IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY SUIT NO. 37 OF 2007 IN TESTAMENTARY PETITION NO. 436 OF 2006. Rahul Chgandrakanat Sonpatki ..... ..... ...Plaintiff V/s Meenakshi Gopalrao Sonpatki ..... ...Defendant/Caveatrix Mr.A.G.Damle, Adv. for the plaintiff Defendant/Caveatrix-in-person. CORAM: A.P.DESHPANDE, J. 17th July, 2009. PC: This petition has been filed by the petitioner for letters of administration to the property of late Gopal Ramchandra Sonpatki who died on 11.11.68 at Dombivli, District Thane. The petitioner is the grand son (s/o Chandrakant) of the deceased. The deceased Gopal Sonpatki left behind, at the time of his death, following legal heirs as his next of kin according to Hindu Succession Act, 1956: 1. Smt.Laxmibai Gopal Sonpatki-widow of the deceased; 2. Two sons by name Arun Gopal Sonpatki and Chandrakant Gopal Sonpatki and 3. Two daughters by name Vijaylaxmi Anantrao Phatak and Meenakshi Gopal Sonpatki (the present caveatrix). 2. Chandrakant Gopal Sonpatki one of the sons of the deceased expired on 4.7.1991 and to substantiate the said fact a death certificate of Chandrakant 1 has been placed on record. Chandrakant left behind the following legal heirs: 1. Smt.Vaishali – wife 2. Rahul – son and 3. Sou.Shalaka Mayekar – the daughter. The wife of the deceased Gopal also expired on 22.3.1990. Her death certificate is also placed on record. Thus according to Hindu Succession Act Gopal has the following surviving legal heirs: 1. Arun Gopal Sonpatki – son 2. Vijaylaxmi A. Pathak – daughter and 3. Meenakshi Gopal Sonpatki – daughter and 4. the heirs of deceased son of Gopal Chandrakant by name Vaishali, Rahul and Shalaka. It is reiterated that the grand son of deceased Gopal has filed the present petition for obtaining letters of administration. All other heirs of late Gopal Sonpatki have given no objection for issuing letters of administration in favour of the present petitioner who is the grand son of deceased Gopal and who has a share and interest in the property left behind by Gopal. Only the caveatrix viz. one of the daughters of Gopal by name Meenakshi is opposing the grant of letters of administration in favour of the petitioner by filing a caveat. It is revealed from the caveat and the affidavit in support thereof that the following objections are raised: 1. That the property for which the letters of administration is applied stands in the name of the caveatrix; 2. That the petitioner has no locus standi and hence the caveatrix is opposing grant of letters of administration. It is then stated that “I am a poor and illiterate old lady and the petitioner is taking undue advantage of the same and by filing this petition the petitioner has played fraud upon this Hon’ble Court.” Right to file further affidavit was reserved. However no further affidavit has 2 been filed by the caveatrix. A very cryptic affidavit has been filed by the caveatrix wherein she admits herself to be a very poor and illiterate lady and does not even seek issuance of letters of administration in her favour. Thus the only ground on which letters of administration is opposed is that the property stands in her name and with a view to demonstrate the same copy of index II is filed on record. 3. The following issues have been framed A) Whether the petitioner is a fit and property person to be appointed as an Administrator of the estate of late Gopal Ramchandra Sonpatki? B) Can the defendant object to grant of Letters of Administration on the basis of caveat and affidavit in support thereof which accepts that all the legal heirs mentioned in para 4 of the petition are entitled for share in the property left behind by Gopal Ramchandra Sonpatki and C) Can the defendant object to letters of administration on the basis of that the property stands in her name as per index II issued in her name. At this stage it is noticed and it is not disputed by the learned counsel for the petitioner that the later part of issue (B) which reads thus: “which accepts that all the legal heirs mentioned in para 4 of the petition are entitled for share in the property left behind by Gopal Ramchandra Sonpatki” is not correct. There is no admission in the caveat and the affidavit filed by the caveatrix in support thereof that the legal heirs mentioned in para 4 of the petition are entitled for share in the property left behind by Gopal. Be that as it may, I proceed to deal with the issues in the light of evidence placed on record. The petitioner has filed an affidavit in lieu of examination in chief and deposed that the property bearing Plot No.7302, Street No.43 with building stand thereon at Lakhamshi Nappu Road, Dadar (E), Mumbai-14 was owned by Ramchandra Atmaram Sonpatki (father of late Gopal). It is stated that the said Ramchandra acquired the property under a lease deed dated 9.10.40 3 from Bombay Municipal Corporation. The certified coy of the lease deed has been tendered on record. The lease deed is dated 9.10.40. Ramchandra expired on 20.1.46 intestate leaving behind his wife and three sons as heirs and legal representatives by name Dwarkabai (wife), Govind, Gopal and Vishwanath (sons). It is then deposed that in the year 1955 the heirs of Ramchandra entered into family arrangement dated 3.3.55 under which all the heirs of Ramchandra got 1/4th share each in the property left behind by Ramchandra. The petitioner has tendered the original deed of family arrangement dated 3.3.55 under which all the heirs of Ramchandra got 1/4th share each. The family arrangement placed on record is duly proved and exhibited. Under the family settlement the property that had fallen to the share of late Gopal is comprised in para 2(c) and the same is block No.2 on the ground floor of the building presently occupied by Shri V.A.Patwardhan, a tenant. It is stated in the family settlement that the said block No.2 is in possession of