Allowed

Aminuddin Gulab Shaikh v. Minaxiben Mahendrakumar Shah and Ors.

Bombay HC26 Aug 2013MPT/15/2012

Case brief

AI extract

What is this about?

Petitioner sought revocation of probate granted to executor, arguing the executor wrongly described property and get revised share. Court held executor cannot correct description in testamentary petition and title must be decided by civil court.

What did the court decide?

Probate obtained by the executor in respect of Plot-B with incorrect description cannot be implemented; petition dismissed to the extent of implementation but main prayer for revocation allowed.

Aminuddin Gulab Shaikh Vs Minaxiben Mahendrakumar… — Succession and Inheritance | Bombay HC (2013)

¶1

.. 1 ..

¶2

10-MPT-15/12

¶3

IN THE HIGH COURT OF JUDICATURE AT BOMBAY . ORDINARY ORIGINAL CIVIL JURISDICTION

¶4

MISC.PETITION NO.15 OF 2012

¶5

Aminuddin Gulab Shaikh

¶6

of Bombay, Indian Inhabitant, Aged about 68 years, Occ: Business, Having his place of business at Metal Cast, Plot No.B, Sonawala Estate, Sonawala Road, Goregaon (East), Mumbai – 400 063 And residing at 184, Jawahar Nagar, Road No.13, Goregaon (West), Mumbai 400 062.

¶7

... Petitioner

¶8

V/s.

¶9

1. Minaxiben Mahendrakumar Shah

¶10

of Mumbai Hindu Inhabitant, Widow of Mahendrakumar Ambalal Shah, Residing at Plot No.118/6, Jawahar Nagar, Road No.8, Goregaon (West), Bombay 400 062 being Executrix named in the Will of Jayaben Kanchanlal Shah deceased abovenamed.

¶11

2. Mayank Mahendrakumar Shah

¶12

of Mumbai, Indian Inhabitant Aged about 47 years. Occ. Business And

¶13

3. Deepak Mahendrakumar Shah

¶14

Also of Mumbai Indian Inhabitant Aged about 48 years, Occ : Business Both (Respondent Nos.2 and 3) carrying on business in the name And style of M/s. Eagle Industries at Plot No.4/B Sonawala Estate, Sonawala Road, Goregaon (East), Mumbai – 400 063

...Respondents.

1/8

Asmita

.. 2 .. 10-MPT-15/12

Mr R.S. Raymond a/w Mr V. P. Shastri i/b M/s Raymond & Co. for petitioner. Mr Bhavin Bhatia for respondent Nos.1 to 3.

¶20

CORAM : R.D.DHANUKA J. DATED : AUGUST 26, 2013.

¶21

JUDGMENT :

¶22

By this petition, petitioner seeks revocation of probate dated 7^th July 2000 granted by this Court in Probate Petition No.1156 of 1998 to the extent of Item No.8 of Schedule-I and for an order and direction against the first respondent to surrender the said probate dated 7^th July 2000 to this Court.

¶23

It is the case of the petitioner that by deed of conveyance dated 27^th July 1982 between Mr Amratlal Gordhandas Sonawala as Vendor and four purchasers viz. (1) Smt. Kumudben Bhanubhai Shah, (2) Shri Aminuddin Gulab Shaikh (petitioner herein), (3) Mrs Jayaben Kanchanlal Shah (deceased testatrix) and (4) Rajendra Jitendra Shah, a plot of land described as plot-B being portion of land bearing Survey No.112 CTS No.492 (1, 2, 3, 4 and 5) of village Eksar Pahadi admeasuring 1324.60 sq. meters was purchased by all the purchasers jointly. It is the case of the petitioner that though all the four purchasers were party to the said deed of conveyance, their respective share was not mentioned in the deed of conveyance. According to the petitioner, petitioner was entitled to 48.25 % share in the

2/8

Asmita

.. 3 .. 10-MPT-15/12

said plot in view of larger amount paid by the petitioner towards consideration for purchase of the said plot.

