1 nm-91 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.91 of 2010 IN Probate Petition No.819 of 1971 Mrs.Amelia Martins .. .. Petitioner v/s. Patricia Williams & ors. .. .. Respondents Mr.S.M. Sabrad for Petitioner. Mr.Clive D Souza for Respondents. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 2nd September, 2010 P.C. : 1.The Petitioner, who has taken out this Notice of Motion, is one of the executrices and the residuary legatee under the last Will and Testament of one Catherine D monte. The Petitioner is the adopted daughter of the deceased. The deceased also had a son and a grand-daughter through that son. The deceased bequeathed her estate equally to five persons mentioned in Clause-4 of her Will. The first of such persons is the daughter of her deceased son, Valentine. The last 4 such persons are the children of the Petitioner. That having been so, the deceased bequeathed the rest 2 nm-91 and residuary of her estate whatsoever and whichever situated and in whatever form to the Petitioner. The Petitioner, therefore, as a residuary legatee, got whatever was not disposed of under Clause-4 of the Will of the testatrix. Under Clause-4, the land, building, outhouses and shops known as Kate Villa were disposed of. 2.The Petitioner claims that the 1/5th share, which was bequeathed to Anita, has not been administered and given to Anita or taken by her. The said Anita was resident in Ontario, Canada. She died a spinster. Her share has been deposited and invested in Corporation Bank, Bandra (West) Branch, Mumbai and Development Credit Bank, Bandra (West) Branch, Mumbai. 3.The Petitioner claims that as a residuary legatee, she is entitled to the share of Anita which has been so deposited and invested on the ground that it has not been claimed by Anita. The Petitioner would be entitled only to whatever is the estate which was not bequeathed under the Will as a residuary legatee. Her claim as the residuary legatee is under Section 103 of the Indian Succession Act, 1925 (the Act) which runs thus:- 103. Property to which residuary legatee entitled.- Under a residuary bequest, the legatee is entitled to all property 3 nm-91 belonging to the testator at the time of his death, of which he has not made any other testamentary disposition which is capable of taking effect. The deceased had made a testamentary disposition of her estate known as Kate Villa. No part of her estate known as Kate Villa can go to the residuary legatee. 4. It is argued that since the share of Anita was not claimed by her and was not given to her, it must be taken to have lapsed. That is incorrect. The legacy lapses as shown in Section 105(1) of the Act which runs thus:- 105. In what legacy lapses. (1) If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator s property, unless it appears by the Will that the testator intended that it should go to some other person. This is not one such case. The bequest of the estate has been made. The bequest is complete. The bequest has vested in the legatee. The legatee has survived the testator. When the Will is probated, the executor is required to administer that estate. In administration of the estate, it must be handed over to the 4 nm-91 beneficiaries. Since the beneficiary was not found, her share has been separately kept and invested. The administration to the extent of such share is complete. That share forms a part of the estate of such beneficiary. 5.Anita died a spinster in Ontario, Canada. A Petition for issue of succession certificate of her death and securities being Testamentary Petition No.572 of 2007 has been filed in this Court. The succession certificate has not been granted. The Petitioner would have liberty to take out such proceedings in Testamentary Petition No.572 of 2007 for claiming any share upon whatever contention that she may choose in accordance with law. 6.The reliefs claimed by the Petitioner in her capacity as the residuary legatee to claim any part of the amounts deposited in the aforesaid two banks cannot be granted. 7.Hence this Notice of Motion is dismissed with the aforesaid liberty. (SMT.ROSHAN DALVI, J.)