Savi Thakur Alias Savitri Menghraj Thakur v. Parpati Menghraj Thakur Alias Parpati M. Thakur (Deceased)

BEFORE : MR. DILIP S. GURAV, FIRST ASSISTANT MASTER Date: 19th July, 2024 CALLED FOR COMPLIANCE :

37 TP/1910/2024 ) Mr. Satendre Kumar, Advocate for petitioner P.C.:

1. Perused Petition. Heard Ld. Advocate for petitioner. This petition is filed by petitioner, being sole beneficiary named under the Will executed by Parpati Menghraj Thakur (herein after the same is referred to as "Testatrix"), for grant of Letters of Administration with Will annexed. Testatrix said to have died on 08.10.2006 at Mumbai. Petitioner filed the copy of death certificate (which is annexed to petition as Exhibit- A) identity proof of the testatrix [ which is annexed to petition as Exhibit- A1 ], Will, petitioner's oath, affidavits of legal heirs of the testatrix.

2. The petitioner has explained the delay in para 9 of the petition as per Rule 382 of the Bombay High Court (Original Side) Rule, 1980 (for short "Rules").

3. The testatrix has appointed Duri Shamdas Kirpalani and Kalavati Assomull as executors. As per the order passed by the Hon'ble Court dated 09.05.2024, the Hon'ble Court has directed that since the two executors appointed under the subject Will are not traceable. The Hon'ble Court has directed to issue Special Citation to the executors by publication in two newspapers i.e. Free Press Journal (English) and Navbharat Times (Hindi). The petition made returnable on 11.07.2024. Thereafter, matter came up on board before the Hon'ble Court on 15.07.2024 and the Hon'ble Court has directed the office, to proceed with petition as special citation were issued to the executors through paper publication. Hence, the present petition is filed by the sole beneficiary, is tenable.

4. Petitioner stated that the testatrix left behind her last Will and Testament which was duly executed on 14.02.1997 at Mumbai, in English language. Ld. Advocate for petitioner submits that the original ....2

- 2 - Will is handed in separately for being filed and kept in a safe place in the Office of the Prothonotary and Senior Master, High Court, Bombay.

5. Petitioner states that parents of testatrix were predeceased to her and testatrix was survived by legal heirs shown in the paragraph No. 8 of the petition, as per the provisions of the Hindu Succession Act, 1956. Testatrix died as spinster. Testatrix died leaving behind two sisters namely Savi Thakur - petitioner herein and Lajwanti Hingorani. The said Lajwanti Hingorani died on 21.10.2019 leaving behind her two daughters namely Geetu Vineet Chadha and Bharati Vishal Suneja. Consent Affidavits of Geetu Vineet Chadha dated 23.10.2023 and Bharati Vishal Suneja dated 08.12.2023 are on record. They have given their consents in the form of Affidavits, which are filed on the record by the petitioner and consented for the issuance of Letters of Administration with Will annexed in favour of the petitioner without justifying any surety in respect of their shares in the estate of the testatrix. They have waived the service of Citation. The petitioner affirmed that there are no other legal heirs of the testatrix other than mentioned in para 8 of the petition.

6. Affidavit of Service of General Citation is filed, stating that citation has been affixed on the Notice Board of the Hon'ble High Court, Bombay and notice board of the Collector's office on 13.05.2024. Notice to collector has been sent.

7. The petitioner has filed the Affidavit of Namrata Rajiv Thakur dated 04.11.2023 in the Form No.102 of the Bombay High Court (Original Side) Rules, 1980. As as per the order passed by the Hon'ble Court, Ld. Advocate for the petitioner submits that as per order passed on 09.05.2024 by the Hon'ble Court, Affidavit of Namrata Rajiv Thakur is accepted by the Hon'ble Court. Relevant paragraph Nos. 1 to 3 of the order passed by the Hon'ble Court reads as under :

"In this petition, filed for grant of letters of administration with Will annexed, it is submitted that the two attesting witnesses are not traceable.

In that light, the petitioner has placed ......3 - 3 - on record affidavit of Mrs. Namrata Rajiv Thakur. She has stated on affidavit that she was present on the date and time when the deceased testator executed the Will in the presence of two attesting witnesses and that the testator was in a sound and disposing state of mind, memory and understanding at the time of signing and execution of the said Will.

2. The aforesaid affidavit satisfies the requirement of Rule 384 of the Bombay High Court (Original Side) Rules, 1980.

3. In view of the above, the department to take the said affidavit on record and proceed further in accordance with law."

She deposed that she was present and testatrix signed on the Testament papers in presence of her. According to her, all additions and alteration, in a Will, were existed at the time of execution and before signing the Will. Hence, there is sufficient compliance of the Rule 383 of the Bombay High Court (Original Side) Rules, 1980. She further deposed that at the time of execution of the Will, testatrix was of sound and disposing mind, memory and understanding. Hence, enough evidence is on record to accept the execution of the Will and petitioner is succeeded to prove the execution of Will.

8. Properties mentioned in the schedule of the petition are referred in the Will. Ld. Advocate for petitioner submits that as mentioned in para 6 of the petition, which reads as under :

"That the Petitioner has truly set forth in Schedule No. I hereto annexed and marked EXHIBIT-"C" all the properties and credits which the deceased died possessed of or entitled to at the time of her death, which have o r are likely to comes to her hands. So far as the Petitioner is aware, the deceased do not have any other properties than those mentioned in the Schedule".

The Ld. Advocate for the petitioner submitted that

properties available to the testatrix at the time ......4 - 4 - of her death are mentioned in the Schedule - I of the petition.

Ld. Advocate for petitioner submits that as mentioned in the Will, there is no residuary property and hence, charity clause is not applicable to the petitioners.

9. Petitioner has executed the administration Bond dated 09.05.2024, in the prescribed format. Hence, following order:

ORDER

1) Petition is granted.

2) Office to issue Letters of Administration with Will annexed as per the provisions of the Indian Succession Act, 1925 to the petitioner and upon satisfaction that the administration Bond is properly executed, as per the Rules.

3) Before issuance of above said Letters of Administration with Will, the office to verify that there is no cross Petition is pending or caveat is filed. Office to act accordingly.

19.07.2024 FIRST ASSISTANT MASTER