¶28

On demise of Mrs Jayaben Kanchanlal Shah one of the co-owner of the said plot who had executed a Will, the Executor filed testamentary petition (1156/98) in this Court for grant of probate. Mr Raymond, learned counsel appearing on behalf of the petitioner invited my attention to Clause(5)(B) of the Will and Testament left by said Mrs Jayaben Kanchanlal Shah. English translation of Clause-(5)(B) of the said Will is extracted as under :

¶29

(B) Whatever share, I have in Plot No.4-B, Sonawala Estate, Sonawala Main Road, Goregaon (West), Mumbai – 400 063, I give and bequeath the said share to aforesaid Shri Deepak Mahendrakumar Shah and Mayank Mahendrakumar Shah in equal shares as and by way of inheritance. None of my other heir, shall have any king of right therein.

¶30

Learned counsel invited my attention to the averments made in the petition (1156/98) and in particular para 3 thereof. It is stated in the petition that inadvertently in the Will of the said deceased, plot 4-B was mentioned in Clause-5 of the Will instead of plot B. It is stated that the petitioner has necessary documents pertaining to the said property at Sonawala estate. In the schedule to the said petition, petitioner has described the said property as

¶31

“plot-B admeasuring 1324.60 sq. meters”. It is also stated that the said

3/8

Asmita

.. 4 .. 10-MPT-15/12

property does not fetch any rent. The other shares of the said plot are (1) Smt Kumudben Banubhai Shah, (2) Mr Aminuddin Shaikh, and (3) Shri Rajendra Jitendra Shah, all having equal shares in the said plot. According to said schedule, the said plot-B was owned by four co-owners equally.

¶36

It is submitted that in the Will left by the said deceased, it was clear that whatever share the deceased had in plot bearing No.4-B, the said share was bequeathed in favour of the beneficiaries. Learned counsel submits that even if there is wrong description of the property in the Will, executor cannot make any correction in the description of the property in probate petition. It is submitted by the learned counsel that on the basis of such correction made by the executor in respect of the property, executor had obtained the probate by reducing the share of the petitioner from 48.25 % to 25% in respect of the said plot owned by the petitioner and others and thus, to that extent the probate obtained by the executor is required to be revoked. Learned counsel submits that the petitioner when came to know about the probate, he applied for sub-division of the plot to the learned Collector. Learned Collector passed an order for demarcation and sub division of plot-B in that ratio. It is submitted that petitioner is in possession of 48.25% area of the said plot. Being aggrieved by the said order passed by the Court, respondent Nos.2 and 3 who are beneficiaries under the said Will filed an

4/8

Asmita

.. 5 .. 10-MPT-15/12

appeal before the Commisioner, Konkan Division. That Appeal has been dismissed. Being aggrieved by the said order, beneficiaries filed writ petition in this Court. No ad interim was granted by this Court in the said writ petition. It is submitted that writ petition was dismissed for default. Learned counsel submits that though application for restoration of the said writ petition had been filed by the beneficiaries, the said petition has not been restored so far.

¶41

Learned counsel submits that thus, in view of the wrong description of the plot included in the schedule to the petition, which was contrary to the description made in the Will by the deceased testatrix, larger portion of the plot was shown as the share of the deceased in the said property.

¶42

Learned counsel appearing on behalf of respondent Nos.2 and 3 on the other hand invited my attention to the deed of conveyance and other documents in support of his submission that the plot number described by the testatrix all through out was as plot-4B. It is submitted that in fact no such amendment in the schedule to the petition was necessary. It is submitted that the Collector has no power to decide the title in respect of the share of the petitioner in the said property to the extent of 48.25% or otherwise. It is submitted that in any event, order passed by the Commissioner of Konkan

