Bombay High Court
Atul Agrawal C.A. Of Ramesh Kishinchand ... vs Kamla Lachmandas Idnani @ Kamla Idnani ... on 25 March, 2021
Author: G.S. Patel
Bench: G.S. Patel
1-TP76-2000.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY PETITION NO. 76 OF 2020
WITH
WILL NO. 31 OF 2020
IN
TESTAMENTARY PETITION NO. 76 OF 2020
Atul Agrawa,ca OF Ramesh Kishinchand ...Petitioners
Sujanani & Anr
Versus
Kamla Lachmandas Idnani alias Kamla Idnani ...Deceased
Mr Shashank More, i/b Little & Co., for the Petitioners.
CORAM: G.S. PATEL, J
DATED: 25th March 2021
PC:-
1.On 15th March 2021, I made the following order:
Digitally "1. I passed the following order on 18th January 2021.
signed by "1. The probate Petitioners, Ramesh Shephali Shephali Mormare Mormare Date:
Kishinchand Sujanani and Anjali Deepak 2021.03.26 09:32:08 +0530 Banani, reside overseas. They have fled this Petition for Letters of Administration with a Will annexed. The Will in question is dated 24th September 2014 of Kamala Laxmandas Idnani. During her lifetime, the deceased also Page 1 of 7 25th March 2021 1-TP76-2000.DOC lived overseas. The present Petitioners have given a Power of Attorney to one Atul Agarwal. His address given in the Power of Attorney is at Noida, Uttar Pradesh.
2. Rule 394 of the Bombay High Court Original Side Rules permits such a Petition to be brought by a Constituted Attorney provided that such Constituted Attorney within the State of Maharashtra.
3. I am told today that Mr Agarwal does have a residence in Mumbai but is unable to presently travel and reside there on account of the Covid-19 travel restrictions. I will require Mr Agarwal to fle an Afdavit giving the particulars of his Mumbai address and the basis on which he continues to occupy those premises. That Afdavit will be fled on or before 1st February 2021.
4. List the matter on 8th February 2021."
2. On taking better instructions, the learned Advocate for the Petitioners states that the Probate Petitioners' constituted attorney Mr Atul Agarwal does not have a residence in Mumbai at all, though he sometimes travels here.
3. This creates a confict with Rule 394 of the Bombay High Court Original Side Rules which require that a constituted attorney of Petitioners such as these be within the State of Maharashtra.
4. I do not think these Rules can be read in so rigid or fashion as would result in injustice, or in a case like this, an entire estate being left unadministered. It is clear that it is this Court that has jurisdiction because the Will of Kamla Page 2 of 7 25th March 2021 1-TP76-2000.DOC Lachmandas Idnani relates to an immovable property in Mumbai. She was in the USA when she made the Will.
5. What a too-slavish adherence to Rule 394 means is that the Petitioners, both foreign nationals, must now fnd a person in Mumbai to represent them in these Probate proceedings. Conditions the world over are difcult enough as it is. I see no reason to add to people's problems. Rather than create problems by seeing this or that Rule as a prohibition, any Court must ascertain whether there is an acceptable solution that does not compromise the integrity of the judicial process. The purpose of Rule 394 is to ensure that the constituted attorney of the Probate Petitioner is accessible. I note that this does not require the constituted attorney to be within the ordinary original civil jurisdictional limits of this Court on its Original Side but only to be in the State of Maharashtra. This means that the Constituted Attorney could be in Pune, Nagpur or Chandrapur, and that would be acceptable; but not if he is in Delhi and can be reached via video-conferencing or other means. The Rule cannot be read as being utterly infexible. In a given case allowance can be made.
6. I will require a two-step process. In the frst instance I require Mr Agarwal and the two Probate Petitioners to join the next session on the online video conferencing facility. The link and the meeting id are given below. LOGIN LINK https://bombayhighcourt.webex.com/ meet/rg-bhc MEETING ID 918 926 070
7. I will need the Petitioners to confrm that Mr Agarwal is indeed their constituted attorney. Then I will require Mr Agarwal to confrm in turn that he will discharge his obligations in representing the Petitioners and his assurance that he will engage an Advocate in Mumbai to represent him. Once I have noted these statements, I will permit the matter to proceed.
