Smita Sudhir Kabadi Nee Smita Nagesh Desai v. Nagesh Raoji Desai Alias Nagesh Ravji Desai Alias N. R. Desai (Deceased)
BEFORE : MR. DILIP S. GURAV, FIRST ASSISTANT MASTER Date: 1st August, 2024 CALLED FOR COMPLIANCE :
30 TP/2493/2024 ) Mr. Manoj Maruti Mane, Advocate for petitioner P.C.:
1. Perused Petition. Heard Ld. Advocate for petitioner. This petition is filed by petitioner, being Sole legatee named under the Will executed by Nagesh Raoji Desai (herein after the same is referred to as "Testator"), for grant of Letters of Administration with Will annexed. Testator said to have died on 27th 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 para No. 10 of the petition 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 Sole legatee named under the Will. Hence, petition is tenable.
4. Petitioner stated that the testator left behind his last Will and Testament which was duly executed at Mumbai on 13th February, 2014, 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.
5. Petitioner states that parents of testator predeceased to him and testator was survived by legal heirs shown in the paragraph No.8 of the petition, as per the provisions of the Hindu Succession Act, 1956. Wife of the testator namely Neela Nagesh Desai died on 17th August, 2009 and her death certificate is annexed to the petition at Exhibit-D. Testator died leaving behind two daughters and one son. Testator's two daughters are namely Smita Sudhir Kabadi - petitioner herein, Sunetra Sunil Samant and only son namely Kiran Nagesh Desai. ......2
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- 2 - TP/2493/2024 Consent Affidavit of Sunetra Sunil Samant and Kiran Nagesh Desai, both dated 2nd March, 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 paragraph no. 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 26th June, 2024. Notice to collector has been sent.
7. The petitioner has filed the Affidavit of Gurudas Pandurang Tendulkar, 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 testator put his thumb impression 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 appeared to have been executed in a language other than the language known to the testator.
Attesting Witness deposed that at the request of the testator the entire "Will" was read over and fully explained by Kesahv Govind Prabhudesai, another Attesting Witness of the Will, to the testator in Marathi language and after fully understanding the contents of the Will, testator affixed his photograph and near the photograph, he affixed his thumb impression. Hence, there is sufficient compliance of Rule 419 of the Bombay High Court (Original Side) Rules, 1980. Will is duly registered before Joint SubRegistrar, Borivali No.9, Mumbai Suburban, under Registration No. BRL-9-III/997/2014. Attesting witness further deposed that at the time of execution of .....
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- 3 - TP/2493/2024 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 - I of the petition are referred in the Will. Ld. Advocate for the petitioner submits that as mentioned in para no. 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 property 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 the Petitioner hands".
The Ld. Advocate for the petitioner submitted that properties available to the testator at the time of his death are mentioned in the Schedule-I of the petition.
9. Ld. Advocate for the petitioner submits that as mentioned in para no. 11 of the petition by the petitioner that the property is under development and new premises is not yet been given in lieu of old tenement. Hence, petitioner had calculate present value of the tenement on basis of monthly rent and paid court fees accordingly. The said averment also reflected in Schedule-I of the petition.
10. Petitioner has executed the Administration Bond dated 19.07.2024, 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.
01.08.2024 FIRST ASSISTANT MASTER