1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY SUIT NO. 71 OF 2003 IN TESTAMENTARY PETITION NO. 671 OF 2003 Maharookh Kaikaus Mistry & Anr. ....Plaintiffs/Petitioners Versus Rohinton R. Shroff & Ors. ....Defendants. Dr.(Mrs.) R.R.Ajinkya for the Plaintiffs/Petitioners. Ms.Prachi Mhatre i/b. M.S.Bodhanwalla & Co. for Defendants. Maharookh K. Mistry, Plaintiff No.1 in person. Kaikaus Byram Mistry, Plaintiff No.2 in person. Ms. Jehanara V. Dadachanji, Deft.9 in person. Mr.Byram P.Shroff, Deft.No.7 and C.A. of Defendant Nos. 1 to 6, 8 & 9 in person. CORAM : S.J.KATHAWALLA, J. DATED : 19th March, 2009. P.C. 1. In the above Suit, the Plaintiffs/ Petitioners filed Petition No.671 of 2003 for Probate of the last Will and Testament dated 25th February, 1993 of the Late Dossabhoy Kaikhushru Shroff (the deceased). The Caveators/Defendants filed a caveat in the said Petition ascertaining that the deceased had executed his last Will and Testament on 14th May, 1987. The Petition was therefore converted into the above Suit. 2 2. Today, the parties have tendered Consent Terms dated 19th March, 2009 which Consent Terms are signed by the Plaintiffs/Petitioners and their Advocate and also the Defendants and their Advocates. The Plaintiffs are present in the Court and the Defendant Nos. 7 and 9 are also present in Court. The learned Advocate for the Defendants states that the Defendant No.7 is a power of attorney holder of Defendant Nos. 1 to 6, 8 and 9. The said power of attorney is dated 5th January, 2004 and a copy of the same forms part of the court proceedings. The said Consent Terms dated 19th March, 2009 are taken on record and marked “X” for identification. 3. Under clause (2) of the Consent Terms, the parties have declared and confirmed that they have amicably resolved all the disputes concerning the estate of the deceased and that probate shall accordingly be issued as per the Consent Terms. 4. Under clause (3) of the Consent Terms, it is agreed by and between the parties that the entire estate of the deceased shall be divided and distributed amongst the persons as per the percentages set out in the annexure to the Consent Terms (which annexure is initialed by all the parties). 5. Under clause (4) of the Consent Terms, it is agreed that the estate of the deceased comprises of all the items enumerated in Schedule 1 of the Petition and all other assets belonging to the deceased which are 3 not enumerated in Schedule 1 of the Petition shall also be divided and distributed amongst the heirs whose names are set out in the annexure to the Consent Terms as per the percentages set out in the said annexure. It is also agreed that the share/securities which are not encashable and cannot be disposed off within a reasonable period of time, the executors/administrators shall be entitled to write off the same. 6. Under clause (5) of the Consent Terms, it is agreed by and between the parties that the Plaintiff No. 1 & 2 shall act and represent on behalf of the Plaintiffs and Defendant Nos. 5 and 9 shall act and represent on behalf of Defendants in the implementation of the Consent Terms and administration of the estate of the deceased in terms thereof. 7. Under clause (6) it is provided how the administration would take place upon probate being granted. 8. Under clause (7), it is agreed that the executors/administrators shall endeavour to complete the administration of the estate with eighteen months from the date of execution of the Consent Terms. 9. Under Clause (9), it is provided as to how the vacancy caused due to refusal of any of the four executors/administrators shall be filled up. 10. Under Clause (10) of the Consent Terms, it is agreed that all the shares belonging to the estate which are in custody of the Bank of India, Mumbai Main Branch or the companies whose shares and securities form part of the estate and all the parties concerned shall deposit all the documents, securities and shares with the aforesaid four 4 executors/administrators jointly, so as to enable them to distribute the assets as set out in the Consent Terms. 11. Under clause (11), it is agreed that all the Banks having accounts standing in the name of the deceased and Postal Authorities shall deposit with the executors/administrators the amounts lying with them in the name of the deceased within one week from the date of receipt of the certified copy of this order. 12. Under clause (12), parties have agreed that the expenses required for administration of the estate of the deceased shall be met from the amounts deposited with the executors/administrators as per the aforesaid clause as set out in the Consent Terms. 13. After going through the Consent Terms, I am satisfied that the parties have entered into a fair settlement pertaining to the estate of the deceased, taking care of all the legal heirs of the deceased. In view thereof, the Suit can be disposed of in terms of the Consent Terms marked “X”. 14. In view thereof, probate be issued in terms of the Consent Terms marked “X”. The Suit is accordingly, disposed of in terms of the Consent Terms dated 19th March, 2009. The certified copy of the order is expedited. 5 (S. J. KATHAWALLA, J.)