CIVIL APPEAL 1657 of 2022 on 12 December 1996

1. The matter is mentioned. Not on board, taken on board.

2. Heard learned counsel for the parties.

3. By this Interim Application, the Applicant has sought permission to amend the Petition in terms of the schedule at Exhibit- 24.1-.IA.1657.2022.doc J to the Interim Application. Further relief has been sought for theCaveat of the Caveators, who have died, be dismissed/discharged/setaside.

4. It is stated by the learned counsel for the Applicant thatthe Applicant/Plaintiff/Petitioner No.1 is an executor named in thelast Will and testament dated 12th December 1996 of the deceasedYashwantilika Narottamdas Dalal, who expired on 16th April 2002.He has stated that the Applicant together with Petitioner Nos.2 to 4had fled Testamentary Petition for grant of probate in respect of thesaid Will dated 12th December 1996 of the deceased. There werethree other executors of the deceased namely (1). Jaisukh NagardasBhuta (Caveator/Defendant No.1), (2). Prabhudas ManikchandKothari (since Deceased) and (3). Smt. Jayaben Ishwardas Vora. Hehas further stated that Prabhudas Maneckchand Kothari, who wasadded as a party Petition No.5 on 16th January 2004, on account ofhis demise, his name was deleted on 19th April 2004. Even, thePetitioner No.4 subsequently died and his name was deleted fromthe cause title on 16th September 2005. The said Jaisukh NagardasBhuta and Smt. Jayaben Ishwardas Vora had fled Caveatswhereupon, the Testamentary Petition No.749 of 2003 gotconverted into Testamentary Suit No.20 of 2004.

5. The learned counsel for the Applicant has further statedthat the deceased had left behind Manohar Garodia (sincedeceased), the daughter of the predeceased brother of thepredeceased father of the deceased as her only heir according to theHindu Succession Act by which she was governed. The two sons ofSmt. Gunvanti Manohar Garodia, namely Kamlesh and KetanGarodia have fled Caveat on 8th March 2007, whereupon theirnames have been added as party Caveator/Defendant Nos.4 and 5.Further, Shri. Sushila H. Mehta, grand-daughter of Maganlal thebrother of the deceased had fled Caveat on 21st May 2004,whereupon, her name was also added as Caveator/Defendant No.3.The Notice of Motion No.2298 of 2004 was fled by thePetitioner/Plaintiff for dismissing and setting aside the caveat fledby Smt. Sushila H. Mehta. By an order dated 14th September 2006,passed in the said Notice of Motion No.2298 of 2004, the Caveat ofCaveator/Defendant No.3 was dismissed and/or set aside on theground that she had no caveatable interest in the estate of thedeceased.

6. The learned counsel for the Applicant has further statedthat thereafter Petitioner No.3 expired on 17th November 2020, thePetition No.2 expired on 6th January 2022, Caveator/Defendant No.1

24.1-.IA.1657.2022.doc

expired on 14th May 2021 and Caveator/Defendant No.2 expired on2nd October 2011. Copies of the death certifcates have been annexedat Exhibit-B, C, D and E of the Interim Application.

7. The learned counsel appearing for the Applicant hasfurther submitted that the Applicant is the only surviving Petitioner.He has relied upon the said Will dated 12th December 1996 of thedeceased and in particular clause 5 of the said Will wherein theexecutors have been named to carry out of the property of thedeceased. It is further provided that after the death of the deceased,the executors shall appoint any one member of the “SatharawalaMathuriya” family as Additional Executor so that two members ofthe “Satharawala Mathuriya” family may remain as executorsalways. In addition to the same, the deceased empowered theexecutors to appoint additional executors, new executors and accepttheir resignation. There are six persons named as executors inclause 5 of the said Will. Upon the demise of Petition Nos.2 and 3 aswell as the Caveators/Defendant Nos.1 and 2, their names arerequired to be deleted. It is further stated that both theCaveators/Defendant Nos.1 and 2 fled Caveat and were parties tothe above proceedings in their capacity as Executors named in theWill of the deceased and on their demise, the cause of action or lis and the right to sue does not survive in respect of their heirs.

8. The Applicant has stated that he is aged 83 years and isnot keeping good health and is not in a position to take care of thelitigations as well as administer the estate of the deceased. TheApplicant desires before his demise to administer the estate of thedeceased and carry out her wishes in accordance with the said Willdated 12th December 1996 and transfer properties of the deceased tothe benefciary named in the said Will. However, life is uncertainand therefore, in pursuance of the power of appointment granted bythe deceased in clause 5 of the last Will and testament dated 12thDecember 1996, the Applicant/Petitioner No.1 has appointedproposed Petitioners herein as Additional Executors, who haveaccepted their appointments as Additional Executors. Theacceptance letters dated 14th February 2022 and 12th February2022 addressed by the proposed Petitioner Nos.2 and 3 respectively,is at Exhibit-H and I of the Interim Application.

9. In view thereof, the present Interim Application is takenout for amendment of the Testamentary Petition in terms ofschedule-J of the Interim Application. I have considered thesubmissions of the learned counsel for the Applicant/Petitioner and 24.1-.IA.1657.2022.docfurther considered the fact of the demise of Petitioner Nos.2 and 3 aswell as the demise of the Caveator/Defendant Nos.1 and 2 and thefact that the Caveat of Caveator/Defendant No.3 has been set asideon the ground that she had no caveatable interest in the estate of thedeceased vide order dated 14th September 2006 in Notice of MotionNo.2298 of 2004. However, their names have not been deleted in thePetition. Accordingly, the relief sought for in the Interim Applicationis required to be granted.

10. I further consider that the proposed Petitioners areappointed by the Petitioner as additional executors and they haveaccepted their appointment and thus are required to be joined asPetitioner Nos.2 and 3 in the Petition. Further, consequentialamendments are also required to be granted. Hence, the followingorder is passed:-

(i) .The Applicant/Petitioner is permitted to amend thePetition and proceedings in terms of schedule ofamendment at Exhibit-J to the Interim Application. Petition and proceedings in terms of schedule ofamendment at Exhibit-J to the Interim Application.

(ii) . The amendment shall be carried out within a period oftwo weeks from the date of this order.two weeks from the date of this order.

(iii) . The delay in taking out the Interim Application is condoned.

(iv) . The Caveats of the Caveators/Defendant Nos.1 and 2, who have expired are discharged.

(v) . The Interim Application is disposed of in the above terms.

(R. I. CHAGLA, J.)