1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY SUIT NO.1 OF 2005 IN TESTAMENTARY PETITION NO.756 OF 2003 Mrs.Piroja Dhunjishaw Chothia .. Deceased Bomi Dhunjishaw Chothia .. Plaintiff/petitioner versus Jerroo Minoo Chothia & Anr. .. Defendants/caveators Mr.D.R.Mishra for the plaintiff. Mr.S.Mendon i/by Prakash & Co for the defendants. CORAM : A.S.OKA, J. DATE : 4th December 2009. JUDGMENT: . I have heard the submissions of the learned counsel appearing for the parties. The petition has been filed praying for grant of letters of administration with Will annexed to the property and credits of Mrs.Piroja Dhunjishaw Chothia. The contention in the petition is that the petitioner/plaintiff who is the 5th youngest son of the deceased is a legatee under the last Will and testament dated 7th April 1973 of deceased Mrs.Piroja Dhunjishaw Chothia. The deceased expired on 13th July 1980. 2 2. They were surviving executors under the Will. They did not apply for grant of probate and therefore a misc. petition was filed by the petitioner in this Court. In the said misc.petition, by order dated 6th February 2003, this Court directed the surviving executors to deposit the original Will of the deceased with the Prothonotary and Senior Master of this Court. In the same order it was recorded that the surviving executors did not wish to apply for probate. Under the said order, the petitioner was permitted to file the present petition. 3. A caveat has been filed by the caveators/defendants, contending that when the last Will was executed by the deceased she had left behind her only the movable properties which are already distributed/divided amongst heirs. It is contended that nothing remained to be administered in respect of the estate of Mrs.Piroja Chothia. 4. The learned counsel appearing for the petitioner submitted that the caveators have not disputed the execution of the Will by the deceased and the contention raised in the caveat is as regards the title to the property which was allegedly left behind by the deceased. The learned counsel appearing for the defendants/caveators submitted that the entire estate of the deceased was already administered. He has placed reliance on what is set out in the affidavit in support of the caveat by the respondents. He submitted that the petitioner and all other legal representatives of the 3 deceased were aware that nothing remained to be administered in respect of estate of the deceased. He pointed out that when the deceased died, the father of the caveators was alive and he died on 4th June 2000. He, therefore, submitted that no case is made out for grant of letters of administration with will annexed. 5. I have given careful consideration to the submissions. It will be necessary to consider the relevant averments in the affidavit in support of caveat filed by the defendants/caveators. In paragraph 5 of the affidavit, there is a reference to the properties which were allegedly held by the deceased. After referring to the various transactions in respect of property, in clauses (f) to (i) of paragraph 5 it is stated thus: “(f) The said Pirojbai died on 13th July 1980 and the said Minoo survived her and died on 4th June 2000. We say that in view of the right of survivorship contained in the said Indenture, upon the said Pirojbai predeceasing the said Minoo, the said Minoo, during his life time was solely and exclusively entitled to the said premises and upon his death his heirs i.e we, the deponents herein and the second son of the said Minoo, one Mr.Homi, are entitled to the said premises equally i.e 1/3rd each. (g) In the circumstances aforesaid, we say that an view of the provisions contained in the said Indenture and in view of the said Pirojbai predeceasing the said Minoo, she had no right, title, interest or claim upon the said premises or any part thereof and consequently none of her heirs or the legal representatives has any right, title, interest or claim in the said premises or any part thereof. (h) The said Pirojabai was also aware of the aforesaid provisions in the said Indenture and therefore she did not made any reference of the said premises at all in her last Will and Testament dated 7th April 1973. We say that as far as we are aware the said Pirojbai died 4 leaving behind her only the movable properties, which are already distributed/divided from and amongst her heirs. In view of the above position, nothing remained to be administered in respect of the estates of the said Pirojbai”. Clause (h) shows that even though caveators have admitted the execution of the last Will and testament dated 7th April 1973, the only dispute in substance and in effect raised in the caveat is as regards the title of the property allegedly held by the deceased. It is well settled the in proceedings of probate or letters of administration with will annexed, the issue of title regarding the properties allegedly claimed or held by the deceased cannot be gone into and cannot be decided. The said issue is required to be decided in appropriate proceedings. As execution of the Will is not disputed, even if letters of administration is granted, this Court is not empowered to make any adjudication on the issue of title while granting letters of administration. 6. Therefore, subject to observations made above, the prayer in the suit will have to be granted. 7. Hence, the suit is disposed of by passing following order: : O R D E R : (a) The petitioner/plaintiff shall be granted letters of administration of Will dated 7th April 1973 annexed to the property and credits of Mrs.Piroja Dhunjishaw Chothia. 5 (b) There will be no orders as to costs. (c) The issue of the title to the properties allegedly held by the deceased is kept open. (d) The drawn up order be dispensed with. (A.S.OKA,J)