5/8

Asmita

.. 6 .. 10-MPT-15/12

Division dismissing the appeal filed by respondent Nos.2 and 3 has been already impugned before the learned Minister under the provisions of Land Revenue Act and the same is pending. It is submitted that in the writ petition filed by respondent No.2 in this court, learned Minister has been directed to dispose of the revision application expeditiously and the same is pending. Learned counsel also invited my attention to the ad interim order passed by City Civil Court in a suit filed by respondent Nos.2 and 3 seeking injunction against the petitioner from creating any third party rights in respect of the property in question. Learned counsel submits that petitioner has also filed a separate suit for declaration that petitioner has 48.25 % share in the property in question and no interim relief has been sought by the petitioner so far in the said suit. Learned counsel submits that the petitioner is seeking reliance on a fraudulent document alleged to have been entered into between the petitioner and three other co-owners. My attention is also invited to the said alleged document annexed to affidavit in reply to demonstrate that neither the petitioner nor predecessor of respondent Nos.2 and 3 had signed the said document.

¶47

On perusal of the Will and in particular para 5(B), it is clear that

¶48

the testatrix had bequeathed her share in plot 4-B of Sonawala Estate, Sonawala Main Road, Goregaon (West), Mumbai 400 063 in equal share in

6/8

Asmita

.. 7 .. 10-MPT-15/12

favour of Mr Deepak Mahendrakumar Shah and Mayank Mahendrakumar Shah. In my view, even if there was wrong description of the property given by the deceased testatrix, in the probate petition, such wrong description could not have been corrected by the executor. It appears from the perusal of the testamentary petition filed by the executor that it was claimed that inadvertently the said plot-4B was wrongly described instead of plot-B. Based on such averment made by the executor in the probate petition and the schedule appended thereto, this Court had granted probate in favour of the petition. Based on the probate granted by this Court, executor seeks to implement the said probate in respect of such plot of land as if the said probate has been granted in respect of plot-B and not plot-4B. In my view, no such correction in the alleged mistake in describing the plot number in the Will could be made by the executor in the probate petition. It is well settled principle of law that in testamentary proceedings, title in respect of the properties of the testatrix cannot be decided and same has to be decided by appropriate civil Court. It is not in dispute that the beneficiaries have already filed separate suit for injunction based on the probate obtained from this Court. Petitioner herein has already filed a suit suit for declaration of the title of the petitioner in respect of the portion of the said plot claimed by the petitioner. Both the proceedings are pending before City Civil Court, Bombay.

7/8

Asmita

.. 8 .. 10-MPT-15/12

Executor did not apply for construction of Will and/or interpretation about wrong description of property under Chapter VI of the Indian Succession Act 1925 when probate was obtained. Executor on his own could not correct the description of the property described in the Will.

¶57

This Court having taken a view that no such correction could be made by the executor appointed under the probate in testamentary petition in respect of the description made by the testatrix of the Will, probate obtained by the executor in respect of the plot-B cannot be implemented. It is made clear that this Court has not expressed any views whether petitioner is entitled to 48.25% share in the property or not and the same shall be decided by the appropriate court.

¶58

Petition is accordingly made absolute in terms of prayer clause (a)

¶59

and (b).

¶60

Executor of the Will and/or beneficiaries would be at liberty to file appropriate proceedings. If any such proceedings are filed in appropriate

¶61

Court, the same shall be decided in accordance with law on its own merits.

¶62

No order as to costs.

¶63

( R.D.DHANUKA, J.)

¶64

8/8

¶65

Asmita

Aminuddin Gulab Shaikh v. Minaxiben Mahendrakumar Shah and Ors.

Case brief

What is this about?

What did the court decide?

Aminuddin Gulab Shaikh v. Minaxiben Mahendrakumar Shah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Daya Subhas Tiwari Vs Kashinath Laltaprasad Tiwari, C.A. of Lalta Prasad Tiwari.

Taragauri D. Shah Vs Practical Properties Pvt. Ltd.

The Special Land Acqn. OFFICER(2) and Shri Sudhir v. Shetty. (Claimnt) Vs Executive Engineer, Mmrda Ii,Mumbai and Hilla S. Divecha

Archana Arun Palav Vs Jennifer Michael and Ors.

Gopal B. Ahuja Vs Jagdish B. Ahuja and 18 Ors.

1. Rajan Pritam Bhojwani and Anr. Vs Pritam Tolaram Bhojwani