- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. jmi TESTAMENTARY SUIT NO.45 OF 2002 IN TESTAMENTARY PETITION NO.678 OF 1999. Smt.Chandrakala, w/o. Morarji Bhatia, d/o. late Shantikumar R. Canji. ..Plaintiff. vs. Mrs. Geeta Krishnaraj Merchant & Anr. ..Caveators/ Defendants. .... Mr.Zal Andhyarujina, a/w. Mr. N.H.Munjee, i/b. M/s.K. Ashar & Co., for Plaintiffs. None for Defendants. .... CORAM CORAM CORAM: S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. DATE DATE DATE : 31ST MARCH, 2009 : 31ST MARCH, 2009 : 31ST MARCH, 2009. P.C.: P.C.: P.C.: . This suit/petition is filed by the petitioner who is the daughter of the deceased Shanti kumar R. Canji, who expired on 29th May 1998 leaving his last Will and testament dated 8th May 1983. The petitioner has in the suit/petition prayed that the letters of administration with the Will annexed, may be granted to her having effect through out the Union of India. 2. Under the said Will dated 8th May 1983, the deceased had appointed his daughter Dr.(Mrs.) Pushpa V. Joshi (since deceased), son-in-law, Dr. Vasant V. Joshi and Mr.Chandrakant N.M.Shah as the Executors of - 2 - the said Will dated 8th May 1983. The said surviving Executors, viz. Dr.Vasant V. Joshi and Mr.Chandrakant N.M.Shah showed their disinclination to apply to this Court to obtain probate of the said Will of the deceased and expressed their inability to perform their duties as Executors and accordingly, they renounced their right to probate and execution of the said Will. The affidavits of the Executors are filed before this Court. The petitioner who is the daughter of the deceased, therefore, filed this petition. 3. After filing of this petition, in view of the demise of Mr.Krishnaraj S. Merchant (son of the deceased) on 29th October 2001, the petitioner filed an affidavit for carrying out requisite amendment in paragraph 6 column 4 of the petition, so as to bring the heirs and legal representatives of Mr.Krishnaraj S. Merchant on record. On 24th October 2001, a caveat was filed by Mrs.Geeta K. Merchant on behalf of herself and on behalf of Mr.Ajay Krishnaraj Merchant (heirs and legal representatives of late Mr.Krishnaraj S. Merchant). 4. The main grounds urged in the affidavit dated 29th October 2001 filed by the caveator/defendant no.1 in - 3 - support of the caveat are as under :- (a) Sumatibai, Pushpa V. Joshi and Suresh Merchant (wife, daughter and son of the deceased) had expired after the execution of the Will and prior to death of deceased on 29th May 1998. However, the deceased did not execute another Will or make any codicil. On account of the prior demise of Sumatibai, the deceased should have known that the bequest to Sumatibai would be void and unsustainable. Hence the Will dated 8th May 1983 is not the last Will and testament of the deceased, (b) Apart from specific legacies, the alleged Will does not mention other assets of the deceased comprising of moveable and immoveable properties, which are listed in schedule-I, which are valued at Rs.7,52,660/-, (c) There is no residuary clause to whom remaining properties and assets, both moveable and immoveable, have been bequeathed. In the absence of residuary clause, law of intestate would operate. Hence, Krishnaraj, the petitioner, Pushpa Joshi, Suresh Merchant and Sumatibai would be entitled to shares in the estate of the deceased. The caveators are entitled to half share each in the share of the estate of late Krishnaraj as per the law of Intestate Succession, (d) The caveators apprehend that the petitioner is desirous of claiming the entire estate of the deceased to the exclusion of his other heirs, (e) Caveators seek permission of the Court to file an application for grant of letters of administration to the estate of the deceased, (f) Persons appointed as Executors have renounced their executorship which is surprising and curious. Hence, the Executors are not interested in giving effect to the bequests, (g) Will dated 8th May 1983 is not the last Will and testament of the deceased and should not be given effect to, and - 4 - (h) Will should be proved in solemn form and in the absence of residuary clause, the remaining estate and the property of the deceased should be divided amongst the heirs of the deceased on the basis of intestate succession. 5. From the aforesaid grounds urged by the caveators, it is clear that the caveators have not disputed the execution of the last Will and testament dated 8th May 1983 nor they have denied that the deceased was not of sound mind, when they made the said Will. The defendants have not produced any subsequent Will executed by the deceased showing that the Will dated 8th May 1983 of the deceased is not his last Will. 6. As regards the grounds taken up/advanced by the caveators in their affidavit, the same are unsustainable and not tenable in law, since it is not a legal requirement that upon demise of a legatee it is incumbent on the testator to make another Will. Again, the absence of a residuary clause does not render the said Will as illegal. In fact, by seeking permission of this Court for making an independent application for grant of letters of administration, the caveators are in effect propounding the Will of the deceased dated 8th May 1983. - 5 - 7. In my view, the petitioner has through the evidence of PW 1 and PW 2 established that the Will of the deceased dated 8th May 1983 is validly executed as required under the provisions of law. The defendants despite being served with the several notices as can be seen from the affidavits proving service have not come forward to contest the suit at the time of its hearing. I, therefore, pass the following order :- (1) The caveat filed by the caveators is dismissed. (2) The petitioner be granted letters of administration with the Will annexed as prayed, having effect through out the Union of India. . The suit/petition is accordingly disposed of. [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]