Bombay High Court
Shruti Jatia vs Sunil Kumar Jatia Alias Sunil Chouthmal ... on 12 October, 2021
Author: R.I. Chagla
Bench: R.I. Chagla
17-ial-17077-2021.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION (L) NO.17077 OF 2021
IN
TESTAMENTARY PETITION NO.407 OF 2021
Shri Sunil Kumar Jatia ... Deceased
Versus
Mrs. Shruti Sunil Jatia ......Applicant/
Petitioner
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Yuvraj Choksy and Aditya Gore i/b. Khaitan & Co. for the
Applicant.
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CORAM : R.I. CHAGLA J
DATE : 12 October 2021
ORDER :
1. Heard learned Advocate appearing for the Applicant / original Petitioner.
2. By this Interim Application, the Applicant is seeking permission to be granted to the Applicant to give consent and fle the consent affdavit on behalf on behalf of the daughter Ms. Vedika Jatia in the present Petition for probate of 1/6 ::: Uploaded on - 14/10/2021 ::: Downloaded on - 14/10/2021 22:19:13 ::: 17-ial-17077-2021.doc the last Will of the deceased. The Applicant is the widow of the deceased Shri Sunil Kumar Jatia. The deceased who had passed away on 20th March, 2020 had left the last Will as mentioned in Interim Application which was executed at Mumbai on 5th November, 2016. The Applicant is the sole executrix in the said last Will. The said last Will bequeathed the entire estate of the deceased upon Applicant / Original Petitioner as set out in the said last Will.
3. In the Interim Application at paragraph 2d, it is mentioned that the said deceased has the following persons surviving as his only heirs and next to kin according to Hindu Succession Act, 1956 which are the Applicant / Original Petitioner, wife of the deceased; Vedika, daughter of the deceased and Nihar, a son of the deceased.
4. It is the case of the Applicant that the Applicant is the sole guardian of the minor son and natural guardian of the deceased's adult daughter Vedika born on 7th June, 1995 and though a major is suffering from cerebral palsy and the Applicant and her late husband were looking after her as her natural guardian. After the death of her husband, the Applicant 2/6 ::: Uploaded on - 14/10/2021 ::: Downloaded on - 14/10/2021 22:19:13 ::: 17-ial-17077-2021.doc is solely taking care of her as her mother and natural guardian. Given her disability, Ms. Vedika is unable to give her consent on her own behalf.
5. The learned Advocate for the Applicant has additional Affdavit dated 8th September, 2021 of the Applicant / Original Petitioner. The Affdavit is taken on record. In the said Affdavit at paragraph 4a it is stated that, Vedika suffers from cerebral palsy since birth. The Petitioner has been taken care of her needs and requirements since the passing away of the Applicant's husband. A Guardianship Application dated 30th April, 2021 had been fled by the Applicant under the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999 ("National Trust Act") seeking to be declared as the guardian of her daughter Vedika. The learned Advocate for the Applicant has drawn this Court's attention to the Guardianship Application fled and in particular the annexure to the Guardianship Application which is the disability certifcate issued by Medical Authority, Mumbai Suburban, Maharashtra. From the disability certifcate, it is apparent that the Applicant's daughter Vedika Jatia is suffering from Cerebral 3/6 ::: Uploaded on - 14/10/2021 ::: Downloaded on - 14/10/2021 22:19:13 ::: 17-ial-17077-2021.doc Palsy which is referred to as a 60% permanent physical impairment / mental disability and intellectual disability diagnosed as mental retardation, a 45% permanent physical impairment / mental disability. The conclusion in the disability certifcate is that her overall physical impairment as per guidelines (to be specifed) is 75% and it is further mentioned that the condition is not likely to improve and reassessment of disability is not recommended. He has therefore, submitted that in view of Applicant's daughter suffering from cerebral palsy which is certifed as a permanent disability, she is unable to give her consent in the present Testamentary Petition for probate to be granted to the Applicant / Original Petitioner of the last Will of the deceased.
6. Having considered the submissions, it is clear from the additional Affdavit of the Petitioner dated 8th September, 2021 as well as the disability certifcate which is annexed to the said Affdavit forming part of Guardianship Application fled by the Applicant / Original Petitioner under the National Trust Act for declaration as guardian of her daughter Ms. Vedika Jatia, that Ms. Vedika is suffering from cerebral palsy. The disability certifcate mentions that Ms. Vedika's over all 4/6 ::: Uploaded on - 14/10/2021 ::: Downloaded on - 14/10/2021 22:19:13 ::: 17-ial-17077-2021.doc physical impairment at 75% and that the condition is not likely to improve as well as reassessment of the disability is not recommended. Further, the Applicant / Original Petitioner has also made out case of urgency in granting the relief as sought for in the Interim Application which is set out in paragraph 4d of the said additional affdavit which states that the Applicant is the sole bread earner for the family. Further, the Applicant / original Petitioner states that she is suffering from fnancial diffculties due to the Covid 19 pandemic and pending the grant of probate, she is unable to access the deceased husband's bank accounts and fnancial investments. She is further paying equated monthly installments (EMI) of Rs.5,38,000/- in respect of the loans for her home and other properties. These payments have been made from borrowing from friends and other family members.
7. I am satisfed from the averments made in the Interim Application that a case has been made out for grant of the relief sought for in the Interim Application. Hence the following order:-
(i) The Applicant is permitted to give consent and fle 5/6 ::: Uploaded on - 14/10/2021 ::: Downloaded on - 14/10/2021 22:19:13 ::: 17-ial-17077-2021.doc consent Affdavit on behalf of her daughter Ms. Vedika Jatia in the present Petition for probate of the last Will of the deceased.
(ii) The consent Affdavit shall be fled within a period of two weeks from the date of this order.
(iii) The Interim Application is accordingly disposed of in the above terms.
[R.I. CHAGLA J.] 6/6 ::: Uploaded on - 14/10/2021 ::: Downloaded on - 14/10/2021 22:19:13 :::