Allowed

Nazir Mohamedali Kotadia v. Mohamedali Valimohamed Kotadia (Deceased)

Bombay HC24 Jan 2024TP/348/2024

Case brief

AI extract

What is this about?

Petition by the sole beneficiary under a registered Will for Letters of Administration with Will annexed. Attesting witness proved execution, attestation and testator's sound mind. Petition granted.

What did the court decide?

Letters of Administration with Will annexed granted to petitioner under Indian Succession Act, 1925, subject to administration bond and verification of no caveat or cross petition.

Nazir Mohamedali Kotadia vs Mohamedali Valimohamed… — Succession and Inheritance | Bombay HC (2024)

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BEFORE : MR. DILIP S. GURAV, FIRST ASSISTANT MASTER Date: 11^th November 2024

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CALLED FOR COMPLIANCE :

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22 TP/348/2024 ) Mr. D. R. Pandey, Advocate for petitioner ) ) P.C.: 1. Perused Petition. Heard Ld. Advocate for petitioner. ) This petition is f i led by petitioner, being sole ) benef i ciary named under the Will executed by ) Mohamedali Valimohamed Kotadia (herein after the ) same is referred to as “Testator”), for grant of Letters ) of Administration with Will annexed. Testator said to ) have died on 13.08.2017 at Mumbai. Petitioner f i led the ) copy of death certif i cat e (which is annexed to petition ) as Exhibit- A ), identity proof of the testator (which is ) annexed to petition as Exhibit-A1), Will, petitioner's ) oath. ) 2. The petitioner has explained the delay in para ) No.10 of the petition as per Rule 382 of the Bombay ) High Court (Original Side) Rule, 1980 (for short ) “Rules”). ) ) 3. The testator has not appointed Executor to executeThe testator has not appointed Executor to executeExecutor to executexecutor to execute ) the Will. The petitioner is beingWill. The petitioner is beingill. The petitioner is beingbeing sole benef i ciary named

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3. The testator has not appointed Executor to executeThe testator has not appointed Executor to executeExecutor to executexecutor to execute the Will. The petitioner is beingWill. The petitioner is beingill. The petitioner is beingbeing sole benef i ciary named under the Will. Hence, petition is tenable.

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

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4. Petitioner stated that the testator left behind his last Will and Testament which was duly executed at Mumbai on 17.07.2014, in English language. Ld . Advocate for petitioner submits that the original Will No. 140 of 2024 is handed in separately for being f i led and kept in a safe place in the Ofce of the fi Prothonotary and Senior Master, High Court, Bombay.

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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. 8 of the petition, as per the provisions of the Mohammedan Law applicable to Shia Muslim . Ld. Advocate for petitioner submits that testator married at once with Sakkarkhanu Mohamedali Kotadia. She died on 29.09.2014 and her death certif i cate has been annexed to the petition as Exhibit – “D”. Testator died leaving behind only son namely Nazir Mohamedali Kotadia – petitioner …...2

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– 2 –

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CONTD….

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) 22 TP/348/2024 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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herein. Testator have no daughter and no other son. The petitioner stated on oath that there are no other legal heirs of testator as per Mohammedan Law (applicable to Shia Muslim) other than mentioned in para No. 8 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 26.02.2024. Notice to collector has been sent.

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7. The petitioner has f i led the Afdavit of fi Pooja Darji dated 24.07.2024, one of Attesting Witness to the Will, in the Form No.102 of the Bombay High Court (Original Side) Rules, 1980. Attesting Witness deposed that she was present and testator signed in Gujarati language on the Testament papers in presence of her and another witness. According to her, all additions and alteration, in a Will, were existed at the time of execution and before signing the Will. Hence, there is sufcient compliance of the Rule 383 of the fi Bombay High Court (Original Side) Rules, 1980 .

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Attesting Witness deposed that Will was explained to the testator by Attesting Witnesses at the time of execution execution of the Will. He understood the same as mentioned in para No. 10 of the Will, which reads as “Whatever stated hereinabove is true and correct to the best of my knowledge and belief, and is stated sincerely and honestly and after understanding it properly and I have put my signature in the presence of below mentioned witnesses”. Hence, there is sufcient fi compliance of 419. Will was duly registered before the Joint Sub-Registrar, Borivali No. 2, under registration No. BRL/2/III/5358/2014.

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Attesting Witness further deposed that at the time of execution of the Will, testator was of sound and disposing mind, memory and understanding. Hence, enough evidence is on record to accept the execution of the Will and petitioner is succeeded to prove the execution of Will.

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8. Properties mentioned in the schedule of the petition are referred in the Will. …..3

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CONTD…..

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– 3 –

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) 22 TP/348/2024 ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

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L d. Advocate for petitioner submits that as mentioned in para No. 6 of the petition, which reads as under :

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“The Petitioner has truly set forth in Schedule No. I, hereto annexed and marked Exhibit “C” all the property and credits which the deceased died possessed of or entitled to at the time of his death, which have or are likely to come to his hands”.

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The Ld. Advocate for the petitioner submitted that properties available to the testator at the time of his death are mentioned in the Schedule – I of the petition.

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Ld. Advocate for petitioner submits that properties which are available at the time of death of testator are mentioned in Schedule – I of the petition and hence, other properties which was not available at the time of death viz. Cash, bank account, gold jewellery are not mentioned in Schedule - I of the petition. Statement made by the Ld. Advocate for petitioner is accepted.

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9. Ld Advocate for petitioner undertakes to correct the spelling of sect of the petitioner in the cause title and upload the corrected the petition on the ofcial website fi of the Bombay High Court. The said undertaking is accepted.

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10. Petitioner has executed the administration Bond dated 05.04.2024 in the prescribed format. Hence, following order:

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ORDER

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1) Petition is granted.

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2) Ofce to issue Letters of Administration with Will fi 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.

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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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FIRST ASSISTANT MASTER

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11.11.2024

Nazir Mohamedali Kotadia v. Mohamedali Valimohamed Kotadia (Deceased)

Case brief

What is this about?

What did the court decide?

Nazir Mohamedali Kotadia v. Mohamedali Valimohamed Kotadia (Deceased)

Case brief

What is this about?

What did the court decide?

What the court decided

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