Bombay High Court
Dinesh Jethalal Khimasia vs Muktaben Wd/O Ratilal Khimasia ... on 18 November, 2019
ary Before: Shri K.K. Trivedi,
Addl. Registrar (O.S.)/
Addl. Prothonotary and Senior Master
Date : 18th November, 2019.
MENTIONED, NOT ON BOARD:
1.Chol/930/2019 Mr. P.D. Sampat i/b Vilas Jadhav, Advocate for Choll/250/2019 Applicant.
TP/1779/2016 P.C.: 1. By my order dated 9th October 2019, I have allowed the Applicant in the Chamber Order to be substituted in place of original Petitioner in Testamentary Petition No. 1779/2016. Today ofce has communicated to me that as the son of the Executor is substituted as Petitioner, instead of Probate Petition, it will be Petition for Letters of Administration.
2. This matter was heard before the Hon'ble Court presided by the Hon'ble Shri Justice A.K. Menon. On that day, I was also called upon to remain present and oral directions came to be passed by the Hon'ble Court to me. This was in view of the fact that Mr. Sampat, Senior Advocate appearing for the Applicant/Petitioner had contended that deceased had appointed Executor, who has died. The said Executor's son (Applicant herein) is the Executor appointed by the Executor in his Will. Therefore, Mr. Sampat contended before the Court that the son of the deceased Executor who has been 1 of 2 ::: Uploaded on - 20/11/2019 ::: Downloaded on - 20/11/2019 21:24:25 ::: appointed Executor in his Will should be also considered to be Executor in the Will of the deceased in the present Petition. The said contentions were accepted by me at the time of hearing of the Chamber Order and I had accordingly passed the order directing the ofce to substitute the Petitioner with the Applicant. However, in usual course, upon the death of the Executor, if any person is substituted, nature of Petition changes in view of Section 222 and 234 of Indian Succession Act.
3. However, these sections not made applicable in this present case. The Senior Advocate, Mr. Sampat had stated beofere the Hon'ble Court that Executor's son is also Executor appointed under the Will of the said Executor , D.J. Khimasia. Hence, he may be treated as Executor in this matter also. a matter which was heard before the Hon'ble Court that was for other relief. Ofce is requested to proceed in the matter considering the Applicant as the Executor. In this matter also the deceased Muktaben Executed Will, appointed Dinesh J. Khimasia as Executor (sole). In case of Executor dies/ predeceased the deceased, his wife to be sole Executrix. Property bequeathed to heirs of Executor if Executor predeceased to deceased, husband of deceased Muktaben left all properties in favour of her, under Will 2 of 3 ::: Uploaded on - 20/11/2019 ::: Downloaded on - 20/11/2019 21:24:25 ::: Chol/930/2019 Choll/250/2019 TP/1779/2016 dated 27.03.1999 and upon her death properties to be vested with D.J. Khimasia.
4. It is however, made clear that this is one of the case, in which this principle has been applied. Ofce not to accept such contentions in other matters wherein Executor expired and Petition requires amendment usual procedure as laid down in law be followed.
5. Time to carry out the amendment which has expired is accordingly extended for a further period of four weeks from today.
18.11.2019 Addl. Registrar (O.S.)/ Addl. Prothonotary and Senior Master 3 of 32 ::: Uploaded on - 20/11/2019 ::: Downloaded on - 20/11/2019 21:24:25 :::