Allowed

Adi Keki Motafram v. Ardeshir Jijibhai Divecha (Deceased)

Bombay HC10 May 2024TP/2361/2024

Case brief

AI extract

What is this about?

Petition for Letters of Administration (De Bonis Non) with Will annexed in respect of the unadministered estate of a deceased testator whose executors had earlier obtained probate but died without administering the estate. The First Assistant Master granted the petition and directed issuance of Letters of Administration subject to verification of the administration bond and absence of any caveat o

What did the court decide?

Letters of Administration (De Bonis Non) with Will annexed to be issued to petitioner after verification of administration bond and absence of caveat.

Adi Keki Motafram vs Ardeshir Jijibhai Divecha… — Succession and Inheritance | Bombay HC (2024)

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BEFORE : MR. DILIP S. GURAV, FIRST ASSISTANT MASTER Date: 9^th August, 2024

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CALLED FOR COMPLIANCE :

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40 TP/2361/2024 )

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) Mr. B. G. Saraf a/w. Suyash Kalbhor, Advocate for ) petitioner

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) ) P.C.: 1. Perused Petition. Heard Ld. Advocate for petitioner. ) This petition is f i led by petitioner for the Letters of ) Administration (De- Bonis Non) with Will annexed ) being legal representative of the one of the benef i ciaries ) named under the Will executed by testator namely ) Ardeshir Jijibhai Divecha. Testator has appointed Freny ) Jijibhai Divecha and Sohrab Jijibhai Divecha being ) Executors / Executrix under the Will. Said Executor / ) Executrix had applied to this Hon’ble Court for petition ) for Probate of the last Will and testament of the testator ) abovementioned in Testamentary Petition No. 96 of ) 1976. This Hon’ble Court was pleased to grant Probate ) in favour the Executor / Executrix having ef f ect ) throughout the India on 30.08.1977. Copy of the ) Probate is annexed to the petition as Exhibit – “C”. ) After obtaining Probate, the said Executor / Executrix ) during their lifetime did not administered the estate of ) the testator in favour of the benef i ciaries. They died ) without f i nal distribution of the estate to heirs as per the ) provisions of the Will. The Executrix namely Freny J. ) Divecha died on 02.08.1981 and her death certif i cate is ) annexed to the petition at Exhibit “C1”. Other Executor ) namely Sohrab J. Divecha also died on 11.031.1995 and ) his death certif i cate is annexed to the petition at Exhibit ) “C-2”.

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) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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2. Ld. Advocate for petitioner submits that the items shown in Schedule I to the petition No. 96 of 1976 and which have remained to be administered / transmitted are shown in Part I of the Schedule I to the petition, which has been annexed to the petition as Exhibit – “D”. Ld. Advocate for the Petitioner submits that item shown in the Schedule-I of that Probate remained to be administered, as the above Executor / Executrix …..2

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CONTD….

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) 40 TP/2361/2024 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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died without administering the properties. Also, benef i ciaries named under the last Will of testator has not administered the properties belongs to the testator as shown in Schedule I to the petition. Hence, petitioner is legal representative of one of the benef i ciaries named under the Will dated 25.09.1993 of Sohrab J. Divecha who is one of the Executor and benef i ciary in the Will of the testator. Hence, Ld. Advocate for petitioner submits that petitioner herein is proper person to apply for Letters of Administration (De Bonis Non) for the Will annexed for the un-administered estate of the testator. He further submits that the Petition f i led to Probate will and testatment of Sohrab J. Divecha was f i led by Adi Keki Motafram – petitioner herein having Testamentary Petition No. 2237 of 2024.

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3. Said testator said to have died on 30.08.1973 at Mumbai. Petitioner f i led the copy of death certif i cate (which is annexed to petition as Exhibit- A), photocopy of Probate issued by this Hon’ble Court in Testamentary Petition No. 96 of 1976, petitioner’s oath and Afdavit of the legal representatives of the fi benef i ciaries.

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4. Petitioner stated that the testator left behind his last Will and Testament which was duly executed at Mumbai on 23.05.1973, in Gujarati language. Ld . Advocate for petitioner submits that the original Will is handed in separately for being f i led and kept in a safe place in the Ofce of the Prothonotary and Senior fi Master, High Court, Bombay in Testamentary Petition No. 96 of 1976.

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5. Petitioner states that parents of testator were predeceased to him and testator was survived by legal heirs shown in the paragraph No. 6 of the petition, as per the provisions of the Indian Succession Act, 1925 applicable to Parsi. Testator has one brother namely Sorab J. Divecha and one sister namely Frenny Divehca, both of them died as bachelor and spinster respectively. Legal heirs shown in para No. 6 of the petition are cousin sister of the testator (father’s brother daughter) and her son namely …..3

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CONTD....

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) 40 TP/2361/2024 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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Adi Keki Motafram – petitioner herein. Consent Afdavit of Thrity Keki Motafram dated 05.08.2024 is fi on record. She has given her consent in the form of Afdavit, which is f fi i led on the record by the petitioner and consented for the issuance of Letters of Administration with Will annexed in favour of the petitioner without justifying any surety in respect of her share in the estate of the testatrix. She has waived the service of Citation. The petitioner afrmed that there fi are no other legal heirs of the testatrix other than mentioned in para 6 of the petition.

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6. Afdavit of Service of General Citation is f fi led, i stating that citation has been afxed on the Notice fi Board of the Hon’ble High Court, Bombay and notice board of the Collector’s ofce on fi 19.07.2024. Notice to collector has been sent.

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7. Will is already proved in Testamentary Petition No. 96 of 1976. Properties mentioned in the Schedule–I of the petition are mentioned in the Probate which are yet to be administered.

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8. Ld. Advocate for petitioner submits that as per Will, there are benef i ciaries namely Gula Kokhasru Doctor and Jiji Farendun Divecha. He submits that both the benef i ciaries died and he undertakes to fle death i certif i cates on the ofcial portal of the Bombay High fi Court within one week from today. The said undertaking is accepted.

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9. Furthermore, Ld. Advocate for petitioner submits that he has f i led Administrator’s Oath of the petitioner and undertakes that he will faithfully administered the property and credits of the testator and in any way concerning his Will by paying f i rst his debts and then the legacies therein bequeathed so far as the said assets and f i le inventory of the said assets. Petitioner has undertaken to faithfully administer the properties which was remained to be administer as per the Will of testator. Hence, Letters of Administration (De-Bonis Non) with Will annexed being legal representative of one of the benef i ciaries should be granted to the petitioner. …4

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) 40 TP/2361/2024 ) 10. Petitioner has executed the Administration Bond ) dated 25.07.2024, in the prescribed format. Hence, ) following order: ) ORDER ) 1) Petition is granted. ) ) 2) Ofce to issue Letters of Administration fi (De Bonis ) Non) with Will annexed as per the provisions of the ) Indian Succession Act, 1925 to the petitioner and upon ) satisfaction that the administration Bond is properly ) executed, as per the Rules. ) 3) Before issuance of above said Letters of ) ) Administration with Will, the ofce to verify that there fi ) is no cross Petition is pending or caveat is f i led. Ofce fi ) to act accordingly.

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09.08.2024 FIRST ASSISTANT MASTER

Adi Keki Motafram v. Ardeshir Jijibhai Divecha (Deceased)

Case brief

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Adi Keki Motafram v. Ardeshir Jijibhai Divecha (Deceased)

Case brief

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What did the court decide?

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