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8. One of the Petitioners is in Hong Kong. The other is on the east coast in the USA. I will therefore, list the matter on 25th March 2021 at 4.30 pm. This should be convenient across all time zones.
9. This order will be digitally signed by the Personal Assistant/ Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order."
2. Pursuant to this order, online today on the VC link are the two Petitioners, Ramesh Kishinchand Sunajani and Anjali Deepak Balani. Both are overseas. Both of them have personally confrmed to me that they have appointed Mr Atul Agarwal as their constituted attorney to prosecute this Petition for Letters of Administration with Will annexed. At present, it is uncontested.
3. Mr Agarwal himself is also online. He personally confrms to me that he will be able to coordinate with the Advocates in Mumbai to attend the matter. He himself is a Chartered Accountant and frequently travels to Mumbai, although he does not maintain a residence here.
4. The next step is a matter of form. The Petition is fled for Letters of Administration with Will annexed. Petitioner No. 1, Ramesh Kishinchand Sujananim, is the son-in-law of the deceased, Kamla Lachmandas Idnani. The 2nd Petitioner, Anjali Deepak Balani, is the maternal granddaughter of the deceased, Kamla Lachmandas Idnani. Neither of them is a heir at law of the deceased. Ramesh Sujanani's wife, Padmani, is alive. as is Anjali Balani's Page 4 of 7 25th March 2021 1-TP76-2000.DOC mother, Kanchan. Thus, neither of the Petitioners has a share in the deceased's estate. Their spouse and mother, respectively, do.
5. Consequently, the Petition will need to be converted to one for probate. It needs amendment. Amendments to be carried out within two weeks from today. Given the facts that Mr Agarwal is in New Delhi, I will dispense with the requirement of re-verifcation of the amendments.
6. There are altogether seven heirs of the deceased. Four have consented to the grant and their Consent Afdavits are annexed. Three heirs, Ramesh Lachmandas Idnani, Narain Lachmandas Idnani, and Kishu Lachmandas Idnani are all said to be American citizens and live in diferent places in New Jersey, US. Their views on the petition are to be ascertained, i.e., whether or not they consent to the grant (they are under no compulsion to do so).
7. Ordinarily -- and in normal times, now rapidly fading in our collective memory -- these three heirs would have had to be served with citations (drawn in the amended Probate petition), and would have time of days of such service to enter caveats of opposition to the grant, with further time of eight days to fle afdavits in support of their caveats.
8. It is unclear whether the citations have been issued at all. In any case, now that the Petition is being converted to one for probate, fresh citations will need to be issued to Ramesh Lachmandas Idnani, Narain Lachmandas Idnani, and Kishu Lachmandas Idnani Page 5 of 7 25th March 2021 1-TP76-2000.DOC
-- unless, of course, they consent. If they do, then the matter can proceed as uncontested.
9. List the matter on 21st April 2021 at 4.30 pm which should be a convenient time in the US. The three heirs, Ramesh Lachmandas Idnani, Narain Lachmandas Idnani, and Kishu Lachmandas Idnani are at liberty to join via VC Court link once again given below:
LOGIN LINK https://bombayhighcourt.webex.com/meet/rg-bhc MEETING ID 918 926 070
10. At this online hearing, they are to indicate whether or not are consenting to the grant or not. They are not compelled to consent. They may choose to oppose, in which case the petition will follow the regular trajectory according to our rules of procedure. The Court will note their stand, one way or the other. The only reason for taking this step is to compress time-frames should the three heirs in the US (named above), consent.
11. This order is to be communicated to them by email. Both Ramesh Sujanani and Anjali Balani, the Petitioners, say that they have the email addresses of all three. They will send these addresses by email to Mr Agarwal who will immediately contact his Advocates in Mumbai, M/s Little & Co. In turn, M/s Little & Co are to send emails to three heirs (Ramesh Lachmandas Idnani, Narain Lachmandas Idnani, and Kishu Lachmandas Idnani) attaching a digitally signed copy of this order and asking all three to attend the online hearing at 4.30 pm IST on 21st April 2021 via the Video Conferencing link mentioned earlier.
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12. At that hearing, the presence of Ramesh Sujanani and Anjali Balani is not required.
13. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 7 of 7 25th March 2021