Allowed

Ramila Rajnikant Kilachand, v. Harsh Rajnikant Kilachand

Bombay HC11 Jul 2013APP/99/2013

Case brief

AI extract

What is this about?

The High Court allowed an appeal against an order refusing the withdrawal of a joint share certificate. The Court found the lower judge erred in assuming a life interest in the entire flat; the Appellant owns a half-share and holds a life interest in the deceased's half. An undertaking to the contrary dispelled apprehensions.

What did the court decide?

Appellant entitled to withdraw the share certificate deposited with the Prothonotary and Senior Master subject to the undertaking.

Ramila Rajnikant Kilachand, Vs Harsh Rajnikant… — Succession and Inheritance | Bombay HC (2013)

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1 of 5 APP.99.2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY JURISDICTION

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APPEAL NO.99 OF 2013 IN NOTICE OF MOTION NO.68 OF 2012 IN TESTAMENTARY SUIT NO.28 OF 1999 IN

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TESTAMENTARY PETITION NO.116 OF 1999

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Ramila Rajnikant Kilachand Appellant versus Harsh Rajnikant Kilachand Respondent

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Ms.Parinaz Vakil i/by Bharucha and Partners for Appellant. Mr.Prathamesh N. Kamat a/w Ms.Bharati Indulkar i/by Mr.A.B.Shrikhande for Respondent.

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CORAM : DR.D.Y.CHANDRACHUD AND S.C.GUPTE, JJ. DATE : 11 July 2013

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PC :

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Admit. Learned counsel for the Respondent waives service. The appeal is taken up for hearing and final disposal, by consent and on the request of the learned counsel.

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The Respondent has instituted proceedings in the testamentary jurisdiction for probate of the will executed by the deceased testator, Rajnikant Ambalal Kilachand on 27 March 1997. The Appellant is the widow of the deceased testator while the Respondent is one of his two sons. The Appellant and the Respondent have been named as executors under the will.

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2 of 5 APP.99.2013

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The Appellant filed a caveat consequent upon which the proceedings were converted into a contested suit. By an order dated 30 August 2011, the learned Single Judge on the Chamber Summons filed by the Respondent for setting aside the caveat, made the Chamber Summons absolute. Consequently the caveat stands dismissed and the learned Single Judge ordered and directed that the petition would cease to be a contested petition. The order of the learned Single Judge has not been challenged by the Appellant.

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The dispute in the present appeal which arises from a Notice of Motion taken out by the Appellant relates to a residential flat bearing Flat No.2A in a building called `Suneeta' in Comtrust Premises Cooperative Housing Society Limited situate at 9B, Ridge Road, Malabar Hill, Mumbai-400 006. The Appellant admittedly has a half share in the residential flat whereas the other half belonged to the deceased, Rajnikant Kilachand. The testator died on 6 August 1997. Under the will, the testator has provided that the Appellant would have a right to use, occupy and reside in the flat during her life time and after her death, the half share of the deceased testator would devolve on his son Amrish. A formal probate is still to be issued, though, as noted above, the testamentary proceedings now cease to be contested in view of the dismissal of the caveat filed by the Appellant.

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The Appellant moved the learned Single Judge in a motion for several reliefs including a direction to permit her to withdraw the share certificate of the residential flat which was deposited with the Prothonotary and Senior Master pursuant to an order dated 15 September 2010 of the learned Single Judge. While the other reliefs

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3 of 5 APP.99.2013

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that were sought in the motion (for handing over of the cheques, slip books and pass books) were granted, the relief sought in terms of prayer (b) of the motion for handing over of the share certificate to the Appellant has been declined by the impugned order dated 20 November 2012.

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The learned Single Judge held that since the Appellant has been given a life interest in the flat under Clause-4(3) of the will and has not been permitted to deal with or dispose of or create any licence in or encumber the flat, she does not need the share certificate in her possession. Moreover, it was stated that her son Amrish would be entitled to a beneficial interest upon her death. In the circumstances, the prayer for the withdrawal of the share certificate was refused.

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The learned counsel for the Appellant submits that the learned Single Judge has proceeded on the basis of a palpably erroneous hypothesis that the Appellant has a life interest “in the said flat.” The submission of the Appellant is that it is an admitted position that the Appellant has a half share in respect of the residential flat, whereas, it was in respect of the half share of the deceased testator that a life interest was created in favour of the Appellant under the will. Moreover, it has been stated that the other son Amrish, who is present in the Court, in fact has no objection to the grant of reliefs as prayed, to his mother, who is the Appellant before the Court. The learned counsel submits that the share certificate was required by the Appellant because the co-operative society declines to recognize the Appellant as a member for want of production of the original share certificate. The learned counsel has further tendered an undertaking on instructions that the Appellant does

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4 of 5 APP.99.2013

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not assert a right, title or interest in respect of the entirety of the flat and her claim is as an owner in respect of the half share coupled with a life interest in the remaining half share.

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The learned counsel appearing on behalf of the Respondent on the other hand has submitted that the objection of the Respondent to the grant of relief as sought in the Notice of Motion was on the ground that it was apprehended that if the share certificate is handed over to the Appellant, she may assert a right in respect of the entirety of the flat on the basis that she has ownership in respect of the whole of the residential flat. Moreover, it was apprehended that she may apply for the transfer of the flat in her sole name.

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We find merit in the contention of the counsel for the Appellant that the learned Single Judge has proceeded on the erroneous basis that the Appellant has only a life interest in the flat. Before this Court it is not in dispute that the deceased testator had a half share in the flat while the other half admittedly belongs to the Appellant. The share certificate, it is admitted, stands in the names of the deceased as well as the Appellant. The Appellant, the Respondent and the other son Amrish are the only three heirs of the deceased testator. Since the Appellant has now tendered an undertaking before this Court that she does not claim an interest in respect of the entirety of the flat, in view of the position which is referred to above and that she will not seek to transfer the share certificate in respect of the flat as a whole in her name, the apprehension of the Respondent who is a co-executor has been taken care of. The undertaking which is tendered on instructions by the counsel for the Appellant is accepted.

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5 of 5 APP.99.2013

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In this view of the matter, we find no reason or justification for the refusal of the relief which is sought in the Notice of Motion. For clarity, we extract prayer clause (b) of the Motion hereinbelow :

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"b. That this Hon'ble Court be pleased to permit the Respondent to withdraw the Share Certificate of Flat No.2A, Suneeta Apartments, Ridge Road, Malabar Hill, Mumbai-400 006 standing in the name of the Deceased that has been deposited with the office of the Prothonotary and Senior Master pursuant to the Order dated September 15, 2010."

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We accordingly allow the appeal and set aside the order of the learned Single Judge dated 20 November 2012. The Appellant shall be entitled to the relief as sought in terms of prayer clause (b) of the Motion extracted above, subject to the undertaking, which has been recorded earlier. The appeal is accordingly disposed of. There shall be no order as to costs.

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(DR.D.Y.CHANDRACHUD, J.)

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MST

Ramila Rajnikant Kilachand, v. Harsh Rajnikant Kilachand

Case brief

What is this about?

What did the court decide?

Ramila Rajnikant Kilachand, v. Harsh Rajnikant Kilachand

Case brief

What is this about?

What did the court decide?

What the court decided

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