Mahendra Laxmi Shankar Joshi vs Shravan Laxmi Shankar Joshi Alias ... on 5 October, 2018

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Bombay High Court

Mahendra Laxmi Shankar Joshi vs Shravan Laxmi Shankar Joshi Alias ... on 5 October, 2018

Bench: G.S. Patel

                                                                  924-TS5-13+.DOC




 Atul



        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
        TESTAMENTARY AND INTESTATE JURISDICTION
                 TESTAMENTARY SUIT NO. 5 OF 2013
                                        IN
          TESTAMENTARY PETITION NO. 1677 OF 2012
                                      AND
                 TESTAMENTARY SUIT NO. 6 OF 2013
                                        IN
          TESTAMENTARY PETITION NO. 1679 OF 2012


 Mahendra Laxmi Shankar Joshi                                          ...Plaintif
       Versus
 Shravan Laxmi Shankar Joshi Alias Shravan                          ...Defendant
 Laxmi Narayan Joshi


 Mr Bharat Joshi, for the Plaintiff in both the Suits.
 Ms Minal J Chandnani, for the Defendant in both the Suits.


                               CORAM:     G.S. PATEL, J
                               DATED:     5th October 2018
 PC:-


 1.

The Defendant seeks to file a further Affidavit in Support of the Caveat. An oral application is made. I do not think this is warranted. The principle objection sought to be introduced is about the title to the properties claimed to vest in the estate or mentioned in the Will. The grant of probate cannot possibly afect the question Page 1 of 4 5th October 2018 ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:40:08 ::: 924-TS5-13+.DOC of title. In fact, I am told that a separate civil suit for partition is already pending. All questions of title and partition are expressly kept open and the Defendant is at liberty to adopt appropriate proceedings in that behalf and the grant of probate will not operate to confer title on the deceased if he had none to begin with.

2. The other objection is a sort of proxy defence with the Defendant saying that some other heir (his married sister) is raising objections in the partition suit in the City Civil Court but has not been "made a Defendant" to the probate Petition. As a matter of fact nobody is ever "made a Defendant" to a probate Petition. A party is entitled to oppose a grant once served with a citation and, having entered a caveat and filed an Affidavit in Support, is then treated as a Defendant. I am informed that the married sister, Usha Ojha was named and duly cited as a heir but did not file at any time her own Caveat or Affidavit in Support. It is for her to fight her own battles and not for her brother to take up cudgels on her behalf.

3. The only document Plaintif seeks to prove in evidence is the Will of the deceased. In view of the Affidavit of Evidence filed in Testamentary Suit No. 5 of 2013 the Will in question is taken on record and marked Exhibit "P1", in evidence.

4. In view of the Affidavits of Evidence filed in Testamentary Suit No. 6 of 2013 the Will in question is taken on record and marked Exhibit "P1", in evidence.

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5. By consent, Ms Geeta Sonawane (Mobile No. 98678 78235) is appointed as a Commissioner and is requested to record the cross- examination of the Plaintif's first witness.

(a) The Commissioner is at liberty to exercise discretion under Order XVIII Rule 4(4) of the Code of Civil Procedure, 1908, to note the demeanour of the witnesses where necessary.

(b) All cross-examination shall be conducted strictly in question and answer form.

(c) The Commissioner will also be at liberty to direct that the whole or any part of the cross-examination should be video recorded for later reference of the court.

Should that be done, the original audio visual recording will be submitted along with the Commissioner's Report to the Registry.

(d) Liberty to the parties as also to the Commissioner to apply in case of difficulty.

(e) All re-examination will be conducted only in court.

(f ) It is agreed that the fees of the Commissioner and costs of the Commission will be paid by the Plaintif. Liberty, however, to the Plaintif to seek an adjustment or an order in regard to these costs at the final hearing of the Suit.

(g) Parties shall also pay costs of Rs. 500/- per hearing to the Court Clerk who attends the Commission with Court Papers. This is required since these clerks attend Page 3 of 4 5th October 2018 ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:40:08 ::: 924-TS5-13+.DOC the commission in addition to their regular duties and outside their normal working hours;

(h) The Commissioner is not to permit any applications for adjournment on dates previously fixed, except where absolutely unavoidable. Counsel's inconvenience or unavailability does not constitute such unavoidability.

6. List both the matters on 19th December 2018 for a status report including as to progress before the Commissioner.

(G. S. PATEL, J) Page 4 of 4 5th October 2018 ::: Uploaded on - 08/10/2018 ::: Downloaded on - 09/10/2018 00:40:08 :::

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