Chamber Summons granted to keep Testamentary Suit on board. Petitioner adjourned to consider maintainability of Letters of Administration petition. Matters remanded to consider rem foi opposition by defendants. Adjudication delayed pending further consideration.
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ch-summons-79
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PGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Chamber Summons No.79 of 2010
IN
Testamentary Suit No.53 of 2010
IN
Testamentary Petition No.905 of 2009
Mayura Sanjay Gupta....Petitioner/Plff.
v/s.
Asha L. Gupta & anr.....Respondents/Defts.
Mr.Naushad A.K. i/by Madhusoodanan Nair for Petitioner.
Ms.Dipti Ponda with Ms.P.A. Mhatre i/by Thakore Jariwala &
Asso. for Respondents.
CORAM : SMT.ROSHAN DALVI, J.
DATED :13th September, 2010
P.C. :
1.This Chamber Summons has been taken out for keeping the suit on board for directions. The Chamber Summons is granted. The suit is forthwith kept on board. The Affidavit-in-support of the Caveat is seen. Issues would be required to be framed in the suit which has become the Testamentary Suit pursuant to the Affidavitin-support of the Caveat being filed. The Caveat has been filed since the Petition has been filed under the Testamentary and Intestate Jurisdiction of this Courtch-summons-79
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as the Testamentary Petition for grant of Letters of
Administration.
2.It is argued on behalf of the Defendants/Caveators that
the Petition has been filed without disclosing the
correct assets for grant of Letters of Administration
and disregarding the family arrangement that has been
entered into between the parties on 29th April 2004. It
is seen that the Testamentary Petition for Letters of
Administration could not have been filed in view of the
opposition thereto by the Caveators. The Administration
Suit is the correct remedy which is available to the
Petitioner. Such suit is required to be filed upon
payment of ad-valorem Court fee in respect of the
estate of the deceased which is sought to be
administered in the suit. The defence, that is raised
in the Caveat, would, therefore, be raised in such
suit. Consequently, the Petition for Letters of
Administration, when the testator died intestate, would
not be maintainable.
3.The Petition is adjourned to 27th September 2010 to consider its maintainability and failing which to dismiss the Petition.( SMT.ROSHAN DALVI, J.)
2 issues framed by the court
Whether the Testamentary Petition for grant of Letters of Administration is maintainable when the testator died intestate and there is opposition from caveators.
Whether the correct remedy is an Administration Suit with payment of court fee for assets and consistent with family arrangements entered into previously.
Mayura Sanjay Gupta
Asha L. Gupta
Roshan Dalvi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court