Bombay High Court
Kirit Navnitlal Damania vs Shashikala Baburao Alandkar on 1 April, 2026
13. TP/41/1995
Prakash vs. Shashikala
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
Digitally signed
TESTAMENTARY PETITION NO. 41 OF 1995
by JYOTI
JYOTI PRAKASH
PRAKASH PAWAR
PAWAR Date:
2026.04.01
15:00:55 +0530
Prakash Mahavir Alandkar .. Petitioner
And
Shashikala Baburao Alandkar alias S. Alandkar .. Deceased
_______________________________________
Mr. Tejas Vora a/w D. R. Mishra i/b Vasant Dhawan for Petitioner.
_______________________________________
CORAM : FARHAN P. DUBASH, J.
RESERVED ON : 24th MARCH 2026
PRONOUNCED ON : 1st APRIL 2026
ORDER:
1. The matter is placed before this Court pursuant to the Praecipe dated 18th March 2026 and the Reference dated 11 th March 2026 made by the Officer on Special Duty, Testamentary Department/Registry. The Reference seeks directions regarding compliance with Rule 397 of the Bombay High Court (Original Side) Rules, 1980 in Testamentary Petition No. 41 of 1995, which was originally instituted for grant of Probate and now stands converted into a Petition for Letters of Administration with Will annexed pursuant to an order dated 27th June 2023 passed in Interim Application (L) No. 413 of 2023.
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13. TP/41/1995 Prakash vs. Shashikala
2. By the said Praecipe, the Petitioner seeks dispensation of the Registry's objection requiring fresh service of citation upon the non-consenting heirs.
3. Before dealing with the Reference, it is necessary to briefly set out the relevant factual background:
i. Miss Shashikala Baburao Alandkar (Deceased), who was unmarried and issueless, expired on 27 th February 1994 leaving behind her last Will and Testament dated 4 th July 1993 appointing (i) Kirit Navnitlal Damania and (ii) Shantaram Venkatrao Pikale, as Executors. In 1995, the Executors instituted Testamentary Petition No. 41 of 1995 seeking Probate of the said Will.
ii. The Deceased had two brothers, namely Padmakar B. Alandkar and Mahavir Alandkar Padmakar who predeceased him on 7th March 1974 leaving behind his widow, son Anil, and two daughters including Smt. Anuradha Anil Bhagwat. The present Petitioner is the son of Mahavir and the nephew of the Deceased.
iii. Upon a Caveat being lodged by Anuradha and her children, Mr. Aseem Anil Bhagwat, Mr. Ajay Anil Bhagwat and Ms. Page 2 of 8
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13. TP/41/1995 Prakash vs. Shashikala Preeti Anil Bhagwat (collectively referred to as the "non-
consenting heirs") the Testamentary Petition was converted into Testamentary Suit No. 28 of 1995.
iv. During pendency of the Suit, Executor Shantaram Venkatrao Pikale expired, whereupon the proceedings continued through the surviving Executor, Kirit Navnitlal Damania. v. After a full trial, by Judgment and Order dated 9 th June 2016, a Single Bench of this Court decreed Testamentary Suit No. 28 of 1995, rejected the Caveat and directed issuance of Probate in favour of the surviving Executor.
vi. The non-consenting heirs preferred Appeal No. 333 of 2017.
By Judgment dated 22nd October 2018, the Division Bench of this Court dismissed the Appeal and affirmed the decree of this Court upholding the Will.
vii During pendency of the Appeal, the present Petitioner lodged a Caveat on 7th August 2018. Consequently, the grant of Probate was not immediately issued. Thereafter, on 13 th August 2020, the surviving Executor also expired. As a result, both Executors named in the Will passed away prior to Page 3 of 8
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13. TP/41/1995 Prakash vs. Shashikala issuance of Probate.
viii The Petitioner thereafter filed Interim Application (L) No. 413 of 2023 seeking withdrawal of his Caveat, substitution in place of the deceased Executors, and conversion of the proceedings into a Petition for Letters of Administration with Will annexed.
ix. By order dated 27th June 2023, this Court allowed the said Interim Application and directed conversion of the proceedings accordingly. Certain errors in the order were subsequently corrected by an order passed on 11 th July 2023 on a Speaking to the Minutes application.
4. In the above circumstances, the Registry has submitted the present Reference seeking directions as to whether fresh citation under Rule 397 of the Bombay High Court (Original Side) Rules, 1980 is required to be served upon the non-consenting heirs despite their earlier participation in the proceedings.
