Afzal Muzaffar Sonawala v. Imamodin Salman Nensey

1/3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION MISC. PETITION NO.100 OF 2012 IN TESTAMENTARY PETITION NO.104 OF 2010 Afzal Muzaffar Sonawala ...

Petitioner

Versus

Imamodin Salman Nensey And Others ...

Respondents .....

Neeta Jain, Counsel a/w Jitendra Jain I/b Yogesh Adhia for the Petitioner. Mr. Sagheer Khan a/w Mr. F.N. Pavri I/b Mulla & Mulla & CRAIGIE Blunt & Caroe for Respondent Nos.1, 3 and 5.

Mr. S.R. Nachan for Respondent Nos.2, 4 and 6. .....

CORAM : S.C.GUPTE, J.

DATE : 27 NOVEMBER 2017 P.C. :

.

Heard learned Counsel for the parties.

This misc. petition seeks revocation of the probate granted in favour of the Respondent. It is the grievance of the Petitioner that the Petitioner is a legal heir and next of kin of the deceased and without disclosing his name or particulars, probate was sought from the Court. It is not disputed that the Petitioner is indeed a legal heir and next of kin of the deceased entitled to receive citation of the petition before any grant is made on the petition. In the premises, the grant made on 19 September 2011, needs to be revoked and petition deserved to be heard afresh for considering the grant. Learned Counsel for the Respondents submits that the deceased was

2/3 a Shia Mohamedan and that no probate is necessary for claiming representation to the estate of the deceased. Learned Counsel also submits that the estate of the deceased has been almost fully administered, save and except a deposit of Rs.30,00,000/- with a bank. Whether or not there is a legal obligation to obtain a probate for claiming representation to the estate of the deceased, as and when an application is made for grant of probate, citations have to be issued to all legal heirs and next of kin of the deceased, including those who would be entitled to any share in the property of the deceased upon intestacy. As far as the estate of the deceased already administered under the will is concerned, that would be a matter which would not directly fall for consideration in a miscellaneous petition such as this, though the Respondents' statement is that behalf is noted.

The misc. petition is, accordingly, allowed. The grant of probate in favour of the Respondents is revoked.

The Petitioner herein waives service of citation under the probate petition. The Petitioner shall be entitled to file his caveat and affidavit in support of the caveat in the original probate petition. Such caveat and affidavit-in-support to be filed within three weeks from today. In the event such caveat and affidavit-in-support are filed within three weeks, the petition shall be converted into a testamentary suit and will be heard accordingly.

3/3 The Miscellaneous Petition is disposed of in above terms. (S.C. GUPTE, J.)