Mustafa Fazleabbas Hathiari (Applicant/Caveator) v. Iqbal Ibrahim Mestri (Petitioner) And Zarina Shri Sahani A. A. Hathiari (Deceased)
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION INTERIM APPLICATION NO. 1600 OF 2021 IN CAVEAT (L) NO. 11892 OF 2021 IN TESTAMENTARY PETITION NO. 2475 OF 2019 Mustafa Fazleabbas Hathiari ...Applicant In the matter between Iqbal Ibrahim Mestri
...Petitioner
And Mustafa Fazleabbas Hathiari ...Caveator/Applicant ---------- Ms. Rohini Pandit a/w Mr. Kevin Gala, Mr. Mehul Thakkar i/by Rohini Pandit for the Applicant/Caveator.
---------- CORAM :
R.I. CHAGLA J DATE :
13 October 2021 ORDER :
SHARAYU PANDURANG KHOT 1.
Heard learned Counsel for the Applicant.
Digitally signed by SHARAYU PANDURANG KHOT Date:
2021.10.25 11:06:19 +0530 2.
Leave to carry out amendment in prayer clause of Interim Application for correction of the date of the Caveat mentioned as "23/06/2021" to "04/06/2021" is granted. Amendment shall be carried out forthwith.
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3.
By this Interim Application, the Applicant is seeking condonation of delay of three days in fling Affdavit of support of the Caveat dated 23th June 2021 and pray for four weeks time to be granted to the Caveator to remove offce objections. The Applicant is further seeking condonation of delay of 29 days in taking out the present Interim Application. 4.
It is stated by the Applicant that on 19th May 2021, the Applicant and his sibling came to know from the newspaper Free Press Journal, Bombay the publication of a citation dated 19th May 2021 by the Advocate Siddhi Bhosale for the Petitioner. Accordingly, on or about 24th May 2021 the Applicant fled Caveat in this Court opposing the grant to the Petitioner of the Probate of the so called last will and testament dated 14th May 2018 of Smt. Zarina wife of Shrichand Sahani alias Zarina, daughter of A.A. Hathiari, deceased herein. 5.
The Caveat has been served upon the Petitioner's Advocate on 24th May 2021. The Affdavit of Service has also been fled on 2nd June 2021.
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6.
It is further submitted by the Applicant that the Petitioner despite receipt of notice, failed to serve the Petition on the Applicant nor grant inspection of the original will and documents. On 5th June 2021 the Caveator fled the Affdavit in support of the Caveat opposing the grant of Probate Petition whilst reserving right to fle Affdavit on the receipt of copy of the Petition and inspection of the original will of the deceased. 7.
The objection has been raised by the department that there has been delay of three days in fling of the Affdavit in Support of the Caveat. This delay has been explained in the Interim Application. There is mention of another probate petition fled in the Court of Civil Judge (S.D.) Vasai, District Palghar under Section 218 of the Indian Succession Act, 1925 in respect of the another will and testament of the deceased dated 14th January 2004 which is pending till date. The Applicant has contacted his advocate who thereafter collected the documents and got information required by the Applicant which has been set out in the Affdavit in Support of the Caveat dated 4th June 2021. This took considerable time as stated by the Applicant to attain this information. Interim Application has been fled on 23rd June 2021. Accordingly, condonation of 3/4
delay has been sought.
8.
I am satisfed with the averments in the Interim Application for condonation of delay in fling Interim Application as well as condonation of three days delay in fling the Affdavit in Support of Caveat dated 23rd June 2021. Hence, following order is passed :- (i) Delay of 29 days in fling the present Interim Application is condoned.
(ii) Delay of 3 days in fling the Affdavit in Support of the Caveat dated 23rd June 2021 is condoned.
(iii) Caveator is permitted to remove offce objections within a period of four weeks from the date of this order.
(iv) Interim Application is disposed of in the above terms.
[R.I. CHAGLA J.] 4/4