Bombay High Court
Arvind Walia W/O Pirthi Paul Singh ... vs Satish Niamatrai Rajpal (Deceased) on 21 June, 2022
Author: R. I. Chagla
Bench: R. I. Chagla
TAUSEEF
LAIQUEE
FAROOQUI 915-TP.L.31285.2021.doc
Digitally signed by
TAUSEEF LAIQUEE
FAROOQUI IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date: 2022.06.27
17:39:34 +0530 TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY PETITION (L) NO.31285 OF 2021
Arvind Walia, Constituted Attorney
of Neeraj Satish Rajpal ...Petitioner
V/S
Satish Niamatrai Rajpal ...Deceased
WITH
TESTAMENTARY PETITION NO.1375 OF 2022
WITH
WILL NO.533 OF 2022
IN
TESTAMENTARY PETITION (L) NO.31285 OF 2021
Suresh Shankar Bhagade ...Petitioner
V/S
Satish Niamatrai Rajpal ...Deceased
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Mr. Cyrus Ardeshir, Counsel a/w Ms. Jyoti Sinha, Ms. Tanvi Goenka
and Ms. Isha Srivastara i/by Khaitan & Co. for Petitioner.
M/s. Joy Legal and Consultants for Petitioner in TP/1375/2022.
-------
CORAM : R. I. CHAGLA, J.
DATED : 21st JUNE, 2022.
P.C.
1. Heard Mr. Ardeshir, learned counsel for the Petitioner in the Testamentary Petition (L) No.31285 of 2021. He has stated that by an Order dated 6th May 2022, the preliminary objection raised by Tauseef 1 of 5 915-TP.L.31285.2021.doc the Testamentary Department have been dispensed with, namely how the Testamentary Petition can be proceeded when the deceased had revoked Will dated 2nd May 2020 on 28th September 2021. This Court had considered that such an objection cannot lie considering that this Court is necessary to go into the issue as to which Will is a valid Will in the Probate Petition. The Testamentary Department was directed to number the Petition for Letters of Administration with Will dated 2nd May 2020 forthwith, subject to the remaining office objections/reuuisitions of the Testamentary Department being complied with. Thereafter, the Testamentary Department has raised further objections on 11th May 2022 and which are dealt with by Mr. Ardeshir on behalf of the Petitioner.
2. The first objection raised by the Testamentary Department is Court fees of Rs.75,000/- to be paid and original will to be deposited. Mr. Ardeshir submits that this objection has been complied with by the Petitioner. Insofar as the second objection raised namely proper details and proper valuation of property to be mentioned in schedule and total to be verified. Mr. Ardeshir has tendered a schedule of amendment seeking amendment in Schedule- 1 which is for valuation of movable and immovable properties of the Tauseef 2 of 5 915-TP.L.31285.2021.doc deceased in the State of Maharashtra and giving the value of the properties mentioned in the Schedule-I. Schedule-II is the debts owed by the deceased.
3. The Schedule of amendment is taken on record and marked 'X' for identification. The Petitioner is permitted to amend the Schedule-I and II of the Testamentary Petition (L) No.31285 of 2021 in terms of schedule of amendment marked 'X'. The amendment shall be carried out by the Petitioner within a period of one week from today i.e. on or before 28 th June 2022. Re-verification is dispensed with.
4. Thus this objection no longer remains.
5. Insofar as the third objection raised is for Consent Affidavit of legal heir to be filed. It has been submitted by Mr. Ardeshir that Consent Affidavit of legal heir cannot be filed in lieu of the legal heir having filed Testamentary Petition (L) No.30603 of 2021 (numbered as Testamentary Petition No.1375 of 2022) for Letters of Administration with probate of Will dated 28 th September 2021. I am satisfied with this explanation and accordingly this objection raised by the Testamentary Department is dispensed with.
Tauseef 3 of 5 915-TP.L.31285.2021.doc
6. Insofar as the fourth objection is concerned of tagging Testamentary Petition No.1375 of 2022 with the above Testamentary Petition, this objection cannot be taken by the Testamentary Department as it is for this Court to tag the two Petitions.
7. With regard to the fifth objection namely for para 4 to 6 of the Petition to be satisfied by filing the Affidavit of executors and Affidavit of Witnesses. Mr. Ardeshir has relied upon Section 229t of the Indian Succession Act, 19t25, which specifically provides for grant of administration were the executor has not renounced. It is provided that when a person appointed as an executor has not renounced the execution, letters of administrations shall not be granted to any other person until the citation has been issued calling upon the executor, to accept or renounce his executorship. Thus citation will have to be issued to the executor for accepting or renouncing his executorship and thus this objection cannot lie.
8. Mr. Ardeshir has dealt with that the objection as to filing Affidavit of Executor. He has submitted that it is not possible to file such Affidavit in this Petition in view of the Executor having filed Testamentary Petition No.1375 of 2022. Regarding the filing of the Tauseef 4 of 5 915-TP.L.31285.2021.doc Affidavit of witnesses is concerned, Mr. Ardeshir has relied upon Rule 384 of the Bombay High Court Original Side Rules which provide that where it is not possible to file the Affidavit of attesting witness then an Affidavit of some other person, if any, who may be present at the execution of the Will shall be filed. He has submitted that this is to be considered by this Court upon such Application being made.
9t. Having considered the submission of Mr. Ardeshir, I am of the view that the objections regarding filing of Affidavit of executors and Affidavit of witnesses is pre-mature in view of the aforementioned provisions of the Indian Succession Act and Bombay High Court Original Side Rules. Therefore, this objection is also dispensed with.
10. The Testamentary Department shall accordingly take steps for numbering the Testamentary Petition (L) No.31285 of 2021 for letters of administration with Will dated 2 nd May 2022 forthwith.
(R. I. CHAGLA, J.)
Tauseef 5 of 5