Persis Kaivan Khambata v. Homai Homi Shroff (Deceased)

BEFORE : MR. DILIP S. GURAV, FIRST ASSISTANT MASTER Date: 16th July, 2024 CALLED FOR COMPLIANCE :

32 TP/2033/2024 ) Mr. Rahul Bothra, Advocate for petitioner P.C.:

1. Perused Petition. Heard Ld. Advocate for petitioner. This petition is filed by petitioner, being one of the legatees named under the Will executed by Homai Homi Shroff (herein after the same is referred to as "Testatrix"), for grant of Letters of Administration with Will annexed. Testator said to have died on 27.02.2024 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 filed petition within prescribed limit as per Rule 382 of the Bombay High Court (Original Side) Rule, 1980 (for short "Rules").

3. The testator has not appointed executor to execute the Will. The petitioner is being one of the legatees named under the Will. Hence, petition is tenable.

4. Testatrix has appointed Shirzad Hosi Bhathena as sole executor under the Will. Said Executor has filed Affidavit dated 16.03.2024 and renounced his rights being sole executor of the Will. Hence, the petitioner being the one of the legatees named under the Will, is entitled to present the petition.

5. Petitioner stated that the testatrix left behind her last Will and Testament which was duly executed at Mumbai on 15.7.2021, in English language. Ld. Advocate for petitioner submits that the original 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.

6. Petitioner states that parents of testatrix were predeceased to her and testatrix was survived by legal heirs shown in the paragraph No. 11 of the petition, as per the provisions of the Indian Succession Act, 1925 applicable to Parsi Zorostrian. ......2

CONTD....

-- 2 -- TP/2033/2024 Parents of husband of testatrix predeceaed to her. Testatrix died leaving behind her husband namely Homi Noshir Shroff and two married daughters namely Ferzin Jimmy Bhathena, Persis K. Khambata - petitioner herein. Testatrix had no son. Consent Affidavit of Homi Noshir Shroff and Ferzin Jimmy Bhathena both dated 16.03.2024 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 11 of the petition.

7. 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 22.05.2024. Notice to collector has been sent.

8. The petitioner has filed the affidavit of Zeenia Farokh Baria dated 16.03.2024, one of Attesting Witness to the Will, in the Form No.102 of the Bombay High Court (Original Side) Rules, 1980. Attesting witness deposed that he was present and testatrix signed on the Testament papers in presence of his and another witness. According to him, 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. Will is duly registered beore Joint Sub-Registrar, Mumbai No. 5 under registration No. 7867/2021. Attesting witness 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.

9. Properties mentioned in the schedule of the petition are referred in the Will as well as in residuals clause of the Will. Ld. Advocate for petitioner ....3

CONTD....

-- 3 -- TP/2033/2024 submits as mentioned in para 7 of the petition, which reads as under :

"That the Petitioner has truly set forth in Schedule - I, hereto annexed and marked as Exhibit "C" are all the property and credits which the deceased died possessed of or entitled to at the time of her death, which have or are likely to come to her hands".

The Ld. Advocate for the petitioner submitted that properties available to the testatrix at the time of her death are mentioned in the Schedule - I of the petition.

10. As per the order dated 03.07.2024 requisition raised is as "In this matter, as per para 6 of the Will, there are beneficiaries named under the Will. Hence, Ld. Advocate for petitioner file consent Affidavits of the said beneficiaries".

Ld. Advocate for petitioner has filed Consent Affidavit of Delara Kaivan Khambata dated 05.07.2024 and also deposed that there is no any grandchildren was born after preparing this Will to anyone of the daughters till today.

11. Petitioner has executed the administration Bond dated 25.05.2024, 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 16.07.2024 FIRST ASSISTANT MASTER