Disposed

Khorshed G.Sadri.Ekoo v. Parvez R.Nekoo

Bombay HC2 Jun 2014TS/32/1998

Case brief

AI extract

What is this about?

This court treated a testamentary suit as non-contentious after the original defendant's son, whose earlier caveat was filed, failed to oppose the probate. The court directed the Prothonotary to expeditiously issue probate of the will to the petitioner without further order as to costs.

What did the court decide?

Directing the Learned Prothonotary & Senior Master to issue probate to the petitioner expeditiously.

Khorshed G.Sadri.Ekoo Vs Parvez R.Nekoo — Property and Title | Bombay HC (2014)

Nitin

TS-32-1998

IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION

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SUIT NO.32 OF 1998

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PETITION NO.181 OF 1998

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Petition for Probate of the last Will and Testament of late Rustom Ardeshir Nekoo.

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.. Deceased

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Mrs.Khorshed Gustad Sadri .. Petitioner/Plaintiff

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Versus

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Parvez Rustom Nekoo .. Caveator/Defendant (thru’ his legal representative, Mr.Xerxes Parvez Nekoo)

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Mr.P. A. Kabadi i/b Messrs Doijode Associates for the Petitioner/Plaintiff. None for the Caveator/Defendant.

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CORAM: S. J. KATHAWALLLA, J. DATE: 26TH JUNE, 2014

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P.C.:

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1. Heard Mr. Kabadi for the Plaintiff. None appears for the Defendant.

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Mr.Kabadi states that Petition No.181 of 1998 has

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been filed seeking Probate of the last Will and Testament dated 03.06.1989 (“the Will” ) of Mr.Rustom Ardeshir Nekoo ( “the Deceased” ) who passed away on 06.02.1995 leaving behind him as his only legal heirs and next of kin, two daughters and a son. Both the daughters are named as the Executrices to act jointly or severally, as they may deem fit. The Petitioner is one of the daughters. The Petition is accompanied by an Affidavit dated 19.02.1998 of one Mr.Bahadur Sanjana who is one of the witnesses to the Will. Paragraph 5 of the Petition states that the right of the other Executrix to come and apply for Probate of the Will has been reserved.

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Pursuant to the Citation served on the son of the Deceased viz. Mr.Parvez Rustom Nekoo (“ the Original Defendant ”), he filed a Caveat in this Court on 3^rd April, 1998 and thereafter on 13^th April, 1998 he filed an Affidavit in support of the said Caveat. Mr.Kabadi points out that the said Affidavit, inter alia , states that the Original Defendant had filed a Suit in the Court of Civil Judge, Senior Division, Pune in which he had challenged the Will. On filing of the said Affidavit, Petition No.181 of 1998 was numbered as Testamentary Suit No.32 of 1998.

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Mr.Kabadi states that the Original Defendant passed away on 10^th January, 2004 at Pune. By an Order dated 6^th August, 2010 passed in Notice of Motion No.35 of 2010 the delay in taking out the said Notice of Motion was condoned and the alternative prayer of the Plaintiff to permit her to bring the son of the Original Defendant viz. Xerxes Parvez Nekoo (“ LR of the Original Defendant ”) on record in place of the Original Defendant was granted. Mr.Kabadi points out that in the Affidavit dated 26.02.2010 filed in support of the said Notice of Motion No.35 of 2010, it is stated that the aforesaid Suit filed by the Original Defendant in Pune came to be dismissed on 15^th April, 2004 since no application was made to bring the heir of the Original Defendant on record therein. A copy of the Minutes of the Order dated 15^th April, 2004 dismissing the said Suit has been annexed to the said Affidavit dated 26^th February, 2010.

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Mr.Kabadi states that in compliance of the Order dated 6^th January, 2011 passed by this Court, Citation was sought to be served on the LR of the Original Defendant through the Sheriff’s office by Registered Post A.D. Since the packet came back with the remark, “Left”, and as the Plaintiff was not aware of the present address of the LR of the Original Defendant, pursuant

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to the permission granted by the Additional Registrar (O.S.)/Additional Prothonotary and Senior Master of this Court, the service was effected by substituted service by publication in the Times of India, Pune Edition and Janmabhoomi, Mumbai Edition on 3^rd May, 2011. Affidavit dated 2^nd June, 2011 proving service of the Citation is already on record.

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Mr.Kabadi submits that the aforesaid Citation required the LR of the Original Defendant to file a Caveat in this Court within 14 days, if he intended to oppose the grant of Probate. Far from filing a Caveat, he has not even filed his appearance in the matter. Even today, when the matter is called out, none appear on his behalf. Mr.Kabadi further submits that the said LR of the Original Defendant did not even take steps to bring himself on record in the Pune Suit in which the Will was challenged and that Suit has also been dismissed. Mr.Kabadi submits that the matter be treated as uncontested and the Learned Prothonotary be directed to expeditiously issue Probate of the Will to the Petitioner.

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It is clear from the above facts that the son of the Original Defendant does not have any objection to the grant of

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Probate of the Will as prayed. In the circumstances, the Caveat dated 03.04.1998 filed by the Original Defendant does not survive and the matter will now be treated as non-contentious and proceeded with, accordingly. The Learned Prothonotary & Senior Master is directed to issue Probate to the Petitioner, expeditiously.

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No order as to costs.

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( S. J. KATHAWALLLA, J. )

Khorshed G.Sadri.Ekoo v. Parvez R.Nekoo

Case brief

What is this about?

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Khorshed G.Sadri.Ekoo v. Parvez R.Nekoo

Case brief

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