Hiru Prem Daswani vs Ishwari Gobindram Samtani… — Succession and Inheritance | Bombay HC (2025)

Hiru Prem Daswani vs Ishwari Gobindram Samtani… — Succession and Inheritance | Bombay HC (2025)

What the court decided

AI extract

Outcome

The non-contesting Testamentary Petition was directed to be dealt with by the Prothonotary and Senior Master (or any other duly authorised officer) under Rule 371 of the Bombay High Court (Original Side) Rules 1980, and the matter was directed to be expedited in view of the age and grievous illness of the youngest legal heir.

Issue for consideration

Whether the Testamentary Petition is a non-contesting petition that can be dealt with by the Prothonotary and Senior Master (or any duly authorised officer) under Rule 371 of the Bombay High Court (Original Side) Rules 1980.

Court's answer

The petition is a non-contesting Testamentary Petition which the Prothonotary and Senior Master, or any other officer duly authorised in that context, can deal with under Rule 371 of the Bombay High Court (Original Side) Rules 1980.

Ratio / Principle

Since the youngest legal heir is 70 years old and is suffering from grievous illness, the matter has been directed to be expedited.

Detailed headnote1 paragraphs

Testamentary and Intestate Jurisdiction, Bombay High Court — Will No. 2076 of 2024 in Testamentary Petition No. 5183 of 2024 relating to the estate of deceased Ishwari Gobindram Samtani; petitioner Hiru Prem Daswani. Following requisitions dated 2nd January 2025 raised by the Testamentary Registrar, the petitioner sought leave to withdraw the earlier Affidavit in Evidence dated 18th December 2023 of Haresh Ahuja, who was not an attesting witness to the will, the correct affidavit of the attesting witness having already been filed. Held (Arif S. Doctor, J.): the petition is a non-contesting Testamentary Petition which the Prothonotary and Senior Master, or any other duly authorised officer, can deal with under Rule 371 of the Bombay High Court (Original Side) Rules 1980 (which empowers the Prothonotary and Senior Master to exercise, in non-contentious matters, the powers conferred by the Indian Succession Act, 1925 on the District Judge). As the youngest legal heir is 70 years old and suffering from grievous illness, the matter was directed to be expedited.

1 19-TP 5183-24 @ WILL 2076-24.doc

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

TESTAMENTARY PETITION NO.5183 OF 2024

Ishwari Gobindram Samtani … Deceased Hiru Prem Daswani … Petitioner

WITH

WILL NO.2076 OF 2024

IN

TESTAMENTARY PETITION NO.5183 OF 2024

Mandakini K. Sinh for the Petitioner.

CORAM : ARIF S. DOCTOR, J. DATE : 21ST MARCH 2025

P.C. :

The matter was on board today pursuant to the following

requisitions dated 2nd January, 2025 raised by the Testamentary Registrar:

“Advocate for the petitioner submits that earlier the petitioner has filed affidavit of Haresh Ahuja one of the Attesting Witness. Advocate for the petitioner submits that the will was attested by Hiru Prem Daswani and not by Haresh Ahuja. Advocate for the petitioner submits that the will was executed and the attesting witness was Hiru Prem Daswani. Advocate for the petitioner submits that she may be permitted to withdraw the earlier affidavit which was filed on 18.12.2023 by Haresh Ahuja. Advocate for the

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petitioner requires to obtain permission from the Hon'ble Court to withdraw the affidavit of attesting witness of Haresh Ahuja who is not a attesting witness to the will. Advocate for the petitioner will seek necessary permission from the Hon'ble Court”

From the aforesaid, it can be seen that the Petitioner seeks leave to withdraw the original Affidavit in Evidence of the attesting witness. Learned Counsel submits that the correct Affidavit in Evidence of the attesting witness has already been filed and thus all that is sought for is withdrawal of previous Affidavit dated 18th December, 2023 of one Haresh Ahuja .

Having due regard to the submissions made, I am of the view, this is a non-contesting Testamentary Petition. The Prothonotary and Senior Master or any other officer duly authorized in this context can deal with it under Rule 371 of the Bombay High Court (Original Side) Rules 1980, which reads thus:

“ 371. Powers of the Prothonotary and Senior Master.- The Prothonotary and Senior Master shall have full power to administer oaths or solemn affirmations in all matters relating to the testamentary and intestate jurisdiction of the Court, to issue sub-poenas to bring in and lodge testamentary papers and documents and to exercise in non-contentious matters the powers conferred by the Indian Succession Act, 1925, on the District Judge.”

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Given the fact that the youngest one of the legal heirs is 70 years

old today and I am informed that he is suffering from grievous illness, the matter has been directed to be expedited.

(ARIF S. DOCTOR, J.)

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