5. Mr. Tejas Vora, learned Counsel appearing for the Petitioner, submits that Anuradha and members of her branch were fully aware of and actively participated in the proceedings. They entered Caveat, contested the Will in a Page 4 of 8
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13. TP/41/1995 Prakash vs. Shashikala Testamentary Suit after a full trial, and thereafter pursued an Appeal before the Division Bench. Both proceedings culminated in final adjudication affirming the validity of the Will.
6. He submits that the requirement of issuing citation is intended to afford an opportunity to interested heirs to oppose the grant. That opportunity having been fully exercised and exhausted, no purpose would be served by directing fresh citation upon the same parties.
7. Mr. Vora further submits that all heirs and next-of-kin have already been served in the course of the earlier proceedings. As regards the branch of Mahavir, he submits that the Petitioner herein had initially lodged a Caveat which has since been withdrawn, and all members of that branch have filed Consent Affidavits supporting the grant of Letters of Administration with Will annexed in favour of the Petitioner.
8. The narrow issue arising for consideration is therefore whether, notwithstanding the earlier adjudication culminating in confirmation of the Will, Rule 397 of the High Court Rules mandates fresh service of citation merely because the nature of the grant has changed from 'Probate' to 'Letters of Administration with Will annexed'.
9. Rule 397 of the Bombay High Court (Original Side) Rules, 1980 reads Page 5 of 8
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13. TP/41/1995 Prakash vs. Shashikala thus:
"397. Notice of next-of-kin (1) In all applications for Probate, Letters of Administration and succession Certificate, notice of the application shall be given to all the heirs and next-of-kin of the deceased mentioned in the petition except to those whose consent has been filed in the proceedings. (2) In all applications for Probate and Letters of Administration the Citation shall be affixed on some conspicuous part of the Courthouse and also in the office of the Collector of Bombay (3) In all applications for succession certificate, notice of the application shall be affixed on some conspicuous part of the Courthouse. (4) No grant of Probate, Letters of Administration or Succession Certificate shall be made until after the expiry of fourteen clear days from the date of the service of the Citation or notice, and from the publication thereof in newspapers, if any, and from the affixing thereof on the courthouse and in the Collector's Office as the case may be, unless the Judge in Chambers otherwise directs."
10. The object underlying Rule 397 is to ensure that all heirs and next-of- kin are afforded notice of testamentary proceedings so that they may, if so advised, enter Caveat and oppose the grant. The Rule is procedural in nature and is intended to safeguard principles of natural justice.
11. In the present case, the non-consenting heirs were not only served with citation but actively contested the Will by filing a Caveat which resulted in conversion of the Petition into a Testamentary Suit. The Suit proceeded to a full trial, culminating in a decree upholding the Will. The appellate Page 6 of 8
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13. TP/41/1995 Prakash vs. Shashikala proceedings also stand concluded with dismissal of the Appeal.
12. The conversion of the proceedings from a Petition for Probate into one seeking Letters of Administration with Will annexed has occurred solely because both named Executors expired prior to issuance of Probate. The conversion does not reopen or alter the adjudication regarding the genuineness or validity of the Will. The testamentary disposition already stands conclusively established by judicial determination.
13. Requiring fresh service of citation in such circumstances would amount to re-issuing notice to parties who have already exercised their right of opposition and whose challenge has attained finality. Rule 397 cannot be construed so as to compel a repetitive procedural formality divorced from its underlying purpose.
14. I am therefore satisfied that sufficient notice contemplated under Rule 397 has already been effectively complied with and that the requirement of fresh service of citation upon Anuradha and the other non-consenting heirs deserves to be dispensed with.
15. Accordingly, the Reference is answered in the following terms:
(a) Fresh service of citation upon the non-consenting heirs, namely Smt. Anuradha Anil Bhagwat, Mr. Aseem Anil Page 7 of 8
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13. TP/41/1995 Prakash vs. Shashikala Bhagwat, Mr. Ajay Anil Bhagwat and Ms. Preeti Anil Bhagwat, is dispensed with;
(b) The Registry shall proceed with the Petition for grant of Letters of Administration with Will annexed in accordance with law;
(c) All office objections, if any, consistent with this order shall stand disposed of.
16. The Reference is disposed of in the above terms.
( FARHAN P. DUBASH, J. ) Shubham Gadhavepatil Page 8 of 8
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