Shrikrishna Madhusudan Phatak v. Madhusudan Raghunath Phatak

BEFORE : MR. DILIP S. GURAV, FIRST ASSISTANT MASTER Date: 8th July, 2024 CALLED FOR COMPLIANCE :

31 TP/2063/2024 ) Ms. Prajakta Gaonkar i/b. Ms. Rucha Jog, 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 Madhusundan Raghunath Phatak (herein after the same is referred to as "Testator"), for grant of Letters of Administration with Will annexed. Testator said to have died on 21st October, 2014 at Mumbai. Petitioner filed the copy of death certificate (which is annexed to petition as Exhibit-A), identity proof of the testator (which is annexed to petition as Exhibit-A-1), Will, petitioner's oath, affidavits of legal heirs of the testator.

2. The petitioner has explained the delay in paragraph No. 10 of the petition vide 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 the legatees named under the Will. Hence, petition is tenable.

4. Petitioner stated that the testator left behind his Will and Testament which was duly executed at Mumbai on 23rd May, 1996, in Marathi language. Ld. Advocate for the petitioner has filed her affidavit dated 5th July, 2024 and stated on oath that she having knowledge of both the languages namely Marathi and English. Hence, translation which was annexed to petition is true and correct. This is in compliance with order passed by the Hon'ble Court dated 10.01.2024 in Testamentary Petition No. 1263 of 2023. Ld. Advocate for the 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.

5. Petitioner states that parents of testator were predeceased to him and testator was survived by ....2

CONTD....

- 2 - TP/2063/2024 legal heirs shown in the paragraph No.9 of the petition, as per the provisions of the Hindu Succession Act, 1956. Testator died leaving behind wife namely Mangala Phatak, two daughters namely Asha Joshi, Smita Datar and only son namely Shrikrishna Phatak - petitioner herein. Consent Affidavits of Mangala Phatak, Asha Joshi and Smita Datar, all dated 16th February, 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 testator. They have waived the service of Citation. The petitioner affirmed that there are no other legal heirs of the testator other than mentioned in para 9 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 31st May, 2024. Notice to collector has been sent.

7. The petitioner has filed the affidavits of Prakash Anand Datar dated 16th February, 2024 and Mohan Babaji Bhide dated 15th February, 2024, both are being Attesting Witnesses to the Will, in the Form No.102 of the Bombay High Court (Original Side) Rules, 1980. Attesting witnesses deposed that they were present and testator signed on the Testament papers in presence of both of them. According to them, 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. Attesting witness further deposed that at the time of execution of the Will, testator 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 the .......3

CONTD....

- 3 - TP/2063/2024 petitioner submits that as mentioned in paragraph Nos 6 and 7, which reads as under :

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

7. The Money lying in the Bank Accounts, Fund, Pension, Gratuity, Shares and all kinds of money, utensils, gold-silver, all types of jewellery, and other stuffs mentioned in the Will, have been transferred and handed over by the Petitioner to his mother as stated in the Will of the said deceased".

Hence, properties available to the testator at the time of his death are mentioned in the schedule of the petition.

9. As mentioned in last paragraphs of the Will regarding spirituals writing / books of the testator. Ld. Advocate for the petitioner has taken instructions from petitioner and he has informed that said books were handed over by the testator to his relatives during his lifetime.

10. Petitioner has executed the Administration Bond dated 22nd June, 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.

08.07.2024 FIRST ASSISTANT MASTER