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By this chamber summons petitioner/plaintiff seeks amendment of the petition, as per schedule appended to the chamber summons and seeks permission to convert the petition for probate into petition for letters of administration with the Will annexed dated 24th January, 2002.

2. Petitioner is widow of late Boman Dinyar Faramarzi who died on 29th August, 2007. According to the petitioner, the said deceased had executed his last will and testament dated 22 nd January, 2002. The said deceased had appointed Mr. Diniar Darab Mehta and Mr. Himanshu Kode, Advocate as executors of the said will. It is the case of the petitioner that since executors appointed by the said deceased did not take any steps to file any probate petition and in view of the fact that the earlier advocate on record appearing for the petitioner inadvertently filed petition for probate of the last will and testament of the said deceased in this court, inspite of filing petition for letters of administration with the Will annexed, petitioner by her advocates' letter dated 4 th August, 2011 addressed to the Executors of the said Will placed on record that since petitioner through her son on several occasions both orally and in writing had requested the executors to carry out their duties as executors of the Will but as they failed to do so, petitioner was constrained to file petition for probate of the Will herself. By the said letter petitioner called upon the executors to perform their duties as This Order is modified/corrected by Speaking to Minutes Order .. 3 .. chs-168.2012.sxw executors of the said Will, agree to act as petitioners/applicants in the petition/suit and to take steps to obtain probate of the last Will and testament of the said deceased. Petitioner through her advocate sent reminder to the executors by letter dated 5th September, 2011. There was no reply from Himanshu Kode, Advocate one of the executors of the said Will. Mr.Diniar Mehta, the other executor, however, by his letter dated 9 th September, 2011 informed petitioner's advocate that he was not in a position to confirm execution of the Will of the said deceased on the basis of the photocopy of the said Will which was annexed to the petition and only upon inspection of the original Will, he would be able to confirm the execution of the said Will of the said deceased. He requested the petitioner's advocate to provide inspection of the original Will executed by the said deceased and to furnish him a coloured photo copy thereof to enable him to convey his decision with regard to the execution of the Will. In the said letter, it was however, contended that since the petitioner had already initiated proceedings for obtaining probate of the Will, the question of the said executor renouncing the executorship of the said will did not arise. In response to the said letter, petitioner through her advocate's letter dated 28 th September, 2011, clarified that the petitioner did not ask the executor to renounce the executorship of the Will but had sought to know whether the said executor wish to act as executor. It was also clarified that if the said executor seeks to take inspection of the original Will of the said deceased, he was free to do so in the office of the Prothonotary & Senior Maser of this court.

Petitioner therefore, filed chamber order for identical relief. In view of the objections raised by the caveator that the petition was already converted into suit, on the caveator filing caveat and affidavit in support, no order could be passed by the Prothonotary and Senior Master in the said chamber order filed by the petitioner. The learned Additional Prothonotary rejected the said chamber order.

7. Learned senior counsel submits that the petitioner is 69 years old and the only beneficiary in the said will and was otherwise entitled to file petition for letters of administration if there was no executor of the said will. It is submitted that though the named executors were called upon to act as executors, none of them came forward to file petition. My attention is invited to the correspondence exchanged between the petitioner through her This Order is modified/corrected by Speaking to Minutes Order .. 7 .. chs-168.2012.sxw advocate and executors. As far as Mr. Himanshu Kode, Advocate who was one of the executor is concerned, did not give any response to any of the letters. Mr.Mehta however, did not give any positive reply in response to the said letters and sought inspection of the original will of the deceased. It is submitted that pursuant to the order passed by this court, both the executors were impleaded as parties to the chamber summons. Mr. Himanshu Kode did not file any affidavit in reply disclosing his stand whether he would act as executor and would continue with the pending proceedings or even did not come forward for renouncing his executorship before this court. Ms. Iyer, invited my attention to the affidavit in reply filed by the caveator as well as by the executor Mr. Diniar Mehta. It is submitted that Mr. Mehta has filed this affidavit after inspection of the original Will which was furnished to the said executor by the Prothontoary and Senior Master pursuant to the order passed by this court. It is submitted that various incorrect statements are made by the said executor in his affidavit dated 12 th September, 2013. Learned senior counsel would submit that since the said executor has not shown his readiness and willingness to act as executor on the basis of the Will annexed to the petition which was propounded by the petitioner, it would amount to renouncement of the executorship. It is submitted that in any event, the dispute about the genuineness of the Will raised by the said executor in the said affidavit can be decided at the stage of trial of the petition/suit.

"232. Grant of administration to universal or residuary legatees.- When - (a) the deceased has made a Will, but has not appointed an executor, or
(b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will, or
(c)the executor dies after having proved the Will, but before he has administered all the estate of the deceased, an universal or a residuary legatee may be admitted to prove the Will, and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered." (emphasis supplied) Section 232 deals with three identified situations. The first is where no executor has been named in the will executed by the deceased. The second is where though an executor has been appointed by the deceased in the will the executor (i) is legally incapable; or (ii) refuses to act; or (iii) has died before the testator; or (iv) had died before he has proved the will.

REASONS AND CONCLUSION :-

15. It is not in dispute that the petition is filed by the beneficiary under the alleged Will in question. It is also not in dispute that by the alleged Will in question, there were two executors appointed by the said deceased. In the application made before the Prothonotary and Senior Master on 23 rd April, 2012, it was stated by the petitioner that as executors appointed under the Will in question had not filed the petition for probate, the petitioner decided to file petition in this court. The earlier advocate for the petitioner had inadvertently filed petition for probate instead of filing the petition for Letters of Administration with Will annexed. In view of the objection raised by the caveator in the chamber order filed by the petitioner, learned Prothonotary and Senior Master did not allow the said chamber order. On perusal of the letters addressed by the petitioner to the executors on 4 th August, 2011, it is clear that it was case of the petitioner that since none of the executors took any steps as an executor and did not apply for probate of the Will, the petitioner was constrained to file the petition for probate of the Will herself. It was also the case of the petitioner that as the executors failed to act as an This Order is modified/corrected by Speaking to Minutes Order .. 20 .. chs-168.2012.sxw executors of the last Will of the said deceased and had not renounced executorship, the petitioner called upon the executor to perform their duties and to agree to act as the petitioners in this petition/suit and to take steps to obtain probate of the last Will and testament of the said deceased. The petitioner had also called upon Mr.Diniar Mehta, one of the executor to inform whether he was willing to sign and affirm the usual affidavit as an attesting witness with regard to the execution of the Will in question as he was alleged to be one of the attesting witness to the Will in question. On perusal of the letter addressed by Mr.Diniar Mehta, it is clear that there is no denial in the said letter to the statement made by the petitioner in her advocate's letter dated 4th August, 2011 that the said Mr.Diniar Mehta did not take any steps as an executor nor applied for probate of Will and had failed to act as an executor. As far as Mr.Himanshu Kode, advocate who was the other executor of the said Will is concerned, he did not give any response to the letters addressed by the petitioner through her advocate nor filed any affidavit in reply nor remained present in this proceedings though served.