Dismissed

Govind Ganesh Soman and Ca Madhuri Ram Sabnis (Applicant) v. Sandeep S. Deshpande

Bombay HC26 Jun 2015NMT/62/2014

Case brief

AI extract

What is this about?

The High Court of Bombay, newly constituted, dismissed the Plaintiff's Notice of Motion seeking dismissal of a caveitor in a Petition for Letters of Administration. The judge declined to decide the caveat's fate at an interim stage due to the caveator's interest and pendency of a related suit.

What did the court decide?

Notice of Motion for dismissal of the caveat is dismissed. No order as to costs.

Govind Ganesh Soman and Ca Madhuri Ram Sabnis… — Succession and Inheritance | Bombay HC (2015)

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905-NMT62-14.DOC

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Atul

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION NOTICE OF MOTION NO. 62 OF 2014

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IN

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TESTAMENTARY SUIT NO. 129 OF 2013

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IN

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TESTAMENTARY PETITION NO. 773 OF 2011

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Govind Ganesh Soman & CA Madhuri Ram …Plaintiff
Sabnis

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Versus
Sandeep S. Deshpande…Defendant

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Mr. Pradeep Sancheti, Senior Advocate , with Mr. Mayur Khandeparkar & Mr. Omprakash Jha, i/b M/s. The Law Point, for the Plaintiff.

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Mr. Shyam Mehta, Senior Advocate, with Mr. V. V. Kanade and
Ms. Teressa Daulat, i/b M/s. Divya Shah Associates, for the
Defendant.

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CORAM: G.S. PATEL, J DATED: 26th June 2015

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PC:-

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1.Heard Mr. Sancheti, learned Senior Advocate for the
Plaintiff/Applicant, and Mr. Mehta, learned Senior Advocate on
behalf of the Defendant.

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905-NMT62-14.DOC

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2.This is the Plaintiff’s Notice of Motion for dismissal of the
Defendant’s caveat in this Petition for Letters of Administration.

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3.Before proceeding further I must note that over the past
several months, I have made every effort to bring the parties to a
settlement. That has not materialized.

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4.The Petition for Letters of Administration is brought by one
Madhuri Ram Sabnis through her constituted attorney. The
Petition seeks Letters of Administration to the property and credits
of the Petitioner’s father one Sadashiv Krishna Deshpande, who
died in Mumbai on 6th October 2010. According to the Petitioner,
he died intestate. The Petitioner lives abroad; hence, it is brought
through her constituted attorney.

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5.A caveat was entered with an accompanying Affidavit in
Support by the Petitioner’s brother Sandeep Sadashiv Deshpande.
The Petitioner has, therefore, as required by our Rules, been
renumbered as Suit. It is pending trial.

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6.Mr. Sancheti’s submission, briefly stated, is that since there
are admittedly only two heirs, viz., the Plaintiff and the Defendant,
the caveat should be dismissed and Letters of Administration
should be ordered to be issued either to the Plaintiff or to the
Defendant or some other person as an Administrator.

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7.I must note, at this stage, that one of the grounds taken in the
Affidavit in Support of the Caveat is that the deceased left a
writing, which the Defendant claims is in the nature of a

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905-NMT62-14.DOC

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testamentary instrument, but of which he has neither sought
probate nor attempted to have proved as such testamentary
instrument. It is on this basis that Mr. Sancheti submits, on the
strength of a large number of authorities that I do not think
necessary to deal with at this stage,that the caveat as it stands ought
to be dismissed. Mr. Sancheti submits that under Section 218(2) of
the Indian Succession Act, there is a discretion vested in the Court
to grant of Letters of Administration to one or more persons; and,
in a situation like this, where the Defendant himself has applied
neither for Letters of Administration nor probate, Letters of
Administration should be immediately granted. He says the Plaintiff
is agreeable to the Letters of Administration being granted to either
of the parties, or to them both, or to a third party appointed as an
administrator. It is well established that a Court will not ordinarily
order issue of a joint grant to the two parties who are litigating
against each other although it may issue Letters of Administration
to the opposite party.

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8.The deceased left considerable assets in Mumbai, the
principal one being a flat now under redevelopment. The Plaintiff
herself does not live in India and this is yet another reason why Mr.
Mehta opposes the Petition. Mr. Mehta also points out that there is
simultaneously a pending partition Suit No. 2358 of 2011 in the
Bombay City Civil and Sessions Court. That Suit is even now tried
with the present Plaintiff under cross-examination.

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9.I do not think that it is possible in these state of affairs to hold
that caveat must compulsorily and necessarily be dismissed at an
interim stage. That is undoubtedly a matter of discretion. I do not

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905-NMT62-14.DOC

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believe that there is any authority for the proposition that a Court
must exercise its discretion in favour of the Plaintiff on such an
application. To allow this application would necessarily have the
effect of completely shutting out the Defendant / Caveator without
any opportunity of being heard on the merits of his case, whatever
they may be. Mr. Sancheti asks that I address myself to that very
issue, viz., the merits of the defence, to assess it and to find it,
without issues, without trial, without evidence and without a
hearing on all that material, to find the defence wholly wanting.
However tempting it may be cut short a matter and take one small
step to reducing pendency, I do not think this is prudent or
advisable. The Defendant has, admittedly, a caveatable interest. He
has entered a caveat and filed an Affidavit in Support. He has
entered an opposition to the petition. Whether his case is good or
bad will have to be tested. That, surely, is the right of the
Defendant.

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10.The pendency of the partition suit (filed by the present
Plaintiff) in the City Civil Court is another reason to reject this
application. That suit is being opposed. The Plaintiff is under cross-
examination. The parties’ respective stands in that suit might well
have a bearing on the present one. Conversely, allowing the present
Notice of Motion as Mr. Sancheti suggests might have an
immediate and obvious impact on the partition suit.

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11.The Notice of Motion is dismissed. There will be no order as
to costs.

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905-NMT62-14.DOC

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12.It goes without saying that this order will not in any manner
affect the pending proceedings in the partition Suit between the
parties in the City Civil Court.

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(G. S. PATEL, J.)

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Govind Ganesh Soman and Ca Madhuri Ram Sabnis (Applicant) v. Sandeep S. Deshpande

Case brief

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Govind Ganesh Soman and Ca Madhuri Ram Sabnis (Applicant) v. Sandeep S. Deshpande

Case brief

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What did the court decide?

What the court decided

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