Allowed

Dolly Dady Writer v. Khurshed Eruch Writer and Others

Bombay HC28 Sept 2016NMT/108/2012

Case brief

AI extract

What is this about?

The court restored competing testamentary litigations to trial parity by setting aside an abatement order, condoning procedural delays, and allowing conversion of a probate petition to Letters of Administration with Will annexed.

What did the court decide?

The order of abatement was set aside; Testamentary Suit No. 2 of 1983 was restored; the petition was converted to Letters of Administration with Will annexed; the Notice of Motion for return of estate

Dolly Dady Writer Vs Khurshed Eruch Writer and… — Succession and Inheritance | Bombay HC (2016)

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912-NMT108-12.DOC

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ATUL

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY SUIT NO. 2 OF 1983

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IN

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TESTAMENTARY PETITION NO. 95 OF 1982

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WITH

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NOTICE OF MOTION NO. 108 OF 2012

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WITH

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CHAMBER SUMMONS NO. 61 OF 2012

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…Plaintiff

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Dolly Dady Writer…Plaintiff
Versus
Khurshed Eruch Writer & Others…Defendants

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TESTAMENTARY SUIT NO. 109 OF 2016 IN

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TESTAMENTARY PETITION NO. 339 OF 2010

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WITH

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NOTICE OF MOTION NO. 97 OF 2009

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Surendra Kashib
Versus
Dolly Dady Writer & Others

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...Plaintiff

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...Defendants

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Mr. A. Amin, with Mr. Niranjan Amin, i/b M/s. B. Amin & Co., for
the Plaintiff in TS/2/1983 & Applicant in NMT/108/2012 &

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28th September 2016

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912-NMT108-12.DOC

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CST/61/2012.
Mr. S. Shah, with Mr. Vinod Kothari, i/b Apex Law Partners, for
Defendant No. 3 in TS/2/1983 & for the Plaintiff in
TS/109/2016 & Applicant in NMT/97/2009.

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CORAM: G.S. PATEL, J DATED: 28th September 2016

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PC:-

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1.This litigation has a history of over 30 years, and even today
there seems no end in sight. The papers in the main file are in
complete disarray. The registry and the Associate must immediately
put them in order.

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2.Ms. Dolly Dady Writer filed Testamentary Petition No. 95 of
1982. She sought probate of a copy of the last Will and Testament
dated 16th April 1980 of her husband Dady Jahangir Writer. That
probate Petition was opposed by four persons, viz., one Surendra
Kashib, his wife Mrs. Kashib, Mr. Khurshed Eruch Writer and his
wife Prochy. The Petition was renumbered as Testamentary Suit
No. 2 of 1983. Issues were framed. It seems that the Consent Terms
were purported to be filed in Testamentary Suit No. 2 of 1983 and a
Consent Order taken by which probate was granted to the
Petitioner/Plaintiff, Dolly Dady Writer on 13th December 2001.
Khurshed and Prochy Writer withdrew their caveats. This Grant
was challenged on the ground inter alia that the Kashibs’ consent
was not obtained. That Grant was set aside. The Petition/Suit,
therefore, remain pending, opposed by the Kashibs. Mrs. Kashib
having died in the interregnum, the opposition today is only from

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912-NMT108-12.DOC

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Mr. Kashib. In the meantime, the estate passed into the hands of the
Plaintiff.

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3.Surendra Kashib has filed a separate Testamentary Petition
No. 339 of 2010 for Letters of Administration with Will annexed
propounding an earlier Will dated 12th July 1979 of the same
deceased.

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4.Mrs. Dolly Dady Writer died on 3rd December 2010. This
Petition was, therefore, held to have abated by an order dated 24th
January 2012. There is a Notice of Motion No. 108 of 2012 filed by
Mr. Kaikobad Dady Writer, Dolly Writer’s son, seeking to set aside
that order of abatement. He has also filed Chamber Summons No.
61 of 2012 seeking to be brought on record as the Plaintiff and
conversion of the Probate Petition to one for Letters of
Administration with Will annexed, i.e., in respect of the Will dated
16th April 1980.

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5.In the meantime, Mr. Surendra Kashib has also filed Notice
of Motion No. 97 of 2009 in Writer’s Petition and Suit inter alia
seeking that the estate be brought back into Court. Naturally that
Notice of Motion is also affected by the abatement order of 24th
January 2012: if that suit abates, then Surendra Kashib’s Notice of
Motion does not survive. If that abatement is to be set aside, then
Surendra Kashib’s Notice of Motion must be restored as well.

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6.This estate is now is some sort of litigation limbo: there is a
pending petition by Mr. Kashib; Dolly Writer’s Petition

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28th September 2016

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912-NMT108-12.DOC

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(propounding a later Will) is said to have abated, yet the estate has
passed into her hands on account of a previous grant she obtained,
one that was later set aside. There are pending applications on both
sides. In my view, the best – indeed the only – course of action is
to restore the competing litigations to some level of parity and take
them to trial as soon as possible, so that the competing rights are
finally and properly decided on merits.

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7.To this end, I believe it would be appropriate to allow
Kaikobad’s Notice of Motion for setting aside the abatement and his
Chamber Summons for amendment. In doing so, Kashib’s Notice of
Motion for return of the estate must also be restored to file.

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8. Hence, the following order:

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(a) The delay in seeking to set aside the abatement of Testamentary Suit No. 2 of 1983 is condoned.

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(b) The order of abatement dated 24th January 2012 is recalled and set aside.

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(c) Testamentary Suit No. 2 of 1983 is restored to file.

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(d) The Amendment to Testamentary Suit No. 2 of 1983 is allowed. The Applicant in Chamber Summons No. 61 of 2012 is permitted to be impleaded as a partyPlaintiff. The Petition is permitted to be converted to one for Letters of Administration with Will annexed in

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912-NMT108-12.DOC

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respect of the Will dated 16th April 1980. Amendments
to be carried out without need of reverification on or
before 19th October 2016. A copy of the amended
Petition is to be served on the Advocates for the
Defendant (i.e., the Advocates for Surendra Kashib).
Since the amendments only substitute the Plaintiff and
convert the petition into one for Letters of
Administration with Will Annexed, there is no need for
an additional Affidavit in Support of the Caveat by
Surendra Kashib.

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(e)The Defendant’s Notice of Motion No. 97 of 2009 in
Testamentary Suit No. 2 of 1983 is also restored to file.
It will be taken up for hearing and final disposal
separately. A further Affidavit in Reply is to be filed
and served on or before 21st October 2016. Affidavit in
Rejoinder, if any, to be filed and served on or before
25th November 2016. Notice of Motion No. 97 of 2009
to be listed for hearing and final disposal on 2nd
December 2016;

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(f) Issues have already been framed in Testamentary Suit No. 2 of 1983. That Suit will also be listed on 2nd December 2016 for directions as to trial.

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(g) Since the Defendant’s Testamentary Suit No. 109 of 2016 propounds an earlier Will, the trial of that Suit, notwithstanding any previous order of clubbing, will be

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taken up only after Testamentary Suit No. 2 of 1983 is
decided.

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9.Notice of Motion No. 108 of 2012 and Chamber Summons
No. 61 of 2012 are disposed of in the aforesaid terms with no order
as to costs.

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(G. S. PATEL, J.)

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28th September 2016

Dolly Dady Writer v. Khurshed Eruch Writer and Others

Case brief

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Dolly Dady Writer v. Khurshed Eruch Writer and Others

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