the tenant and has been allotted to Gopal on ownership basis and he shall enjoy the same as owner and receive rent there from as also possession thereof as soon as practicable. It is this property which forms subject matter of the present petition claiming letters of administration. The parties have acted upon the said family settlement/partition effected in the year 1955. It is then stated by the petitioner in his evidence that Gopal died on 11.11.68 intestate and Laxmibai died on 22.3.90 yet again intestate. It is also stated in the affidavit by the petitioner that heirs of Gopal had filed suit against the tenant of block/flat No.2 bearing Suit No.2896/82 seeking eviction of the tenant on the ground of bonafide need of the family and the suit came to be decreed on 11.10.96. A copy of the judgment is filed on record. It is then stated that an appeal filed by tenant is also dismissed and a writ petition filed by the tenant is pending consideration of this Court. The petitioner has then stated that the entry of the name of the caveatrix is taken in index II on 4 the basis of a representation/declaration dated 5.8.93. A certified copy of the declaration is filed on record and duly proved. Perusal of the declaration reveals that it is stated that all the persons named in this petition in para 4 are heirs of Gopal and the caveatrix is one of them despite that the name of the caveatrix alone came to be recorded as owner in the said index. It is also stated that property survey register prior to mutation of the name of the caveatrix would show the names of all the persons as heirs of Ramchandra. Copy of the property survey register is also placed on record. The petitioner has also placed on record index II (property card) issued by BMC dated 6.7.07 wherein the name of the caveatrix is absent whereas names of other legal representatives of Gopal are borne on the record. The caveatrix who is appearing in person tried to cross examine the petitioner touching the issue of ownership of the property but the said cross examination was not permitted having regard to the jurisdiction of this Court and in view of issues framed in the suit. It cannot be disputed that the jurisdiction of the Court while dealing with testamentary petition would be very limited and all issues pertaining to the title and ownership would fall outside the scope of the said jurisdiction. If the parties are disputing the title of deceased to the estate then remedy for that party lies elsewhere. The caveatrix did neither file an affidavit in lieu of examination in chief nor led any other evidence in support of her case. Thus the only contention that is raised in the caveat is that the property stands in her name in the Corporation record taken on the basis of an application/representation/declaration made by her. It is settled position in law that entries in the record of Corporation would not vest any one with title to the property. Such an entry is only an incident of title and not source of title. Record clearly reveals that the Corporation had granted lease in favour of Ramchandra the great grand father of the petitioner for a period of 99 years and house is constructed on the said plot of land. The ownership of 5 Ramchandra to the property as its first owner stands not only established by lease deed executed by Corporation in his favour but also from deed of family settlement executed way back in the year 1955 by the widow and three sons of Ramchandra wherein each of them obtained 1/4th share in the property. It is thus clear that the present petitioner is one of the heirs of late deceased Gopal being son of Chandrakant. Perusal of section 218 which regulates grant of probate and letters of administration where a Hindu dies intestate provides that administration of estate of the deceased may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased would be entitled to the whole or any part of such deceased’s estate. Thus the only requirement is that the person who is to be issued letters of administration need to be entitled to whole or part of the estate. In the present case I have no hesitation in concluding that the petitioner has established his entitlement to part of deceased’s estate. It is also relevant to note that all the other heirs of Gopal have granted no objection for issuing letters of administration in favour of the petitioner. The caveatrix alone is opposing the same and the only basis on which the petition is opposed is that the name of the caveatrix is borne in the index II register as the sole owner. According to the learned counsel for the petitioner though ordinarily a heir apparent would be presumed to have caveatble interest, however if such caveator sets up a title hostile to the title of the deceased, to the estate then, caveat on behalf of such party would not be maintainable. In his submission for maintaining a caveat the caveator must admit title of the deceased to the estate. The said position is correct position in law. Nothing has been shown as to why the letters of administration should not be issued in favour of the petitioner. The caveatrix who is appearing in person has tried to raise issue relating to the title of the estate. However said issue cannot be gone into and dealt with in the present proceedings. In the result I hold that the petitioner is 6 fit and proper person to be appointed as an Administrator of the estate of late Gopal Ramchandra Sonpatki and the objection raised by the caveatrix for issuance of same is devoid of any merit and hence the objection stands rejected. Petition is allowed. I direct the office to issue letters of administration in favour of the petitioner for managing the estate of deceased late Shri Gopal Ramchandra Sonpatki consisting of immovable property being flat No.2, Ground floor, Ramchandra Bhuvan, Lakhamshi Nappu Road, Dadar (E), Mumbai-400 014. 17.7.2009. 7