministered portion of the estate. Since objections to the Will and testamentary capacity have already been adjudicated at the Probate stage, compelling fresh citation serves no substantive purpose — and the Court categorically so held.

On the Conduct of Nandu and Dispensation of Citation

The Court found the facts surrounding Nandu's conduct particularly compelling. He had not simply failed to appear — he had affirmatively consented at multiple levels: a letter to his own advocates withdrawing the Caveat, a letter to the Prothonotary of the Bombay High Court confirming the Will and consenting to Probate, and a sworn Affidavit in a Rent Act suit acknowledging the Will and the pendency of the Probate petition. Against this backdrop, the Court upheld the Order dated August 21, 2009 dispensing with citation as "correct and valid."

On Distinguishing Pooja Deepak Patil

The Appellants' reliance on Pooja Deepak Patil was firmly rejected. The Court noted that the said judgment concerned an original Probate grant — a situation where no prior Probate existed and where citation to heirs was plainly mandatory. A Section 258-259 petition, by contrast, presupposes an already-granted Probate. The Court held the two situations to be "clearly distinguishable on facts" and held that Pooja Deepak Patil did "not take the case of the Appellants any further."

On Rule 397 of the Bombay High Court (Original Side) Rules

Rule 397 mandates notice to all heirs and next of kin except those who have filed consent affidavits, in applications for Probate and Letters of Administration. The Court distinguished the application of Rule 397 in the context of an original grant from its application to a subsequent Section 259 petition. In the original grant context, Rule 397 is mandatory. In a Section 259 petition, where a Probate is already subsisting and the next of kin have already consented or litigated at the original stage, Rule 397 must be read in harmony with the nature and purpose of the petition — and citation may be dispensed with.

On the Question of Delay

The Court rejected outright Nandu's claim that he came to know of the T&IJ Petition No.445 of 2008 and the grant of Letters of Administration De-Bonis-Non only a few months before filing the Miscellaneous Petition in 2017-18. The Court catalogued a formidable array of facts demonstrating prior constructive and actual knowledge: public notices were issued in three newspapers in June 2010 announcing the grant; five registered Deeds of Transfer were executed and registered in June 2010; the sons of Vijay (Samar and Baiju) had themselves received and responded to the public notice by July 2010; and Pratap had adopted proceedings in Suit No.438 of 1951 as far back as 2006 and again in 2009, 2010, and 2013, specifically setting out the Probate grant and the Letters of Administration De-Bonis-Non. The Court therefore concluded: "In the aforesaid circumstances, and for the reasons stated hereinabove, it cannot be believed that Nandu came to know of the T&IJ Petition No.445 of 2008, and the grant of Letters of Administration De-Bonis-Non therein, only a few months before the filing of the Miscellaneous Petition by him."

The Court also dismissed the alleged ground of "harassment" by Pratap as wholly unsupported by evidence, and found the explanation that "Nandu's sons were young" to be no ground at all for delay in filing a legal proceeding.

On the Alleged Forgery of the Will

While the main thrust of the appeal was on the citation issue and delay, the Court noted that the original Miscellaneous Petition had also sought revocation of the original Probate on grounds of forgery — a plea that was advanced by Nandu who had decades earlier, under oath in a Rent Act suit, confirmed the very same Will. The Court found no merit in entertaining such a challenge at this stage.

A Notable Aside on Costs

In a wry observation, the Court noted that the appeal was frivolous and ordinarily deserved to be dismissed with costs. However, the Court graciously refrained from imposing costs "purely because of the persuasive skills of Mr. Behramkamdin." No order as to costs was therefore made.

The Bombay High Court upheld the dismissal of the Miscellaneous Petition both on merits and on delay, and confirmed the validity of the Order dispensing with citation in the Letters of Administration De-Bonis-Non proceedings. The judgment settles an important principle: once a Probate is granted after due consideration of all objections and consents, a subsequent Section 258-259 petition for Letters of Administration De-Bonis-Non does not require fresh citation to next of kin who had already participated in or consented to the original grant. The Court affirmed that such a petition is limited in its purpose — the appointment of a new administrator for an unadministered estate — and is not a vehicle to reopen the finality of the original Probate.

Date of Decision: March 6, 2026